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HomeMy WebLinkAbout2021-1454.Gotsanyuk.22-03-18 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB#2021-1454 UNION#2021-0582-0123 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gotsanyuk) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Alex Andrews Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Asma Hatia Treasury Board Secretariat Employee Relations & Negotiations Employee Relations Advisor HEARING March 9, 2022 - 2 - Decision [1] The Employer and the Union at the Toronto East Detention Centre (“TEDC”) agreed to participate in mediation-arbitration in accordance with the Local Mediation-Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without detailed written reasons. [2] Ivan Gotsanyuk is a Mental Health Nurse at the TEDC. He filed a grievance dated September 7, 2021 claiming that the Employer violated Articles 2, 3, and 9 of the collective agreement by failing to provide him with a pay rate reflective of his years of work experience as a Registered Nurse (RN) when it hired him as a permanent Mental Health Nurse on August 9, 2021. By way of remedy, the grievor wants the Employer to pay him $1,737.50 per week effective August 9, 2021. [3] The grievor was first hired as a permanent RN on February 2, 2015 at the Toronto South Detention Centre (TSDC). In 2019 Mr. Gotsanyuk got a temporary posting as a Mental Health Nurse at the TSDC. When a permanent Mental Health Nurse job was posted at the TEDC in 2021, the grievor applied for that position, and was successful in the competition in July 2021. At that juncture, pursuant to the collective agreement, the salary range for the Mental Health Nurse position was $1,517.86 and $1,895.93 per week, and the grievor was being paid $1,609.57 in that job at the TSDC. [4] Based on email correspondence relied upon by the grievor, it would appear that in early July 2021, Sandra Emmons, Health Care Manager at the TEDC, had telephoned the grievor to tell him that he was the successful applicant for the permanent Mental Health Nurse position. As such, on July 8, 2021 Mr. Gotsanyuk wrote to Ms. Emmons to ask her what the pay rate would be, and outlined why he believed his starting salary should be $1,787.09 per week, based on his six years of nursing experience in Corrections. He also indicated that when he had taken the temporary position at the TSDC and had asked about the salary range, he had been told that he should review with Human Resources the starting salary at the next job competition. He also indicated that others who had been hired had their overall nursing experience credited and reflected in their salary step upon being hired. - 3 - [5] There is no dispute that when a RN is first hired into a nursing job covered by the collective agreement, they may negotiate their starting salary, within the salary range for the particular position, based on their previous experience. The grievor himself had done that when he was first hired as a RN at the TSDC in 2015. [6] Ms. Emmons responded to the grievor that same day to indicate that his salary would remain at his present level of $1,609.57 per week as the move to the permanent position of Mental Health Nurse was a lateral move, and not a change in his classification. She asked if he wanted to proceed with the forms as she needed to complete forms to facilitate his hiring at the TEDC. [7] Not satisfied with the response of the hiring manager, the grievor sent an email dated July 9, 2021 to Adriana Klingohr, HR Business Support Coordinator for the Toronto Region, essentially making the same request for the higher salary rate. Ms. Klingohr responded congratulating the grievor on the job offer, and clarifying that since this was a lateral move in position there would be no change in his salary classification, so the Employer could not give him a salary increase. She advised him that salary increases were not based on whether a position was temporary or permanent, or prior work experience, but rather on moving to a higher classified position. [8] By an email dated July 15, 2021 the grievor advised Ms. Klingohr that he had been told in the past that lateral transfers were only done between permanent positions. Ms. Klingohr responded to clarify for the grievor that she had indicated this was a “lateral move”, not a “lateral transfer”. He was moving from the TSDC to the TEDC as a Mental Health Nurse, and the only difference was that it was now going to be a permanent assignment. [9] Notwithstanding having been told twice at this juncture why the rate would not be changed, Mr. Gotsanyuk wrote to Ms. Klingohr on July 16, 2021 indicating that he wanted to have his starting salary at the TEDC reflect his nursing experience. Ms. Klingohr responded the same day telling him the Employer was unable to provide a salary increase. [10] In the July 26, 2021 letter from Ms. Emmons to the grievor outlining the terms and conditions of the Mental Health Nurse position, the wage rate was confirmed as being $1,609.57 per week. While the grievor hand-wrote on the letter that the “salary is being negotiated”, and that he should be paid “$1,737.50 (6 years of correctional experience as nurse)”, he nonetheless signed the offer letter on - 4 - August 9, 2021, under the sentence that read “I have read, understood and accepted the terms and conditions of employment as outlined above”. [11] Based on the evidence before me there is no doubt that the grievor accepted the wage rate outlined in the July 26, 2021 letter. He had tried to “negotiate” a better rate of pay for himself, despite the terms of the collective agreement, and had not been successful. If he did not want the job at that wage rate, it was still open to him to decline the TEDC offer. He did not do that. By August 9, 2021, when he accepted the position, he had had two full discussions with both the Health Care Manager and with Human Resources, and should have been under no illusion about what the rate of pay would be. [12] Nothing in the collective agreement entitles the grievor to the rate he is seeking in this grievance. He applied for and was successful in getting a permanent position at the TEDC for the same job he had been doing and being paid for in a temporary capacity at the TSDC. [13] Having considered the documents submitted and the submissions of the parties, for the reasons outlined above, the grievance is dismissed. Dated at Toronto, Ontario this 18th day of March 2022. “Gail Misra” _________________ Gail Misra, Arbitrator