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HomeMy WebLinkAbout1996-2990.Macfadyen_97-06-13 Decision ONrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'O/'flARIO ~ _ _ GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 118 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 118 FACSIMILEITELECOPIE (416) 326-139tJ GSB # 2990/96 OPSEU # 97A096 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (MacFadyen) Grievor - and - the Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE B Fisher Vice-Chair FOR THE G Leeb GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE D Holmes EMPLOYER counsel Legal Services Branch Management Board Secretariat HEARING May 6, 1997 .,r- - 2- This case involves the application of Article 34 of the Collective Agreement involving the conversion of GO Temp positions to the Classified Service The material facts are not in dispute and can be set out as follows. 1 The Grievor commenced employment with GO Temp in February 1994 2. Commencing September 6,1994 he performed the same work for a two year period up to and including September 6, 1996 3 While at GO Temp he was paid at the rate of $22.53 per hour, which corresponds with the Systems Officer 3 rate in the wage schedule in the Collective Agreement for GO Temp classifications. 4 The Ministry determined that there was a continuing need for the work performed by the Grievor to be performed on a full time basis, thus they converted the position to the Classified Service pursuant to Article 34.2.1 with an effective date of November 12, 1996 5 In the process of the conversion, the Ministry did a job audit of the Grievors' duties in order to determine which classification the new position should fall into to The result of the job audit was that it was felt the most appropriate job .-- - 3 - classification in the Classified Service was that of Systems Officer 2. The wage rate for this position fell within the range of the Grievors' previous pay as a GO Temp 6 The Union is not alleging that the job audit was done in a manner that was either arbitrary, discriminatory or in bad faith 7 GO Temp rates are generally less than the Classified Service rates for the same classification The relevant provisions of the Collective Agreement are as follows 342.1 where the same work has been performed by a GO Temp empioyee for a period of at least two consecutive years, and where the ministry has -- determined that there is a continuing need for that work to be performed on a full- time basis, the ministry shall establish a position within the Classified Service to perform that work. 34.2.2 Where the ministry has determined that it will convert a position in accordance with Article 34.2 1, the status of the incumbent in the position will be converted from GO Temp to classified, provided that the incumbent has been in the position in question for at least two years. The Union's contention is that the Ministry had no right to conduct a job audit at the time of the conversion and should have simply classified the position as a Systems /' - 4 - Officer 3, which is the same classification that he had while he was a GO Temp If the Ministry felt, after the conversion, that he was really performing the duties of a Systems Officer 2, they could do to his position whatever they would normally do to a Classified employee whose classification was being lowered due to a review of their actual job duties following a job audit. . The Ministry's position is that upon conversion they have the management right to determine the appropriate classification within the Classified Service and are not bound to simply follow through with the Classified position which is the equivalent to the GO Temp classification Their decision as to the appropriate classification can only be reviewed by the Grievance Settlement Board, if there is an allegation that the exercise of this management right was done in a manner which was arbitrary, discriminatory or in bad faith No such allegation was made in this case The Grievor still has a remedy if he feels that he is wrongly classified, that is to file a complaint with the Joint System -- Subcommittee of the CERC ("JSSC") under Appendix 13 of the Collective Agreement. The decision of Vice Chair Briggs in Union Grievance #2695 makes it clear that the JSSC is obligated to receive complaints of that nature at the present time and rule on those complaints First of all, in the absence of any evidence to the contrary being presented to me at the hearing, I am prepared to find that the classification standards for a GO Temp Systems Officer 3 are the same as a Systems Officer 3 in the Classified Service ~ ---- - 5 - I find that the Ministry's position is correct. The use of the phrase ''the ministry shall establish a position within the Classified Service to perform the work "is not as restrictive as the Union contends It is akin to what would happen if the Ministry were to establish a new position in a Ministry For instance, let us assume that a branch of a Ministry decided it wants to hire its first Systems Officer It would clearly have the management right to define the work that needs to be done and assign the classification that it thought was correct to the posting If there was a dispute as to whether or not it was the right classification, then the Grievor could file a complaint with the JSSC, however, he or she could no longer file a grievance and have the matter heard befere the Grievance Settlement Board Despite the grievance not being successful on this main point, there is another issue that still needs to be addressed, which is the effective retroactive date for the -- Grievers' appointment to the Classified Service The Ministry contends that it has the right to take a reasonable time after the two years referred to in Article 34 2.1 to establish the position within the Classified Service and thus the incumbents right under Article 34.2.2 to be awarded that position upon conversion is also subject to a reasonable delay after the two year period The Ministry further states that the delay in this case was only a little over two months, which is reasonable ~._- .,- - 6 - The union's contention is that the Grievors' right to be converted is governed by Article 34.2 2 which indicates that the Grievors' right to have his status converted is only dependant on the provision that the incumbent has been in the position in question for at least two years. The Grievor fulfilled that provision as of September 6, 1996, and thus should be converted to the Classified Service as of that date On this point I agree with the union The governing Article is 34.2 2, which talks of the incumbent being in the position for at least two years. To add a doctrine of "reasonable delay of implementation "to this process will only invite more litigation over issues like what that term means, who is at fault for the delay and whether the fact that the Ministry has limited financial resources to carry out these job audits in a timely function is a relevant factor in determining the length of a reasonable delay The Ministry is not in any way prejudiced by a rule that the Grievor is entitled to compensation under this section once he or she has been in the subject position for at .. least two years as throughout the period that it takes the Ministry to convert and classify the position, the Grievor will be performing the work in question. The Grievor on the other hand need not unduly concern him or herself over the inevitable delays in this process, as they will know that once the conversion comes through, the effect will be made retroactive to the date upon which they fulfilled the two year requirement. ~ - 7 - The grievance is therefore allowed to the extent that the date upon which the Grievor is deemed to have become a member of the Classified Service is to be ~ amended to be September 6,1994 Dated at Toronto this 13TH day of June, 1997 . Barry B Fisher, Vice Chair .> -- ONrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO _ _ GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 1YU8f~ D~tg'~ (fJJ~7BUREAU 2100. TORONTO (ON) MOO 1Z8 FACSIMILE/TELECOPIE (416) 326-139tJ AMENDMENT RE: 2990/96 OPSEU (MacFadyen) and The Crown in Right of ontario (Ministry of the Solicitor General & Correctional Services) Please replace page 7 of your copy of the above noted decision with the enclosed. The corrected page 7 should read "September 6, 1996 " ;:tjlYi; I /J '7/)( / '~0/JI~ L. Stickland Registrar LS/dbg Encl --- - 7 - The grievance is therefore allowed to the extent that the date upon which the Grievor is deemed to have become a member of the Classified Service is to be amended to be September 6,1996 Dated at Toronto this 13TH day of June, 1997 Barry B Fisher, Vice Chair / /