Loading...
HomeMy WebLinkAbout1989-0008.Ford.91-09-03 ON TA RIO EMPL OYES DE LA COURONNE ; CROWN EMPLOYEES DE t 'ONTARtO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARtO. MSG IZ8- SUITE 2100 TELEPHONE/T~L~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU 2100 (416! 598.0688 8/89, 760/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between= OPSEU (Ford). Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer Before: S. Stewart Vice-Chairperson M.Gandall Member D. Walkinshaw Member For the Grievor: I. Roland Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Emplo~yer: M. Gottesman Counsel Legal Services Branch Ministry of Community & Social Services ~ORDER At the hearing in this matter on December 14, _1989, the parties entered into a Memorandum of Settlement. In accordance with the provisions of the Memorandum of Settlement, as set out below, its terms have the same force and .effect as an order of the Board. In The Matter of Two Grievances of Kirk Ford dated December 14, 1988 and June 21, 1989 GSB 0008/89 & 760/89 OPSEU 89B476 & 89C956 MEMORANDUM OF SETTLEMENT The parties hereby agree to settle the above- referenced grievances of Kirk Ford on the following terms: 1. The position of SO3 in the Strategic Systems Development Branch which is the subject matter of the two grievances and which is presently vacant shall be posted and filled by competition, which posting shall be in or about March, 1990, unless in the meantime the position is eliminated for lack of funding. 2. The competition referred to in paragraph 1 may be an open competition (the "competition"). 3. The competition panel shall be composed of four persons as follows: (a) Jan Aneevich - Manager of Employment Equity Branch or if she is not available the next senior person in the Branch (b) Jean Linton, or if she is not available John Van Vliet 2 (c) Grace Wong, or if she is not available Lloyd Kishino (d) Vera Anklesaria 4. The Ministry acknowledges that Kirk Ford is qualified to be interviewed for the position of SO3 that is the subject matter of the above-mentioned grievances and will be granted an interview in,the comp et it ion. 5. This settlement is without precedent or prejudice to either party with respect to any other grievance or matter. 6. Kirk Ford and OPSEU hereby agree to withdraw the two grievances subject to the fulfillment of the terms of this settlement. 7. This settlement shall be made an order of the Board. Dated at Toronto, this]9 day of January, 1990 S. L. Stewart- Vice-Cha~irperso~n M. Gandall ~Member D. Walkinshaw - Member : ', 'L ;' ~ · ,r ONTARIO EMPLOY~:$ DE LA COURONNE ~'> ~i~ ~..~. ..~,!;.-;:,,, CROWN EMPLOYEES DEL'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD' DES GRIEFS I80 DUNDAS STREET WEST, $UITE 2100, TORONTO, ONTARIO. M5G ;80, RUE DUNOA$ OUE$T, BUREAU 2100, TORONTO [ONTARIO], MSG tZ8 FACSlMILE/T~L~COP~E : (4 15/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ~CT Before THE GRZEVANCE BETTLEMENT BO3tI~D BETWEEN OPSEU (Nightingale) Gr~evor The Crown in Right of Ontario (Ministry of CorreCtional Services) -Employer BEFORE: N. Dissanayake Vice-Chairperson F. Taylor Member F. Gallop Member FOR TH~ T. Hadwen GRIEVOR Counsel Cavalluzzo, Hayes & Shilton Barristers & Solicitors FOR THE G. Lee EMPLOYER Coordinator, Workers Compensation Board Occupational Health & Safety Ministry of Correctional Services HEARING May 1, 1990 2 DECISION This is a classification grievance dated January 17, 1989, filed by the grievor, Mr. Fred Nightingale alleging that his "classification of Clerk III should be Correctional Officer II". The settlement desired is that he "be reclassified to a Correctional officer II". During the grievance procedure that followed, the employer was prepared to allow the grievance by reclassifying the grievor's position as CO 2 with retroactivity to 20 days before the date of filing. However it took the position ':that the grievor must start at the starting salary level for CO 2 and work his way up through the merit system. The grievor took the position that he should be placed at the highest CO 2 salary level immediately upon his reclassification. As a result of this disagreement, the grievance as a whole remained unresolved. Nevertheless, by unilateral action, the employer implemented its proposed offer of settlement. Thus, the grievor's position was reclassified as CO 2 retroactive to 20 days prior to the date the'grievance was filed. The grievor was placed at the starting level for CO 2. In the letter dated October 16, 1989, announcing that decision, the employer stated "If the reclassification does not resolve this matter, please contact the Grievance Settlement Board to schedule an arbitration date". The union took the position that while the reclassification and retroactivity aspects of the grievance 3 had been satisfied by the employer's action, the issue of the appropriate CO 2 salary