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HomeMy WebLinkAbout2008-3487.Crowther.09-06-16 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2008-3487 UNION#08-29 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Canadian Union of Public Employees - Local 1750 (Crowther) Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFOREVice-Chair Janice Johnston FOR THE UNION Jim Morrison, National Representative Patricia Homonnay, Chief Steward, Local 1750 Canadian Union of Public Employees ? Local 1750 FOR THE EMPLOYER Gurjit Brar Workplace Safety and Insurance Board Counsel HEARING June 3, 2009. -2- Decision [1]The issue in this case is very straightforward. The grievor claims that she is entitled to retroactive salary for certain periods of time while she was on a temporary assignment. While she was on the assignment, the salary for her ?home? position increased due to an evaluation by the Joint Job Evaluation process (the ?JJE? process). [2]The parties agreed to the following facts: 1. Imma Crowther was first employed at the WSIB on March 15, 1975. She left the WSIB on January 19, 1985. 2. Imma was re-employed on a 6 month contract position beginning on April 10, 1988 in the Occupational Disease Branch (Stats coding). 3. Imma became a permanent employee of the WSIB in 1989 and became a Receptionist Councilor in 1992. 4. In November 2003 Imma was placed in the position of Financial Systems Validation Clerk through priority placement rights under the Collective Agreement in effect at the time. 5. In April 2004 Imma applied for a 12 month temporary position as a Program Assistant in the Training and Development Branch. She was a successful candidate and commenced in this position on or about June 28, 2004. 6. On three (3) occasions between June 28, 2004 and September 22, 2006, the employer requested extensions to Imma's temporary position. On each occasion Imma accepted the request and remained in the temporary position until September 22, 2006 at which time she returned to her permanent position as a Revenue Control Clerk. 7. lmma applied for and was successful in attaining a temporary position as a Program Assistant in Training and Development for the period beginning February 6, 2007 and ending September 4, 2007. 8. Imma returned to her permanent position of Revenue Control Clerk for the period September 5, 2007 to December 11, 2007. 9. She applied for and was successful in attaining a temporary position as a Program Assistant in Training and Development from December 12, 2007 to August 2008. Sometime in March 2008 the position of Program Assistant was posted as a permanent position. lmma applied for and was successful in attaining this position on a permanent basis and did not return to the Revenue Control Clerk position. -3- 10. Between June 28, 2004 and January 2008, both Imma Crowther's permanent position of Financial Systems Validation Clerk/Revenue Control Clerk and the position of Program Assistant were in the 830 salary grade. During the periods she occupied the position of Program Assistant, she was paid her salary based on the highest step in the 830 salary grade. 11. In January 2008, the salary grade for the position of Revenue Control Clerk was changed from 830 to 835 as a result of the Joint Job Evaluation ("JJE") process set out in Article 18 of the parties' collective agreement. This process enables the employer and the bargaining agent to evaluate jobs in accordance with the JJE Plan to, in part: * Measure the nature and level of work performed by employees; and * Provide the basis upon which wage rates are negotiated. Both employees and management participate in the process of validating job descriptions which are referred to the JJE Committee for evaluation. Employees who do not agree with the evaluation results of the Committee can request reconsideration. Under Article 18, the Employer is to ensure that job descriptions for all staff are current and reflect required duties and responsibilities. In the event of a change(s), the Employer and Employee(s) should agree to the new required duties and responsibilities and submit the proper documentation to the Committee for review. Further, where agreement cannot be reached following a resolution meeting between the parties the Employer is to finalize the job description and submit the proper documentation to the Committee for review. On or about December 1, 2005 the Financial Systems Validation Clerk title was changed to Revenue Control Clerk as a result of a reorganization of the position. The Revenue Control Clerk position was then referred to the JJE Committee for evaluation. The Revenue Control Clerk position was subject to a reconsideration request and the appeal of the Committee's evaluation occurred in the Spring of 2006. As a result of the reconsideration, the position was moved to salary grade 835 with a retroactive date of December 1, 2004. Employees occupying the position between January 2008 and December 1, 2004 were paid retroactive salary differential. Imma Crowther was advised of the salary grade increase on or about January 30, 2008. 