HomeMy WebLinkAbout1988-0057.Neary.88-12-06 ONTARIO EMPLOYES DE LA COUt~ONNE
CROWN EMPt. 0 YEES DE L 'ON TA RIO
GRIEVANCE COMMISSION DE
SETTLEMENT R~GLEMENT
BOARD DES GRIEFS
180 DUNOAS STREET WEST. TORONTO, ONTARIO· MSG IZ8- SUITE2100 TEt..EPHONE/T£L~'PHONE
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' ' 0057/88
MANAG ER ~ THE MATTER-OF AN ARBITRATION -
": AND COMPENSAT! Iq Before
THE GRIEVANCE SETTLEMENT BOARD
',~:'. Between: OPSEU (D. Neary)
· '.~:? C r i evo r
..,.:.,;:;,:
':~'~! - and -
. .-..~,
:~ r ;...:::
;:,,!:',:' The Crown ~n Right of Ontario
(Ministry of Agriculture and Food)
· ~:L.¥
Before: M.K. Sa] traan Vice-Chairperson
~': I Thomson Member
· :?,.; D. Andersen Member
'~:::~'~'- For the Griever: Richard P. Stephenson
· .: Go~ling & Henderson
" Barristers & Solicitors
For the Emp]oyer: Susan A. Currie
Staff Relations Officer
Human ~esources Secretariat
Management Board of Cabinet
HEARING: July 20, 1985
DECISION
The Grievor, in this case, Donna Neary, claims that the
Employer acted in a discriminatory and unlawful manner in placing
her at the start rate of the salary range for Farm Products
Inspector 1. At the outset of the hearing, the Employer'raised a
preliminary objection as to the arbitrability of--the grievance.
The parties agreed that the objection be determined before
proceeding with the-merits Of the case.
Counsel outl'ined the relevant facts for the purposes of
the preliminary objection. Those facts are as follows: In 1985,
the Employer posted a vacancy in the position of Farm Products
Inspector 2 ("FPI 2"}. Among those applying for the job posting
were the Grievor, who was at the time a member of the
unclassified service, and John Henderson, who was an outside
Applicant. Interviews were held-with the various Applicants.
According to the statement of counsel, Mr. Henderson performed
poorly during the interview and was eliminated from the
~ompetition. The Grievor was also not chosen as the successful
Applicant. However, following a reference check, the successful
Applicant was eliminated and so the job was awarded to the
Grievor. In accordance with its usual practice once a successful
Applicant has been chosen, the Employer made an assessment of the-
Grievor's qualifications and experience and determined that she
was not fully qualified at the FPI 2 level and, therefore,
appointed her to the position of Farm Products Inspector at an
"underfill" level, i.e., at the FPi i level, effective May 1,
1985. She was placed on the salary §rid at the start rate.
Several months later, there was another posting-for a
Farm Products Inspector 2. Oace~again, Mr. Henderson submitted
aa application. This. time he was the successful Applicant from
among a different group of competitors. After an assessment of
his qualifications, .he, too, was appo. inted as an underfill_ at the
FPI 1 level. Unlike the Grievor, however, Mr. Henderson was
placed at the second step on the salary grid effective October 7,
1985. It was not until late November or December, 1987 that t'he
Grievor found out about the disparity in starting salaries
between 'herself and Mr. ~Henderson. Shortly thereafter, she filed
a grieuance claiming, that-she was discri~Yi~-ated against on the
basis of sex because (1) Mr. Henderson was appointed at a higher
step on the salary range even though the Grievor surpassed him in
the first competition which, in her view, indicated that she was
more. qualified; and (2) he was placed at a higher level on the
s~alary grid for FP 2 when the underfill status was removed about
one year later.
The Employer.submitted that the grievance was not
arbitrable (i) as it raises matters, such as "appointment", which
come within the exclusive function of the Employer and do not
come witkin the jurisdiction of this Board; and (2) as it ~a[ls
to disclose a violation of the collective agreement. Finally,
t~e Employer submitted that the--grievance was untimely as it was
filed more than two years after the initial placement of the
Grievor on the salary grid.
The Union claimed that t.he grievance was arbitrable as
initial placement on the salary grid is not a matter of
"appointment", but comes within the pay provisions of the
collective agreement, which must be administered fairly and
without discrimination and in accordance with lawful
considerations. In the alternative, the Union submitted that
initial placement on the salary grid is a matter within
management's~discretion, which must not be exercised in bad faith
or in an unlawful or discriminatory manner. In the further
alternative, the Union' submitted that placement on the salary
grid involves an "appraisal" of experience an~ qualifications.
To the extent that this appraisal is based on unlawful 'and
impermissible considerations, it is "contrary to the governing
principles and standards~' and is, therefore, arbitrable.
In~ reply, the Employer submitted that ·"appraisal" within
the meaning of Paragraph 1B(2)(b) of the Crown Employees
Collective Bargainin~ Act refers to a performance appraisal in
the course of employment and does not cover the'assessment of
experience and qualifications for the purposes of initial·
Placement on the salary grid.
