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HomeMy WebLinkAbout1978-0035.Creet.80-07-24IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mrs. E. S. Creet, Grievor And The Crown in Right of Ontario Ministry of Correctional Services, Employer Before: R. Kennedy - Vice-Chairman A. Reistetter - Member K. Levack - Member APPEARANCES For the Grievor: M. Pratt, Grievance Officer, Ontario Public Service Employees Union For the Employer: J. Benedict, Manager, Compensation & Staff Relations, Human Resources Management, Ministry of Correctional Services Hearing: July 15th, 1980, Suite 2100, 180 Dundas Street West, Toronto, Ontario. -l- _- .,.... AWARD The grievance in this matter dated December 16th, 1977 alleges that there has been discrimination in the application and practice of salary to probation and parole officers 2. The grievance seeks that the grievor be considered in the 5th salary range retroactive to the date of entitlement. The grievance was preceded by a letter from the grievor dated December lst, 1977 wherein,the grievor indicated that she had just become aware that there were other employees in her position who had been granted the 5th stage wage scale in the category of probation and-parole officer 2 without having completed a set of examinations. As a result the grievor alleged that her salary level should be re-opened in view of the fact that she had been frozen at the 3rd stage rate for probation officer 2. The grievor's employment commenced with the Ministry February 6th, 1961, and she was appointed to permanent status March lst, 1962. She was originally hired to the position of probation officer 1, and she subsequently completed successfully three examinations which were required by the procedures then in force to advance to the position of probation officer 2. She was promoted'to the position of probation officer 2 on August 1964 and continued in that position until her retirement on lst, March 6th, 1978. The probation officer 2 category has a 5 stage salary progression with incremental salary increases which are apparently awarded every two years. The grievor progressed through the salary range until she reached the 3rd stage, at which point she did not progress further as there existed a -2- requirement that a probation officer 2 had to complete a further set of examinations in order to progress beyond the 3rd salary .step. The grievor apparently completed one of the:three examinations in 1965, but no further examinations were completed. The grievor did, of course, receive all of the negotiated increases and salary benefits effective at the 3rd salary step for probation officer 2, but she was not permitted to progress through stages 4 and 5. Evidence led. by the employer establishes that policies within the Ministry going back to 1952 have been applied to the probation officer 1 and probation officer 2 categories. At '. first, the probation officer 1 category was used to designate employees who did not have a university degree, and the probation officer 2 was the category to which university graduates were assigned. In 1956, this system was changed,,and a set of barrier examinations were introduced which had to be passed by an employee in order to be promoted to the category of probation officer 2. At the same time, a further set of examinations were instituted which had to be completed prior to an employee,being able to progress past the 3rd salary stage of the probation officer 2 category. That was the system that was in force in August of 1964 when the grievor was promoted to the category of probation officer 2, and the examinations which she had passed prior to that time were the barrier examinations for promotion from probation officer 1 to probation officer 2. In December of 1964 the system was changed, and the barrier examinations which previously had applied to move from probation officer 1 to probation officer 2 were eliminated. . i ‘,, ,. - 3.- They were replaced at that level by the same set of examinations as had formerly determined the right to progress past stage 3 of probation officer 2. Put another way, at that point in time, the requirements for progressing from probation officer 1 to probation officer 2 were made more difficult and became the equivalent of what had formerly been the test of progressing through level 3 in probation officer 2. As of December 1964 there were about 45 or 50 employees in the probation officer 2 category who had passed the old barrier examinations from probation officer 1 in order to achieve the classification of probation officer-2, but who had not passed the specified examinations to progress through level 3 of probation officer 2. They were all told, at that time, that they would be held at level 3 until they did, in fact, pass the set of exams which now constituted the require- ment to move out of probation officer 1 category, That point was confirmed in a salary note issued by the Ministry concurrent with the implementation of the changes. Subsequently, all of those employees, with the exception of 5 or 6, did complete the examinations and progressed past stage 3. The griever is one of the few who did not so progress. The examinations were offered on an annual basis, and the employees were permitted to pass them one at a time. There were a total of three ::I. examinations which had to be.completed. It is clear, on the evidence, that the grievor's work performance throughout the entire period was excellent, and that she was considered by her employer to be a conscientious and dedicated officer. It is also clear that she was frequently <- -4- encouraged by her superiors to complete the examinations: and, in the opinion of hersuperiors, she would have no problem in passing them. She did not do so, however: and, while she passed one of the examinations in 1965, she did not complete the remainder. When asked for an explanation, she indicated that there were several books which would have to be read and a. considerable amount of memory work involved, and she was simply too busy in her work and family life to take the time. She stated that, in addition, she considered that she had already passed one set of examinations to achieve the probation officer 2 classification, and she considered it unreasonable that she should be required to do it over again when new examinations came in. She agreed, in the course of her examination, that she was aware of the situation from December of 1964; and that in 1970, when she had completed 6 years in the classification and had progressed to stage 3, she had not launched any grievance when she was not permitted to progress to stage 4. The matter was first raised in December of 1976, and it would appear from her letter of December lst, that it was as a result of learning that there was another employee in the same circumstances who had progressed to stage 5 that she decided to take some action. The evidence does establish that the employer does, in fact, have one probation officer 2 in its employ::who has not passed the set of examinations that were specified as oft December 1964 to constitute the requirement to progress from probation officer 1, and who was