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Home My WebLink About2001-2082.McGuffin.04-04-23 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# 2001-0282,2001-0284 2002-2461 UNION# 2001-0108-0013 [0IBI43] 2001-0108-0014 [0IBI45] 2002-0108-0053 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (McGuffin) Grievor - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Bram HerlIch Vice-Chair FOR THE UNION Bons Bohuslawsky ElIot, SmIth Barnsters and SOlICItorS FOR THE EMPLOYER Sean Kearney Counsel Management Board Secretanat TELECONFERENCE Apnl 8 2004 2 DeCISIon The partIes executed a settlement In thIS matter In December 2003 An Issue has now ansen wIth respect to the ImplementatIOn of that settlement. A heanng was held by way of teleconference on Apnl 8 2004 to deal wIth the Issue ImmedIately pnor to the settlement the gnevor was off work and In receIpt ofL TIP benefits As a result of the settlement, the gnevor was placed In a new posItIOn whIch the partIes agreed was appropnate for her CIrcumstances Paragraph 5 of the Minutes of Settlement provIdes The gnevor wIll receIve a salary eqUIvalent to her former CorrectIOnal Officer posItIOn for a penod of SIX months folloWIng December 15 2003 as per ArtIcle 7 of the collectIve agreement between the partIes The partIes agreed that the reference to ArtIcle 7 of the collectIve agreement IS, more specIfically a reference to ArtIcle 7 5 whIch provIdes Where, for reasons of health, an employee IS assIgned to a posItIOn In a classIficatIOn havIng a lower maXImum salary he or she shall not receIve any salary progressIOn or salary decrease for a penod of SIX (6) months after hIS or her assIgnment, and If at the end of that penod, he or she IS unable to accept employment In hIS or her former classIficatIOn, he or she shall be assIgned to classIficatIOn consIstent WIth hIS or her condItIOn. Pursuant to the terms of the settlement, the gnevor commenced her employment and was remunerated In accordance wIth her former CorrectIOnal Officer posItIOn. EffectIve January 1 2004 employees workIng as CorrectIOnal Officers receIved negotIated Increases to theIr salanes The gnevor dId not and asserts that she to ought to have receIved the negotIated salary Increase WhIle the umon acknowledges the terms of the settlement and of ArtIcle 7 5 referred to thereIn, It urges me to aVOId an InterpretatIOn of the settlement whIch can be seen to be In conflIct WIth the collectIve agreement or to put the matter dIfferently to otherwIse restnct the gnevor's nghts under the collectIve agreement. 3 In that regard the umon pOInts me to ArtIcle 42 10 and, In partIcular ArtIcle 42 11 of the collectIve agreement 42 10 When an employee who has been reCeIVIng or was elIgible to receIve L TIP benefits IS able to return to full-tIme employment, the provIsIOns of ArtIcle 20 (Employment StabIlIty) shall apply 42 11 An employee who IS assIgned, under ArtIcle 42 10 to a vacancy In accordance wIth ArtIcles 20 5 1 20 5 2, 20 5 3 or 20 5 4 of ArtIcle 20 (Employment StabIlIty) shall, for a penod of SIX (6) months, be paid at the same step he or she had attaIned In the salary range of the classIficatIOn of the posItIOn he or she occupIed pnor to dIsabIlIty At the end of that penod he or she shall be paid at a rate wIthIn the salary range of the classIficatIOn of the posItIOn to whIch he or she has been assIgned. The umon asserts that because the latter provIsIOn preserves payment "at the same step he or she had attaIned [in the former posItIOn]" and (unlIke ArtIcle 7 5) does not specIfically preclude any salary progressIOn, that an employee protected by that ArtIcle would be entItled to negotIated wage Increases (presumably as opposed to progressIOn along the salary gnd) It was further suggested that the provIsIOns of20 5.2 (referred to In ArtIcle 42 11) appear to specIfically descnbe the gnevor' S CIrcumstances Insofar as that ArtIcle refers to an employee who wIth mutual consent (here under the terms of the settlement) was assIgned to a vacant posItIOn In her mImstry beyond a 40 km radIUs of her headquarters Thus, the umon asserts that pursuant to ArtIcle 42 11 and as an employee assIgned under ArtIcle 20 5.2, the gnevor IS entItled to receIve negotIated wage Increases dunng the sIx-month penod folloWIng her reassIgnment. At a mImmum, I am urged not to Interpret the settlement In a fashIOn whIch IS Said to conflIct WIth the collectIve agreement. The employer posItIOn IS straightforward the Memorandum of Settlement and ArtIcle 7 5 are abundantly clear and ArtIcle 42 11 has no applIcatIOn to the gnevor HavIng consIdered the submIssIOns of the partIes I am persuaded that the employer's VIew IS the correct one 4 In order for the umon to succeed In Its argument, It must prevaIl on both of the folloWIng arguments 1 That ArtIcle 42 11 permIts or contemplates entItlement to general wage Increases dunng the ImtIal sIx-month penod of the assIgnment and 2 That ArtIcle 42 11 has some applIcatIOn to the gnevor AssumIng, wIthout decIdIng, that the umon's VIew on the first pOInt has ment, I am sImply unable to see any fashIOn In whIch the provIsIOns of ArtIcle 42 11 are or even could be applIcable to the gnevor In other words, even had the partIes arnved at theIr current cIrcumstances -- 1 e an employee dIsabled from performIng her former dutIes returnIng from L TIP to a dIfferent posItIOn -- not through a gnevance-medIatIOn-settlement route but through the sImple unfoldIng of events, I fall to see the applIcabIlIty of ArtIcle 42 11 Indeed, even In those CIrcumstances It would appear that ArtIcle 7 5 would have been the governIng provISIOn. Thus, IS not dIfficult to see why the partIes chose to Incorporate that provIsIOn Into theIr settlement. ArtIcle 42 11 speaks to assIgnments under vanous provIsIOns under ArtIcle 20 ArtIcle 20 IS a lengthy and elaborate code of provIsIOns related to Employment StabIlIty However the very first sentence of the very first provIsIOn provIdes the provIsIOns of ArtIcle 20 apply to any employee who receIves notIce of layoff The gnevor dId not receIve a notIce of layoff nor IS there anythIng before me to suggest she would have but for the gnevance and the settlement. Consequently and even acceptIng that, In the partIcular respect relevant to our case ArtIcle 42 11 confers an employee benefit supenor to that found In ArtIcle 7 5 ArtIcle 42 11 sImply has no applIcatIOn to the case at hand. 5 The terms of the partIes' agreement are clear The effect IS that the gnevor's level of remuneratIOn IS red-cIrcled for a penod of SIX months at a level eqUIvalent to that of her former CorrectIOnal Officer posItIOn. There IS to be no change dunng the sIx-month penod. DespIte the fact that she IS workIng In a posItIOn In a lower rated classIficatIOn, her salary level IS not to be reduced. Conversely neIther IS It to Increase In short, the gnevor IS not entItled to the wage Increase sought. I trust thIS dIsposes of the Issue between the partIes Of course, I remaIn seIzed wIth respect to any Issue related to the ImplementatIOn of the partIes' settlement or thIS award. Dated at Toronto thIS 23rd day of Apnl2004 .. MlIt.Vl ~:L~~~_L~ -. . ,., f. ., Bram HerlIch, Vice-Chairperson