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Home My WebLink About1986-0424.Farrelly.88-03-24Between: Eefore: .~:.I.” THE AWTTER OF AN ARBITRATION Under THE CKOWN EMPLOYEES COLLiCTiVE BARGAINING ACT Before THE GRIEVANCE SETTLENEXT BOARD OPSEU (C. FarrellyJ - and - Grievor The Crown in Right of Ontario (tiinistry of Correctional Services) Emp!oyer P.?l. Draper - Vice-Chairman G.A. Nabi - Member L. Foreman - Member For the Grievor: R. Anand Counsel Cavalluzzo, Hayes and Lrnnon Bz.rristers and Solicitors For the Employer .i.F. Benedict sanager Staff Ke1acior.s and Compensation r:inistry of Correctional Ser’Jices I 314/86. 424/86 DECISION The Grievor, Sean Farrelly, was employed as a correctional officer at the Wellington Detention Centre from - January, 1980 until he left the publics service in September, 1986. At the material time he was a General Duty Officer, classified C02. Prior to :964 Generai Duty Officers were assigned in rotation to various areas of the institution including the AdmittingiCischarge (A/D) Section. In early 1984the employer established the position of Senior Admitting/Discharge Officer, ciassified C03. The opening was posted and a job competition was held in which the~Grievor was a candidate. The position was awarded to William Lambert who had also been a General Duty Officer. Mr. Lambert is permanently assigned to the day shift in the A/D section which is from 6:00 a.m. to 2:00 p.m. five days per week: From November, 1985 to April, 1986 the Grievor was assig~,qed to the afternoon shift in the section which is from 1:00 p.m. to 9:00 p.m. five days per week. The Grievor flied two grievances in March, 1986 ciaiming in dne that his position was improperly classified and to perform duties outside those of the CO2 classification and within those of the CO3 classification. Artic Zor present purposes the relevant provisions of le 6 are: Where an employee is assigned temporarily to perform the duties of a position in a classification with a higher saiary maximum for a period in excess of five (5) consecutive working days, he shall be paid acting pay from the day he commenced to perform the duties of the higher ciassification in accordance with the next higher rate in the highericlassification, provided that where such a change results in an increase of less than three percent (3%). he shall receive the next higher salary rate again. 6.4 .i This Article shall nat apply to temporary assignments where an employee is temporarily assigned to perform the duties and responsibilities of another employee who is on vacation. 6.6.1 Where an employee is assigned temporarily to a position, Article 4 (Posting and Filing of Vacancies or New Positions) shall not apply except where: . .(i) the term of a temporary assignment is greater than six months auration, and (ii) The specif ic dates of the term are established ‘at least two (2 j months in advance of the commencement of the temporary assignment. (-- 6.6.2 Except as provided in 6.6.1, in no case shall any provision of the Collective Agreement with,respect to the filling of, assignment or appointment to-a vacancy apply to temporary assignments. It is argued for the Grievor that he performed the same duties as ?-4r. Lambent, the Senior-Admitting/Discharge Officer did., As we understand counsel's submission, it is that without in fact reclassifying the Grievor's position from CC2 to CO3 we should find that for the purposes of Article 6 he was performing the duties of apposition in the higher ciassification. The Grievor was not the first General.Duty Officer to be assigned to' the A/D section following the establishment of the Senior Admitting/Discharge Officer position. The term of his assignment was indefinite and was of relatively long duration beta-use he wanted and asked for the assignment and the Empioyer was happy to have a willing and competent employee in place. But it is not in dispute that the assignment was temporary and there is no evidence that in assigning the Grievor the Employer was abandoning the practice of rotating General Duty Officers into the A/D sqctior.. The mutualiy acceptable,arrangement between the Grievor and the Employer could have ended at any time, in which event the Grievor would have been assigned elsewhere and another CC2, and presumably other "02:s in rotation, wouid h;-.~:e succeeded him:. and forming only a part of the regular duties of their position and classification may constitute proper grounds for the. reclassification of the position. Further, we are of the view that Article 6.1.1 is intended ~to apply only where a,n employee is temp~orarily assigned to perform the duties of a position already found in a higher classification and where that employee is temporariiy replacing another employee (except an employee on vacation) or is temporarily filling a vacancy. Here the Grievor was not assigned to~~perform the duties of the Senior Admitting/Dischazge Officer position. He was not repiacing Mr. Lamberr nor was that ?osirion vacant. ~- Apart from those conslderati 0x4 and because the parties addressed the case, in effect, as one of classification, we believe it is appropriate to record our opinion regard~ing the simila.ri'ty, or lack thereof, between the duties of Mr. Lambert as Senior Admitting/Discharge officer and those ~performed by the Grievor while assigned to the A/D :. section. We heard extensive testimony from the Grievor, Mr. Lambert and William Miller, Deputy Superintendent, Wellington Detention Centre, among others. Documents filed in evidence included the Lpec ifications for the General Duty Officer and The riSi,t of the Empi??er to r~r+~at.: and ci;i,:sify :!,r-, new position. and to fix irs luries and responsibilities, which were derived from the ciass sta.i!da:d for the CO3 classlG'-9tion, is not I&*.... in question. The incumbent is to serve "as offLcer ::-I charge of a speclalize? irstit~atdonal function ~(admitting and discharge)" and to be "responsibie for the efficient operation" of the SectLon by personally carrying oilt admission and discharge procedures for inmates and providing leadersklp, supervision and assistance "to Generai Duty :~ 3fficers assLgr.ed 0~ a rotatior,al basis" to tl2.e section.. The Grie-<or testified tha.t wh$le on hir; sY.lft be was ":lis 3wr. bss" ad was p.ot s-:Ypr,.r~s& by yr. 7.,-h--+ There __.. .--.. . . Were few tasks performed by Mr. Lambert which he did not also perform: He hat 20 supervisory authority himse1.f. His duties were essentiallv the sane as those performed b-9 CO2's in t:n.e A/'D section before Mr. Lambert's appointment. Mr. Lambert testified that he has respor.slSjlity for the oserwtion of the section. He does not take a "boss-assistant" approach to his job. Mr. Mii;er testified that Mr. Lambert reports to the Shift Scprrviso~, his appointment is permanent, his positior. is in!?ediaiely beiow t:?e first Zeve; of mar.agement a::d is ?art of the "chain of comma.?d", and he is held'ultimately ressonsijle by management fdr t.h& admiKtir.g and disc:?arge f::r;cTic)n. We co:.c?ude :?a: :.-.+ <;T1p:~rly ;x.:>;: i.;:. -aa.,::'7e'ry .-~i,y.!-i,,! .;., ;'.,: ::;;:; ,,... *,f :,j:p '::e:;.,F~ L c,.,>: ~::? ::7,:;... WI. : :i. .5. :-!I<..~.. y,F.,'r.;i:,.!r s..b.ic:r- ,T.n,?j t*.?.- :y. ~il,,i-(.',-.,n *,~;'f21'e +:;=^ :~; , :: L.~. supervision by Mr. Lambert. However, the essential distinction between the jobs performed by the two employees lies in the responsibility and accountability for the A/D function borne by Mr. Lambert. That is no less his obligation because he saw no need to exert the authority of his position in relation to the Grievor who was, after all, an experienced C02. The development of a close and amicable relationship betwe~en them is not proof that-that authority was not there to be exercised, or that because it was not they shared reqonsibility for the A/C section. In the result, we find that the.grievances are not well fcur.ded and they are hereby dismis~sed. Dated at Toronto, Ontario This 24th day of March, 1988~. P.M. Draper - Vice-Chairman G, A. tiabl - Member L. Foreman - Men!ber