HomeMy WebLinkAbout2001-0282.McGuffin.04-04-23 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2001-0282, 2001-0284, 2002-2461
UNION# 2001-0108-0013 [01B143], 2001-0108-0014 [01B145], 2002-0108-0053
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(McGuffin) Grievor
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Bram Herlich Vice-Chair
FOR THE UNION Boris Bohuslawsky
Eliot, Smith
Barristers and Solicitors
FOR THE EMPLOYER Sean Kearney
Counsel
Management Board Secretariat
TELECONFERENCE April 8, 2004.
2
Decision
The parties executed a settlement in this matter in December 2003. An issue has now
arisen with respect to the implementation of that settlement. A hearing was held by way of
teleconference on April 8, 2004 to deal with the issue.
Immediately prior to the settlement the grievor was off work and in receipt of LTIP
benefits. As a result of the settlement, the grievor was placed in a new position which the parties
agreed was appropriate for her circumstances
Paragraph 5 of the Minutes of Settlement provides:
The grievor will receive a salary equivalent to her former Correctional Officer
position for a period of six months following December 15, 2003, as per Article 7
of the collective agreement between the parties.
The parties agreed that the reference to Article 7 of the collective agreement is, more
specifically, a reference to Article 7.5 which provides:
Where, for reasons of health, an employee is assigned to a position in a
classification having a lower maximum salary, he or she shall not receive any
salary progression or salary decrease for a period of six (6) months after his or her
assignment, and if at the end of that period, he or she is unable to accept
employment in his or her former classification, he or she shall be assigned to
classification consistent with his or her condition.
Pursuant to the terms of the settlement, the grievor commenced her employment and was
remunerated in accordance with her former Correctional Officer position. Effective January 1,
2004 employees working as Correctional Officers received negotiated increases to their salaries.
The grievor did not and asserts that she to ought to have received the negotiated salary increase.
While the union acknowledges the terms of the settlement and of Article 7.5 referred to
therein, it urges me to avoid an interpretation of the settlement which can be seen to be in
conflict with the collective agreement or, to put the matter differently, to otherwise restrict the
grievor's rights under the collective agreement.
3
In that regard the union points me to Article 42.10 and, in particular, Article 42.11 of the
collective agreement:
42.10 When an employee who has been receiving or was eligible to receive
LTIP benefits is able to return to full-time employment, the provisions of
Article 20 (Employment Stability), shall apply.
42.11 An employee who is assigned, under Article 42.10, to a vacancy in
accordance with Articles 20.5.1, 20.5.2, 20.5.3 or 20.5.4 of Article 20
(Employment Stability) shall, for a period of six (6) months, be paid at the
same step he or she had attained in the salary range of the classification of
the position he or she occupied prior to disability. At the end of that
period he or she shall be paid at a rate within the salary range of the
classification of the position to which he or she has been assigned.
The union asserts that because the latter provision preserves payment "at the same step he
or she had attained [in the former position]” and (unlike Article 7.5) does not specifically
preclude any salary progression, that an employee protected by that Article would be entitled to
negotiated wage increases (presumably as opposed to progression along the salary grid).
It was further suggested that the provisions of 20.5.2 (referred to in Article 42.11) appear
to specifically describe the grievor’s circumstances insofar as that Article refers to an employee
who, with mutual consent (here under the terms of the settlement), was assigned to a vacant
position in her ministry beyond a 40 km radius of her headquarters.
Thus, the union asserts that pursuant to Article 42.11 and as an employee assigned under
Article 20.5.2, the grievor is entitled to receive negotiated wage increases during the six-month
period following her reassignment. At a minimum, I am urged not to interpret the settlement in a
fashion which is said to conflict with the collective agreement.
The employer position is straightforward: the Memorandum of Settlement and Article 7.5
are abundantly clear and Article 42.11 has no application to the grievor.
Having considered the submissions of the parties I am persuaded that the employer's view
is the correct one.
4
In order for the union to succeed in its argument, it must prevail on both of the following
arguments:
1. That Article 42.11 permits or contemplates entitlement to general wage
increases during the initial six-month period of the assignment
and
2. That Article 42.11 has some application to the grievor.
Assuming, without deciding, that the union's view on the first point has merit, I am
simply unable to see any fashion in which the provisions of Article 42.11 are or even could be
applicable to the grievor.
In other words, even had the parties arrived at their current circumstances -- i.e. an
employee disabled from performing her former duties returning from LTIP to a different position
-- not through a grievance-mediation-settlement route but through the simple unfolding of
events, I fail to see the applicability of Article 42.11. Indeed, even in those circumstances it
would appear that Article 7.5 would have been the governing provision. Thus, is not difficult to
see why the parties chose to incorporate.that provision into their settlement.
Article 42.11 speaks to assignments under various provisions under Article 20. Article
20 is a lengthy and elaborate code of provisions related to Employment Stability. However, the
very first sentence of the very first provision provides:
... the provisions of Article 20 apply to any employee who receives notice of layoff...
The grievor did not receive a notice of layoff nor is there anything before me to suggest
she would have but for the grievance and the settlement.
Consequently, and even accepting that, in the particular respect relevant to our case,
Article 42.11 confers an employee benefit superior to that found in Article 7.5, Article 42.11
simply has no application to the case at hand.
5
The terms of the parties’ agreement are clear. The effect is that the grievor's level of
remuneration is red-circled for a period of six months at a level equivalent to that of her former
Correctional Officer position. There is to be no change during the six-month period. Despite the
fact that she is working in a position in a lower rated classification, her salary level is not to be
reduced. Conversely, neither is it to increase.
In short, the grievor is not entitled to the wage increase sought. I trust this disposes of the
issue between the parties. Of course, I remain seized with respect to any issue related to the
implementation of the parties’ settlement or this award.
Dated at Toronto this 23rd day of April 2004.
Bram Herlich, Vice-Chairperson