HomeMy WebLinkAbout1988-0175.Frawley.89-06-15 ONTARIO EMPLOY£S DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTARIO
GRIEVANCE ~,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8o SUITE 2100 TELEPHONE/T~I..~PHONE
180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG IZ8 - BUREAU 2100 (410) 5~8-0688
175/88
XN THK IqATTER OF AN ARBXT~TZO~
Under
THE CRO~E~I E~PLOYEES COLLECTXVB BARG~ZNXNG ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Frawle¥)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Community and Social Services)
Employer
Before:
J.D. McCamus - Vice-Chairoergon
J. Anderson - Member
M.E. Wood - Member
APPEARING FOR T.D. MCEwan
THE GRIEVOR: Counsel
Gowling & Henderson
Barristers & Solicitors
APPEARING FOR M. Gottesman ~
THE.EMPLOYEB: Counsel
Minigtry of Community and Social Services
BEARING: August 12, 1988
RULING ON PRELIMiNARY OBJECTION
This grievance concerns the terms and conditions of the
grievor's employment in an acting capacity as a Team Manager at a
Schedule 1 facility located in Goderich, Ontario, which is part of
the operations of the Oxford Regional Centre located in Woodstock.
The grievor began work in Goderich on October 17, 1983. At that
time, he was classified as a Psycometrist II and he continued to
hold that classification until December 1, 1985. On the latter
date, he was appointed to the position of Team Manager on an acting
basis. That position, newly established at the time, is outside
the bargaining unit and carries with it, we are advised by counsel
for the Employer, a rating in the classification scheme for
managerial employees of AM 17.
The grievor has a number of complaints concerning this
situation, only one of which, however,, is formally before us for
the purposes of ruling on this preliminary objection. It is
apparently the grievor's position that the responsibilities he has
shouldered at the Goderich facility have bemn the same from October
17, 1983, to the present time. Thus, although he was only formally
appointed to the Team Manager position, on an acting basis, on
December 1, 1985, it is his position that he should be compensated
for the period prior to December 1, 1985, on the same basis as is
appropriate after that date. Secondly, it is the grievor's view
that the Team Manager position itself is inaccurately rated at the
AM 17 level. It is the grievor's view that the position should be
rated as an AM 18 position and this view appears to derive, in ~art
2
at least, from the belief that other individuals holding this
position on an acting basis are being remunerated at that level.
Thirdly, it is apparently the grievor's view that his retention at
this position on an acting basis for as long a period as
approximately five years is inappropriate for some reason. The
reasons underlying this view have not been presented to this'Board.
For purposes of this preliminary objection, we have been
· directed to consider only the grievor's complaint with respect to
the second item, that is, the allegedly improper classification of
the Team Manager position. The substance of the preliminary
objection taken on behalf of the Employer is that the Board has no
Jurisdiction to consider a matter of this kind involving, as it
does, a question of classification concerning a position which is
not covered by the Collective Agreement entered into between the
parties to the present dispute. Thus, neither the provisions of
the Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108,
as amended, ("CECBA") nor the provisions of the Collective
Agreement can confer Jurisdiction on this Board to deal with this
matter.
The parties appear to be in an agreement that the Board must,
if it is to assume jurisdiction, find its source within CECBA or
within the provisions of the Collective Agreement. Accordingly,
attention was focused in argument on the proper interpretation of
pertinent versions of the statute and the Agreement.
The Union relies principally on the provisions of Section
18(2) of CECBA, which provides as follows:
"(2) In addition to any other rights of grievance under
a collective agreement, 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 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."
Counsel for the Union has noted that the right conferred under
Section 18(2)(a) is not, in its own terms at least, limited to
bargaining unit positions and accordingly, has'urged upon us that
the grievor possesses a statutory right to grieve the
classification of the Team Manager position. The Union further
argues that this position is bolstered by Article 6.5 of the
collective agreement which provides' as follows:
"Where an employee is temporarily assigned to perform the
duties'and responsibilities of a position not covered by
this Collective Agreement, he shall retain his rights and
.obligations under the Collective Agreement."
Relying on this provision, the Union argues that one of the rights
retained under the Collective Agreement by the grievor in the
present case is the right to grieve, under the Collective
Agreement, matters of classification.
