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HomeMy WebLinkAbout1991-0217.Solomon & Auld.94-10-14 ...' '~ i'i : · , ' ONTA RIO EMPLO Y[zS DE LA COURONNE · ~.:' ~ .~ . CROWNEMPLOYEE$ DEL'ON'fAR.IQ GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 QUNDAS STREET WEST, SLItTE 2;O0, TO.~ONTO, ONTARIO. M5G IZ8 TELEPHONE/T£L£PHONE: (476)326-~38,~ 150~ RUE QUNDA$ QUEST. BUREAU 2'~00, TORONTO (ONTARIO). M5G 1Z8 I=ACSIMILE/T[-:L~COPIE : (4 r6J 326-1396 217/91, 219/91 IN THE M~TTER OF ~N~BITI~TION Un,er THE CRO~N EHPLOYEES COLLECTIVE B~GAZN~NG &CT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Solomon/Auld) - Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE S. Stewart Vice-Chairperson E. Seymour Member M. O'Toole Member FOR THE J. Monger GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE B. Ross EMPLOYER Counsel Ministry of Correctional Services HEARING July 12, 1994 DECISION In a decision dated December 18, 1992 the Board dealt with classification grievances of Mr. D. Auld and Mr. R. Solomon wherein the grievors claimed that their position of Driver was improperly classified as Motor Vehicle Operation 1 and sought classification as a Correctional officer 2 or, alternatively, a "Berry Order", an order directing the Employer to develop an appropriate classification for the position. Mr. Auld gave evidence as a representative grievor. The grieuances were allowed. A further hearing was convened to deal with issues arising in connection with the implementation of the decision. At pp. 13-15 the decision states as follows: It is our conclusion that the responsibilities of the grievors referred to in the foregoing paragraph exceed those contemplated by the Motor Vehicle Operator 1 classification considered in light of the custodial responsibility allowance. Accordingly, the grievances must succeed. However, the Employer has now limited the responsibilities of the grievors in such a manner that in our view there is a comfortable fit between their duties and responsibilities and the language of the Motor Vehicle Operator 1 class standard, in light of the fact that they are in receipt of the custodial responsibility allowance. Given our acceptance of the Union's "standards" argument that the nature of their duties and responsibilities of the position of the grievors at the time of the grievance go beyond those contemplated by the Motor Vehicle Operator 1 class standard at the time of the grievance it is necessary to address the matter of remedy.' In our view, the duties of the grievors as they existed at that time properly fit within the Correctional officer 2 classification and we so declare. While we note that the grievors did not fill the formal requirements for this classification in that they did not formally complete a year of service in the 2 Correctional officer 1 classification nor did they fulfil the alternative requirement of completing a prescribed training course, in our view the nature of the functions that they performed placed them comfortably within this classification. However, given our conclusion that the duties and responsibilities of the grievors now fit comfortably within their current classification, the issue of a different classification for the position is essentially an academic matter. The real issue is compensation for the duties that the grievors assumed for the period of twenty days prior to the filing of the grievance and December 4, 1991, the date that the grievors were specifically advised of the limitations under which they were to operate. We retain jurisdiction in this matter to deal with any difficulties in the implementation of this decision. The issues in dispute between the parties relate to how the grievors are to be compensated. It is the position of the Employer that the grievors are to be compensated on the basis of the provisions of the Collective Agreement relating to 'temporary assignments. It is further the position of the Employer that the grievors ought properly to be paid at the start level of the CO2 classification. It is the position of the Union that the grievors are to be compensated on the basis of the provisions of the Collective Agreement relating to re-classification, which would result in red-circling at the time that the duties of the grievors were restricted. It is further the position of the Union that the grievors are properly placed at the top level of th~ C02 salary grid. There was an issue of interest between the parties however we were advised that this matter was resolved in principle. We were referred to the following provisions of the 3 Collective Agreement: ARTICLE 5 - PAY ADMINISTRATION 5.2.1 Wher~ the duties of an employee are changed as a result of reorganization or reassignment of duties and the position is reclassified to a class with a lower maximum salary, an employee who occupies the position when the reclassification is made is entitled to salary progression based on merit to the maximum salary of the higher classification including any revision of the maximum salary of the higher classification that takes effect during the salary cycle in which the reclassification takes place. ARTICLE 6 - TEMPORARY ASSIGNMENTS 6.1.1 Where an employee is assigned temporarily to perform the duties of a position in a classi- fication with a higher salary maximum for a period in excess of five (5) consecutive working days, he shall be paid acting pay from the day he commenced to perform the duties of the higher classification in accordance with the next higher rate in the higher classification, provided that where such a change results in an increase of less than three percent (3%), he shall receive the next higher salary rate again. 