HomeMy WebLinkAbout1990-0565.Karmazyn.90-10-22
(I (
,
(l ONTARIO EMPLovtSOE LA COURONNE
CROWN EMPLOYEES DE L 'aNT A RIO
1111 GRIEVANCE COMMISSION DE
..
SETTLEMENT REGLEMENT .
. BOARD DES GRIEFS
I
r80 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONEITÈLÈPHONE; (416) )26- 1388
, r80, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G lZ8 FACSIMILEITÉLÈCOPIE: (416) 326-1396
565/90
IN THE MATTER OF AN ARBITRATION
Under '1
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT !
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Karmazyn)
Grievor
- and -
The Crown in Right of Ontario
(Ministry,of Correctional Services)
Employer
-
BEF(JŒ: M. Gorsky vice-Chairperson
J. C. Laniel Member
M. O'Toole Member
FOR THE M. Bevan
GRIBVOR Grievance Officer
ontario Public Service Employees
Union
FOR THE J. Ravenscroft
BMPLOYER Grievance Administration &
Negotiation Officer
Ministry of Correctional Services
HEARING September 24, 1990
\
J
1
DECISION
At the opening of the hearing, the parties filed an
dgreed statement of facts (Exhibit No. 2) which 1 S ð.S follows:
1. The grievor is currently employed by the Ministry
of Correctional Services at the Guelph
Correctional Centre. as a Correctional Officer 2.
2. The grievor's continuous 3ervice date is June 27,
1983. After receiving regular merit increases.
the grievor reached the maximum rate of pay for a
Correctional Officer 2 in July, 1986.
3. On July 4, 1989, the grievor took a voluntary
demotion from Correctional Officer 2 to Clerk 3
Supply, after being successful in Compet i ti on C1·-
40 57-89 for the position of Canteen/Clothing
Clerk at G~elph Correctional Centre. The grIevor
went to the maximum of the salary range for a
Clerk 3 Supply. His salary decreased from $16.75
per hour to $12.35 per hour.
4. On FAbruary 5. 1990. the grievor W'dS promoted back
to the position of Correctional Officer 2 after
being successful tn Competil.lun CI-4153 -89 at
Guelph Correctional Centre. The gr j RV(JÏ"- wertt to
I
.~~
II
2
the mì.nimum of the salary range for a Correctional
Officer 2. His salaryincreðsed from $13.65 per
hour to $16.12 per hour.
5. Attached are the following documents relevant to
the grievance.
1. The rates of pay for ClerK 3 Supply and
Correctional Office:!"' 2 for the years in
question.
2. Letter from Ms. Diane Shoebottom dated August
1. 1989. confirming the grievor's appointment
to the position of Clerk 3 supply.
3. Letter from Ms. Diane Shoebottom dated
February 12. 1990, confirming the grievor's
appointment to the position ,of Correction.:!l
Officer 2.
In the grievance. which was filed on February 16. 1990,
the Grievor claims that as a result of his having been successful
in Competition No. CI-4153-89. his hourly rate of pay should have
been $16.75 per hour rather than $16.12 per hour. which latter
amount the Employer claims was the proper rate of pay to which he
was entitled and which he was paì.d. The hourly rðte of pay Hith
,
J
3
respect to tlte Cor-rect i ona 1 Off ice t- 2 classification for the
years in question. referred to In the aqreed statement of facts.
and attached to it. is as follows:
50563 COHREC1'JONAL OFFICER 2
CO -111 Old Rate: 14.42 15.73 16,75
576.80 67.9.20 6/U.UO
01/01/89: 14.134 16.15 17.17
593.60 646.00 686.80
01/04/89: 15.26 16.57 17.59
610.40 662.80 703.60
01/07/89: 15.69 17.00 18.02
627.60 680.00 720.80
01/10/89: 16.12 17,43 113.45
644.80 697.20 738.00
During the course of the hearing. the parties drJt'ced
that at the date when the Grievor was promoted to the position of
Con"el'; t 1 ona 1 Of f i cer 2. 0n February 5. 1990. the rate of pay per
hour for the Correctional Officer 2 was that shown at 01/10/89:
$16.12. $17.43, $18.45. The said rates only became known after
the posting of the oppórtunity bulletin. and at the date of
posting the hourly rate for the Corr~ctional Officer 2 position
was the "old rate": $14.42. $15.73. $16.75. Therefore. when the
Grievor claims that he should have been paid at the ra.te of
$16.75 per hour. being the highest rate for a Correctional
Officer 2. this ought to read ,'is d claim for payment at the rate
of $18.45 per hour. being the actual highest rate for a C02 as at
.
r)
!
{\
4
the date of the grievann':l..