Further, the Union argues that the present dispute is, in part
at least, a dispute concerning the amount of "acting pay" the
grievor is entitled to receive during his assignment at Goderich.
4
The question of "acting pay" is provided for in the agreement in
the following manner in Article 6.1.1:
"Where an employee is assigned temporarily to perform the
duties of a position in a classification with a higher
salary maximum for a period in excess of' five (5)
consecutive working days, he shall be paid acting pay
from the day he commenced to perform the duties of the
higher classification in accordance with the next higher
rate in the higher classification,-provided that where
such a change results in an increase of less than three
percent (3%), he shall receive the next higher salary
rate again."
Accordingly, from the Union's perspective, if it is true that the
grievor is' not being paid the amount of acting pay he is entitled
to, that constitutes a breach of the Agreement, which is obviously
grievable.
In support of this proposition, the Union relied on the
decision in OPSEU (Union Grievance) and Management Board of Cabinet
1006/85 (Brandt, October 15, 1986) as an illustration of the
exercise of this jurisdiction. In that case, the Union had claimed
that bargaining unit me~bers who were temporarily assigned to
management positions should receive benefits under the Management
Compensation Option Plan, which is one of the benefits available
to managerial employees. At the hearing of this case, the Employer
raised a preliminary objection to the effect that the Board lacked
Jurisdiction. The Board ruled against the Employer on the basis
that .the Union had c!ea~ly raised an is~ue as to the meaning of a
phrase in the Collective Agreement, that is, the phrase "acting
pay". Turning to the merits of the case, the Board then determined
that it was relevant to determine whether or not these benefits
5
were considered to be "pay" within the applicable regulation under
the Public Service Act, R.S.O. 1980, c. 418, as amended (the
"PSA"). Having determined 'that under those regulations this
particular benefit was not so considered, the' grievance was
dismissed.
Our own view is that this previous decision of the Board is
clearly correct on the jurisdictional point. ACcordingly, if the
grievor's allegations in the present case raised the possibility °
that the Employer acted in breach of Article 6.5, we would agree
that this Board has jurisdiction. A more difficult question,
however, to which we must return, is whether an alleged failure to
accurately classify a management position to which a .bargaining
unit member is temporarily assigned could constitute a breach of
that article.
In support of its preliminary objection, the Employer has
argued that the proper interpretation of CECBA is that it confers
no jurisdiction on this Board to deal with this grievance. This
argument rests on the fact that rights are conferred under section
18 of the CECBA on an "employee", a term defined in section
1(1) (f)(iii) so as to exclude "a person employed in a managerial
or confidential capacity". Accordingly, or so it is argued,
bargaining unit member who is temporarily assigned to a managerial
position loses his or ~er status as an "employee" for purposes of
the act generally and for the purposes of section 18, in
particular.
Support for this view is drawn from some remarks made in
6
passing in the decision of this Board in Garlock and Ministry of
CorKectional Service~, 15/80 (McLaren, October 30, 1981) in which
the grievor had attempted to grieve employer conduct which, it was
alleged, amounted to discipline imposed during his temporary
assignment, on an acting basis, to a managerial position. The
'grievance was dismissed on the basis that the employer conductdid
not amount to discipline, but the Board went on to raise, but not
resolve, the question alluded to above, that is whether the grievor
continued to be an "employee" within the meaning of CECBA while
serving in a managerial capacity. The. point had not been raised
by the parties, however, and the Board, having indicated only that
a possible argument could be made to this effect, clearly and
ex]~licitly refrained from ruling on this Jurisdictional point.
As will be seen, it is not strictly necessary'for this Board
to rule on this q~/estion either, as it is our view that even if the
grievor retains rights under section 18 of CECBA, those rights do
not reach a dispute concerning the appropriateness of a managerial
classification. Nonetheless, we note that we find unattractive the
suggestion that an employee who accepts a temporary assignment to
a managerial position on an acting basis loses all of the
protections afforded to the employees by Section 18 of CECBA.
