HomeMy WebLinkAbout2014-2618.Conry.18-05-07 DecisionCrown Employees Grievance Settlement
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Commission de
règlement des griefs
des employés de la
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GSB# 2014-2618
UNION# 2014-0517-0023
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Conry) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE
David R. Williamson
Arbitrator
FOR THE UNION
Tim Hannigan
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Peter Dailleboust
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARING January 9, 2018 and March 29, 2018
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DECISION
[1] On August 14, 2014, Mr. Stephen Conry was dismissed from his employment as
a Correctional Officer (“CO”) at the Metropolitan Toronto West Detention Centre for using
unjustified and excessive force on two inmates on October 5, 2013. Mr. Conry filed a
grievance against his termination of employment and the grievance came to be heard at
the Board before the undersigned Arbitrator on January 6, 2015, and on a number of
subsequent dates. At the arbitration hearing Mr. Conry did not dispute the Employer’s
finding that he had used excessive force in the course of carrying out his duties. With the
use of force incident not needing to be proved, the central issue at the hearing became
that of the appropriateness of the penalty of discharge.
[2] In a Decision dated August 12, 2016, I substituted in place of Mr. Conry’s
termination of employment an alternative and lesser penalty, and noted in the following
way the authority and latitude of my authority to substitute an alternative penalty:
[40] The authority to substitute an alternative penalty is provided by subsection 48(17) of the
Labour Relations Act, 1995 in the following way:
Substitution of penalty. - Where an arbitrator or arbitration board determines that an
employee has been discharged or otherwise disciplined by an employer for cause and the
collective agreement does not contain a specific penalty for the infraction that is the subject
matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty
for the discharge or discipline as to the arbitrator or arbitration board seems just and
reasonable in all the circumstances.
[41] The latitude of this authority in the instant case is, however, circumscribed by subsection 7(4)
of the Crown Employees Collective Bargaining Act, 1993 which provides:
Restrictions on substituted penalties
7.(4) In substituting a penalty under subsection 48(17) of the Labour Relations Act, 1995,
the Grievance Settlement Board shall not provide for the employment of an employee in a
position that involves direct responsibility for or that provides an opportunity for contact with
residents in a facility or with a client if the Board has found that the employee,
(a) has applied force to a resident in a facility or a client, except the minimum necessary
for self-defence or the defence of another person or necessary to restrain the
resident or client;
Definitions
7.(5) In subsection (4),
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“facility” means,
(e) a correctional institution under the Ministry of Correctional Services Act,
“resident” means a person who is an inmate, patient, pupil or resident in or is detained or
cared for in a facility.
Substitute penalty
7.(6) In substituting a penalty under subsection 48(17) of the Labour Relations Act, 1995
in circumstances in which it is restricted by subsection (4), the Grievance Settlement Board
may provide for the employment of the employee in another substantially equivalent
position.
[42] On the basis of the foregoing legislation I have the jurisdiction as Vice-Chair of the Grievance
Settlement Board to substitute an alternative penalty for Mr. Conry’s discharge, and return Mr.
Conry to work with the Employer in accordance with subsection 7.(6) of the Crown Employees
Collective Bargaining Act, provided that it is to a substantially equivalent position that complies
with the restriction set out in subsection 7.(4) of this Act. I note that this restriction does not apply
to the Employer and thus, as such, it is open to the Employer to place Mr. Conry into the same
position upon his return to work that he occupied prior to his termination.
[43] Accordingly, I am returning Mr. Conry to work with the Employer and reinstating him to a
position substantially equivalent to that which he occupied at the time he was discharged. …….
[44] Mr. Conry is to be reinstated to work from the date of this decision, with full seniority, but
without compensation for the period from August 14, 2014 to the date of this decision. The
discharge shall be removed from Mr. Conry’s record and in its place shall be substituted a
suspension from the date of his discharge to the date of his reinstatement. This is a substantial
suspension that reflects the seriousness of his misconduct. I direct the Employer to reinstate Mr.
