Loading...
HomeMy WebLinkAbout1999-1977.Anthony et al.04-04-28 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec, (416) 326-1396 GSB# 1999-1977 2000-1013 2001-0969 2001-0970 UNION# 00D159 00D390 01B311 01B312 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Anthony et al) Grievor - and - The Crown In RIght of Ontano (Mimstry of Labour) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION Richard Blair Ryder Wnght, Blair & Doyle Barnsters and SOlICItorS FOR THE EMPLOYER Andrew Baker Counsel Management Board Secretanat HEARING March 12,2002 WRITTEN December 18 2003 January 14 SUBMISSIONS Apnl27 2004 2 Award The gnevances at Issue relate to the ImplementatIOn of a Memorandum of Agreement entered Into between the partIes on Apnl 18 2000 The Employer has moved to dIsmIss the gnevances ThIS Award addresses the Employer's motIOn. Facts The partIes proceeded by way of wntten facts supplIed by the Umon. For the purposes of ItS motIOn to dIsmISS, the Employer took the posItIOn that the accuracy of the facts supplIed by the Umon was not relevant, but that, If necessary It would be prepared to rebut a number of the Umon's submIssIOns The facts supplIed by the Umon are as follows 1 In negotIatIOns for the CollectIve Agreement for the penod January 1 1999 to December 21 2001 the Umon and Employer negotIated a new pay framework for the Inspector AudItor and InvestIgator claSSIficatIOns In the ADM (admInIstratIve) bargaInIng umt. The manner of ImplementatIOn of that framework, whIch IS ExhIbIt 1 In these proceedIngs and IS contaIned at pages 188-191 In the CollectIve Agreement, was not finalIzed. The Letter of UnderstandIng settIng out the framework IS dated June 25 1999 2 Subsequently OPSEU took Issue WIth the Employer In respect of the manner of ImplementatIOn of the framework, and a Umon gnevance - PolIcy Gnevance #00U031- was filed. 3 That gnevance was subsequently settled by memorandum of Apnl18 2000 4 Although the Apnl 18 memorandum was entered Into and resolved certaIn Issues concernIng the ImplementatIOn of the June 25 1999 Letter of UnderstandIng, the Letter of UnderstandIng dated June 25 1999 remaIned In force and was not superseded by the Memorandum of Agreement dated Apnl 18 5 In the meantIme, numerous IndIVIdual gnevances concermng placement on the pay gnd had been filed. Some were wIthdrawn. Others were not, IncludIng the gnevances of Robert Wnght, Robert Anthony JudIth Cragg, Anne Roy and DIana PawlIck-Bradley In addItIOn, 3 further gnevances, IncludIng gnevances whIch allege that the Employer had acted Improperly by ImplementIng the Apnl 18 settlement, were filed, IncludIng the gnevances of Steven DePhrophetIs, Dale Moreau, and Mark ShurvIn. 6 In addItIOn, gnevances were filed allegIng that some employees wIth less years of servIce than the gnevors had been preferentIally granted accelerated progress through the wage gnd, resultIng In a comparatIve wage dIsadvantage to employees wIth greater servIce In the same classIficatIOn. 7 In the Apnl18 2000 memorandum the Umon and Employer agreed that effectIve January 1 1999 employees who were paid at the maXImum rate of theIr prevIOus class for a penod of 12 months or more would be assIgned a new anmversary date of January 1 1999 and any wage adJustments would be made accordIngly In practIcal applIcatIOn, such persons were therefore placed on the new wage gnd at step 1 effectIve January 1 1999 and, due to the stIpulated anmversary date, were gIven theIr anmversary date "bump" on the gnd to the second level 8 By contrast, persons who had been at the maXImum of theIr prevIOus class for less than 12 months, or who had not attaIned the maXImum of the prevIOUS class, retaIned theIr ongInal anmversary date As a consequence, they were placed at the first step of the new gnd, and dId not become entItled to advancement through the gnd untIl theIr actual, unadJusted anmversary dates 9 The effect of USIng tIme spent at the top of the prevIOUS gnd, as opposed to years of servIce, was to create sIgmficant anomalIes For example, OccupatIOnal Health and Safety Officers were prevIOusly under a three-step gnd, Employment Standards Officers were on a five-step gnd, Employment Standards AudItors were on a sIx-step gnd. On thIS basIs alone, the Apnl 18 2000 memorandum resulted In a sItuatIOn where a Health and Safety Officer would be at the top of the prevIOUS gnd - and possIbly have been so for twelve months - sIgmficantly sooner