12. The dispute in this grievance concerns Imma Crowther's entitlement to retroactive salary arising out of the re-evaluation of the Revenue Control Clerk job for the periods: * December 1, 2004 to September 22, 2006; * February 6, 2007 to September 4, 2007; and * December 12, 2007 to January 30, 2008. -4- During these periods, Imma Crowther occupied the temporary position of Program Assistant as described above. The issues in this grievance fall under the parties' collective agreements from April 1, 2002 to March 31, 2005 and April 1, 2005 to March 31, 2008. 13. Imma Crowther was paid retroactive salary between December 1, 2004 and January 30, 2008 for the periods in which she occupied the Revenue Control Clerk position in accordance with the employer's practice. 14. During the periods she occupied the Program Assistant position, the individual replacing her in the Revenue Control Clerk job was paid in accordance with salary grade 835. [3]The parties in their submissions referred to the following language in the collective agreement: 18.02 Classification and Job Evaluation System ... 2. Job Evaluation System The parties have developed and implemented a joint job evaluation system. This system includes the job description process, the job evaluation process, the maintenance process, communication of results and dispute resolution. The parties agree that the Joint Job Evaluation Committee will be responsible for ensuring the ongoing operation of the system. ... (d) Role of Employer The Employer ensures that the job descriptions for all staff are current and reflect required duties and responsibilities. In the event of change, the Employer and Employee(s) should agree to the new required duties and responsibilities and submit the proper documentation to the Committee for review. When agreement cannot be reached following a resolution meeting between the parties the Employer will finalize the job description and submit the proper documentation to the Committee for review. The Employer has final accountability for the job content in the job description. ... -5- 3. Job analysis ... (b) Job descriptions will be written/reviewed ... *as part of regular Maintenance. It is the Employer?s responsibility to regularly review a job to determine if the required job duties and responsibilities have changed. The Employer will ensure that job descriptions accurately reflect required duties and responsibilities. The Employer will review all jobs every 4 years and submit the results to the Committee for evaluation where required. The Committee will be provided with a record of jobs that require a review within the twelve months and four (4) year intervals. ... 7. Implementation of Decision If a job is reclassified to a higher pay grade, the rules for salary adjustment under Schedule ?A? will apply. The effective date of the reclassification will be the date that the Manager and employee agree that the change in job duties occurred. If no agreement exists, the effective date will be 20 days prior to the date the submission for review was submitted in writing. ... SALARY RULES - SCHEDULE ?A? ... 9. Where the Employer temporarily assigns an employee to the core duties of a position in a lower salary grade, they will continue to be paid at the rate of the salary grade from which they were assigned. 10. When an employee is the successful applicant to a temporary assignment in a lower salary grade and their salary is above the maximum for that job, their salary will be reduced to the maximum salary of the temporary job. If an employee is due an increment during the course of the temporary assignment, their salary will not exceed the maximum of the lower salary grade until they return to their permanent position. [4]The union called one witness in this case, the grievor, Immacolata Crowther. Her evidence was very brief and overlapped with the agreed facts to some extent. She testified that had she known at the time that she applied for the Program Assistant position in Training and Development (the ?assistant? position) that it would be a lower rated position, she would not have applied for it. Nor would she have agreed to the extensions or applied for the assistant position on subsequent occasions. As is noted in the agreed facts, Ms. Crowther moved back and forth between the assistant position and -6- her home position, Revenue Control Clerk (?RC Clerk?). In March, 2008, Ms. Crowther applied for and was successful in a competition for the assistant position which was being filled on a permanent basis. At the time she applied for this position she was aware that it paid less than the RC Clerk position. Nevertheless, upon success in the competition process she accepted the assistant position on a permanent basis and moved out of her higher paying RC Clerk position. [5]The parties agreed that the salary rules did not apply in this case. Paragraph 9 does not apply as the grievor was not assignedto the assistant position by the Employer. Paragraph 10 does not apply as at the time the grievor applied for the assistant position it