Conry to work in a position that is substantially equivalent to that which he occupied at the time
of his termination, but one that does not involve direct responsibility for inmates or provide the
opportunity for contact with inmates. The matter is remitted to the parties to determine a suitable
position. I will remain seized in the event there are any implementation issues that arise.
[3] After receiving the above-referenced Decision the Employer returned Mr. Conry to
work, first to perform certain unspecified work, and then as an Electronic Supervision
Officer (“ESO”) from January 16, 2017. Mr. Conry was still working as an ESO as of the
date of this Arbitration. In this ESO position Mr. Conry provides services related to the
operation of the Ministry of Community Safety and Correctional Services Electronic
Supervision Program and its Intermittent Community Work Program. The parties agreed
to enter into evidence a written document that provided an overview of the duties and
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functions of the Electronic Supervision Officer position. From this the Union pointed out
the work being performed by Mr. Conry is of a different kind than before as he is no longer
working in a correctional facility and responsible for the control and care of inmates, but
rather working in a computer centric world with persons who have faced charges and are
serving some form of sentence while remaining in the community and outside of an
institution. The Union submits the big difference between the CO and ESO positions, and
the matter on which its case turns, is the difference in the monetary income Mr. Conry
can earn from them.
[4] As such, the Union makes the submission that the Employer has not complied with
the direction given to it in the above-cited Decision to place Mr. Conry in a “substantially
equivalent position” to the one he held at the time of his termination. In the course of
making its submission the Union pointed out that the length of time of Mr. Conry’s
suspension from work amounted to two years and that being without his salary as a
Correctional Officer was the penalty he sustained for his misconduct. Having now
incurred this penalty in the past, the Union submits that Mr. Conry is continuing to incur a
financial penalty on an ongoing basis as his earned income from the ESO position is
significantly less than the income he earned when he worked as a Correctional Officer.
The Union accordingly submits that the Employer has not complied with the foregoing
direction to place Mr. Conry into a “substantially equivalent position” to the one he held at
the time of his termination in August 2014.
[5] In making this submission the Union urged the Board to follow the approach used
to assess equivalence taken in Re Travers, the 1981 Decision of the Board chaired by
Vice-Chair Swinton, in which after noting at page 10 that there were a number of factors
of equivalence between jobs such as pay level, job content, geographic location, and level
of skill and responsibility, the Board arrived at the finding at page 12 that:
“Level of pay is an important factor to consider in assessing substantially equivalent
positions. From the employee’s point of view, it is probably the most important factor.”
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[6] Similarly, the Union also made reference to Re OPSEU (Thibert, McGill and Jung)
& Ministry of Correctional Services, the 1985 Decision of the Board chaired by Vice-Chair
Verity, and the statement contained therein that:
“Inevitably, the level of pay is the single most important factor in determining
substantial equivalency. ….. No factor entering into the phrase “substantially
equivalent position” is more important than the salary component. The Board finds it
difficult to justify equivalency where the salary is significantly lower in one classification
as compared to the other classification.”
[7] The essence of the case put forward by the Union is that while there is not a great
deal of difference in the hourly pay rate between the positions of the ESO and the CO,
total annual earnings are significantly different once overtime pay is included. It is the
submission of the Union that while both positions have the opportunity for overtime work
the quantum of overtime work available to a CO is far greater, such that during the last
five full years Mr. Conry worked as a CO from 2009 to 2013 the money earned each year
from overtime constituted close to one half of his total earnings. Or, put another way, his
overtime pay approximately equaled his base pay. In contrast, during the 2017 year when
Mr. Conry worked as an ESO from January 16th, the money he earned from overtime
represented approximately thirty per cent of his total earned income.
[8] By agreement of the parties certain documents were placed into evidence.
Introduced by the Union were Mr. Conry’s T4 statement of remuneration for 2017, and a
summary prepared by Mr. Conry’s accountant of his employment earnings in the years
2009 to 2013 inclusive when he worked as a CO. The Employer provided numbers for
the hourly earnings and length of work-week for both a Correctional Officer and an
Electronic Supervision Officer. Neither party called any viva-voce evidence.