level for the grievor was still in dispute. Accordingly, the union referred the grievance to this Board, for the determination of that issue. Counsel for the employer raised two preliminary objections to the arbitrability of this grievance~ The Board ruled that it will .hear the preliminary issues as well as the merits of the grievance together. The parties led no viva voce evidence. The facts relevant were presented orally to the Board by counsel. The employer takes the position that the grievance is moot because it has been fully satisfied ~y the employer's action of reclassifying the grievor as CO 2 (with retroactivity to 20 days prior to the date of filing) as requested in the written grievance. Secondly, the employer contends that the designation of a salary rate for an employee is a matter relating to the merit system, which is an exclusive function of the employer to determine under section lB (1) (b) of the Crown Employees Collective Barqaining Act and that therefore the Board lacks jurisdiction over that. The written grievance simply seeks re-classification as CO 2. Nevertheless, we do not agree that because the grievance only raised reclassification, the grievor is restricted to that relief. That is too narrow an 4 interpretation. A grievance must be liberally construed so that the real complaint is dealt with. See, Re Blouin Drywal~ Contractors Ltd. (1975) 57 D.L.R. (3d) 199 (Ont. Ct. of Appeal) and Re Electrohome Ltd. (1984) 16 L.A.C. (3d) 78 (Rayner). The issue of salary rate was raised by the union during the grievance procedure and there were discussions, albeit without resolution. Therefore, if indeed the salary issue is one which is within the jurisdiction of the Board, it cannot be said that the grievor is attempting to expand the scope of his grievance at arbitration. He is entitled to have the Board determine the issue that was not resolved by the employer's unilateral action. The fact that he did not expressly mention the salary issue does not preclude him from raising that issue just as a grievor is not precluded from raising issues such as retroactivity or interest merely because those were not explicitly raised in the written grievance. Accordingly, we dismiss the employer's first preliminary objection. The grievor has been employed with the Ministry of Correctional Services since 1964. In 1983 he was holding a position classified as CO 2. However, due to health reasons, in August 1983 he applied successfully for a position of Assistant Clothing and Admissions clerk classified as Clerk III general. That amounted to a voluntary demotion because his Clerk III position had a lower maximum pay rate than a 5 CO 2 position. In January 1986, the grievor'~ position was reclassified by the employer as Clerk III Supply, which had a lower maximum rate of pay than Clerk III General. However, the grievor was accorded pay protection through "red- circling". It is common ground that since August 1983 the grievor has had the same duties and responsibilities right up to the time of his grievance. There is no suggestion that his duties and responsibilities had changed in any material way in that period. The Board is advised that the grievor did not grieve earlier because until recently the pay differential between the Clerk III classification and CO 2 clas~ificati0n was insignificant, when the gap widened, he decided to seek the higher paying classification. In Re Campbell, 1257/88 (Samuels) the Board held that there is no promotion where a grievor had not been moved to a new position in a higher class and that where a position occupied by the grievor is reclassified there is no promotion, so as to trigger the application of article 5.1.2. See also, Re Sturch II 611/86 (Forbes-Roberts). That article states that "An employee who is promoted shall receive that rate of pay in the salary range of the new classification which is the next higher to his present rate of pay .... ". 6 Counsel for the employer concedes that article 5.1.2 did not apply to the grievor's circumstances as a matter of law because there was no "promotion" involved. However, it is his contention that as a matter of practice the employer used a method analogous to that in article 5.1.2, to determine the grievor's salary rate upon reclassification. At the time the grievor had the top pay rate for Clerk III, Supply, ($ 12.35). Upon reclassification, the grievor was placed at the start rate for CO 2, which was $ 14.42. Since that resulted in an increase of more than 3%, the formula in article 5.1.2 has been satisfied. Counsel for the employer submits that determining the appropriate salary level for the grievor involved a proper exercise of an exclusive management function because the different salary levels for the CO 2 classification are an integral part of the merit system. In determining at which level the grievor properly fit upon his reclassification