The 1"e("\] difference between the parties is thaL the
Employer r;laims that the Grievor í-1-:<3 only entitled to payment at
the lowest level on the grid. being $16.12 per hour. whereas the
Union cla.ims that he was entitlerl to pdyment ~t the highe~t level
on the grid. being $18.45 per hour.
It was the position of the Employer that on the Grievor
receiving the promotion to CO2, it applied the provisions of
article 5.1.2 of the Collective Agreement. which resulted in the
Grievor receiving II that rate of pay in the salary range of
. . .
the new classificdtion which is the next higher to his present
rate of pay.. . II The provisions of article 5.1. 2. are as
f 0 1 lows :
An employee who is promoted shall receive t.hat
rate of pay in the salary range of the new
classification which IS the next higher to his
present rate of pay. except that:
- where such a change results in an increase of
-less than three percent (3%) . he sha 11
receive the next higher rate again. which
amount wi II be considered as a one-step
increase;
- a promotional increase shall not result in
the employee's new salary rate exceeding the
maximum of the new salary range except where
permitted by salary note.
It was agreed that. if article 5.1.2. applied to the facts of
,
1
5
t l1i s case. t h,3, t the two exceptions did not apply.
C'ounse 1 for trle Employer argued that the provisions of
at"tiele 5.1.2. at"e clear a.nd u.namb iguoI!s ilnrl. that tÌle Employer
merely did what it was required to do under article 5.1. 2. : the
"rate of pay in th~ salary range of the new classification which
[was] the next higher to [the Grievor's] pn~sent rate of pay" was
$16,12.
Counsel for' the Employer relied on Mohammed. 1017/89
(Verity) . The facts in the Mohammed case are similar to those in
the case before us in that the grievor there. like the Grievor in
the case before us. earned regular merit increases during the
course of her employment. in that Cd:...;e as a Tax Auditor 3. until
she reached the maximum rate of pay. In the Mohammed case. the
grlevor subsequently accepted a demotion to a lower
classification (Tax Auditor 1 ) . and. in due course, her salary
was reduced from $772.31 weekly to $547.61 weekly. The $547.61
was the maximum salary for the classification of Tax Auditor 1.
After working for some time as a Tax Auditor 1 (except for a
temporary assignment as a Tax Auditor 3. which assignment was
irrelevant for the purpose of the decision) the grlevor was
promoted through a job competition to the position of Senior Tax
Auditor where she was classified as a Tax Auditor 3. At the time
of the grievor's promotion. her salary was $653.38 as a Tax
Auditor 1. being the maximum salary for that classification. On
I
1
./
)
'4,
6
promotion, her assigned salary was $ï40.85 a week. which was the
minimum salary for the Tax Auditor 3 classification.
In the Mohdmmed case (at p. 4) :
The Un ion argued tlvit in exceptional circumstances
following a promotion, as In this ca:3e. the
Ministry should exercise its implied discretion to
aSSIgn the maXImum :sa 1 ar:y level of the
cla~; s i fi cat ion. Ms. Chapman (counsel for the
grievor] acknowlertged that she was unaware of any
prevlous Board decision involving .the alleged
breach of an implied discretion.
The Employer contended ttlat. Article 5.1.2 had been
properly applied. In particular. Mr. Dani.els
[counsel for the employer] maintained that the
article contained no discretion either expressed
or implied. In support of its position, one
authority was cited; namely. Re OPSEU (David
Stewart Johnston) and Ministry of Transportation
and Communication 69/83. (Weatheri II ) .
Further at page 4 of t],e Mohammed case, the Board
noted:
The sole provision in the collective agreement
dealing with salary on promotion is Article 5.1.2.
The article provides that upon promotion. an
employee shall rece i ve the next h igher r;~te of pay
in the new classification as compared with his
present rate of pay with two exceptions. Neither
exception applies in the instant grievance.
The Board found that the language of Article 5.1.2 was
"clear and unambiguous" (at p. 5) . The Board concluded (at p.
5) : "Clearly, Article 5.1.2 contains no discretion in favour of
·
..
7
management either expresspd or implied. "
The sitUations of the grievor In the !'19hamrned case and
i-hat of C hr~ Gr i evo:t' 111 this case are similar. Tn the MolH.mmei
ca.se (at p. 5) . the Boa.rd stated:
The Board can well understand the grievor's
frustl"at ion in these particular circumst.ances,
Miss Mohammed has previously held the
classìfÜ~ation of Tax Auditor 3 at the maximum
salary level of that classification for some 14
yea.rs. Essentially. she is now in the same
position as she was at her entry level 111 1971.
However, the language of Article 5,1.2 does not
distinguish bulween employees who have been
previous incumbents in a classification and those
that have not.
