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HomeMy WebLinkAbout1987-2080.McCulloch et al.89-03-28ONiAR(iO :’ EMPLOYESDEL” CO”R”NNE CROWNEMPLOYEES ! DEL’ONT.wm GRIEVANC‘E ; COMMISSION DE mm BOARD SETTLEMENT’ REGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: CPSEIJ (WCulloch et 3:) Grievor Before: For the Grievor: - and - The Crown In R:ght of Ontario (Ministry of Correctional Servic&) Employer For the Emolover: Hearings: T.H. Wilson Vice-Chairperson I. Thomson Member w. Lohraico Member D. Wright Col~.nse: Gowling & Hendersnr! Barristers & Solicitors . . DECISION This case involves four grievors who are employed at the Cecil Facer Youth Centre. Originally the Centre was tinder the jurisdiction of the Ministry of Community and Social Services. In April 1987, the Ministry of Correctional Services assumed the administration of the Centre. The grievors were employed in the unclassified service on contract at the time at the following rates equivalent: A. McCulloch cc2 - 2nd Step C. Mitchell cnz - 2nd Step X. O'Brien CO1 - Maximum L. Taylor cn2 - 2nd Step In April 1987 the Assistant Deputy Minister Of Correc' tional Services directed that: (ulntil such time as the entire situation can be properly assessed and evaluated, all contracts which are subject to renewal, should be processed under the terms and conditions set out in the employee's previous contract. The period of renewal should he only three (3) months at a time. On July 9, 1987 an Opportunity Bulletin was posted .- seeking applicants for classified positions. The Opportunity Bulletin required "successful completion of mandatory Ministry Correctional Officers Training and one year of satisfactory experience as a Correction Officer I". Tt stipulated that "suitable candidates lacking the latter criteria would he - 2 - required to underfill at the Correctional Officer I level". Grievors McCulloch and Taylor were successful applicants in the competition and were both appointed to classified positions at the CO1 underfill level, i.e. at the first step. Mitchell and O'Brien remained as unclassified staff. Their contracts were renewed effective August 30, 3987 but at a rate equivalent to the first step of a COI classification. All four grieve against these rates. None of the grievors has completed the mandatory Ministry Correctional Officer training. The Ministry admits that the qrievors are currently performing substantially the same duties as they performed when the Cecil Facer Youth Centre was administered by the Ministry of Community and Social Services. The Ministry of Correctional Services uses the same Position Specification as was used by the Ministry of Community and Social Services. It is important to note that in January 20, 1986, the Assistant Deputy Minister, Operations, of the Ministry of Community and Social Services, issued a decision to reclassify Observation and Detention Home Workers 1 and 2 to the comparable level of Supervisor of Juveniles, effective July 1, 1983 and from Super- visor of Juveniles to Correctional Officer effective October 1, -- 1985. This followed a Grievance Settlement Board decision which awarded the classification of Supervisor of Juveniles 2 to London Observation and Detention Home Workers 2. The ADM in his memorandum states: 4. The comparability of Custodial Care Jobs - 3 - in the Ministries of Correctional Services and Community and Social Services has been further reinforced by the impact of the Younq Offenders Act. This resulted in the decision to reclassify all Supervisors of Juveniles to the comparable level of Correctional Officer, effective October 1, 19R5. When the Ministrv of Correctional Services assumed the administration of the Centre on April 3, 1987, there were a number of employees who had already been classified as Correc- tional Officers 2, but who had not received the basic Correction- al Officer training. Those employees remained classified as Correctional Officers 2, althouqh the Ministry of Correctional Services was of the view that they were wrongly classified. For the purposes of this grievance, the Ministry concedes that the grievors are performing substantially the same duties as the employees who were classified as Correctional Officers 2 prior to April 1, 1987. Since April 1, 1997, all new appointees to the classified staff have been required to take the basic Correction- al Officer training and have been classified as Correctional Officers 1 until the traininq has been successfully completed. All the unclassified staff at the Centre are paid at rates equivalent to the first step of a Correctional Officer 1 clas- sification. _. Counsel for the union divided his case into two groups: he argued that Grotip 1, Taylor and McCulloch who are classified employees should be reclassified as Correctional Officers 2, not 1, and at the same level of progression, i.e. at the same sequence as before the April 19A7 change, and a crouo ?, Mitchell - 4 - and O'Brien should be continued on pay progression and not frozen as they were in April 1987. With regard to Group 1, the union raised three alterna- tive arguments: (1) other employees in the Centre who were employed through the Ministry of Community and Social Services have been classified as Correctional Officers 2 without being required to have one year performance with the Ministry of Correctional Services, (2) the actions of management are dis- criminatory as against unclassified employees and should be treated equally; and (3) this constitutes unjust discipline. With regard to Group 2, the unclassified employee qrievors, the union argues that Article 3.3.1 should be interpreted to give these employees the right to continue through the progressive pay steps. The second and third arguments