than the Employment Standards Officers and AudItors, and, as a result, would have entItlement to the altered January 1 1999 anmversary date where more semor employees In the Employment Standards classIficatIOn dId not. 10 The effect of thIS was senously exacerbated by the effect of the Social Contract Act Because that Act "froze" persons for a three year penod endIng In 1996 Employment Standards Officers and AudItors hIred In the early 1990's were stIll, by January 1 1999 eIther not at the top of theIr prevIOus gnd or had not been at the top for a twelve-month penod. Such persons, IncludIng the gnevors, were at a dIsadvantage by companson to later hIres unaffected by the provIsIOns of the Social Contract ComparatIvely an Employment Standards Officer/AudItor hIred In 1990 and a Health and Safety Officer hIred In 1996 would end up In the same place In the new pay framework by 2002 or 2003 11 As a consequence of the applIcatIOn of the Memorandum an employee hIred on January 1 1999 would be placed at the bottom of the gnd - together wIth employees wIth many years of servIce who by reason of not yet havIng twelve months at the maXImum of theIr old gnd, were placed there also 4 12 It was not the IntentIOn of the Apnl 2000 Memorandum or the ImplementatIOn of the new wage framework that Jumor employees would be advantaged by companson to more semor employees The IntentIOn of the new pay framework, rather was to provIde separatIOn between semor employees and less semor employees and new hIres wIthIn theIr classIficatIOn. 13 The June 25 1999 agreement pursuant to whIch the negotIated framework was ImtIally Implemented stated "Employees whose current salanes are below the mImmum of the new range for theIr revIsed class shall move to the new mImmum" The agreement also stated, "Employees whose current salaries are equal to or between the mImmum and the maXImum of the new range for theIr revIsed class shall move to the step that IS closest to but not less than theIr eXIstIng rate of pay" 14 At least one of the gnevors - Mr Stepphen DeProphetIs - was entItled, by VIrtue of the applIcatIOn of hIS old anmversary date of March 17 (Mr DeProphetIs had not been at the top of the gnd on January 1 19999) to move to the top of the old gnd on Apnl 1 1999 - rate of $1028 60 per week. That salary was, In fact between the mImmum and maXImum of the new range ($1000 000 and $115800 per week respectIvely) 15 Although Mr DePhrophetIs' salary current as of the June 25 2000 date of sIgmng of the Agreement at page 188 of the CollectIve Agreement, was between the mImmum and maXImum of the new range as It applIed to Employment Standards AudItors, he was nonetheless placed at the bottom of the new gnd, whIch was less than hIS then current rate of pay 16 AddItIOnally each employee In the ADM umt was entItled, by vIrtue of the general wage Increases negotIated In the collectIve bargaInIng process, to a 1 % wage Increase effectIve January 1 1999 With respect to persons who were at the "old" fourth step of the Employment AudItor 2 class - $991 75 - the result of the 1% Increase was to move that rate to $1001 67 effectIve January 1 1999 as reflected In the wage schedule formIng part of the 1999-2001 collectIve agreement. ThIS rate also falls between the mImmum of maXImum of the range negotIated as part of the new framework whIch, as noted above, were $1000 00 and $115800 respectIvely NotwIthstandIng thIS, Employment Standards AudItors at the fourth step fo the old gnd were placed at the first step rather than the second step The first step fo the new gnd, before applIcatIOn of the 1 % Increase to that gnd, was $1000 00 less than the $1001 67 rate 17 SubJect to the factual Issues related In paragraphs 14 15 and 16 above, there IS no dIspute that the employees who were selected to receIve the January 1 1999 anmversary date were those who were IdentIfied by the Memorandum of Settlement as determIned by the Employer Further there IS no dIspute between the Employer and the Umon that, subJect to paragraphs 14 15 and 16 above, the Employer adhered to the Letter of UnderstandIng and the settlement of Apnl 18 2000 18 As noted above there were addItIOnal gnevances concernIng the Issue of some employees havIng receIved preferentIal acceleratIOn through the pay gnd. In partIcular gnevances were also filed by Steven DeProphetIs, Dale Moreau, and Mark ShurvIn In October/November 2001 allegIng that certaIn employees wIth