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HomeMy WebLinkAbout1990-1168.Denning et al.91-01-31BETWEEN BEFORE: FOR THE GRIEVOR FOR TBE EMPLOYER HEARING: 1168/90 IN THE MATTER OF AN ARBITRATION under TNE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Denning et al) - and - The Crown in Right of Ontario (Ministry of Health) R. L. Kennedy G. Majesky H. Roberts Vice-Chairperson Member Member B. Rutherford Counsel Gowling, Strathy & Henderson Barristers & Solicitors J. J. Leibycz Regional Personnel Administrator Human Resources Branch Ministry of Health Grievor Employer December 10, 1990 -2- AWARD The nine Grievors involved in this matter work as Case Managers with the Queen Street Mental Health Centre, and each is classified as a Social Worker 1 (atypical). On November 16, 1989 they all filed individual grievances claiming that they had been improperly classified and requesting reclassification to the level of Social Worker 2 (atypical) with full benefits for loss of pay, seniority and benefits, together with interest. At the outset of the hearing, we were advised that the parties had reached agreement as to the factual circumstances, and an Agreed Statement of Facts was filed in the following terms: 1. The grievors are employed by the Ministry of Health in Toronto, Ontario with the Queen Street Mental HYealth Centre, Archway Community Clinic. 2. The attached job description coded 05-9774-09 with a class allocation effective date of June 1, 1990 is an accurate representation of the grievors’ work. 3. 4. The grievors are classified at the Social Worker 1 (atypical) level as the Social Worker 1 class standard is the onl,y currently available standard within the present Bargaining Unit Classification System against which the grievers’ position can be classified. The class standard for Social Worker 1 does not adequately cover the duties and responsibilities of the grievoral’ position in as much as it is not an entry level position and the incumbents do not work under close supervision, 5. There is no other class standard which seems appropriate. -3- 6. Neither party will introduce any other evidence on the merits of the grievance. 7. The parties agree that any compensation arising from the decision of the Board shall be retroactive to 20 days prior to the filing of the grievances. The parties were further in agreement that the foregoing factual circumstances would properly result in the issuance by this Board of what has become known as a “Berry” order requiring the Employer to create or revise an appropriate classification that will properly reflect the job duties of these Grievors. Two issues remained outstanding on which the parties sought the ruling of this Board. The first issue was the period of time to be given to the Employer to comply with the “Berry” order. The Union requested a time limit of 90 days, .. whereas the Employer indicated that the matter could be completed within 180 days. We were advised that Ministry resources were presently strained because of the number of similar classification issues requiring resolution and that in all the circumstances the longer period was reasonable. In view of the position that we will express in the next~ section of this award relating to interest, we would conclude that the Employer’s request as to timing is reasonable and that the Grievors will not be materially prejudiced by the granting of that time period. -4- The second issue related to the awarding of interest on retroactive payments, which payments had been agreed to in paragraph 7 of the Agreed Statement of Facts. The issue of interest is addressed at p. 19 of Mr. Verity’s second award in w 217/83, which award was dated June 21, 1988. That award accepts the appropriateness of interest in these circumstances and awards it from the effective date of entitlement to retroactive payment. In the circumstances before us, that date of entitlement is 20 days prior to the tiling of the grievances, pursuant to paragraph 7 of the Agreed Statement of F’acts. Mr. Verity did not deal with the issue of the method of calculation or the rate, but both the entitlement to interest and the appropriate method of computation are dealt with extensively and, in our view, correctly, in Jones 537/82 (E.B. Joliffe, QC.), and we would adopt the reasoning in that award. We therefore consider that the approach to computation set out in Hallowell House Limited by the Ontario Labour Relations Board is appropriate. However, the parties in argument before us did not address the issue of the appropriate rate of interest for the computation of the Grievors’ entitlement, and therefore we will not at this stage specify a rate but will remain seized on that issue should the parties not be able to agree on the rate. In the result, it is our award that a “Berry” order will issue and that the Employer will have a period of 180 days to comply. The Grievors are entitled to -5- retroactive compensation with interest computed from 20 days before the date of the filing of the grievances. Interest is to be computed in accordance with the computation principles set out in the Hallowell decision of the Ontario Labour Relations Board, and we remain seized to determine the rate of interest should the parties not be able to agree. We also remain seized to deal with any matter relating to the implementation of this award should the parties not be able to agree. DATED this 31~day of ~~~~~~~ 1991. H. Roberts, Member