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HomeMy WebLinkAbout1981-0111.Noon.81-08-20IN THE MATTER OF AN ARBITRATION under The CROWN EMPLOYEES COLLECTIVZ 3ARGAINING ACT Before THZ GRIEVANCE SETTLZMZNT 3OARD Between: .I ?Ir. 24. Noon G2- - And - The Crown in Right of Ontario (Ministry of Community and Social Services) El32lOy*r ..~ Before: Prof. R. H. b?cI,aren Vice ChairnaT: _~ MS. M. M. perrin Member Mr. A. M. McCuaig I-?enber For the Griever: Mr. Pl. Pratt, Grievance Ontario Public Service Empioyees rjni32 For the Enployer: - Mr. D. Abramowitz, -,~anag~zr Employee Relations, Persor.nel a:-ailch Ministr-y of..Community &. Social Services Hearing: July 16, 1981 2. AWARD ----- This matter comes before the Board without any preliminary objections as to arbitrability or jurisdiction to hear the matter. It involves a grievance by Mr. Mike Noon in which he grieves,that Article 6.1 of the collective agreement was contravened when he was not paid acting pay. The facts are simple and not in dispute. Since May of 1977, the Grievor has been a Recreation and Craft Instructor II at a centre for the developmentally and physically handicapped. His duties involve teaching swimming and related skills to members of the centre. He is also required to act as a lifeguard and perform.duties related to the maintenance and operation of a swimming pool. .-: .On October 31, 1980, Mr. Don Baker, the Athletic Supervisor for the facility, posted a memorandum (Exhibit I) which read as .follows: "To : All Pool Staffs Date: October 31/80 During my absence Mr. Robert McGregor and Mr. Mike Noon will be in charge of the pool. Mr. Robert McGregor from 0800 Hrs. till 1630 Hrs., Mr. Mike Noon from 1630 Hrs. till 2130 Hrs." At that time, Mr. Noon normally.worked a shift commencing '.., at l:oo p.m. and running until 9:30 p.m. Therefore, he would be "in charge" for five hours of-his shift under the terms of the 3. memorandum. He alleges that during that time he is, in effect, doing the supervisor's job and,therefore, what occurs amounts to a temporary assignment within the terms of Article 6.1 of the collective agreement. That Article reads as follovris: "6.1 Where an employee is assigned temporarily to perform the duties of a position in a classifica.tion with a higher salary maximum for a period in excess of eight (8) consecutive working days, he shall be paid acting pay from the day he commenced to perform the duties of the higher,classification in accordance with the next highest rate in the higher ciassifica- tion provided that such acting day shall not be less than three percent (3%) above his current rate." It is argued on behalf of the Union that when the Grievor was .assigned to be in charge of the pool that means that he is doing the duties of the supervisor who is in a higher classifica- tion and amounts to a temporary assignment of the Grievor. Such a temporary assignment woul d entitle the Grievor to receive pay at the higher level pursuant to the requirements of Article 6.1. It is argued on behalf of the Employer that what the Grievor is doing is part of the duties of the supervisor-ford part of the shift, He has none of the accountable responsibilities: Although,he may have responsibility to make decisions of an on the spot nature. The Grievor equates being in charge from 4:30 p.m. to 9:30 p.m. with being 'I... assigned temporarily to perform the duties of a position in a classification with a higher salary maximum..." When the~supervisor leaves work at 4:30 p.m. the Grievor is left in charge. There is no doubt that he performs ? -~ . . 4: some of the tasks of a supervisor during the following five hour period. He also takes on additional responsibility during that period. However, what he is required to do does not amount to taking even the central aspects of the supervisory position. The Grievor indicates in his own testimony that he does not have authority .to carry out discipline. Iie confuses the fact that he must initiate disciplinary proceedings by advising the supervisor, with having disciplinary authority. The limitation on his responsibility is also evident when he testifies that he must try to contact the, supervisor before permitting employees to go home early or leave because of illness, or for other reasons. Naturally, if he is unable to get advise or direction from the supervisor he must make a decision. Such decisions are not the exercise of supervisory authority and responsibility but are. required because of the inability to contact supervisors who do have such authority. The responsibilcty to deal with matters when unable to contact supervision does note amount to having supervisory authority and responsibility. The Grievor is not exercising the core of the responsibilities of the supervisor, those being the acceptance and use of authority in the course of'directing others employees. For thosereasons,. it cannot be said that the Grievor is "performing the duties of a position" as required by Article. 6.1. He is doing, some of the tasks but does not have super- visory authority or responsibility. Nevertheless, his responsi- bility does increase between 4:40 p.m. and 9:30 p.m. but only to the extent necessary to continue operations. Being in charge ? 3. of continuing the operations until 9:30 p.m., is not equivalent to performing the duties of the position of supervisor. what he is doing, is more in the nature of a "lead hand" type of function than being temporarily~ assigned as a supervisor. Furthermore, many of the supervisory functions only arise during the day and the Grievor would never have to deal with them. For example, the task of scheduling vacation, dealing with merit and other forms of compensation, committee meetings and other decision making tasks are never required of the Grievor during the five hour period. Nevertheless, the tasks of,the Grievor do change when the supervisor leaves work. The partiesshould,consider negotiating changes to the collective agreement to reflect these types of alterations to an individual's duties. For all the foregoing reasons, it is found that no temporary assignment occurred. This conclusion makes Article 6.1 inapplicable in this case. It is unnecessary, as a result of that conclusion, to deal with the many technical aspects concerning the. interpretation of Article 6.1 raised in argument. It is found that there has been no violation of the collective agreement and it is hereby ordered that the grievance be dismissed. DATED AT LONDON, ONTARIO, this h R. H. c McLaren, YJ -'&" ice- hairman I concur/dissent I concur/di33ent 1 "M. PERRIN" M. Perrin, Member