Certainly, such a conclusion would render temporary assignments to
managerial positions a very mixed blessing for employees. In the
absence of a clear signal in the statute to the contrary, we are
inclined t° the view that the statute should be read as conferring
Section 18 rights on bargaining unit members who hold such
7
appointments temporarily. From a functional point of view, it
makes sense that the employee should be able to continue to turn
to the Union for advice and support with respect to difficulties
that arise with respect to matters of discipline, for example,
during such assignments. Accordingly, if we were required to rule
on this point, we would hold that section 18 rights are not lost
until a permanent transfer to a managerial position is made.
The Jurisdictional point raised in the present ~roceeding is,
in our view, a narrower one. Assuming that the grievor retains
section 18 rights and the right to have access to the grievance
procedures set out in the Collective Agreement, it must still be
asked whether a bargaining unit member has the right to grieve the
classification of a managerial position to which he has been
temporarily assigned. In our view, neither the language of Section
18 nor of Article 6.5 clearly resolves this question. Thus, under
Section 18(2) the grievor has a right to claim that "his position
has been improperly classified". It is not obvious whether the
phrase "his position" should be taken to refer only to the
employee's permanent position or whether it may embrace positions
held on a temporary and acting basis as well. Assuming that
positions'held on an acting basis are included, it is not self-
evident that managerial positions held on such a basis are within
the scope of the provision. A similar ambiguity clou~s the
question of grievor's ability to grieve the classification assigned
'to a managerial position under the Collective Agreement.
Accordingly, we must seek quidance from an examination of the
8
context within which these provisions operate and attempt to
determine whether there are policy considerations that might assist
in developing the most appropriate interpretations of them. In
our view, it is a material consideration that if the grievor were
permitted to'challenge the classifications of managerial positions
under the Collective Agreement through to a decision of this Board,
we would have created a parallel system for challenging such
classifications in addition to that which presently exists under
the regulations, promulgated under the Public' Service Act. A
managerial employee, who is dissatisfied with his or her'
classification may challenge that classification and ultimately
seek a ruling from the Classification ~a~ti-g.~L Committee under
section 57 of regulation 881. The situation envisaged by the
grievor, then, is that permanent incumbents of managerial positions
would have one avenue of redress for classification grievances
while bargaining unit members holding such a posit~on on a
temporary basis would have a different avenue of redress open to
them leading to a decision by this Board.
An arrangement of .this kind would be unattractive from a
policy perspective for at least tw° reasons. First, it is
undesirable that two different mechanisms should be in place for
making the same decision. This would give rise to the possibility
of'inconsistent decisi6ns. We note, as well, the possibility of
an imbalance in the experience or expertise of the two different
decision-makers with respect to the managerial classification
system. Secondly, it should be noted that in many instances the
parties who have the most at stake with respect to the
classification of a particular position are the permanent
incumbents. For obvious reasons, the permanent incumbents have a
serious interest both in the timing of and in the successful
prosecution of challenges of this kind. Accordingly, we believe
that we should not too easily come to the conclusion that there is
a separate mechanism for challenging managerial classifications
under CECBA or the Agreement that. is available only to bargaining
unit members temporarily assigned to managerial positions.
Permanent incumbents would have no right to participate in the
making of a decision that might be of considerable importance 'to
them.
At the same time, of course, we appreciate that it would not
be impossible for the parties to operate within a system in which
alternate avenues of appeal were available to the two different
sets of employees. Our point, simply, is that unless the language
of CECBA or the Agreement clearly -indicated that such an
arrangement had been put in place, we would be reluctant to
conclude that. such a scheme was intended by the parties.
Accordingly, as it is our view that neither the statute nor the
Agreement does clearly so indicate, we reach the conclusion that
the grievor's right to grieve the classification assigned to his
"position", either under the statute or under the Collective
Agreement does not include a managerial position to which he has
been temporarily assigned on an acting basis.
There remains, then, the question alluded to above, .that is
10
whether the grievance at issue here can be characterized as a
dispute concerning "acting pay" and therefore grievable as a
potential bre~ch by the employer of Article 6.1.1. On its face,
that Article appears to provide only that an individual temporarily
assigned to another position has a right to have his pay stepped
up to a particular rate within that higher classification. ThUs,
if the employer pays that .stipulated rate as defined by the
existing classification of the acting position, it would appear
that the Employer's obligations under Article 6.1.1 are fully
performed. It can be argued, of course, that the. language of
article 6.1.1 does not clearly preclude the interpretation argued
for by the Union. That 'is to say, Article 6.1.1 does not
explicitly state that the appropriateness of the classification on
which the acting rate is based is not a material consideration.