In order to decide the matter of arbitrability, it is
n~cessary to consider the following provisions:_
,
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
"7 Upon being, granted representation rights, the
employee organization is authorized to bargain with
the employer on terms and conditions of employment,
except as to matters that are exclusively the
function of the employer under subsection 18(1),
and, without limiting the generality of the
foregoing, including rates of remuneration, hours
_, of work, overtime and other premium allowance for
· work perfqrmed, the mileage rate payable to an
."ii employee fur miles travelled when he is required to
use his own automobile on the employer's business,
'benefits pertaining to time not worked by employees
!,.' including paid holidays, paid vacations, group life
i/: insurance, health insurance and long-term income
· ,..~: protection insurance, promotions, demotions,
transfers, lay-offs or reappointments of employees,
the procedures applicable to the processing of
,,?. grievances, the classification and job evaluation
~.{jli~ system, a~d the conditions applicable to leaves of
.... '~:~ absence for other than any elective public off-ice
~.? or political activities or training and
..... development. -
· '~'!~!{:i 18(1) Every collective agreement shall be deemed to
~..~. provided that it is the exclusive function of the
':!'~ employer to manage, which function,-without
..,~. limiting the generality of the foregoing, includes
"~'· the right to determine,
(a) employment, appointment, complement,
organization, assignment, discipline,
dismissal, suspension, work methods and
procedures, kinds and locations of equipment
and classification of positions; and
"~. (b) merit system, training and development,
appraisal and superannuation, the governing
principles of which are subject to review by
the employer with the bargaining agent,
and such mahters will not be the subject of
collective bargaining nor come within the
jurisdiction of a board.
(2) In addition to any other rights 6f grievance
under a collective agreemest, an employee
claiming,
(a) that his position has been improperly
classified;
(b) that he has been appraised contrary to the
governing principles and standards~ or
(c) that he h~s been disciplined or d£smissed or
suspended from his employment without just
cause,
may process~ such matter in accordaace 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.
19(1) Every collective agreement shall be deemed to
provide that in the event the parties are unable to
effect a settlement of any differences between them
arising from the interpretation, application,
administration or alleged contravention of the
agreement, including any question as to whether a
matter is arbitrable, such matter may be referred
for arbitration to the Grievance Settlement Board
and the Board after giving full opportunity to the
parties to present their evidence and to make their
submissions, shall decide the matter and its
decision is final and binding upon the parties and
the employees covered by the agreement
COLLECTIVE AGREEMENT
"ARTICLE 27 - GRIEVANCE PROCEDURE
27.2.1 An employee who believes he has a complaint~ or a
difference shall first discuss the complaint or
difference with his supervisor within twenty(20) days of
first becoming aware of the complaint or difference.
STAGE ONE
27.2.2 If any complaint or difference is not satisfactorily
settled by the supervisor within seven (7) days of the
discussion, it may be processed within an additioaal ten
(10) days in the following manner:
27.3.1 The employee may file a grievance in writing with his
supervisor. The supervisor shall give the grievor his
decision in writing within seven (7) days of the
submission of the g~ievance.
Sectioa 7 of the Crown Employees Collective Bargainin~
Act provides for col'~ective bargaining respecting terms and
conditioas of employment except those terms and conditions which
come within_the exclusive management function referred to in
Subsection 18(1). Subsection 18(1) provides that it is the
exclusive function of the Employer to manage and excludes certain
matters, including appointment, from the scope of both collective
bargaining and arbitration. Subsection 18(2) provides for
arbitration of certain~specific matters which might otherwise be
covered by the exclusion in Subsection 18{1). Finally,
Subsection 1911) provides for arbitration of matters dealing with
the isterpretation, applicatioa, administration or alleged
c6ntravention of the collective agreement.
In the course of bargaining, respecting terms and
conditions of employment, the parties negotiated rates of pay ia
the form of salary grids for a variety of classifications,
including Farm Products Inspector. Once an appointment was made,
management was required to place the employee at an appropriate
level on the salary grid. According to the Employer, placement
om the salary grid is part of the appointment process which is
excluded from the scope of both bargaining and arbitration.
The Board cannot agree. Although the evidence indicates
that appointment and placement on the salary grid are dealt with
together, as a matter of administrative convenience, in our view,
these are separate matters. Therefore, the proscription against
bargaining and arbi~tration with respect to matters of appointment
has no application to placement of employees on the salary grid.
Management has responsibility for placing employees on the salary
grid in the course o~ administering the pay provisions Of the
collective agreement and at least to that extent, the issue
raised in the grievance is arbitrable.
Nevertheless, the Employer maintained that the Grievance
was inarbitrable as it was filed outside the time limits in the~
collective agreement. With respect to timeliness, the collective
agreement requires, that a complaint be discussed with the
employee's Supervisor within twenty,days of the employee becoming
aware of the complaint (Art. 27.2.1). If the complaint is not
satisfactorily settled within seven days of the discussion, a
grievance may be filed within ten additional days (Arts. 27.2.2
and 27.3.i).
In this case, the evidence indicates that the Grievor
was unaware of the disparity between her salary and that of Mr.
Henderson until sometime in November or December, 1987. As soon
as she became aware of the disparity, she acted promptly in
bringing the matter to the attention of her Supervisor and, when
the matter was not resolved to her satisfaction, in filing a
grievance. The Empl0yer contended that, as the Grievor was aware
of Mr. Henderson's underfill status, she may also have been aware
of his salary rate. The evidence, however, does not support this
contention. Notwithstanding that she knew of the underfill
status, there was no evidence to indicate that the Grievor was
aware of Mr. Henderson's salary rate prior to the end o~ 1987.
Nor is there any reason why she ought to have known of this
matter at an earlier date. As the Grievor acted expeditiously as
soon as she became aware of the facts upon which her grievance
was based, the grievance was not untimely.
~For all of the above reasons, the preliminary objection
is hereby dismissed. The hearing will be reconvened on the
merits on a date to be scheduled by the Registrar.
DATED AT TORONTO this 6th day of December, 1988.
M. K. Saltman, Vice-Chairperson
'" D: Andersen, Member