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HomeMy WebLinkAbout1978-0033.Williams.80-11-1333175 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. :. V. Williams And (Grievor) The Crown in Right of Ontario Ministry of Natural Resources (Employer) Before: Professor <. P. jwan Vice-Chairman Mr. V. P. Harris Member Mr. S. R. Hennessy Member For the Grievor: ifir. N. Luczay, Classification Officer Ontario Public &r-ice Employees Union For the Emnioyer: Mr. J. A. Temple, Supervisor, Compensaticn Personnel Set-*/ices, Ministry of Natural Resources Hearing: Auqus t 2ot!l, 1?EO Suite 2100, 120 Bundas St. West Toronto. Ontario - 2 - The subject matter of this grievance is closely related to that of another grievance filed by Mr. Williams, decided by this Board as case 167177. Many of the surrounding circumstances of this case are set out in that award and certain evidence was ., treated, by agreement of the parties, as common to both grievances. The genesis of this grievance was the reclassification, effective July 1, 1977, of the position occupied by Mrs. Lillian Marchant in the Finance and Administration office of the North West Region of the Ministry of Natural Resources in Kenora. Mrs. Mar- chant's~job, previously entitled "Stenographer" and classified as a Clerical Stenographer 3 position, was renamed Administration Supervisor (Region) and classified at the Clerk.5 General level. The grievor was, throughout this period, Buildings and Equipment Records Clerk in the same Regional Office, clas'sified as a Clerk 4 General. The reclassification of Mrs. Marchant's position caused him first to claim that a new job had been created around Mrs. Marchant which ought to have been posted under Article 4 of the then subsisting collective agreement, a claim to which we gave some credence but which we ultimately dismissed in'our award in case 167177. In the present grievance he claims that his own posi- tion is improperly classified, and ought to be at the Clerk 5 General level. This grievance is pursued under Article 5 of the ColJective Agreement and under section 17(2)(a) of the crown Employees Collective Bargaining Act. The latter is not here relevant; the former provides: - 3 - ARTICLE 5 - CLASSIFICATION PROCEDURE 5.1.1 An employee who alleges that his position is improperly classified may'discuss his claim with his innnediate supervisor at any time, provided that such discussions shall not be taken into account in the application of the time limits set out in Article 27. An employee, however, shall have the right to file a grievance in accordance with the grievance procedure specifying in his grievance what classification he claims. 5.1.2 In the case of any grievance filed under the above section, the authority of the Grievance Settlement Board shall be limited to: a) confirming that the'grievor is properly classified in an existing classification or b) finding that the griever would be prop erly classified in the job classification which he claimed in his grievance. 5.1.3 The Employer, upon written request either by the employee or by the union, shall make avail- able all information and provide copies of all documents which are relevant to the grievance or may be used by the Employer in the presentation of the case before the Grievance Settlement Board. 5.2.1 Promotion occurs when the incumbent of a class- ified position is assigned to another position in a class with a higher maximum salary than the class of his former position. : 5.2.2. An employee who is promoted shall receive that rate of pay in the salary range of the new classi- fication which iS the next higher to his present rate of pay, except that: where such a change results in an increase of less than 3% he shall receive the next higher salary rate again, which amunt will be considered as a one-step increase. a promotional increase shall not result in the employee's new salary rate exceeding the maximum of the new salary range except where permitted by salary note. . - 4 - 5.2.3 Where an employee: a) at the maximum rate of salary range is promoted, a new anniversary date is established based upon the date of promotion. bl at the rate less than.the maximum in the salary range is promoted and receives a proim- tional increase: greater than a one-step increase, a new anniversary date based on the date of promotion is established of one-step or less, the existing anniver- sary date is retained. 5.3.1 Where the'duties of an employee are changed as a result of reorganization or reassignment of duties and the positi,on is reclassified to a class with a lower maximum salary, an employee who occupies the position when the reclassification is made is entitled to salary'progression based on merit to the maximum salary of the higher classifica- tion including any revision of the maximum salary of the higher classification that takes effect during the salary cycle in which the reclassification takes place. 5.3.2 An employee to whom the above section applies is entitled to be appointed to the first vacant position in his former class that occurs in the same admini- strative district or unit, institution or other work area in the same Ministry in which he was employed at the time the reclassification was made. 5.4 Where a position is reassessed and is reclassified to a class with a lower maximum salary, any emp- loyee who occupies the position at the time of the reclassi- fication shall continue to be entitled to a salary progression based on merit to the maximum s,alary of the higher classifica- tion, including any revision of the maximum salary of the higher classification that takes effect during the salary cycle in which the reclassification takes place. 