relating to Group 1 were also raised for Group 2. The relevant provision of The Crown Employees Collec- tive Bargaining Act, R.S.O. 1980, c. 108, as amended, is: s. 18(l) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing: includes the right to deter- mine, _. (a) employment, appointment, complement organisation, assignment, dis- cipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions; and (b) merit system, training and develop- ment, appraisal and superannuation the governing principles of which - 5 - are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. (2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been im- properly classi~fied (b) that he has been appraised contrary to the governing principles and standards: or (c) that he has been disciplined or dismissed or suspended from his employment without just cause, 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 determination applicable under section 19. Article 3.3.1 of the Collective Agrement provides: 3.3.1 The rate of the equivalent civil service classification shall apply if there is no equivalent classification, the rate shall be set by the Ministry involved and the Union shall have the right to negotiate the rate during the appropriate salary negotia- tions. .* 3.3.2 Employees covered by this Section shall be entitled to the same provisions regarding retroactivity of salary revisions as those agreed upon for the Civil Service Salary Category to which they correspond. The Union referred the Roar-d to its decision in Sahl and the Ministry of the Attorney General (G.S.R. File it891/85). - 6 - The union argued that the jurisprudence establishes that a classification grievance can succeed if 1) the employee can fit the wording of the class standard for the classification con- tended for, or 2) one or more other employees performing the same - duties as the grievor is in a higher classification. Even a unique factual situation may give rise to a claim for reclas- sification. On this point the un~ion referred to Kelly and Ministrv of Transportation and Communications (G.S.R. File #1362/85). In that particular case the grievor was clearly performing functions above and beyond his job description including duties of a supervisory and teaching nature that properly belonged to the Warehouse Supervisor. The Board held that since management knew but took no steps to prevent the grievor from performing the tasks that he had been delegated by his Warehouse Supervisor (a bargaining unit employee), management had condoned this behaviour. Accordingly, the Board found that he was entitled to be paid as a Supply Clerk IV rather than a Supply Clerk II on the facts. The Ministry contended in our case that although the union characterized the issue as a usage issue rather than a standards issue that it was nevertheless-vecessary to look at the standards to see whether the employer had in fact altered those standards. In this regard, the standards state: Personal SUITABILITY Appointment to the Correctional Officer 2 level is conditional upon: applicants willingto work shifts as required, includinq shift rotation; meeting the medical/physical standards determined by the Ministry and successful completion of the prescribed staff training programme within one year of appointment to the service. If this were a standards case, the grievors could not succeed accordinq to Ministry counsel because they do not have the standard, i.e. the training. In deciding whether there has been an alteration of the standard, the Ministry submitted that the board looks at both duties and training and that in this case the Ministry restored the standard thus correcting an error in exception to the comparison approach and referred to in the Bahl decision. The Ministry referred the board to the case of Dr. - Meek and the Ministry of Nealth (G.S.B. File #774/83). Dr. Meek was by education a psychologist. He was employed as a Psychome- trist 2 by the Ministry in 1979 and in June 1982 received his Ph.D. On June 21, 1982, he was added to the list of candidates on the Temporary Register by the Ontario Board of Examiners in Psychology. After the period of supervision prescribed by that Board, he was awarded full registration in June 1983. The Ministry reclassified him at that point as a Psychologist 1. He grieved that he should have been reclassified as such on June 21, 1982. The board found on the facts chat the grievor could *fairly claim to have been doing [the work of a psychologist] between June 1982 and June 1983 during the period of supervision prescribed by OBEP for candidates on the Temporary Registry". The Grievance Settlement Board denied his grievance. At page 6 of its reasons, it pointed out that the situation was not brought - a - about at the instance of the Employer but simply reflected the means adopted to afford the grievor the opportunity to qualify for the certificate. "Viewed in that sense, his performance of the work of a psychologist was a function of OBEP practice, not of the Employer's classification system". -And ". . .we are of the view that the case turns on the question whether or not,the grievor was a psychologist registered in Ontario, within the meaning of the Psychologists Registration Act on June 21, 1982. The preamble to the psychologist class series states that 'the duties of positions allocated for this class series are carried out by Psychologists registered under the Psychologists Registra- tion Act.' The class standard for positions classified Psycholo- gist 1 lists as a qualification "Registration as a Psychologist in the Province of Ontario." Section 11 of the Psychologists Registration Act prohibits anyone from representing "himself to be a psychologist unless he holds a certificate