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HomeMy WebLinkAbout1981-0025.Price et al.82-05-10. IX TEE UTTER OF AN ARBITRATION Under -. THE CROWN EMPLOYEES COLLECTIVE BARGAINIXG ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For .ihe Griever: For the Employer: OPSEU (Michaei Price, Kim Johns, and Lloyd Robert Leigh) Grievers -And- The Crown in Right of Ontario (Ministry of Comunity and Social Services) Erployer R. L. Verity, Q.C. Vice Chairnan L. Robinsor! Xember B. Laing Member G. A. Richards Grievancc/Classificat~on Officer Ontario Public Service EnplcyeeS Union M. P. Moran, Counsel nicks, Norley, Hamilton, Stewart & S:orie - 2 - I IJ T E R I M AWARD All three Grievors are employed at the Huronia Regional Centre for the mentally ill in the classification of Occupational Instructor II. Each grievance is identically framed alleging "improper classification", and each grievance form requests the. settlement of reclassification to "Industrial Officer II". . i At the outset of the Hearing at the Board, Mr. Richards representing the Grievors, requested an amendment to permit ' reclassification to Industrial.Officer, I instead of Industrial Officer II. The basis for the requested amendment was Mr. Richards" submission that the Grievors' jobs are "a better fit" within the Industrial I classification, rather than the original request as set out in the grievance form for Industrial Officer II classification. Mr. Moran, representing the Employer, vigorously objected to the amendment as being "untimely", and further alleged that the Board lacked jurisdiction to grant the amendment. MI . Noran was only .~ advised of the Union's requested amendment immediately preceding the commencement of the Hearing. The Hearing was then adjourned to allow the Parties an opportunity toslbmit written argument on the sole issue of the requested amendment. Each of the Parties submitted well documented briefs ably supported by arbitral authority and judicial precedent. - 3 - Mr. Moran argued that the Grievance Settlement Board obtains its jurisdiction from Section 18(2)(a) of the Crown Employees Collective Bargaining Act, and Articles 5.1.1 and 5.1.2 of the Parties' Collective Agreement. In addition, it was argued that the Board's remedial authority was further restricted by Article 27.12 of the Collective Agreement. Section 18(2)(a) of the Crown Employees Collective Bargaining Act reads as follows: c "18(2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified: . . . . . . . . may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final deter- mination applicable under section lg.", Articles 5.1.1 and 5.1.2 of the Collective Agreement read: '.. "5.1. 1 An employee who alleges that his position is improperly classified may discuss his claim with his immediate 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, Grievance Procedure. 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 tom: -4 - (a) confirming that the grievor is properly classified in an existing classification, or (b) finding that the grievor would be properly classified in the job classification which ' he claimed in his grievance." Finally, Article 27.12 of the Collective Agreement states: "27.12 The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or / enlarge any provision of the Collective Agreement." It was Mr. Moran's argument that the Board's jurisdiction is limited in classification Grievances under Article 5.1.2 to finding either that the Employer was right or the Grievot was right, and further that there is no authority to grant relief to the Grievor in any other fashion than as requested in the original grievance form. Further, .the Employer argues that implicit in the wording of Article 5.1.2 is the agreement of,the Parties that Grievances requesting reclassification to different classes are *. Grievances which are different in substance. For the Grievors, Mr. Richards argued that the requested amendment should be characterized as a technical enlargement of form as opposed to a material change in.substance, and that~ the Board has jurisdiction to grant the amendment. It was argued that the substance of the Grievance, namely "improper classification" was not altered by the proposed amendment. He relied upon the liberal interpretation of the rights of a Board of Arbitration to deal with the real issue as set forth by the Ontario Court of Appeal . -5 - in Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975) 57 D.L.R. (3d) 199 at page 204: "NO doubt it is the practice that grievances be submitted in writing and that the dispute be clearly stated, but these cases should not be won or lost on the technicality of form, rather on the merits and as provided in the contract and so the dispute may be finally and fairly resolved with simplicity and despatch. When a Board of Arbitration is satisfied on the evidence that a party to a collective agreement is in breach thereof, it is the Board's obligation to render its decision accordingly. However, that decision is not simply a statement of a finding of the Board with respect to the allegation made in the grievance but is also the consequential order or award, if any, that is required to give effect to the agreement. Certainly, the Board is bound by the grievance before it but the grievance should be liberally construed so that the real complarnt 1s dealt with and the appropriate remedy rovlded to give effect to the agreement provisions." TEmphasis added).... We are of the opinion that there is no doubt that the substance of each of the Grievancesis "improper classification" as set out in the grievance forms. Similarly, we are'of the view that the requested amendment is remedial in nature and does not affect the substance of the Grievance -- namely improper classification. Previous Grievance Settlement Board Awards such as Heffering and The Crown in Right of Ontario, Ministry of Consumer and Commercial Relations, 504/80 (Delisle) and Alten and The Crown in Right of Ontario, Ninistr: -6- of Government Services, 472/81 (Verity), stand for the proposition that amendments may be granted for technical enlargement of form and will be rejected for a material change in substance of the Grievance. In this instance, the