was paid at the same rate as the RC Clerk position and as such was not at a ?lower salary grade?. [6]The union argued that the employer has failed to fulfill its obligations under Article 18 of the collective agreement and the Pay Equity Act. Ms. Crowther was paid retroactive pay only for the period of time that she actually worked in the RC Clerk position between December 1, 2004 and January 30, 2008 and the union asserts that she should have received retroactive pay for the entire period. The union submitted that it is the obligation of the employer to ensure that job descriptions for all staff are current and reflect the required duties and responsibilities. In the event of a change to the duties and responsibilities, the employer and affected employee(s) agree on the new duties and responsibilities and submit the proper documentation to the JJE Committee (the ?Committee?) for review. If agreement is not reached, it is the employer who finalizes the job description and submits the proper documentation to the Committee for review. [7]Pursuant to Article 18.02 3. (b), it is the responsibility of the employer to regularly review a job to determine if the duties and responsibilities have changed and to ensure that job descriptions accurately reflect required duties and responsibilities. In this case, the employer failed to meet this obligation as although the duties and responsibilities of the RC Clerk position changed and the position was evaluated by the JJE Committee, the process took too long. An appeal in April, 2006, of the original decision resulted in the -7- Committee moving the RC Clerk position up a salary grade. However, this did not occur until January, 2008, four years after a determination had been made that the duties and responsibilities of the RC Clerk position had changed. [8]It was suggested by the union that if the employer had provided information to the Committee sooner, it would have been in a position to decide the matter in a timely fashion and the grievor would have been able to make a more informed decision as to whether or not to apply for the lower rated assistant position. [9]By way of remedy, the union requested that I award Ms. Crowther retroactive pay for the time she was working in the assistant position between 2004 and 2008. If I do not feel that it was appropriate to award retroactive pay for the entire period, the union requested that I award it for the period during which the unduly lengthy appeal process was taking place, which is from March 28, 2006, to January, 2008. The union also requested that I award damages for the employer?s violation of the collective agreement. In support of this argument, I was provided with an excerpt from Canadian Labour Arbitration by Brown and Beatty. [10]Counsel for the employer argued that I do not have any evidence before me which would establish that the employer did not meet its obligations under Article 18. There is no evidence before me to support a finding that the employer has violated Article 18 of the collective agreement. Pursuant to Article 18.02 paragraph 7, when a job is reclassified to a higher pay grade, the parties try to ?fix history?. They go back in time and recreate history on the assumption that the job an employee was performing was not adequately compensated. [11]In this case, the grievor?s permanent position, RC Clerk, was reclassified. For the periods of time between December, 2004, to January, 2008, during which the grievor occupied the position and performed the duties of that position, she received retroactive pay. For the time she was in the temporary assistant position and performing those duties, she got paid the rate of pay for that position and did not receive retroactive pay. There is no evidence to suggest that she was not paid appropriately when she was in the assistant job. -8- [12]The employer pointed out that even if I were to find a violation of Article 18, and suggested that I have no evidence upon which to make such a finding, this would not lead to an award of retroactive pay for the grievor. The union said that had she known the rate of pay for the R C position was higher than that of the assistant position, the grievor would not have taken the job. However, in this case when the assistant job became available on a permanent basis, after the grievor knew it paid less than the position of RC Clerk, she nevertheless applied for and was successful in obtaining the assistant position. Counsel suggested that these actions on the part of the grievor speak volumes and that in fact she would not have decided to remain in the RC Clerk position simply because it paid more. [13]Counsel suggested that the employer?s actions in this case were entirely reasonable and completely appropriate. As a result of the JJE process found in Article 18 of the collective agreement, the RC Clerk position was rated higher. The parties agreed that a retroactive payment would be made back to 2004. When the grievor was in the RC Clerk position and performing the duties of that position she got paid retroactive pay. When she was