less years of expenence as Employment Standards 5 AudItor 2' s than the gnevors were reCeIVIng a hIgher rate of pay relatIve to the gnevors, and had benefited from an expedIted ment Increase 19 More partIcularly employee and ESA 2 RICk Hughes was on a temporary assIgnment from hIS ESA posItIOn to the posItIOn of ProvIncIal SpecIalIst In the AMAPCEO bargaInIng umt from December 1999 to July 20 2001 Upon hIS return July 23 to hIS ESA posItIOn, he was placed In the hIghest level of the new wage gnd, based on the Employer ascnbIng to hIm ment Increases that he "would have receIved" had he been In the ESA posItIOn. ThIS IS conformed In a memorandum dated July 30 2001 from HamIlton DIstnct Manager Duncan MartIn. 20 Management Board of CabInet has Issued a dIrectIve, dated December 6 1996 whIch notes that ment Increases are based on performance dunng the past reVIew penod and are "predIcated on the employee havIng been In attendance on the Job sufficIently for managers to assess the employee's performance" 21 The ESA 2 posItIOn left vacant by Mr Hughes dunng hIS actIng assIgnment was filled, on a secondment, by Ms Conme McCourt. Dunng her secondment, Ms McCourt receIved an expedIted ment Increase, as a result of whIch she earned the same rate of pay as the three gnevors despIte fewer years on the Job 22 The gnevances allege that the Employer has acted unreasonably Improperly and IneqUItably and In a dISCnmInatory manner by paYIng certaIn employees wIth less years of expenence as ESA 2's a hIgher rate of pay than the gnevors even though the gnevors have more expenence In the Job Positions of the Parties A. For the Employer The Employer moves to dIsmIss all of the gnevances In terms of the gnevances related to paragraphs 1-17 It asserts that there IS no dIspute between the partIes under the collectIve agreement. It asserts that the case law IS clear that where no dIspute eXIsts between the partIes, the Board has no JunsdIctIOn over the matter In support, It cItes to OPSEU (Amaral et al.) and Ministry of Finance GSB No 1636/98 (Carner) OPSEU (Hartley) and Ministry of Transportation GSB No 2446/96 (FIsher) In regard to paragraphs 18 -22, the Employer moves to dIsmIss the gnevances on the basIs that the allegatIOns do not cIte a breach of the collectIve agreement and do not raise a prima 6 facie breach of the collectIve agreement. It notes that the Umon has not alleged a breach of the wage provIsIOns or any provIsIOn of the collectIve agreement. The Employer further asserts that ItS decISIOns regardIng the ment Increases of the two cIted IndIVIduals were appropnate and do not constItute preferentIal treatment, as alleged. Nevertheless, It asserts that the umon has not asserted how the Employer's actIOns dIscnmInated agaInst the gnevors, nor asserted how ItS alleged preferentIal treatment of the two IndIVIduals could be consIdered a decIsIOn that was made In bad faith or In a dISCnmInatory manner towards the gnevors It contends that there IS no allegatIOn that the gnevors were detnmentally Impacted by the Employer's decIsIOn In regard to the ment Increases of the two cIted IndIVIduals It relIes on OPSEU (Ashley et al.) and Ministry of Community Family and Children s Services GSB No 2001-1700 et al) (Abramsky) that for proposItIOn that for the Board to exerCIse JunsdIctIOn to reVIew an area reserved to management's dIscretIOn (ment Increases) the decIsIOn must Impact a nght contaIned In the collectIve agreement. B. The Union The Umon asserts that ItS facts do raise an Issue between the partIes, as set out In paragraphs 14 to 17 It submIts that there was no general statement to the effect that there was no dIspute between the partIes In terms of paragraphs 18 to 22, the Umon asserts that the Board has the JunsdIctIOn to determIne whether the admInIstratIOn of the pay provIsIOns of the CollectIve Agreement have been undertaken In a fair and eqUItable manner free from arbItranness or bad faith. It asserts that the salary treatment of the two IndIVIduals created an InvIdIOUS sItuatIOn In whIch employees wIth substantIally dIfferent years of expenence are beIng paid the same amount for the work In 7 questIOn, and contravened the Employer's own polIcy In support of Its argument concermng the Board's JunsdIctIOn, the Umon cItes to Re Metropolitan Toronto and Toronto Civic Employees Union, Local 43 et al. (1977) 79 D.L.R. (3d) 249 (Ont. DIV Ct.) and Re York University and York University