6.6.1 Where an employee is assigned temporarily to a position, Article 4 (Posting and Filling of Vacancies or New Positions) shall not apply except where: (i)· the term of a temporary assignment is greater than six (6) months' duration, and (ii) the specific dates of the term are established at least two (2) months in advance of the commencement of the temporary assignment. We will deal first with the issue of which provisions of the Collective Agreement govern the compensation of the grievors. 4 Mr. Ross argued that the circumstances cannot be considered to fall within Article 5.2.1 on the basis that this provision would have application only upon a re-assignment of duties while the grievors were actually within the Correctional Officer 2 classification.. It was argued that because the Board did not specifically direct the re-classification of the positions to the Correctional Officer 2 classification this provision has no application. It was further argued that the Board is functus officio in terms of such a determination and its retention of jurisdiction is limited to fixing an amount of compensation in accordance with the terms of the Collective Agreement for the fixed period identified in the decision. In his submissions, Mr. Monger emphasized that the Board had concluded that the position in issue did not fit within its existing classification, had further concluded that the position in issue "properly fit within the Correctional Officer 2 classification", and had issued a declaration to that effect. Mr. Monger noted that the Board expressly reserved jurisdiction to deal with any difficulties arising in the implementation of the decision. The doctrine of functus officio is discussed in Ministry of Revenue & OPSEU (Esmail) 1186/87 (Dissanayake) which at p. 6 refers to the Board's decision in Fiqliano 218/79 (Pritchard) where at p. 14 the Board states: .. the better view is that jurisdiction is re~ained only with regard to those issues on which jurisdiction is reserved expressly or implicitly and those issues on which the board 5 has not reached a final conclusion. Whether or not jurisdiction is retained becomes therefore a matter of fact to be resolved by reference to the board's decision and the conduct of the proceedings before i~. While Mr. Foster's position is not without ingenuity, we are unable to conclude that it is compelling. While, as Mr. Foster emphasized, the Board characterized the issue of a new classification as an "academic" matter, the Board had not reached a final conclusion on the matter of remedy. While the decision indicates that the "real" issue is compensation for a particular period, the Board retained jurisdiction in the broadest terms, in no way restricting its retention of jurisdiction to the calculation of compensation for a prescribed period. The Board did not deal with the matter of remedy comprehensively or finally. Rather, as in the usual case, the decision expressed certain conclusions with respect to the matter and retained jurisdiction in broad terms to deal with any matters necessary to finalize the dispute after allowing the parties to deal with such matters. The parties did not address the foregoing provisions of the Collective Agreement in the initial hearing before us. In our vieW, Mr. Monger is correct in his submission that the provisions relating to temporary assignments can have no application in these circumstances and that the applicable provisions are those relating to pay administration, resulting in a "red circling" in this instance. 6 The issue relating to placement on the grid is also not one that is properly determined on the application of the temporary assignment provisions. W~ agree with Mr. Monger's submission that the applicable approach is that set out in Ministry of Government Services & OPSEU (Campbell), 1267/88 (Samuels) where at p. 5 the Board concludes: "Once correctly classified, they ought to be paid at the level they would have been paid had they been correctly classified from the outset". Mr. Auld testified as a representative grievor and applying the principle from the Campbell decision,~ ~t is clear that his placement is properly at the top level of the C02 grid. The placement of Mr. Solomon is to be determined on the same basis, in light of his particular circumstances. We retain jurisdiction to deal with any remaining disputes between the parties relating to the implementation of this decision and our initial decision. DATED at Toronto, this !4~h day of'0ctGber , 1994. S.L. Stewart, Vice-Chairperson E. Seymour, Member M.. O' Toole, Member