not in the position and not performing the duties, she did not receive retroactive pay. That is entirely consistent with the collective agreement. [14]There is nothing in the collective agreement that creates an entitlement to retroactive payment when an employee is not in the job for which retroactive compensation is being paid. [15]I was urged by counsel for the employer to look carefully at the collective agreement before me. There is no language in the collective agreement that provides for a retroactive entitlement for an employee who is not working in the position that has been higher rated. To make an order such as the union is requesting would require specific language that does not exist in the collective agreement before me. In support of this Re Laurentian University and Laurentian University argument, counsel relied on Staff Association 32 L.A.C. (3d) 33 (Knopf) and an excerpt from Canadian Labour Arbitration by Brown and Beatty. -9- [16]The employer requested that I dismiss the grievance and uphold the employer?s decision. Decision [17]As was pointed out by both parties, the issue before me is relatively straightforward. The question to be answered is: ?Is the grievor entitled, pursuant to the collective agreement before me, to a retroactive pay adjustment for a period of time during which she held a permanent position but did not perform the duties of that position as she was on a temporary assignment in another position?? [18]While there may be exceptions, generally speaking an employee receives compensation based on the job which that individual is performing. In this case, the grievor?s permanent position, R C Clerk, was evaluated pursuant to the JJE process found in Article 18 of the collective agreement and was reclassified to a higher pay grade. The parties agreed that a retroactive salary payment would be made back to 2004. The grievor received retroactive pay for the periods of time between 2004 and 2008 when she was actually occupying the RC Clerk position and performing the duties of that position. She did not receive the retroactive payment for the time when she was not in the position and not performing the duties. [19]The union argued that the delays in the evaluation process were unfair and constituted a violation of the collective agreement and the Pay Equity Act on the part of the employer. I do not have any evidence before me upon which to base such a conclusion. I did not hear any evidence with regard to the job evaluation process on a general basis, nor do I have any evidence which establishes what took place in this case. I do not know what the process is for an appeal or how long appeals generally take. In the circumstances, it is not appropriate for me to find that the employer has failed to meet its obligations pursuant to Article 18, in the absence of specific evidence establishing that there were undue delays or that the employer was the cause of the delays in this case. -10- [20]Even if I were to accept the union?s argument that the time taken by the employer in providing the necessary information to the Committee was a violation of Article 18 of the collective agreement, the appropriate remedy for such a violation would be a declaration to that effect. However, that is not what the union is seeking. The union is asking for specific monetary relief as the remedy sought by the union is an award of retroactive compensation for the period of time in which the grievor was not working in the RC clerk position, but was performing the duties of the assistant position. There is no language in the collective agreement to support such an award. There is no provision that gives me the jurisdiction to make such an order. The union has also requested that I award damages in this case. Once again, I simply have no evidence before me that would enable me to conclude that an award of damages is appropriate. [21]There is no language in the collective agreement that deals with the situation before me. The job evaluation process in Article 18 does not address it. There is no provision in the collective agreement that entitles an employee to be paid the rate of pay associated with a job if that person is not performing the job. There is nothing in the collective agreement that creates an entitlement to a retroactive payment when an employee is not in the job for which retroactive compensation is being paid. While I understand why the grievor is frustrated and feels she has a right to receive full retroactive compensation in this case, there is simply no language in the collective agreement that either party referred to or that I could find that creates an entitlement to the payment that the grievor is seeking. [22]The actions on the part of the employer in this case are consistent with its obligations under the collective agreement. The entitlement to the retroactive payment in this case was appropriately tied to the performance of the job duties. [23]For all of the above reasons, I must dismiss the grievance in this case. th Dated at Toronto this 16 day of June 2009 Janice Johnston, Vice-Chair