[9] In support of its position and submission, the Union made reference to the following
arbitral authorities: Re Ontario Public Service Employees Union (Maude) & The Crown
in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB No.
2014-3306 (Petryshen – January 4, 2017); Re Ontario Public Service Employees Union
(Travers) & The Crown in Right of Ontario (Ministry of Correctional Services), GSB No.
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213/78 (Swinton – June 18, 1981); Re Ontario Public Service Employees Union (Karl
Van’t Hullenaar) & The Crown in Right of Ontario (Ministry of Correctional Services), GSB
No. 555/81 (Jolliffe – January 20, 1982); Re Ontario Public Service Employees Union
(Thibert, McGill, and Jung) & The Crown in Right of Ontario (Ministry of Correctional
Services), GSB No. 556/81 (Verity – October 1, 1985); Re The Crown in Right of
Ontario (Ministry of Correctional Services) v. O.P.S.E.U., Ontario Divisional Court, 1986,
34 D.L.R.(4th) 101, 57 O.R. (2d) 641; and to Re Ontario Public Service Employees
Union (Neckles) & The Crown in Right of Ontario (Ministry of Community & Social
Services), GSB No. 1291/87 (Emrich – October 3, 1995).
[10] The data placed into evidence by the Employer on the length of the work week and
the hourly earnings for an ESO and a CO show the following:
An ESO works 36.25 hours/week. Base Pay of $1254.76 per week or $34.61 per hour.
Total Annual Base Pay is $65,247.52.
A CO works 40 hours/week. Base Pay of $1363.60 per week or $34.09 per hour.
Total Annual Base Pay is $70,907.20.
[11] It is the position of the Employer that the ESO position in which Mr. Conry is now
working is substantially equivalent to the CO position he previously held, and submits that
the factors of equivalence employed in Re Travers and followed in Re Maude be utilized
in the instant matter namely, pay level, job content, geographic location, and level of skill
and responsibility. The Employer submits that the similar or higher level of skill and
responsibility required in the ESO position is reflected in a higher hourly rate of pay, that
both positions provide the opportunity for overtime work, and that both positions are in
the same bargaining unit with wage increases that move in lockstep with each other. It
is the Employer’s further submission that the annual base pay of a CO and an ESO are
at comparable levels after taking into account the ten percent extra hours worked per
week by a CO and that a component of the CO pay reflects, as found in the Re Travis
Award of the Board chaired by Vice-Chair Swinton, a premium for dangerous work
relating to inmate contact.
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[12] It is submitted by the Employer that the amount of overtime pay that could be
earned should not be a factor that enters into the equation as to whether the two positions
are substantially equivalent. This is because there is no right contained in the collective
agreement for an employee to receive overtime work and overtime pay, and that it is not
an obligation of the Employer to provide overtime. Further, it submits that whether
overtime work is offered at all falls entirely within the management rights clause of the
collective agreement.
[13] In addition to there being no right to any overtime the Employer submits that it is
entirely speculative, particularly against a background of recent moves to hire additional
Correctional Officers, to assume the same circumstances from up to eight years ago that
gave rise to Mr. Conry’s overtime opportunities and his resultant earnings for the years
2009 to 2013 would continue into 2017 and beyond and serve as a basis for comparison.
Further, the Employer submits that overtime earnings are not a complete windfall to an
employee as they come with the cost of reduced time with family.
[14] As such, the Employer submits that the quantum of monies earned in the past from
overtime ought not to be part of the equation in making the assessment as to whether the
two positions are substantially equivalent. Accordingly, it is the position of the Employer
that the monetary element that enters into the equation as to whether two positions are
substantially equivalent is the base rate of pay and whether both positions offer the
opportunity to earn overtime income.
[15] The Employer expressed its disagreement with the position of the Union that Mr.
Conry is incurring an ongoing financial penalty as a result of no longer having the
opportunity to work substantial overtime in the way he did when he was a Correctional
Officer through to 2014. Rather, it holds the view that Mr. Conry has gained everything
as he has been given a second chance to remain employed in a substantially equivalent
position and earn a commensurate income.