as CO 2, the employer was exercising an exclusive management function because under section 18 of the Crown Employees Collective Bar~ainina Act "the right to determine .... merit system ..." is said to be included in the exclusive function of the employer to manage. It is on that basis that counsel argues that the present grievance challenging the employer's decision relating to salary rate is inarbitrable. Counsel points out that articles 27.11.1, 2.11.2 and 27.11.3 are t~e only provisions in the collective agreement dealing with classification grievances. Those provisions deal solely with ~ssues of proper classification. There is absolutely no reference to proper pay rates. Similarly Counsel argues that articles 5.1.1 to 5.8 of the collective agreement for~~ an all inclusive code on pay administration matters. The grievor has no rights and does not claim any rights under any of those provisions. Accordingly, counsel submits that the only way the Board can deal with the pay rate issue raised b~ the grievor in the context of a classification grievance is by amending the collective agreement, which is not within it~ jurisdiction. Counsel relies on Re Byng & Rambali, 1159/87, (Watters) in support of/ his position that the control of the merit system is a m2tter beyond the jurisdiction of the Board. In that case the grievors alleged that their anniversary dates were improperly established upon the implementation of the new O.A.G. classification system. The Board relied on a prior decision in R~ Dickie, 314/85 (Palmer) and the fact that the I t + 1 t . collective agreemen was si en on what effect the O A.G. system will have an existing anniversary dates and held that the Board lacked the jurisdiction to entertain a grievance challenging the right of the employer "to change an 8 anniversary date in a way which adversely affected progression through the merit system". Counsel for the grievor submits that while determining or establishing a merit system is an exclusive management function which is beyond the jurisdiction of this Board, the issue of proper placement of an employee within the merit system already established by the employer, is an arbitrable matter. Reliance is placed on Re Near¥, 57/88 (Saltman). Counsel points out that section 18(2) of the Crown Employees Collective Bar~ainin~ Act gives an employee a statutory right to grieve an improper classification. Where a breach is established, the Board has an untrammelled right, and indeed a duty, to fully redress that wrong. Reliance is placed on OPSEU and Carol Berry - and - The Crown in Right of Ontario March 13, 1986 (Ont. Div. Ct.). Accordingly, counsel argues that .in exercising the statutory duty to remedy a breach of the collective agreement, the Board's authority is not affected by anything present or absent in the collective agreement. Counsel for the grievor drew the Board's attention to R__e Campbell, 15/89 (Samuels). In an award issued in 1989, the Board had upheld the classification grievances of the grievors, and ordered that the grievors be reclassified to 9 Service Supervisor II with retroactivity to November 1, 1987. The employer reclassified the grievors effective November 1, 1987, but used the formula for promotions in article 5.1.1 and placed the grievors at the starting salary level of the new classification. The grievors claimed that when they were reclassified as of November 1, 1987 to Service Supervisor II, they should have received the top level of the salary range for the new classification immediately. The Board held that the formula in article 5.1.1 intended to govern promotions did not apply to a reclassification of a position, and went on to find that the issue raised was within the Board's jurisdiction. The Board held that the wage levels are a part of the collective agreement negotiated by the parties and that since any matter concerning the "application" of the collection agreement can be referred to the Boar~ according to section 19(1) of the Act, the issue was arbitrable. In finding for the grievors, the Board says at p. 5 "Once correctly classified, they ought to be paid at the level they would have been paid had they been correctly classified from the outset". It is crucial to remember that what we are dealing with is a classification grievance and not a grievance wherein the grievor claims that he is not receiving his merit increase. It has been stated clearly by the Divisional Court that the Board's jurisdiction over a classification grievance is 10 derived from section 19(1) of the Act and that nothing in the collective agreement can nullify or curtail that statutory mandate (Re Carol Berry, sumra). Therefore, the absence in article 27 of a reference to appropriate salary rate is not an impediment to the Board's jurisdiction. The employer has conceded that by classifyinq the grievor's position as Clerk III Supply it has breached