being paid at stage 5 of the probation officer 2 category. The present director of -5- Probation and Parole Services testified that this had been an arbitrary decision made by a predecessor director, and that it was not a decision that the incumbent director would have made. He stated categorically that it had been wrong and contrary to known and stated policies of the Ministry. There existed no other cases of that nature. As of December lst, the date upon which the original letter was forwarded by the grievor to the employer, the Collective Agreement in effect was one which had been, negotiated for the period October lst, 1976 to September 30th, 1977, but \ which continued to be in force by reason of the fact that a new Collective Agreement had not yet been completed. A subsequent Collective Agreement running to September 30th, 1978 was, in fact, signed by the parties December 6th, 1977; and that Collective Agreement specifically provided, in paragraph 2(iv), that progression beyond the 3rd rate in the salary range for the classification of probation officer 2 is dependent upon successful completion of scheduled examinations. That was the first time that the principle received collective agreement recognition, but it is the position of the Union that this grievance is filed pursuant to the prior Collective Agreement which was in force when the matter was raised by the grievor on December 1st. The parties did not provide uswith any collective agreement history prior to October lst, 1976, and the employer's evidence on policies and procedures was not challenged by the Union. The first argument submitted by the Union was that the Collective Agreement, in its language, makes it implicit 5 -6- that the grievor is meant to be in a wage progression and is entitled to progress through the 5 stages of probation officer 2. The specific contractual language relied on by the Union reads as follows: ARTICLE 5 - CLASSIFICATION PROCEDURE 5.3.1 Where the duties of an employee are changed as a result of reorganization or reassignment of duties and the position 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 classification including any revision of the maximum salary of the higher classification that takes effect during the salary cycle in which the reclassification takes place. 5.4 Where a position is reassessed and ; is reclassified to a class with a lower maximum salary, any employee who occupies the position at the time of the reclassification shall continue to be entitled to a salary progression based on merit to the maximum salary of the higher classification, including any revision of the maximum salary of the higher classification that takes effect during the salary cycle in which the reclassification takes place. It is our view that Article '5.3.1 cannot apply to the fact situation which is before us as it is clear that the duties of the employee have not been changed in any way, and there has been no reclassification. That section clearly, on its language, cannot apply. It was argued, however, that under 5.4, the position has been reassessed and reclassified in the sense that the upper 2 stages have, in essence, been made a different classification for which a new set of examinations is required. It is our view that those sections have, in fact, 'been strictly complied with by the employer in the treatment ,~ ,z -7- of the grievor. .In August of 1964 the grievor completed the , then requirements of examinations to progress into the probation officer 2 category. It is clear from the evidence that, at that point in time, she had a clear expectation of progression, but only to stage 3, at which point, she would have to pass another set of examinations. Subsequently, in December of 1964, the' procedures were changed, and the set of examinations that the grievor would have had to write to pass through stage 3 became the prerequisite of being in the category in the first instance. However, and presumably in accordance with similar provisions in force at the time, the'grievor's position in the category of probation officer 2 was protected, -and she was further permitted the progression to which she had been entitled'to stage 3 under, the prior system. Accordingly, if there had not been any changes in the procedures in 1.964, and the grievor had failed to complete another set of examinations, she would still not have been able to progress through stage 3. Put another way, within the language of Article 5.4, the maximum salary to which the grievor could progress without further examinations prior to the changes was stage 3; and; subsequent to the changes and the employer's salary note, the passing of the same set of exams continued to be the requirement to pass through that stage. The Union further argued that even if the Collective Agreement did not specifically provide for the progression, the employer's salary policy which was published by the employer and had been relied upon by the Union provided that, if work was satisfactory, an employee's salary would progress through the increments provided in the Collective Agreement. It is our view that, based on the collective agreement language which has grievance must be dismissed. We think it fair to state, however, that this constitutes no reflection on the many years of - 8 -, been filed with us, the employer has complied with that policy since, at all material times, the ceiling of progression for the grievor was on the stated policies of the employer to a maximum of stage 3 unless further examinations were passed. We were referred to no language in the Collective Agreement or in the policy which would restrict or limit the exercise of management's rights in that regard, and we'cannot find on the evidence any violation of either the Collective Agreement or the salary policies published'by the employer. . The Union's secondary argument was to the effect that the examination requirements were the equivalent of a management rule, and that the employer was, in essence, purporting to impose discipline for the employees' failure to comply with that rule. Again on the evidence, we think it is clear that, at no time, was there any disciplinary aspect to the procedures followed by the employer: and the examinations constitute a reasonable and proper employer requirement for classification purposes applied to some 400 probation officers employed within the Province. The single exception to the application of that requirement would appear to be little more than a mistake on the part of management and cannot now be held in some way to estop or prevent the employer from following its normal procedures. We are not prepared to categorize, as disciplinary, any of the actions of the employer outlined to us in the evidence. In the result, it is our conclusion that the - 9 - dedicated service given by the grievor. The various appraisal reports and comments contained in the documentation filed with us create an impressive employment record which was readily acknowledged by the employer's representative. DATED at Toronto this 24th day of July, 1980. I concur I concur "A. Reistetter" / A. Reistetter - Member i "K. Levack" K. Levack - Member