proposed amendment is clearly a remedial request within the same class series as requested in the original grievance forms. Accordingly it is analogous to a technical enlargement of form which does nof.constitute any enlargement of the applicable provisions of the Collective Agreement. Occasionally it will happen that individual Grievors who claim improper classification will have difficulty identifying the correct classification within a series. The problem of identifying the proper classification is complicated by the fact.that class definitions do not form part of the Collective Agreement, and accordingly Employees and Union Officials alike may select improper classifications when specifying the remedy on the grievance form. It is the opinion of this Board that there are however limits to allowing a remedial amendment in favour of the Grievor at an Arbitration Hearing. In our view, it would be improper to allow an amendment requesting an entirely different classification series from that set out in the grievance form. Similarly, any requested remedial amendment must be presented at ;he outset of the Hearing and not within the course of the Hearing itself. In addition, ally requested remedial relief should be retroactive to the dats that , - 7 - -the amendment was requested, and not to the date of the filing of the Grievance. . We do not agree that the wording of Article 5.1.2 prohibits an Aribtration Board from granting the requested amendment. In our opinion;to find otherwise would be unduly restrictive in the circumstances. Accordingly, the Grievors shall be permitted the right to amend the relief requested from Industrial Officer 11 to Industrial Officer I. The Registrar of the Board shall be requested to set a date for these Grievances to proceed on the merits. DATED at Brantford, Ontario this 10th day of May, 1932. Vice Chairman L. Robinson - >llember I regret that I am obliged to dissent from the award of the majority. The facts in this matter are straightforward and are set out in the majority award. The issue before us is simply _~ stated as: is question to be "Industrial Of the Board prepared to allow the gr ,i changed to request a reclassificat i -: ficer II" to "Industrial Officer I" evances in on from It should be emphasized that this request was first made immediately prior to the commencement of the hearing. I would deny this request for two reasons. Firstly, a c~hange of this nature amounts to a new grievance. The very essence of the'grievance is the particular classification. to which the grievor lays claim. Each of the grievors asserted that his position should be reclassified as Industrial Officer II. These grievances were then processed through the. grievance procedure and the parties must be deemed to have addressed this issue and the merits of the specific claims. By character- izing the request of the union as an amendment, the majority have overlooked the reality of the matter, that the grievors have for the first time tabled a new claim and effectively filed a new grievance at the arbitration hearing. This is not ,6t-operly a request to amend an existing grievance but is in fact. an attempt to file a new grievance without such grievance being dealt with by the parties during the grievance procedure. The second reason why I would deny the request is equally fundamental. In my view our Board is expressly prohibited from c - 2. - doing what we are asked to do;by the provisions of Articles 27.12, 5.1.1 and 5.1.2. With all due respect to my colleagues, the majority have acted contrary to the specific directions of the parties as se't out in the collective agreement when such an issue is considered by the Board and thus in my view have exceeded their jurisdiction. To me the words are very clear. Article 27.12 provides: ; "The Grievance Settlement Board shall have no juris- diction to alter, change, amend or enlarge any provision of the Collective Agreement" (emphasis added). In the last sentence of Article 5.1.1, as set out by the majority, the parties have specifically dealt with what an employee must specify in his grievance when he files a grievance di,sputing his classification. "An employee, however, shall have the right to file a grievance in accordance with the grievance procedure, specifying in his grievance what classi- fication he claims" (emphasis added). By allowing what the majority refers to as a "technical enlargement in form" they are allowing an enlargement of that provision of the Collective Agreement which sets out the form that the grievance must take and thus are acting without jurisdiction. Whereas Article 5.1.1 sets out that a grievor must specify what classification he claims ,in his grievance, Article 5.1.2 restricts the remedial authority of the Soard in a reclassiii- ~ to be confirmed be reclassified a i - 3 - s correctly classified or the grievor is to n the classification which he claimed in his. grievance. .Quite obviously in our case this means the classification of Industrial Officer II. As was argued by Mr. Moran this means that the Board must come to the conclusion ei,ther that the employer was right or the grievor was right but the context of such finding must be the grievance as originally framed. This is no theoretical matter since it is to be remembered that the same grievance has been processed through the full steps in the grievance procedure. It is incon- ceivable to me that the parties would have used such precise language .in their agreement onl, y to be circumvented by the filing of a new grievance under the di sguise of a request for an amend- ment. In my view our Board is bound by the clear direction the parties.have given to us and the most the grievor can achieve is a finding that they should be reclassified as they themselves claimed in their grievance, namely Industrial Officer II. It is they tha't frame the issue for the Board and we in turn are required to rule on the grievance and the specific claim con- tained in such grievance. To do otherwise flies in the face of the clear language of the agreement and amounts to an alteration of the agreements contrary to Article 27.12. For these reasons I would have refused to grant the request. Heather J. Laing /t ” >