HomeMy WebLinkAbout1988-0247.Bottner.88-10-07 ' i -i:: ;"' ' ~' "'" ,i ~' ONTARIO EMPLOYES DE LA COURONNE
~ ': ~' ., '~ ' - CROWN EMPLOYEES OE L'ONTAR/O
.~ .... GRIEVANCE DE
i I SET'rLEMENT, REGLEMENT
BOARD - DESGRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE 2100 TELEPHONE/T~Lt~PHONE
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0247/.88
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
it >~.: Be tween:
'OPS~U (Gordon Bo'ttner)
'~: Grievor
;' and
The Crown in Right of O'ntario
(Ministry of Education)
Employer
Before: R.J. Roberts Vice Chairperson
J.D. McManus Member
D. Montrose Member
For the Grievor: L. Rothstein
Counsel
Gowling & Henderson
Barristers and Solicitors
For the Emp.loyer: C. Taylor
Staff Relations Officer
Staff Relations Branch
Management Board of Cabinet ,''
]{earing: September 9, 1988
D~CISION
At the conclusion of the hearing in this matter, the Board;
'after considering the evidence and argument of the parties,
issued the following.order:
1. The removal of the grievor's "underfill" 'status on
about December 24, 1987, did not entitle the Ministry
to make a change in the grievor's-anniversary date
pUrsuant to Article 5.1.3 (b) of the Collective
Agreement; .
2. There was insufficient evidence to support any finding
that the Union was estopped from challenging the
" Ministry's actions with respect to .the grievor in the
.,.- circumstances of this .case; ~and
3. The .matter is remitte'd to the parties in this posture
and we ~will retain jurisdiction pending .notification
~rom either party of ~.final disposition of this~matter.
Thereafter, the Board was requested to suDp!Y written reasons for
this order. These reasons are as follows:
Most of the facts relating to this case were entered into
evidence by stipulation of the parties. It seems, that on
September l, 1985, the Grievor entered upon the first of two fee-
for-service contracts with the Ministry of Education. The~e
contracts ~ were to provide consulting services in the area of
computer technology to the School Products Customer Support
Group° On Janua'ry 1, 1987, the grievor was successful in a
competition for a job.in the classified service as an Assistant
Project Officer in this same group. As a result, he had to
relinquish the balance of his second fee-for-service contract
with the Ministry.
Shortly thereafter, the grievor was advised that he would
have to fill 'the position on an~ "underfill" basis because,.
'although he was the successful candidate, it'was believed that he
was not qual~ified to' perform all of the "task sets" of the
position. It was indicated that the "underfill" would be of
about one year'in duration and in that time he would be on a
.training program during which he would be gradually introduced to
all Of the duties or "task sets" .that pertained to the job.
.During this "underfill". period, the grievor was assigned at the
second step of the.salary range for the classification of Systems
Officer 1. It was understood that when he became a ~ully
qualified Assistant Project Officer the grievor would .'then be
paid · at the level' of a Systems Officer 2, which was the
classification assigned to his position.
Upon assuming the position, the grievor was given . an
anniversary date+ of January .1, 1988. It was explained to the
Board that the anniversary date is the date upon which management
ordinarily grants an employee a one-~tep salary increase.
'On about December 24, 19S7, 'the ~rie~or's "underfi!l" status
was removed. The grievor was assigned at the first step in the
salary range of a Systems Officer 2. The grievbr testi~i'ed that
3
when this ~o¢curred, his job did not change in any Substantial
respect. He performed essentially the same duties as he had
performed throughout his "underfill" period and,.he added, during
the' performance of his fee-for-service contracts. Ms. Silvia
Hope, the grievor's supervisor, confirmed in her testimony that
this was the case. She agreed that the duties that the grievor
was~ carrying out were the same. ~he added, however, that his
level of reSPonsibility and degree of accountability differed
because he was no longer.considered to be in training but was
expected to act as a full qualified .Systems Officer 2.
Thereafter, the Ministry took the position that the removal
of the grievor's "underfill" status constituted a "promotion"
within the meaning of Article 5.1.1. of the Collective Agreement,
thereby entitling the Ministry to assign to the grievor a new
~nni~rsary date of January %, %989. This meant that there would
be a delay of one year before the grievor would be considered for
a one-step salary, increase, when he was apprised of this, the
grievor filed the .grievance leading to the present proceeding.
Article' 5.1.1. of the Collective Agreement -reads as
following:
:..?? 'Promotion occurs when the incumbent of a classified
position is assigned to another position in a class
with. a hi~her maximum salary than t~e class of his
former position..
Article 5.1.3 (b) reads:
Where an employee:
(b) at a rate less than the maximum in the salary
range is promoted and receives a promotional
increase: ..
-- greater than a one-step increase, a new
anniversary date based on the dat~of
promotion is established ....
Under these provisions of the Collective Agreement, it would have
been appropriate to establish a new anniversary date for .the
grievor "based upon the date of promotion" so long as .the remo~a'l
of 'his "underfill" status qualified as a "Promotion" within the
meaning of Article 5.1.1.
It does not seem to the Board, 'however, that the 'removal of
the grievor' s "underfill" status can be considered to be a
"promotion!' as. defined by Article 5.1.1. This provision of the
Collective Agreement restricts "promotion" to circumstances 1n
which the employee "is assigned to another [higher] position."
In the circumstances of the present case, it must be concluded
that the grievor remained in the same position,' i.e., the
position of Assistant Project Officer. We do not consider the
evidence to be sufficient to characterize what happened here as a
promotion.
It follows,' therefore,' that the Ministry was not entitled-
under Article 5.1.3 (b) -- which relates solely to "promotions"
within the meaning of A'rticle'5.1.1 -- to justify establishing
'" for the grievor the new. anniversary date of January 1, 1989. It
was for this reason that we framed the first paragraph of our
order,, supra, which essentially constituted a. declaration to.this
effect. It was dedided that we would Go no .farther than to .issue
a declaration in this regard in light.of submissions from the
.Ministry regarding the.limits of our jurisdiction. Essentially~
the submissions were to the ef, fect that this Board lacks
~ jurisdiction to review decisions of management'in the course of
administering its merit system, which was an exclusive management
right. It was our view that the parties would be better served
if we were to remit the matter to them without expressing any
view upon this submission so that a mutually satisfactory
resolution of.this particular grievance might be encouraged.
.(
z The Second paragraph.of our order related to submissions of
the Ministry that the' Union acquiesced in the Minis~try's practice
of treating the removal of "underfills" 'as promotions within
the meaning of Article 5.1.1 and therefore the Union was estopped
from asserting ~hat Article 5.1.1 did hot entitle the Ministry to
' do 'so. The evidence upon which th~s submission was based,
,,,"-~ however, was too thin to support a claim of estoppel. It
constituted little more than evidence that for at least two years
the Ministry followed this practice withcu¥ any grievance coming
to the attention of Ms. Gail Fenwick, the Human Resources Advisor'
to the Ministry. of Education. We would have required much more
substantial evidenceof-Union knowledge and acquiescence before
raising .the estoppel reguested by the Ministry.
Finally, reiterating the last paragraph of our order, we
have re~itted' the matter to'the parties in this pos{ure and have
retained jurisdiction pending implementation o~ the terms of our
Order. On being notified by either party that a mutually
satisfactory resolution cannot be reached', we will reconvene to
decide the ultimate disposition of the grievance.
DATED in London, Ontario, this 7th day of
'~" ' Vice-Chairperson
'. j.-McManus, Member
D. Montrose, Member