HomeMy WebLinkAbout1982-0306.Barnes.83-02-09IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
For the Employer:
Hearings:
OPSEU (Fred Barnes)
Grievor
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The Crown in Right of Ontario
(Ministry of Natural Resources)
Employer
E. B. Jolliffe, Q.C. Vice Chairman
S. D. Kaufman Member
E. R. 0'Kelly Member
N. Luczay
Grievance Officer
Ontario Public Service Employees Union
D. Nagel, Manager
Compensation and Staff Relations Ministry of Natural Resources
October 18, 1982
November 4, 1982 November 18, 1982
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'II'iiERIM DECISION
The .background of the question to be determined by
the Board in this interim ,decision has been correctly reviewed
by counsel for both parties in wrltten submissions summarized
below.
'A hearing in the matter of the grievance of Mr.
Fred Barnes commenced on October 18, 1982, and continued on
November 4, when evidence was completed, the Union represent-
ative presented argument and the Employer's representative
delivered .part of her argument. That hearing was then
adjourned to November 18.
On November 16, however, the Employer received a
request from the Union to supply a job description or position
specification in relation to a vacancy which had been adver-
tised in "Topical!' (a Governmen't publication) on November
5, a.request not complied with at the time.
After the Employer's representative completed her
argument on November 18, the Union's representative was
called on for reply, but said he wished to apply for the
admission of new evidence, referring to the advertisement
of November 5.
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After a recess for consideration, the Board ruled
as follows:
evidence was
A decision cn the admissibility of such new
reserved;
(2) The Board would consider the evidence and
argument presented on October 19, November 4 and November 18;
(3) The "job description" and organization chart
of the advertised position should be .given to the'union by *
the Employer;
(4) Argument sh~ould be completed immediately; the
new evidence, if admitted, would be considered after a sub-
sequent hearing;
(5) Written argument on the reserved,issue should
be filed with the Registrar by December 18.
In a written submission dated December 17, counsel
for the Employer conceded that the' Board has authority to
permit further evidence to be adduced, but argued that the
Board ought not exercise its discretion to do so in the
circumstances of this case.
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I_ -”
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.The principal ground advanced for the Employer's
argument is that evidence of another job specification is
irrelevant to a standards 'classification grievance case,
and that the classification in dispute should be measured
only against~ the relevant standards, which the Union had
sought to do throughout the hearings of October 18 and
November 4.
The issue in the case is whether, as alieged by
his grievance, Mr. Barnes' position had an "incorrect class-
ification," which falls within ,the.provision in Section 18(2)(a)
of the Crown Employees Collective Bargaining Act, enabling an
employee to grieve "that his position has been improperly
classified."
It has repeatedly been held by this Board that in
deciding a classification grievance we are limited to an
assessment of what the grievor doesagainst (1) the relevant
class standards and/or (2) the duties performed by another
employee in a more senior classification. Early examples
of this rule are Lynch 44/77 and Pretty 64177.
More recently
the approach has been explained in Beals and Cain 30/79 and
in Wing 484/81.
Ordinarily such evidence is adduced during the
course of a hearing --- and before argument. In this case,
however,, all the evidence had been heard and completed by
November 4. The advertisement in "Topical" did not appear
until November 5, 1988 and the Union was not aware'of it
until after that date. In the circumstances we deem it
proper to exercise our discretion in favour of the Union's
application to admit new evidence relating to the position
advertised on November 5.
To assess the weight of such evidence is of course
another matter. It will therefore be necessary to hold 'a
further hearing limited to evidence and argument relating
to the position advertised on November 5. The Registrar is
requested to arrange a hearing date as soon as possible.
Dated at Toronto
this 9thday of
February, 1983
EBJ:sol