HomeMy WebLinkAboutAlli 23-11-22IN THE MATTER OF AN ARBITRATION
UNDER THE LABOUR RELATIONS ACT
BETWEEN:
THE HOSPITAL FOR SICK CHILDREN
(“the Employer”)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
LOCAL 5114
(“the Union”)
GRIEVANCE OF
ZAMAN ALLI
2020-5114-0001
A W A R D
Arbitrator: Barry Stephens
For the Employer: Jamie Burns - Hicks
For the Union: Angela Zhu - OPSEU Grievance Officer
Heard by Videoconference on
October 23, 2023
INTERIM AWARD
Introduction
[1] The rights arbitration before me relates to the calculation of the grievor’s
placement on the wage grid in the wake of my interest arbitration award issued on
November 19, 2018. The employer raised two preliminary matters at the hearing on
October 23, 2023, and this interim award deals with those preliminary matters. The issues
were argued on the basis of stated case without the introduction of formal evidence by
either party.
Issue 1: Original Date of Hire
[2] The employer argued that one of the issues raised by the grievance was the
calculation of the grievor’s anniversary date. Paragraph 45 of the Interest award dealt
with the issue of the implementation of the new wage grid. Points 5 and 6 stipulated as
follows:
5. Employees are to be placed on the wage grid in accordance with their years
of service in their classification at Sick Kids.
6. An employee’s anniversary date shall be is or her original date of hire.
The employer argued that there was no ambiguity in the language in the Interest award,
in that it set out that placement on the grid with respect to one’s classification was to be
in accordance with the years of service within the classification, while the employee’s
anniversary date was to be determined by the employee’s original date of hire. The
grievance asserts that the anniversary date and service within a classification provisions
2
should be read together. The grievor was originally hired in September 2004, and he
moved into the classification in dispute in April 2015. The grievance asserted that the
Interest award intended that one result of the change of classification in 2015 was that
the grievor’s “anniversary date” would have been set to April, instead of September. The
employer asserts this part of the grievance represents a misreading of the clear language
of the Interest award and seeks a ruling to that effect.
[3] In my view, the language in question is clear, and the interpretation applied by the
employer to the grievor (and to all other employees) is correct. The points 5 and 6 address
different aspects of the implementation of the wage grid and should not be read together
in the manner suggested by the grievance. This part of the grievance, therefore, must be
dismissed.
Issue 2 – Expansion of Grievance
[4] The employer also raised a preliminary objection to the other aspect of the
grievance, which was an allegation that the employer had improperly calculated the
grievor’s years of service within his classification by failing to recognize that he had been
performing the same duties for many years while classified as a Research Associate prior
to formally being placed in the position of Lab Specialist in April 2015. In effect, the
grievor alleges he was misclassified as a Research Associate from the time of hiring and
should be credited as having worked as a Lab Specialist since his hiring in 2004.
3
[5] The employer argued that the grievance did not properly raise this issue and the
union was improperly attempting to expand the grievance by raising it at the hearing. The
relevant portion of the grievance reads as follows:
“Further, SickKids did not recognize my years of service in the same job for
the last 16 years for which external hires are credited. Below is the
Collective Agreement Language.”
The grievance then goes on to cite Article 13.01, which deals with an unrelated provision
addressing the minimal pay rate to be calculated at the time of a promotion to a higher
classification.
[6] There is no question that the form of the grievance is somewhat confusing,
particularly given the references to external hires and the minimum increase on
promotion. However, the grievance makes a clear reference to the fact that the grievor
has been working the “same job” for years and that these years of service were not
recognized. Grievances are not drafted by lawyers, and it is not appropriate to parse them
as if they were. The question is whether the grievance fairly raised the issue in dispute,
and it is my view that this grievance clearly signalled that the grievor had a concern that
his years of service had not been properly calculated and credited because, he claimed,
he has been working the “same job” for 16 years prior to the filing of the 2020 grievance.
This seems to be the crux of the issue raised in the second part of the grievance and, I
have concluded the grievance expressed the issue of the grievor’s classification with
sufficient particularity such that the employer ought to have been aware that the grievor
believed his classification had not changed since he was hired.
4
Summary
[7] I agree with the employer’s submission that there is no question about the proper
meaning of the language with respect to the calculation of the anniversary date under the
Interest award. I find that the employer applied the language properly to the grievor. I
do not agree with the employer’s second preliminary point, and find the grievance raised
the issue of the grievor’s classification prior to 2015 and that the raising of the issue at
the hearing does not constitute an improper expansion of the grievance.
[8] The hearings in this matter will continue on dates to be scheduled with the parties.
_________________________________
Barry Stephens, Arbitrator
November 22, 2023