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Home My WebLink About1988-0628.Munro.89-08-21 <, . ~. -,.~ ~' , ~ . . ONT,~RtO EMPLOYES DE LA COURONNE ' CPO WN EMPLOYEES DE L'ONTARIO '"~ GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS DUNDAS STREET WEST, TORONTO. ONTARIO~ MSG 1Z8. SUITE 2100 TELEPHONE/T~L~PHONE RUE DUNDAS OUEST. TORONTO, fONTARIO) MSG IZ$. BUREAU2100 (416) 598-0688 628/88 IN THE ~ATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Munro) Grievor - and - The Crown in Right of Ontario (Ministry of the Environment) Employer Before: A. Barrett Vice-Chairperson I. Thomson Member M. O'Toole Member For the Grievor: T. Hadwen Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors For the Employer: M. Farson Counsel Sanderson, Laing Barristers & Solicitors Hearing: june 9, 1989 This is a classification grievance framed as follows: "Statement of Grievance: I grieve that the Ministry of Environment Re-review Panel has failed to apply the Baldwin/Lyng arbitration award unilaterally to me, and that I performed other duties outside the assessment application of this award which were not considered in my review, and therefore I am improperly classified. Settlement Desired: That I be properly classified as an E,O.-5 with full re%roactivity to March 1989 of all monies, credits, benefits, and interest as per this award. Dated: August 5, 1988." The Ministry objects to our jurisdiction to hear and determine this grievance claiming that its subject matter i~ in~rbitrable. Pursuant to section I8 (2) of the Crown Employees Collective Baraaininq Act, an employee has a right to grieve that his position has been improperly classified. In fact, Mr. Munro has an outstanding earlier grievance dated October 24, 1985, claiming just that. The well established jurisprudence of this Board commencing with the seminal case cf Rounding ~18/75 prescribes the scope of review in a classification grievance at p. 3 et seq. as follows: - 2 - ". . this Board must take as a given and can not interfere either with the classification system agreed to and adopted by the parties or the application of that system to the various positions within the public service. Rather this Board's sole function in the resolution of grievances alleging an improper classification, is to determine whether the employer is conforming to the classification system as it. has been established and/or agreed to. That is and more particularly, when faced with a claim that a position is improperly classified, and assuming those classifications conform to the general law of this jurisdiction, this Board is limited by the express provisions of legislation to determining whether or not on the system employed and the classifications struck, the employee in question is actually performing the duties assigned to that position or even assuming that to be the case, whether that employee is nevertheless being required to perform virtually the identical duties which, the class standard notwithstanding, are being performed by employees whose position has been included in some other more senior classification." Mr. Munro's new grievance arises out of the Ministry response to an earlier Board decision. In Baldwin and LYnq, #539/84, a differently constituted panel of this Board determined that the grievors were improperly classified as Environmental Technician 4's and that the job had sufficiently evolved to a degree that it could no longer be covered by the Environmental Technician class standard. This Ministry was ordered to create or find a new classification for the grievors. As a result of this award, a new class series was created called "Environmental Officer" and Baldwin and Lyng were re-classified as Environmental Officer 5's. At that time there were several outstanding classification grievances on hold awaiting the Baldwin/Lyng decision; Mr. Munro's was one of those. Although the award applied only to Mr. Baldwin and Mr. Lyng, the Ministry decided to review the job duties of ali Environmental Technician 4's in the province to see if they fit within the new class series. An elaborate review and then re- review procedure was established whereby each E.T. 4's job duties were scrutinized and points were granted upon a formula basis to determine whether he or she was similarly situated to Baldwin and Lyng. As a result of this review and re-review, fourteen of the thirty-nine E.T. 4's in the Province were reclassified as E.O. 5's. The grievor got less than the requisite number of points and was not reclassified. It is the grievor's contention that this review and re- review process was unfairly done and that if it had been done properly, he would have achieved the requisite eighty points and been reclassified. His position in the instant grievance is that once the employer set up this review process, and even though the process was set up unilaterally and voluntarily and not pursuant to any requirement of the collective agreement, nevertheless the process can be reviewed by us who should judge its appropriateness and fairness. To put it another way, this grievor is now entitled to three grounds of review of his classification instead of the long established two grounds. He should not only be entitled to present evidence to show that h~s position fits within the class standard for the E.O. 5 job and/or that he is doing the same work as other people classified as E.O. 5's but also, and in addition, that if his job duties had been properly assessed, he would have achieved eighty points [the passing grade) on the review and re-review and should therefore be reclassified as aD E.O. 5. Union counsel concedes that there is no jurisdiction in this Board apply a decision relating to certain named grievors to other un-named grievors who were not involved in the arbitration. However, he says we can review the inequitable application of the classification review process that was undertaken here. Employer counsel responds that there is no jurisdiction in a Board of Arbitration to review management decisions for fairness unless that right can be superimposed on an existing right set out in the collective agreement or the Crown Employees Collective Bar~ainin~ Act, Section 18 l(a) of C,E.C,B,A, provides that "classification of positions" is the exclusive function of the employer, and not subject to collective bargaining nor does it come within the jurisdiction of a Board of Arbitration. The_Employer asserts that what was done after the Baldwin/LynG decision by the employer was simply an application of a "usage" test to other E.T. 4's in light of its reclassification of Baldwin and Lyng. The other E.T. 4's - 5 - did not have a riqh.t to this review process and therefore no right roblee the process reviewed for fairness. We agree with the employer position. It is open to any individual employee to Grieve that he has been improperly classified. It is not open to an individual to say that other people may have been improperly reclassified upwards and therefore he should be too. If Mr. Munro can meet the usage test in comparison with Baldwin and LynG and other people who were reclassified in the review process, he will be entitled to be reclassified. However, he must meet either the usage test and/or the class standards test in order to be reclassified. if the employer has made errors in reclassifying other people as E.O. 5's, Mr. Munro will be entitled to challenge those errors in his outstanding classification grievance by means of the usage test. If people with the same or lesser scope of duties than Mr. Munro were classified as E,O, 5's, then surely Mr. Munro will be able to meet the usage test. Therefore, the results of the internal review process will be reviewable by this board but not the process itself. As this grievance deals only with s comn~a~n~ abo~.:t ~- review process we find it inarbitrable, and dismiss it. DATED at Toronto this 2]St day of August, ~.~ , 1989. Vice-Chairperson ~, Member M. O'TOOLE, Me~.ber