the collective agreement. It is trite law that where there is a wrong there must be a remedy. In Berry the court found that the Board had declined jurisdiction by refusing to direct a remedy after having found a violation. In redressing a violation of the collective agreement, unless the agreement dictates otherwise, the aim must be to put the grievor in the same position he would have been in, but for the violation. See, the Ontario Court of Appeal in Re Blouin Drywall (supra). Is there anything in the collective agreement that precludes this "make whole" approach? We think not. The Cammbell decision supra is on all fours with the grievance at hand. The only difference is that in Cammbell, the reclassification was pursuant to a direction of the Board, whereas here the employer has acknowledged that there was a violatiom of the collective agreement and has voluntarily granted the reclassification sought in the grievance, in our view, nothing turns on that distinction. In both cases there was a reclassification following the filing of a grievance and there remained a dispute as to the proper rate of pay for the grievors upon reclassification. In Cammbell the Board held that the dispute as to the proper rate of pay was within the Board's jurisdiction and in deciding the matter, inquired as to where the grievor's salary rate would have been, if the grievor's position had been correctly classified from the outset. We fully agree With that approach. In our view, once there is a violation of the collective agreement, the Board must strive to make the grievor whole as much as possible. Whil-e the determination of the merit system is an exclusive management function, the Board is not precluded from placing the grievor within the appropriate · level in that system as a form of remedying the grievor's losses. [See, R. V. OPSEU, (1982) 38 O.R. 670, where the Ontario Divisional Court held that under what is now section 19(1) of the Act, the Board had the power to award a job to an unsuccessful candidate in a job competition in appropriate circumstances as a remedy for a contravention of the collective agreement, eventhough "appointment" is an exclusive management function under section 18(1)]. Applying that same reasoning to the facts, we have no difficulty deciding that the grievor was wrongly classified 12 from the time he successfully bid in to the assistant clothing and admissions clerk job in August of 1983. The employer agrees that as of October 1989 the grievor~ job was improperly classified as Clerk III Supply. It is also not in dispute that since the grievor assumed that job in August 1983, his duties and responsibilities had not changed in any material way. Thus simple logic dictates that if the position was wrongly classified in 1989 it was also wrongly classified in 1983. It is also to be noted that while the progression through the salary levels are said to based on "merit increases", these increases are granted almost automatically in the absence of serious performance problems or misconduct. See Re ~ummings, 23/89 (Barrett). There is no suggestion that the grievor had such problems. The employer did not take issue with the Union's assertion that in the absence of serious performance problems or misconduct it will take a CO 2 approximately 3 years to progress from the start level to the top CO 2 salary level. Therefore it is reasonable to conclude that if the grievor's position had been properly classified as CO 2 at the outset in 1983, by 1989 he would have easily reached the top level of the CO 2 salary range. Thus the grievor must be placed in the top salary level in the CO 2 salary range effective the agreed upon retroactive date. 13 We have considered the Re Cumminqs decision (23/89, Barrett) relied upon by employer counsel. There the grievor's classification grievance had been settled by the parties with the employer~ agreeing to reclassify his position to Trade Instruction III effective January 1, 1988, and to pay appropriate wages from that day. In implementing the settlement, the employer placed the grievor at the start level of the new classification as of January 1, 1988. The grievor claimed that he should have been placed at the maximum level of the new classification. The Board held that the settlement had been properly implemented. It appears to us.that this case is distinguishable on its facts because the majority in Cummings at p.2 makes a factual finding that ".the parties agreed that the grievor was properly classified until January 1, 1988 and improperly classified thereafter". If the breach occurred only on January 1, 1988, then the grievor naturally must start at the start level of the new classification when he is reclassified as of that date, because he will be performing at that classification for the first time. In Re Cumminqs, the Board makes the following observation: There is nothing in