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HomeMy WebLinkAbout1991-0167.Patterson.94-06-13 DecisionONTARIO CROWN EMPLOYEES employes DE LA COURONNE DE L 'ONTARIO 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO M5G 1z8 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1z8 IN 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 HEARING: OPSEU (Patterson) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer S. Stewart M. Lyons F. Collict Vice-Chairperson Member Member M. Doyle Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors J. Benedict Manager, Staff Relations & Compensation Ministry of Correctional Services November 27, 1991 May 13, 1992 April 28, 1994 decision The hearing in this matter was convened to deal with the implementation of this panel’s decision dated October 16, 1992. That decision dealt with a classification grievance filed on behalf 'of Mr. Patterson in which he claimed khat he was improperly classified as a Purchasing Officer 2 and ought properly to be classified as a Purchasing Officer 3. rejected the Union's submission that Mr, Patterson's position The Board ought properly to be classified as a Purchasing officer 3. However, in one narrow respect, we concluded that the position fell outside the Purchasing Officer 2 class standard. The decision states a5 follows at pages 6-7: the Purchasing Officer 2 class standard does not refer to specific monetary amounts as defining the classification. This is, of course, not surprising, as class standards are intended to provide general descriptions of duties. that certain financial levels may define levels of responsibility, the effect of inflation over a period of time would render specific figures meaningless. However, as Ms. Doyle emphasized in her argument, the Employer has had a policy that the authority of the Purchasing Officer 2 is to be limited to $20,000.00. In this regard, we agree with Ms. Doyle that the Employer has clearly defined the level of "responsible technical procuremerit work" that falls within the level of Purchasing Officer 2 and that which falls outside of it. classification as Purchasing Officer 2, Mr. Patterson has been given authority to sign purchase orders up to the value of $50,000.00 and the Employer has had the benefit of Mr. Patterson's assumption of responsibilities at this higher level. The assumption of this responsibility is clearly a matter of same significance. As this Board stated in Gott, supra at p. 21: '...while other factors will undoubtedly come into play, dollar value is a significant indicator of responsibility". While Moreover to the extent Notwithstanding his 2 we would otherwise have concluded that Mr. Patterson's position is properly classified as Purchasing Officer 2, this matter compels us to conclude that at the time of the grievance Mr. Patterson's position is improperly classified. The Board went OR to state on page 8 that: ... the appropriate remedy in this case is a "Berry Order", an order directing the Employer to establish a proper classification for the position. This is the ordinary order in cases where the Board has found that the position in issue falls outside its present classification but the classification claimed is not an appropriate fit. following the establishment of a new classification the parties will negotiate a rate. this issue, the rate is determined by arbitration. In its The Collective Agreement provides that If they are unsucessful in agreeing upon decision the Board noted that the circumstances before it were somewhat unusual: We note that the matter of the establishment of a new classification appears to be essentially an academic matter, as the one matter that has compelled us to conclude that Mr. Patterson's position has been improperly classified, the responsibility for the purchases up to the value of $50,000.00, has now been restricted. The Beard went on to conclude that retroactivity was limited to twenty days prior to the filing of the grievance. Upon receipt of the decision Mr. Benedict wrote to counsel for the Union, initially by letter dated October 22, 1992 requesting counsel's views with respecting to calculation of 3 compensation for the relevant period and then by letter bated December 2, 1992 proposing that the grievor be paid at the Purchusing Officer 3 level for the relevant period. 8, 1994, noting there had been no response to his letters, Mr. Benedict directed that Mr. Patterson be paid at the Purchasing Officer 3 level. Employer's intention to compensate the grievor in this manner and payment was included in Mr. Patterson's regular paycheque of February 25, 1993, Ms. Goyle subsequently advised Mr. Benedict On January Mr. Benedict advised Ms. Doyle of the that this was not an acceptable resolution of the matter and the Union's position is that a new classification must be established. before us, has been compensated in excess of what he would ultimately receive by virtue of the establishment of a new classification The Union maintained that position at the hearing It is the position of the employer that the grievor and the Board should consider the natter to be resolved, There is a good deal of practical merit to the employrs position and the acceptance of the monies paid was a resolution the Board urged upon the Union and the grievor at the hearing. prepared to accept such a resolution, However, Union counsel advised that the grievor was not We were referred to a previous decision of this Board that dealt with this a similar matter, Ministry of M unicipal affairs and OP SEU Thomas 504/90 (Verity). In that case, the 4 Board found the grievor to be improperly classified but rejected the Union's