Before dismissing the grievance. the Board noted (at
pp. 5-6) :
The Board has no equitable jurisdiction to do what
the grievor mdY percei.ve to be justice or to grant
a remedy in that regard. Moreover, under s.27.16
of the collective agreement the parties have
provided that the Board has no jurisdiction "to
alter. change. amend or en large iì.ny provision of
the Collective Agreement. "
If Article 5.1.2 governs this case. as it did In the
~oh~.f!lll1eQ case. we can only reiterate the statement of the Board
In that case in commenting on its understanding the grievor's
frustration. If Art.i~le 5.1.2 applies in this Cdse. then we
would not only follow the decision of the Board in the Mohammed
--- --- -
J
.\
.
8
ca:3e becaUSA of the Jildkc. case. but bec'allse we be 1 ieve that the
~CJh,uolne1 case was cor'rectLy decIded.
We were urged by counsel for the grievor. howcvl~r' . to
finct thöt the Employer had not d p C" 1 ~ !'" Ii. "^ r t j '.: 1 (' '5.1. :2., on r.he
fëH.:t~.3 u[ this Ci'I!":p. ,md tha t . accordingly. that article WdS not
the cì ~ t.' Tm i lì i n IJ [.:\.1; t or in arriving ðt the proper sðlary 1 P.V(~ 1 for
the Grievor. We were referred to the Opportunity Bulletin with
respect to Competition C:t-A153 -89 (Exhibit 3) which lS a.s
f 0 1 lows :
COMPETTTTON C (- :1153-89
DEDICATED TO EMPLOYMENT EQUITY
Applications are invitp.ò for: General Duty Officer
(3 Vacancies)
Classification: Correctional Officet' 2
Correctional Officer 1
(Underfill)
Salary: C.0.2-$14.42-$16.·75 pur hour
C,O.1-$13.26 per hour
(Under Review)
Schedule: 4.7 - 40 hours per week
Location: Guelph Correctional Centre
Guelph, Ontario
Duties and Responsibilities: To perform a full range
of duties related to the care. contro 1, supervision and
custody of inmates on an assigned shift; to :·,t'form
other related duties.
.Qualification Criteria~ Ontario Grade 12. Ability to
meet Ministry's medical and physical standards.
Demonstrated oral and written communication skills.
Demonstrated ability to recognize and react to abnormal
·
9
situations. behaviours, etc. Ability to wod, rota t í ng
shifts in an institutional environment. Demons r<:ited
ability to use judg¡:ment and tact In day-ta-day
activities. Good interpersonal skills and the ability
ta work with a variety of· people, e.g. inmate~. st.3off.
volunteers.
The successful candidate will be required to underfill
as a Correctional Officer- 1 and successfully complete
the ministry in-service Basic and Consolidlltion
Correctional Training Program and one year' , s
satisfactury wor'k performance before becoming eligible
for underfill removal ànd reclassification to the
Correctional Officer 2 1 eve 1 .
Note: Applicants must have successfully completed
Mlll.lS try Central Recruitment testing to be
eligible for an interview. Candidates on
this competition may be short-listed basen on
a pre-selection crit~ria such as satisfactory
work record', attendance. and suitability.
Area of Search: This competition is restricted. to the
classified and unclassified staff of the Ministry of
Correctional SArvices at the Guelph Correctional
Centre, Waterloo Detention Centre, and Well ington
Detention Centre.
Qualified candidates are invited to submit applications
to the Superintendent not later than Monday. January
15, 1990 directly to:
Superintendent
Guelph Correctional Centre
85 York Road
Guelph. Ontario
IH 6P3
Since candidates for interviews are selected on the
basis of information cuntained in the application. it
is important that applicants complete the application
form/resume in deta i l. attaching an addendum if
necessary. Applications should be up-to-date and In
keeping with the position for which you apply.
POSTING DATE: January 2, 1990
CLOSING DATE: January 15. 1990
~\
H
i I
.
10
I
Counsel for the" Grievor referred· to the lôogl)age of the
opportunity bulletin which states:
The successful candidate will ])e re(;'~ ired to
underfi 11 as a COl"Tectional Officer 1 dlld
successfully complete the ministry in-service
Basic and Consolidation Con'eet iona 1 Training
P:r'oçlram and one year's satisfactory work
performance before becoming eligible for underfill
removal and reclassification to the Correctional
Officer 2 1 eve 1 ,
Counsel for the Grievor argued that the quoted excerpt mandated
that a successful candiddle had to be assigned to an underfill
position as a Correctional Offjcer 1 and that reclassification to
Correctional Officer 2 would not take place until the successful
candidate Dad not. only con1p 1 eled one year's satisföctoy'Y worK
perfc.;"-r¡"¡,-n-I\";'~ hut dlso successfully completed the minj stxy 1 n -
service Basic and Consolidation Correct iona 1 Trai.ning Program.