of registration", but subsection ll(3) exempts from this prohibition "a person in the course of his employment by the Government of Canada, the Government of Ontario or a university, or to a person registered in the temporary register under section 10." _- The board held that the keeping of a temporary register under Section 10 and the excep- tions created by Section 11 are designed to give official recognition to a person who has obtained a doctoral degree so as to enable him to act as a psychologist under supervision while completing the remaining conditions for obtaining a certificate - 3 - of registration. Since the grievor did not obtain registration until June 1, 1983 he was not improperly classified. It is important in my opinion to note 1) that the grievor did not show any deviation from the standard by the Ministry and 2) in essence he was challenging the Ministry's decision not to classify someone as a psychologist until that person had obtained regis- tration, something which was determined by the Psychologists' own governing hody pursuant to their own legislation. That did not fall within any of the grounds for classification review and the grievance was dismissed. The Board's decision on Dr. Meek's grievance needs to be considered in our case. However, it is important to note that there are three factors that need to be considered. 1) Unlike Meek's case, the relevant qualification in question is set by the Ministry of Correctional Services itself and not by an external body as in Dr. Meek's case: 2) in our case, the grievor claims that the Ministry has itself deviated from the requirement and, 3) the grievors were set back in their wage progression. Turning to the first of these points, there is no question that the Ministry of Correctional Services can decide to require training for Correctional Officers under its authority. If upon inherit- _- ing the grievors from the Ministry of Community and Social Services it had simply required all of those without the MCS training background to take the necessary training, that would not be challengeable. It is relevant I think at this point to look at Creet and the Ministry of Correctional Services (C.S.R. - 10 - File #35/78). In that particular case the grievor was a Probation and Parole Officer 2. Originally hired as a Probation and Parole Officer 1 she subsequently completed successfully three examina- tions in order to advance to Probation and Parole Officer 2. That category had a five stage salary progression with incremen- tal salary increases awarded every two years. Upon reaching the 3rd stage she did not complete the three further examinations required. Barrier examinations were first introduced in 1956 at the progression to Officer 2 and those are the examinations the grievor had successfully completed. In December 1984 the Barrier examinations at Level 3 of Probation and Parole Officer 2 were moved down to the barrier for entry to Officer 2 category. Those officers in Level 3 who had not written those examinations were required to write three examinations to pass beyond Level 3. The grievor did not wish to prepare for the examinations but argued that it was unreasonable to require her to take Officer 2 examinations when she had successfully passed those which were in place when she progressed from Officer 1 to 2. The union argued in the basis of then Articles 5.3.1 and 5.4 of the Collective Agreement, now numbered _. 5.2.1 and 5.3 but the board held that there had been no reclas- sification and that 5.4 (now 5.3) had been complied with since even if no changes had been made by the Ministry she would have been required to write the examinations in question and her position as a Probation Officer 2 Level 3 had not been altered. - 11 - Again I note that there was no alteration in that case by the I Ministry of the grievor's pay or classification. In fact, her position was not any worse at all as a result of the change. The Ministry argued that the employer can correct an error and in this regard relies on the Bahl decision, where at page 12 Vice-Chairman Samuels writes: . . .It is clear from the review of the jurisprudence we have conducted here, and from the decision of the Ontario Divisional Court in the Lowman case, that there is no requirement that union go beyond showing that one employee in a higher classification performs the same work as the grievor. This is enough to succeed in the claim for reclassification, unless perhaps it can be shown that the comparison employee is wrongly classified. And as we have already said that this exception does not apply in our case. I note in that case that the exception did not apply because the employer made no argument that the comparison employee had been wrongly classified. It was however argued by the Ministry in Creet and was discussed at page 4 of that decision as follows: 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 of 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 Probation and Parole Services testified that this has 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 wronq and contrary to known and - 12 - stated policies of the Ministry. There existed no other cases of that nature. That decision indicates that the board has recognised that "wrongly classified" does not refer solely to "slip-ups" as union counsel contended but also to an arbitrary decision by a manager. However, in our case the decision by the predecessor Ministry to reclassify the qrievors as Correctional Officers was NOT arbitrary - but a deliberate thought-out decision made by the Assistant Deputy Minister himself in light of a Grievance Board Decision - not at all comparable to a director disreqard- ing the rules of his own Ministry as in the Creet