Again, however, we are influenced by the considerations outlined
above. In the absence of clear language to the contrary, we are
inclined to the view that we should not interpret the Agreement in
such a way as to confer upon members of the bargaining unit a
separate and .perhaps additional means of challenging
classifications of managerial positions that would not be available
to the permanent incumbents of those positions.
In the course of argument, some attention was focused on the
q~/eStion of whethe~ ~ the grievor would' be able to seek
reclassification through the mechanism leadfng to a decision by the
Clas~ification Rating Committee. This matter was not fully argued
before us as both counsel were of the view, though for very
11
~ifferent reasons, that it was unnecessary for the Board to reach
a conclusion on this point. From the Employer's perspective, it
was unnecessary for us to do so because, or so it was argued, even
if no means of redress is available to the grievor through the
Management Compensation Plan, that perhaps unfortunate fact could
not have the effect of conferring a jurisdiction on this Board that
had not already been conferred on it by the statute or the
Collective A~reement. Counsel seeks support for this position from
a previous decision of the Board in Alam and Ministry of.Community
~nd Social Services, 288/80 (Palmer, October 30, 1981), a decision
which does indeed support that view. Counsel'for the Union, on the
other hand, argued that even if the grievor would enjoy access to
a decision by the ~a~f~¢~£~on~..Rating Committee, this would be
irrelevant as it would be perfectly possible for the grievor to
have access to two parallel avenues for challenging the
classification of the Team Manager position.
Counsel for the two parties involved also took differing views
as to whether or not in fact the grievor would be able to exercise
a right of challenge under the Management Compensation Plan.
Counsel for the Union offered an interpretation of regulation 881
which would enable an individual in the position of the grievor to
do so. Counsel for the Employer took the opposite view. Although
nothing that was urged.upon this Board led us to a confident
conclusion that the grievor would not be able to exercise such
rights, we do not find it necessary to reach a definitive opinion
on this point. In our view, our lack of Jurisdiction in this
12
matter is not contingent upon a finding as to whether or not the
grievor does possess such rights. Accordingly, we limit ourselves
to the conclusion that the right to challenge the classification
of managerial positions held on an acting basis is not conferred
either by section 18(2) of CECBA or by the Collective Agreement in
its current form.
We note further, however, that there is some ambiguity in the
nature of the claim being made by the grievor with respect to the
period preceding December 5, 1985. As the facts relating to the
merits of the present.dispute have not been put in evidence before
this Board,.we are unable to determine whether the dispute relating
to that period rests simply on the question considered above, that
is whether this Board has jurisdiction to consider what is in
effect a classification grievance with respect to a managerial
position. This is clearly the issue raised by the grievor with
respect to the post-December 1, 1985 period of time. If it also
constitutes the gravamen of the dispute relating to the period
prior to that date, it follows from the reasoning set out above
that it is our view that this Board lacks jurisdiction to deal with
this grievance. In argument, however, Counsel for the Union
appeare~ ko suggest that there might be some other complaint
concerning the calculation of "acting pay" for that period which
would rest on the prOper interpretation of evidence not Yet before
this Board.
Accordingly, we emphasize that this ruling is narrowly
confined to the precise basis of the Employer's preliminary.
13
objection. Our ruling is that that objection is well taken and
that this Board does not have jurisdiction entertain the grievance
if it relates exclusively to what amounts to a classification
challenge of a managerial 9osition held on an acting basis by a
member of the bargaining unit. However, it is appropriate that
this Board remains seize~ of thi~ matter, pending' further
indication from Counsel as to whether it is the Dosition of the
Union that there remains an issue arising in the 9resent grievance
with respect to which this Board possesses jurisdiction.
Further, we invite counsel to indicate to this Board, within
30 days of the receipt of this decision, w~ether either one or both
of the 9arties/~esire a further hearing in this matter, failing
which, this ~rievance will, for the reasons set out above, be
dismissed.
DATED at Toronto, this 1~%h day of Ju,e, 1989.
Member
M. Wood Member