Thus, by irnmedi.ately Yf>rlòssifyillg the Grievor to the
Correct i (lna 1 Of [Ìl:cr 2 1 eve 1 , the Employer was said to be
exen:i:.silll} ,3, di3cretion. Counsel for the Grievoy re 1 ied. U[Y)!l the
statement of the Board in 'the Mohammed Cdse (at p. 5) : "Clearly.
Article 5.1. 2 contains no discretion in favour of management
either expressed or implied. " Accordingly, it was sllhmitted that
as the Employer had exercised a discretion In appointing the
Grievor directly to the Correctional Officer 2 leve 1 . this'could
not be a case where Article 5.1.2 applies. That IS. this ought
not to be treated as a case where an employee has been promoted.
0
I
~
1 1
which IS the subject of Article '1 . L . ~ . r'ôther, it wôs suggested.
that the only way to view what had happened to the Grievor was to
t re,1. t the Employer as having reaarded him ôs having been on .:1.
"] e''1.ve of absence" from his positioll as Correctional Officer 2.
during the period of his voluntary demotion to the Clerk 3 Supply
position.
We cannot accept thIS ingeniolls argument made by
cOllnsel for the Grievor. When the Board referred to the fact
that the employer has no discretion under Article 5.1. 2. it was
referring to the fact that the Employer had no discretion either
expressed or impljed. " to assign the maximum salary level of
. . .
the clas:3iiication." (Mohammed at p. 4) , The alleged di.sl~relif)n
exercised by the Employer was to promote the Grievor to a CO2
rather than a eOl position. In the Mohammed case. the discretion
referred to was the alleged right of management, in a proper
case. to ôssign a higher salary level than was provided for in
Art i cl e 5.1. 2. This has nothing to do with the alleged
discretion to promote to,a higher classification, Even if the
Employer had exercised its discretion in promoting the Grievor to
the position of C02 rather than C01, this would not affect the
application of Article 5.1. 2. The employee has still been
promoted and, in accordance with that article, IS required to
" receive that rate of pay in the salary range of the new
. . .
classification which IS the next higher to his present rate of
pay " If it had been argued {which counsel for the grievor
. . .
I
I
I
-~¡ I
12
acknowledged was not tl-!.:- c""se) th,lt the Employer had promoted the
Grievor contrary to the provisions of the Collective Agreement.
. success in such a grievance would not aftect the a p p 1 ì I..~ a l i uno f
pay administration under Article 5.1.2. once it was established
to which position the Grievor had been promoted.
In the case before us, we cannot find that the Grievor
was not promoted as a result of any other process than success 1n
Competition C1-4153-89. The Union does not complain that the
Grievor should not be a Correctional Officer 2. and we find that
his obtaining ~hat position was as a result of a promotion. which
brings Article 5.1.2 into operation and, for the reasons above
set out. the arguments made on behalf of the Grievor relating to
discretion have no application.
In any event, if we had to decide the point. we would
find that, reading the opportunity bulletin as a whole. it did
not require that every applicant had to first underfill as a
Correctional Officer 1 fot" a year ônd successfully complete the
ministry in-service Basic and Consolidation Correctional Training
Program before becoming eligible for underfill remov,3.l and
reclassification to the Correctional Officer 2 I eve 1 . It IS
evident that the three V,3c,:l.ncies to be filled could lead to
appointment at the Correctional Officer 2 or Correctional Officer
1 (Underfill) level. If the only successful candidates had not
had one year's satisfactory work performance CiS a Correctional
~
13
Offlcer 1 and had not success full y completed the ministry in-
service Basic Consolidation Correctional Training Program. then
the Emp loyer' could d.wat'd the successful cd.ndida.te(s) the
Correctional Officer 1 (Underfíll) classification. Where a
sllccessful candidate had already completed one yeôr's
satisfactory work performance as a Correctional Officer 1 and had
sat. i. s fie d the other requirements referred to. it IS clear that
the Employer could appoint such successful candidate at the
Correctional Officer 2 1 eve 1 . 1'hi:3 is what happened In the case
of the Grievor.
As in the Mohammed case. the Grievor was caught in the
unfortunate circumstance created by the application of Article
:3.1. 2. The obvious inequity referred to in the Mohan@cd case by
Vice-Chairperson Verity, can only be dealt with by the parties
negotiating a new provision to deal with the situation.
In the circumstances. ðnd f ()r the above reasons. the
grJevancE: is dismissed.
I
. ----0-
4
.;
;î,ì.
"
14
,
Oated at Toronto. Onr J.r i 0 the 22nd day of October. 1')90.
~L~
_u --- - - -
M.R. Gorsky
v~,p,erson
. .,. -{ ~~~{?
- --- -- .-- - -
J, Loniel - Member
2n;! {; ~ i....
M. O'Toole - Member
I
I
I
I
i