Faculty Association (1980),26 L AC (2nd) 17 (Beatty) Decision A. The Motion to Dismiss in Relation to Paragraphs 1-17 The Board's case law IS clear that where no dIfference or dIspute eXIsts between the partIes, the Board has no JunsdIctIOn to proceed and the gnevances must be dIsmIssed. OPSEU (Hartley et al) and MinistlY of Transportation, supra, OPSEU (Amaral et al.) and MinistlY of Finance supra. In thIS case, that pnncIple applIes except In relatIOn to paragraphs 14-16 Those paragraphs allege that the Employer faIled to comply wIth the terms of the partIes' agreements In relatIOn to these paragraphs, there IS clearly a dIfference between the partIes AccordIngly In relatIOn to paragraphs 1 to 17 the gnevances are dIsmIssed except In relatIOn to paragraphs 14 to 16 B. The Motion to Dismiss in Relation to Paragraphs 18 -22. These paragraphs assert that the Mimstry preferentIally treated two employees In relatIOn to theIr ment pay Increases and, by dOIng so acted unreasonably Improperly IneqUItably and In a dISCnmInatory manner ThIS preferentIal treatment, the Umon alleges, resulted In theIr beIng paid at the same level as the gnevors who had more years of servIce It IS easy to apprecIate the gnevors' frustratIOn and theIr feelIngs of unfairness In relatIOn to the Apnl 18 2000 memorandum of agreement. The terms of that agreement, In lIght of the number of steps In theIr former pay scale combIned wIth Impact of the Social Contract Act 8 created, as the Umon asserts, "sIgmficant anomalIes" It IS also easy to apprecIate theIr frustratIOn In regard to the ment Increases receIved by Ms McCourt and Mr Hughes Unfortunately despIte the sympathy I feel for the gnevors, I find that thIS IS not a case over whIch the Board has JunsdIctIOn. The problem IS that the Umon has not alleged any unfairness or dISCnmInatIOn In regard to the Employer's actIOns In relatIOn to the gnevors It has alleged Improper actIOn In relatIOn to two other IndIVIduals - Mr Hughes and Ms McCourt - whIch It asserts resulted In an IneqUItable sItuatIOn. But for the Board to have JunsdIctIOn, an IneqUItable sItuatIOn IS not enough. In OPSEU (Ashley et al) and Ministry of Community Family and Children s Services supra at p 14-15 the Board held The decIsIOn In OPSEU (Bousquet) supra, does not assIst the Umon. The Board In that case dId not adopt a general duty of good faith and reasonableness In the exerCIse of management nghts [U]nder Bousquet, supra, the JunsdIctIOn of the Board to reVIew the Employer's exerCIse of a nght reserved to management IS denvatIve - It depends on the eXIstence of a provIsIOn In the collectIve agreement whIch mIght be adversely affected by management's actIOns The Board's JunsdIctIOn depends on an allegatIOn that the Employer's actIOn Interfered wIth the grievors rights under the collective agreement In thIS case, those elements are mISSIng. There IS no allegatIOn that the Employer Improperly demed the gnevors a ment pay Increase - only that the Employer Improperly granted It to Hughes and McCourt. Nor IS there an allegatIOn that the Employer's actIOns Impacted any nghts of the gnevors' under the collectIve agreement. The decIsIOns cIted by the Umon do not support a dIfferent conclusIOn. In Re Municipality of Metropolitan Toronto supra, It was determIned that the method by whIch the Employer transferred the gnevor (pursuant to ItS management nghts under the collectIve agreement) was unfair to hIm. The Court held that there was a duty to act fairly towards 9 employees "in the administration of the agreement" In Re York University supra, It was determIned that the employer had acted arbItranly and dIscnmInatonly toyt,ards the grievors. The board of arbItratIOn held that the employer had a duty to act fairly and wIthout dISCnmInatIOn "In eXerCISIng theIr dIscretIOn under a collectIve agreement In the absence of clear language to the contrary" (26 LAC (2nd) at p 18) In thIS case, there IS no allegatIOn that the Employer acted Improperly toward the gnevors, or that It vIOlated the collectIve agreement. AccordIngly I conclude that the gnevances as they relate to paragraphs 18-22 must be dIsmIssed. Conclusion For all of the foregoIng reasons, I conclude 1 The gnevances as they relate to paragraphs 1-17 are dIsmIssed, except as to paragraphs 14- 16 2 The gnevances as they relate to paragraphs 18-22 are dIsmIssed. Issued at Toronto thIS 28th day of Apnl, 2004 Ranch H. Abramsky Vice-Chair