[16] In support of its submission and arguments the Employer made reference to the
following arbitral authorities: Re OPSEU (Mills) & The Crown in Right of Ontario (Ministry
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of Transportation), GSB No. 112/88 (Chapman – January 2, 1990); and to Re OPSEU
(Adolfo Cruz) & The Crown in Right of Ontario (Ministry of Correctional Services), GSB
No. 1735/86 (Draper – May 25, 1988).
[17] The matter to be determined is that of whether or not the ESO position into which
Mr. Conry has been placed by the Employer is substantially equivalent to the position he
previously held as a Correctional Officer. It is the submission of the Union that it is not
substantially equivalent.
[18] As pointed out in the Re Travers decision (supra), the wording of the Act is that:
…….”the grievor should receive a “substantially” equivalent job, rather than one that
is “exactly” equivalent.
And that:
“in the search for factors of equivalence between jobs, several arise as possibilities:
pay level, job content, geographic location, and level of skill and responsibility.”
[19] The foregoing approach was followed by the Board in Re Maude. The factors of
equivalency set out and applied in Re Travers are also adopted and applied in the instant
matter.
[20] The first factor to be considered is that of job content. In his current work Mr. Conry
is still dealing with individuals who have in some way run afoul of the law without being in
a position whereby he would come into contact with inmates, something Mr. Conry is no
longer permitted to do in his work. As an ESO Mr. Conry is able to do monitoring and
supervision work by way of electronic surveillance of individuals who are not inmates but
are required to comply with certain legal directives as to their permitted mobility. The
work Mr. Conry performs as an ESO is still that of monitoring and supervision, but done
remotely with technology rather than with a physical presence as he did as a CO. The
job content of an ESO must be considered to be similar although not identical to that of a
CO.
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[21] The second factor set out in Re Travers is that of Geography, namely the location
of the new employment compared with the location of the previous work place. In the
instant matter this has not been raised as an important issue requiring the attention of the
Board.
[22] The third factor is that of the level of skill and responsibility. The rate of hourly pay
in a position is commonly accepted as being reflective of the skill and responsibility
required in a job. To the extent that this is so, and with the hourly rate of pay of an ESO
being $34.61 per hour versus $34.09 per hour for the CO position previously held by Mr.
Conry, it must be concluded that the level of skill and responsibility required in the ESO
position is at least substantially equivalent to that of the CO position.
[23] We turn to consider the fourth of the factors set out in Re Travers, namely that of
the level of pay that can be earned by Mr. Conry in the ESO position compared with his
earnings as a CO. Of all the criteria, this is the one most focused on by the Union in
submitting that the ESO and CO positions are not substantially equivalent. In both
positions Mr. Conry’s total earnings consist of two elements; his base pay, and his
overtime pay. Both will be considered in turn.
[24] On the numbers in evidence the base pay in the ESO position is $65,247 per
annum and $70,907 per annum in the CO position. However, as noted in the 1981
Decision in Re Travers, in making the comparison the weekly hours of work and work
conditions ought to enter into the equation. In the words of the Board in Re Travers at
page 13:
In this particular case, the two salaries are less divergent if considered on the same
hours of work base – e.g. 36¼ hours. ………..Furthermore, it is relevant to consider
that a proportion of the Correctional Officer 2 salary reflects a premium paid for
dangerous work (similar to the $1,000 premium paid to other Ministry employees with
inmate contact).
[25] While Mr. Conry is not a CO2, similar considerations to the above apply in making
a comparison of pay in the two positions, and it is noted that the $1,000 premium in 1981
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terms would be much greater in 2018 terms and closer to the sum of $2,500 to $3,000.
Additionally, the higher pay in the CO position comes about from working 40 hours a week
versus 36¼ hours in the ESO position. After adjusting solely for the number of hours
worked to 36¼ in a week the difference in the annual pay between the two positions is
significantly reduced with the ESO position having a slight premium of just under $1,000,
namely $65,247 versus $64,260. The conclusion that must be reached is that based on
the criterion of annual base pay alone the two positions of ES and CO are not much
different and must be found to be substantially equivalent.
