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HomeMy WebLinkAboutP-1996-0185.Fernandez.00-05-25 Decision - -. ~- - ~ --- ~ r..-- )It; PSGB # P/0185/96 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN John Fernandes GIievor - and - The Crown III RIght of Ontano (Mimstn of Transportatlon) Employer BEFORE D JD LeIghton Vice ChaIr FOR THE John Fernandes GRIEVOR FOR THE MelIssa Nixon EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING Ma, 16, 2000 Mr John Fernandes began work wIth the Mimstry of TransportatIOn In July 1968 as a cartographer In February 1973 he was appoInted Cartography SupervIsor a posItIOn classIfied as TM15 (Techmcal Module) He worked In thIS posItIOn untIl September 1997 when he retIred from the Ontano PublIc ServIce On February 27 1997 he forwarded a gnevance to the board allegIng: I have been under classIfied for some tIme and the enclosed correspondence IndIcates that I have been dISputIng thIS wIth management. My supenor Mr Tim Wood who concurred wIth me referred my gnevance to semor management for reclassIficatIOn to TM 16 ThIS request was turned down by our Human Resources In March 1990 However I am now dISputIng the fact that the Mimstry of Natural Resources (MNR) cartographers and theIr supervIsor had Increased In pay when theIr Job specIficatIOns were rewntten In 1989 but thIS pay Increase Inadvertently perhaps, was not applIed to my posItIOn, SInce we do exactly the same type of work MNR do I e produce map products, our semor cartographers and my Job specIficatIOns were rewntten In the Mimstry of TransportatIOn In 1989 The semor cartographers approached semor management for a pay raise based on the new Job specIficatIOns but the Human Resources turned down theIr request. The semor cartographers wIth the aid of OPSEU appealed the decIsIOn whIch went to arbItratIOn. In July 1995 the arbItrator awarded semor cartographers approxImately 9% pay raise back datIng to 1990 Except I was not fortunate to get any raise In pay from the out come of thIS award. At the outset of the heanng Into thIS matter counsel for the employer Ms Nixon, made a prelImInary motIOn to dIsmIss the gnevance as InarbItrable for three reasons 1 the gnevance IS essentIally a classIficatIOn gnevance 2 the gnevance seeks retroactIve Increases In pay based on a claim that OPSEU cartographers receIved an Increase In July of 1995 through an arbItratIOn decIsIOn, 3 the gnevance IS not tImely The partIes agreed to the facts for the purpose of the prelImInary and the board proceeded to hear argument based on the agreed statement of facts and documents Ms Nixon argued that the documentary eVIdence shows that Mr Fernandes complaIned about beIng underclassIfied In 1989 Also It was 1989 when the gnevor learned that 2 cartographers In the Mimstry of Natural Resources had been reclassIfied because of changes In technology These cartographers receIved an Increase In pay wIth the reclassIficatIOn. It was as result of the reclassIficatIOn of the cartographers at MNR that cartographers In the bargaInIng umt (OPSEU) of MOT gneved. A subsequent arbItratIOn award gave them a 9% Increase In salary Mr Fernandes' gnevance letter dated February 27 1997 also makes claims based on thIS OPSEU award. Mr Nixon argued that subsectIOn 31 (4) of RegulatIOn 977 passed pursuant to the PublIc ServIce Act, RS 0 1990 c.P 47 as amended, prohIbItS the board from heanng a gnevance whIch seeks a reVIew of the Job classIficatIOn of an IndIVIdual She also cIted Kranvak and the Mimstry of SkIlls Development P/0003/91 (Willes) and McLagan et al. and the Mimstry of the SOlICItor General and CorrectIOnal ServIces P/0019/95 et al (Willes) whIch held that the board has no JunsdIctIOn to hear classIficatIOn gnevances The gnevor also made a claim for the same treatment as bargaInIng umt employees, and counsel argued that the board has no JunsdIctIOn to hear thIS Issue There IS no claim of dISCnmInatIOn or bad faith or breach of workIng condItIOns or terms of employment. Counsel asked the board to reVIew Mamson and the Mimstry of CorrectIOnal ServIces P/0004/88 (Emnch) Scott et al. and the Mimstry of TransportatIOn P/OOO 1/96 et al (Lynk), and McConnell et al. and the Mimstry of TransportatIOnP/0051/93 et al (LeIghton) FInally counsel argued that Mr Fernandes knew about hIS gnevance In 1989 but dId not gneve untIl 1997 He knew about the award whIch gave the bargaInIng umt employees a hIgher classIficatIOn In 1995 but stIll dId not gneve untIl 1997 ThIS kInd of delay IS unfair to the employer Counsel asked the board to dIsmIss the gnevance as InarbItrable on anyone of these grounds Mr Fernandes argued that as long as JustIce IS to be done, It does not matter If the gnevance IS late He was of the VIew that gIven the bargaInIng umt employees were gIven a 3 hIgher classIficatIOn and gIven hIS supervIsor was reclassIfied to a hIgher level, It was a gross InjUstIce to hIm not to be lIkewIse reclassIfied. He was of the VIew that he was entItled to compensatIOn based on a 9% Increase In hIS salary from 1989 to the date of hIS retIrement In 1997 DECISION HavIng carefully consIdered the submIssIOns of the partIes, I have decIded to dIsmIss Mr Fernandes' gnevance His complaInt IS essentIally a classIficatIOn gnevance, for whIch thIS board has no jUnSdIctIOn. His complaInt In hIS own words IS that he has been "under-classIfied" as a TM15 and he sought to be reclassIfied as a TM16 In so far as the gnevance makes a claim for relIef based on what OPSEU bargaInIng umt employees were gIven pursuant to an arbItratIOn award, It IS also InarbItrable There IS no allegatIOn here of a breach of a workIng condItIOn or term of employment. There IS no allegatIOn of dISCnmInatIOn or bad faith. FInally the gnevance IS out of tIme ThIS board has held consIstently that It wIll consIder the gnevor's reason for delay However no eVIdence that would JustIfy the delay was provIded. Thus, for the reasons noted above, the motIOn to dIsmIss the gnevance as InarbItrable IS granted, and the gnevance IS dIsmIssed. Dated at Toronto thIS 25th day of May 2000 ~ -.: -- -- oz'" , . .. . ) . .1 .... . '=. ._ , .' . I. n ""_- .~ DJ.D LeIghton, Vice Chair 4