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HomeMy WebLinkAbout1988-1432.Bishop et al.91-01-25 ONTARtO EMPL OYES DE LA COURONNE CROWN EMPL 0 YEES DE L 'ONTA RIO GRIEVANCE C,OMMISSION DE SETFLEMENT REGLEMENT BOARD DES GRIEFS DUNDAS STREET WEST, SUITE 2 ~00, TORONTO, ONTARIO. MSG fZ$ TELEPl.'~O~E /T~££P~ONE.. (416~ ~26- ~ 355 RUE OUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 1Z8 ~ACSIMH. E/T~L~COP~E .. (4 ~6,~ 326- 1432/88 IN THE MATTER OF AN ARBITRATION O~der THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Bishop et al). Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Empl'oyer BEFORE~ B. Fisher Vice-Chairperson S. Urbain Member H. Roberts Member POR THE A. Ryder GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers'& Solicitors FOR THE P, Thorup EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HE~RING: June 14, 1989 September 28, 1990 BISHOP This case flows from the implementation of an earlier award in this matter dated June 14, 1989. In that case the Board ordered the employer to make a proper consideration pursuant to Article 3.13.1 and decide whether or not the grievor's probationary period should be reduced. The Employer subsequently did so and decided to shorten the probationary period from one year to 6 months. However, the Employer did not change the date upon which the grievor was deemed to be a C.O. II, thus notwithstanding the reduction of his probationary period, he did not receive a direct monetary advantage. The chronology of events was as follows: 1. April 22, 1985 - Grievor became an unclassified C.O. 2. October 20, 1986 - Grievor becomes a classified COI with a one year probation period. 3. October 20, 1987 - Grievor completed probation and became a CO2. He received a wage increase and this established the anniversary date for further annual increases. 4. June 14, 1989 - GSB award requires Employer to properly consider shortening probationary period. 5. Fall 1989 - Employer shortens probationary period to six months, but doesn't change promotion date from October 20, 1987. The issue becomes whether or not the completion of the probationary period and the promotion to CO2 (called "removal from underfill") must occur on the same date or can the promotion to CO2 come after the completion of the CO1 probationary period? The Employer had two jurisdictional arguments. -2- Firstly, the Employer submits that the Board is functus as our earlier decision simply ordered the Employer to reconsider the shortening of the probationary period, which they did. The Board did not expressly reserve jurisdiction in its award, although the Union did in its opening statement before the Board on the first matter indicate that they were asking for a remedy consisting of both a reconsideration of the probationary period and the appropriate monetary compensation if applicable. The Union responded to this preliminary objection by sayingthat the Board is not functus as the issues before the Board were always the reduction of the probationary period and the monetary consequences flowing from it. Indeed, 'the grievance form itself clearly seeks financial redress. There was no evidence led at the first hearing as to the monetary consequences, as it was anticipated that the parties would work on those matters once the award was issued. The fact that the Board did not expressly reserve its jurisdiction in the first award is irrelevant as we are bound bY Section 19 of CECBA to "decide the matter" put before it, and our inadvertent failure to do so would not deprive the grievor of his rights. The doctrine of functus has been of course considered in numerous private arbitrations and also before this Board. The law is well set out in this quote from a GSB decision entitled Figliano (218/79 Prichard) at page 14. "Rather; the better view is that jurisdiction is retained only with regard to those issues on which jurisdiction is reserved either expressly or implicitly and those issues on which the board has not reached a final conclusion)." In this case the Board did not finally decide any issues of compensation, thus we are not functus. -3- The central issue comes down to whether or not the Employer is _ bound to promote the grievors from COI to CO2 position at the completion of their probationary period or whether it can be at another time. First of all, it should be noted that there is no provision within the collective agreement which compels the Employer to promote a COi when th6y complete their probationary period. Article 3.13.1 speaks only of shortening probationary periods, nothing else. Article 5.1.1 speaks of when a person is promoted, that is when he "is assigned to another position in a class with a higher maximum salary than the class of his former ' ' ' " posmon. Here the issue is the timing of the assignment, so this clause is of no assistance. It follows therefore that where there is no prohibition on the procedure, it is a management right to promote the grievors when they d6em fit. The Employer has promulgated a Personnel Policy on the issue of when a COI becomes a CO2. The policy reads as follows: "Classified corr.ectional officers will be eligible to have und. erfill status removecl one year to the day after appointment to the position on classifie~ staff provided. -all requirements of the position have been met, and; -the prescribed ministry training programme has been successfully completed." · Furthermore, the class standards for the COI state the following: 'q~nis class covers the l~ositions of eml~loyees who we undergoing training in a variety ot Correctional Officer duties. The evidence on the first day of the hear/ng clearly disclosed that none of the grievors had completed their "prescribed Ministry training programme" within six months of their appointment to the classified service, or in other words, within their reduced probationary periods. Thus there is a clear distinction between probationary status and the elevation to CO2. This point was virtually conceded by Union counsel in a letter dated October 10, 1990, to the Board, submitted after the completion of oral - argument. As such the Employer is not bound in these circumstances to have '- promoted the grievors to CO2 status upon the completion of their probationary status, as they hadn't even completed their training. However, the issue is further confused by the fact that some of.the grievors .(Smith, Thomsen & Nell) completed Part IV of their training after their six month probation period but well prior to their promotion to CO2. There seems to be some sort of Part V of the training course, which consists of working in the institution and receiving a performance review. It is quite unclear from the evidence as to whether or not this Part V training was completed prior to the respective appointment dates'of the grievors to CO2 status but for the purpose of the argument we will assume that it was completed prior to that date. In that situation the Union claims that upon completion of the training and probation, the grievor is entitled to CO2 status and should not have to wait out the full year. In effect the Union is stating that omean a COl has completed his training and probati6nary period, he is in fact performing the duties of a CO2 and should be paid accordingly. This is an ingenious and perhaps valid argument but in reality it is a classification grievance. The employee is in effect saying that he is performing a higher rated job and should be compensated accordingly. However, it would be an unwarranted extension of the original grievance to now consider this case as a classification grievance, considering that this issue arose only in written correspondence submitted after the final oral argument and almost two years after the filing of the grievance. In light of the above reasons, it is not necessary for us to determine whether or not the Employer can be compelled to make a CO I into a CO2 prior to one year. However, this may well be an academic point of little interest anyways, since an employee who found himself in the situation of being a non-probationary fully trained CO1, could simply file a timely classification grievance and, if successful, he would obtain the same monetary advantages that the grievors were seeking in this case. For the above reasons, the balance of the grievance is dismissed. B~DATED at Toronto this 25 day of January, 1991. ~.,/1B. FISHER , Vice-Cha~ rperson S. U~rbain, Member S. R!oberts, Membor