[26] It is a central part of the submission by the Union that the ESO position cannot be
considered to be substantially equivalent to the CO position Mr. Conry previously
occupied because he is not earning the same overall total income as an ESO that he did
as a CO during the last five years prior to his termination. The evidence shows that this
difference is mostly because of the greater amount of overtime income he earned as a
CO.
[27] In comparing the two positions it is important to note that both provide the
opportunity to work overtime. Mr. Conry was able to work large quantities of overtime in
his CO position during the years 2009 to 2013 such that he was frequently doubling his
base pay income. By contrast in 2017 Mr. Conry worked enough overtime in his ESO
position to earn an additional approximate $27,000, a not insignificant overtime
opportunity that added some 42% to his base pay. In this regard the instant matter may
be distinguished from Re Maude where the secretarial position into which Mr. Maude had
been placed offered no overtime opportunity whatsoever. Having the opportunity to earn
overtime is an important consideration in comparing the equivalence of two positions.
The ESO position into which Mr. Conry has been placed does provide the opportunity to
not only work overtime, but to earn significant overtime income. It just is not as large as
the substantial sums he earned from overtime as a CO.
[28] Whether to extend overtime work to employees, and if so how much, falls inside
the rights of management in the instant collective agreement. Thus an employee does
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not have any right or entitlement to overtime work. As noted in the 1988 Decision of Re
Adolfo Cruz, supra, at page 5:
As the Board has found in a number of cases, among them Pehlke, 791/85, there is
no employee right to overtime work. The employer has the exclusive managerial right
to schedule such work.
[29] As such, Mr. Conry does not possess any right to overtime work and, by extension,
has no right to any set amount of overtime work in the future. Absent entitlement to
overtime, there can be no entitlement to any particular quantum of overtime. The amount
of overtime Mr. Conry worked in the past as a CO in the five years to 2013 is a product
of both the quantum of overtime made available by the Employer and Mr. Conry’s
personal appetite to work it once offered. In that the initial decision on overtime is in the
hands of the Employer, Mr. Conry cannot lay claim to receive in the future the quantum
of overtime he earned as a CO in the five years to 2013. Further, to suggest that, against
a background of changing staffing levels and operational needs, the Employer would offer
the same quantum of overtime in the future as in the past must be seen to be conjectural
and speculative.
[30] As such, the monies earned from overtime work by Mr. Conry as a CO during the
years 2009-2013 cannot be seen to be an element of the CO position against which
another position is to be compared in making the determination as to whether that position
is substantially equivalent. That is, overtime income earned is not something to be
included as an element in making the assessment as to whether two positions are
substantially equivalent. Whether overtime work is offered or not falls exclusively within
the rights of management and Mr. Conry cannot claim a fixed quantum of overtime work
to be his right or entitlement and something for which he should be paid.
[31] By way of summary therefore, in comparing the ESO position with the CO position
previously held by Mr. Conry, and applying the factors of equivalence set out in Re
Travers, it must be found that the two positions are “substantially equivalent” in that they
require a similar level of skill and responsibility, have a similar hourly rate of pay, are at a
similar level of base pay, and that both have opportunities for overtime work. The
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quantum of income Mr. Conry historically earned from overtime work as a CO cannot be
included in this comparison as the decision on whether there are any overtime hours to
be worked falls solely inside the rights of management to determine. Mr. Conry cannot
claim a certain set quantum of overtime as his entitlement.
[32] Accordingly, and for all the foregoing reasons, the ESO position presently occupied
by Mr. Conry is found to be “substantially equivalent” with the CO position Mr. Conry
occupied at the time of his termination from employment. Therefore, the grievance must
be dismissed.
Dated at Toronto, Ontario this 7th day of May, 2018.
“David R. Williamson”
________________________
David R. Williamson, Arbitrator