case. The superadded requirement of training in Correctional Services is no doubt a valid qualification but its absence does not render the previous decision of Community and Social Services arbitrary.' Furthermore, Correctional Services has itself ignored the requirement in accepting the Correctional Officer 2 classifica- tion for the classified employees at the Centre. The need for training could be remedied by requiring the grievors to take the training which the Ministry would like them to possess. That could have been done without interfering with their pay proqres- sion. In the case of the unclassified qrievors, viewed from that _s point of view the method of correction used was beyond what was required to remedy the perceived problem. It would therefore seem that the Ministry is not complying with Article 3.3.1 with regard to wages for unclassified staff. They are not paying "the rate of the equivalent civil service classification". They were - 13 - previously being paid the equivalent and they did not become "less equivalent" because the new Ministry decided they ought to have the training. With regard to the two qrievors who b,id on an underfill position, it is necessary to examine the job posting. It was posted on July 9, 1987 and it specifically included in its Qualification Criteria: . . . successful completion of mandatory Ministry Correctional Officer Training and one year of satisfactory experience as a Correctional Officer 1 (suitable candidates lacking the latter criteria will be required to underfill at the Correctional Officer 1 Level). I note also: Area of SEARCH: This competition is restric- ted to classified and unclassified employees of the Ministry of Correctional Services, at the Cecil Facer Youth Centre. The Ministry argues that the qrievors applied on the posting knowing its requirement. In doing so of course they were seeking to become classified employees. The Ministry of Correc- tional Services had never allowed anyone to become a classified employee at the CO2 Level without the nefessary training. There was no inconsistency there. The CO2's whom they had inherited who lacked the training were already classified employees at CO2 level. In that regard then the grievance of the classified employees is saying that the requirement of training in the posting could not be applied to them because they were already - 14 - performing the work of a CO2 as unclassified employees and being paid at the equivalent level. They cannot rely on Article 3.3.1 obviously. Nor can they argue that they were entitled to become classified employees at the CO2 level on the grounds that other classified CO2's lacked the training: the implications of that would be that the maintenance of entry standards to the clas- sified staff would not then be possible. Such maintenance of Ministry standards is what the Ministry of Correctional Services did when it included the requirement in the posting. The grievors realised this when they applied on the posting; they changed their status and the comparison group they now argue for was a "grandfathered" group. I understand the union's argument here to be the usage test. In that respect I quote from Bahl at p. 6: It is well established that in position classification cases, the Board must direct its inquiry to the questions, first, whether or not the work actually performed by the employee is that set out in an appropriate class standard and, second, whether or not he is performing work substantially similar to that being performed by an employee whose position has been placed in another clas- sification. In the first instance the employee's work is measured against class standards and in the second it is measured against that of an employee in a position that has been differently classified. The purpose is to establish either that the employer is conforming to its standards or the employer has in effect modified those standards. And as the Board stated in that case at page 5, this Board intervenes to preserve "the legitimacy and credibility of 3 - 15 - that system." It is no violation of the classification system where the Ministry says we will not allow any more new classified - employees at CO2 level without the proper training, that e consistent with its standard and is quite different from down- grading person whose status has not changed (i.e. unclassified employees) and who continue as unclassified employees to perform the work they always performed and which is the same as the grandfathered classified CO2's. The union also raised the arguments that the changes represented either discriminatory treatment or unjust discipline. There was no issue of discipline: The employer did not purport to discipline anyone. For the same reasons as stated above, in the case of the job posting requirement there can be no argument of discrimination and the requirement was justifiable. The Ministry argued that this Board cannot review for discrimination. I need not address that argument since there was no discrimina- tion in the case of the classified grievors and the unclassified grievors have succeeded under Article 3.3.1. Accordingly, I allow the grievances except for any part of the McCulloch and Taylor grievances relating to pay after they became classified employees. The Board will remain seised in the event the parties are unable to agree on the appropriate compensation. The unclassified grievors will be placed in the appropriate wage progression and all will be compensated for any wage losses as a result of the Ministry's actions relating to the grievors as - 16 - I unclassified employees (subject of course to the 20 day rule). I DATED AT TORONTO, Ontario this 3 th day of , 1989. I. THOMSON. Member w. LOBRAICO, Member