the collective agreement which.specifies how people are to be paid when entering a classification that is neither a promotion or a demotion for the employee. Therefore, says the employer, we have no jurisdiction to interfere with the exclusive management right pursuant to section 18 of the Crown Employees Collective Bargaining Act "to determine the merit system." What the employer did in this case, in the absence of any direction from the collective agreement or from the salary administration policy, was to place the grievor on the salary grid by analogy to article 5.1.2 of the collective agreement which deals with pay rates in promotion cases. That clause requires that the employee be moved to the closest higher rate on the new pay scale provided the increase is at least 3%. In fact, the increase from the TI 2 maximum rate to the TI 3 minimum rate was 15%, and that is what the grievor was paid. In result, we find that what the employer did here was to exercise its management right to administer the salary provisions of the collective agreement and the merit increase provisions in a manner that was fair and reasonable in the circumstances, and not. in contravention of any provision of the collective agreement. It is not clear whether the Board is stating in the above-quoted passage, that the Board lacks jurisdiction to place a grievor in a particular salary level as part of the remedy upon finding a wrongful classification. If it does, it is clearly in conflict with the Board's decision in Campbell (supra). We find the approach in Re Campbell to be the correct one. In any event, in the particular circumstances before us, we are convinced that we are entitled to review the employer's action in placing the grievor in the CO 2 salary, range. Even if the Board in remedying a successful classification grievance, lacks the jurisdiction to review the employer's. determination of where the grievor fits within the merit system, in the case at hand the employer's decision did not address the merit system at all. The employer did not turn its mind to ~the performance level of the grievor and make a' conscious decision that he deserves a certain level of salary. Instead, it used the formula in article 5, presumably for administrative convenience. This alleged "practice" of the employer of using article 5 in reclassification situations must necessarily result in every employee who successfully grieves, being placed at the start level of the new classification, provided only that it results in an increase in pay of at least 3 percent. This will be so, regardless of the length of time the employee had performed duties of the new classification or the employee's quality of performance. The management right is to determine the merit system. That is, to decide the employee's pay rate based on his or her merits. In this case the employer did not do that at all. Thus it was not a proper exercise of a management right and is not protected by section 18(1) of the Act. For all of those reasons, it is our decision that th~ Board has jurisdiction to determine the issue of the appropriate pay rate for the grievor upon his reclassification. 16 On the merits, we have little difficulty concluding that if the grievor had been properly classified from the outsets. at the time of his grievance he would have been at the top level of the CO 2 salary range. As we have already noted, since the grievor has performed the same duties ever since he bid into the job, if he was improperly classified in 1989 he must have been improperly classified from the outset. Since there is no suggestion that his performance was in any way unsatisfactory, it necessarily follows that he would have received his merit increase each year and by the time of the grievance he would have been at the top CO 2 salary level. The Board does not find any inconsistency, as employer counsel suggests, between the foregoing finding and the establishment of a retroactivity date for the reclassification. The determination of a retroactivity date is not a finding that the breach occured only on that date. It merely means that the grievor is precluded from seeking redress for losses beyond that date. What the Board has determined here is that from the retroactivitv date forward. the grievor is entitled to be put in the position he would have been in, if not for the breach. The result is that the grievance is upheld. The employer is directed to place the grievor at the top level of the CO 2 pay range effective the agreed upon retroactivity date, and 17 to compensate him for the difference between that rate and the rate he was paid from the agreed upon retroactivity date. We remain seized in the event the parties encounter difficulty in implementing the terms of this award. Dated this ~rd day of September, 1991 at Hamilton, Ontario N. Dissanayake Vice-Chairperson F. Taylor Member F. Gallop Member