5.5 1. Where, because of the abolition of a posi- tion, an employee is assigned 4 from one position in a Ministry to another position in the same Ministry or b! from a position in one ‘Yinistry to a position in another Ministry, and the - 5 - position to which he is assisted is in a class with a lower maximum salary than the maximum salary for the class of the position from which he was assigned, he shall continue to be entitled to salary progressions based on merit to the maxi- mum salary of the higher classification including any revision of the maximum salary of the higher classification that takes effect during the salary cycle in rwhich the assignment takes place. \ 2. Sub-section i applies only where there is no position that the employee is qualified for, and that he may be ~assiyned to, and that is a) in the same classification that ap- plied to the employee's position before the pxition was abolished or * b) in a classification having the same mximm salary rate asp the maximum salary rate of the classification that applied to the employee's position before the position was abolished. 5.6 Where, for reasons of health, an employee is assiyned,to a position in a classification having a lower maximum salary, he shall not receive any salary progression or salary decrease for a period of six months after his assignment , and if at the end of that period; he is unable to accept employment in his former classification, he shall be assigned to a classification consistent with his-condition. 5.7 Except as provided above, an employee who is demoted shall be paid at the rate closest to but less than the rate he was receiving at the time of denwtion, effective from the date of his demotion. 5.8 When a new classification is to be created or an exist,iny classification is to be revised, at the request of either party the parties shall meet within thiry days to negotiate the salary range for the new or revised classification, provided that should no agreement be reached between the parties, then the Employer will set the salary range for the new or revised classification subject to the right of the parties to have the rate determined by arbi- tration. - 6 - It would not do injustice to the grievor's case to say that the present grievance is based almost entirely, if not completely, on the reclassification of Mrs. Marchant's position to the Clerk 5 General level. Yet that approach causes the Union's argument considerable difficulty, since there is evidence that Mrs. Marchant's job was reclassified in error. It appears that the original reclassi- fication was done locally, and almost immediately the classification authorities in Toronto disputed the level 5 evaluation and began to take steps to review the matter. The Union argument observes that her position was ultimately reclassified to level 4 only after the present grievance was lodged, but Mrs. Marchant's ~testimony makes it clear that she knew almost immediately after her classification at level 5 that her new level was the subject of some dispute. Indeed, her evidence is that she herself was surprised at the higher classification. i The Union's position is that her job and the grievor's'job were properly classified at the same level, and that the grievor ought therefore to benefit as Mrs. Marchant did from a brief reclassi- fication at a higher level. Thatbenefit comes from~Article 5.4, which provides that, when a position is reclassified downwards, the incumbent is "red-circled". We have no difficulty at all in accept- ing the first proposition. In our view, having,reviewed all of the evidence, Mrs. Marchant's job would have been, at the material time, properly classified at level 4. Moreover, again having regard to all of the evidence, the grievor's job would also have properly been classified, absolutely, at level 4 and, relatively, at the same level as Mrs. Marchant's job. - 7 - It is the second proposition in the Union's case which we find unacceptable. There is no doubt that Mrs. Marchant benefitted from the erroneous classification of her job, On a strict reading of the collective agreement, which does not (as do some agreements) provide for temporary classifications pending final determination, the error in evaluating her job produced a windfall. The Union argument that the grievor is therefore entitled to a similar wind- fall merely because he was doing a job at the same level as her final correct classification in the same office is, we have con- cluded, entirely without merit, and ought to be rejected. Mrs. Marchant's claim to some part of the proceeds of the level 5 evaluation was a complete technicality. There is no suggestion from her, nor from the Union as we view.the evidence and argument, that she was ever really entitled as a matter of substance to be paid at level 5. There had been an error, she had subsequently been reclassified downwards, and from those circumstances certain transitory rights arose. TO suggest that her technical right to temporary higher payments supports a claim for similar treatment by the grievor could, without much more of a distortion of logic thanthat which underlies the argu- ment advanced on the grievor's behalf, justify similar treatment for all Clerks 4 General, or even for all employees in the system. We can see no validity at all in the grievor's claim for reclassification, either in substance based on the position . - a - specifications or as a technicality by analogy to Mrs. Marchant's case. As a consequence, the grievance is denied. We note that another panel of this Board, chaired by Professor Katherine Swinton, dealt with an adjournment of this matter from a scheduled hearing date of April 25, 1979. The interim award granting the adjournment without retaining jurisdication to that panel dated June 27, 1979, left open the possibility that an award of compensation might be , . affected'by the circumstances surrounding that adJournment. As no compensation calculation arises in this case, we need not determine the questions left open by the interim decision in this matter. Dated at Toronto, this~ 13th day of November, 1980. K. P. Swan Vice-Chainnan I concur . . Harris Member I concur S. R: Hennessy Member IT