position that his position was properly classified within an existing class standard. employ of the Ministry and mindful of the fact that the practical effect of the award was payment for a brief period of time, the Board remitted the matter to the parties to determine an appropriate lump sum. However, as in this case, agreement was reached as to a lump sum. jurisdiction to impose a lump sum, the provisions of s.18(1)(a) of the loyees Col lective bargaining Act and Article 5.8.1 of the Collective Agreement which provides for the establishment of an appropriate rate. pages 4-5, the decision states a6 follows: The grievor had left the The Union objected to the Board's The Union made reference to At In the unusual circumstances of this particular case, the remedy proposed of a lump SUM payment to the grievor, we think, is a practical remedy. We strongly recommend that remedy to the parties as the appropriate resolution of this matter, Clearly, s. 18(1) (a) of the Crown Employ ees collect tive bargaining Act gives to the Employer the exclusive authority to classify employees and provides that the matter "will not be the subject of collective bargaining nor come within the jurisdiction of a board". We would agree with the Union's submission that we have no authority to assess the value of work performed by an employee found to have been improperly classified. March 13, 1986 in OPSEU (Carol Ber ry et: al) and M Minis ist ry o f Community an d Soci a l Ser vices makes it clear that in a case of improper classification, the Employer is obligated to find or create a proper classification. Accordingly, if the matter cannot be resolved by the agreement of the parties by way of a lump sum payment, there is no alternative but to make a Berry order. The Divisional Court judgment, dated 5 Aa previously noted, we agree with Mr. Benedict's submission that as a practical matter, the payment of a lump sum is an appropriate resolution of this dispute. that the payment mads in this instance may well. exceed the payment which the grievor will ultimateiy receive, are not persuaded that Thomas supra was incorrectly decided. Accordingly, the sane result must prevail here. The Employer is therefore directed to establish a new classification for the position. that they may experience in the implementation of this derision. As well, we note However, we We retain jurisdiction to deal with any difficulties Dated at Toronto, this 13th day of June 1994 ewart s. Stewart, Vice-Chairperson (Addendum attached) ADDENDUM Re: GSB #167/91 (PATTERSON) - MCS This Member is in agreement with the. decision in this case. However, the matter should not be left without further comment associated with the Union's request to re convene this Board to deal with the implementation of this panel's decision dated October 16, 1992. As stated at page 5 of the subsequent ruling in this case, "As previously noted, we agree with Mr. Benedict's (Employer counsel) submission that as a practical matter, the payment of a lump sum is an appropriate resolution of this dispute. As well, we note that the payment made in this instance may well exceed the payment which the grievor will ultimately receive." (underscoring added) The lump sum payment made to Mr. Patterson was $243.46 (gross); and this was payment to him at the Purchasing Officer 3 level, a level of work that he was not found to have performed in the original decision. To now insist that a new classification must be established as per the original decision can only result in, 1. A new classification to accommodate the grievor for a six week (approx) period when he approved invoices beyond his PO2 duties up to the $50,000 level; and such duties were found to not place him at the PO3 level; and, 2. The wage rate for the new classification will surely fall somewhere between the PO2 and PO3 level and, accordingly, will result in a payment to Mr. Patterson of something less that the amount he already has been paid. -2- As stated in the original award in this case, the creation of such a new classification is purely an "academic" matter; and its creation serves no useful purpose, other than the objective of Mr. Patterson, to put the parties to the time and expense of the creation of such a new classification. As stated in G.S.B. #768, 779, 780/89 (WILSON), at pages 5 and 6, "The Board is a service provided at public expense. It is important that the public purse not be abused. .... the grievor has imposed a cost on the public purse of thousands of dollars (for travel by witnesses and advisors, for fees to members of the Board, for other incidental expenses). And this board is overtaxed. Scheduling her grievances to arbitration meant that some other grievance would have to wait. Some other member or members of the bargaining unit, perhaps with a pressing and legitimate claim, would have to wait for a later opportunity to come before the Board. The grievance and arbitration procedure under the collective agreement is not a licence to file frivolous grievances. .... while we appreciate the Union's feeling that it is obligated to its members to bring any grievance before the Board if the member so wishes, in our view, Article 27.1 also imposes an obligation on the Union to "adjust as quickly as possible" grievances which are obviously without any merit" (underscoring added) Certainly the original grievance in this case was found to have cause to be before this Board. However, the matter of reconvening the Board to review the lump sum settlement made was not a cost effective way to deal with this subject dispute -- a typical employee relations matter -- either for the parties, or for Mr. Patterson.