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HomeMy WebLinkAbout1990-0504.Thomas.93-02-02 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTAAIO 1111 GRIEVANCE COMMISSION DE . SETTLEMENT REGLEMENT BOARD DES GRIEFS -, 180 DUNDAS STREE;T WEST, SUITE 2 JOO, TORONTO, ONTARIO. MSG rZ8 TELEPHONE/TElEPHONE: (~/6) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), M5G lZ8 FACSIMILE,TELECOPIE ' (~I6) 326- /396 504/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Thomas) Grievor - and - The Crown in Right of Ontario (Ministry of Municipal Affairs) ,Employer BEFORE: R. Verity Vice-chairperson L. Robbins Member D. Halpert Member FOR THE K. Whitaker UNION Counsel Ryder, Whitaker, wright & Chapman Barristers & Solicitors FOR THE P. Murray EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart & storie Barristers & Solicitors HEARING December 18, 1992 , , 2 SUPPLEMENTARY DECISION In this matter, the panel was reconvened to determine the issue of remedy in this unusual classification case. By way of background information, Everton Thomas commenced work with the Ministry in January 1974, initially as a Junior Drafter in the Ministry's cartography and Drafting Unit. He was reclassified as Drafter 2 in September 1987. On November 24, 1989, some two years after the introduction of computers into the Drafting Unit, Mr. Thomas provided written notice to his supervisor that he was misclassified. He filed a grievance on February 12, 1990 in which he sought reclassification as Systems Officer 3. Subsequently, on March 31, 1990, Mr. Thomas resigned from his employment with the Ministry. In an arbitration decision, dated January 12, 1992, the majority of the panel (D. Halpert dissenting) found that the grievor was improperly classified as Drafter 2 but that the claim for reclassification as Systems Officer 3 failed. In the unusual circumstances of this case, the issue of remedy was referred to the parties with the panel retaining jurisdiction. In that regard, the decision read at p. 21: In these circumstances, the normal remedy is to require the Employer to find or create an appropriate classification in accordance with the principles {as stated by the Ontario 3 Divisional Court) in Ontario Public Service Employees' Union and Berry v. Ontario Ministry of Community and Social Services In these circumstances, given that the grievor has now left the employ of the Employer, and the fact that the very unusual circumstances described above have come to an end, this approach may be impractical and cumbersome for the Parties. We therefore remit the matter back to the Parties to determine what would be an appropriate lump sum to be paid to the grievor in recognition of the fact that he was working outside of his classification. In this case, this approach recommends itself as being more practical, and one that will not waste the resources of the Parties. Unfortunately, the parties were unable to agree on the compensation payable and accordingly the panel was requested to reconvene to determine the matter. The union contended that the panel lacked jurisdiction to assess the value of work performed by the grievor while improperly classified because under s.l8(l)(a) of the Crown Employees Collective Bargaining Act, classification was a matter within the exclusive authority of the employer. Mr. Whitaker'maintains that the basis of evaluating work performed is a two-step process; namely, ( 1 ) the exercise of classifying the grievor and ( 2 ) the process of placing a value on the work performed. The Union contended that the second step was the responsibility of the parties through negotiations or failing agreement an interest arbitration pursuant to Article 5.8.1 of the relevant collective agreement. In the alternative, if the panel had the requisite jurisdiction to classify an employee and value work performed. to do so would violate the provisions of Article 27.16 of 'the ., I 4 collective agreement which, in effect, prohibits the panel from altering, changing, amending or enlarging any provision of the collective agreement. The Union argued that in the absence of any statutory authority in s.19(1) of the Crown Employees Collective Bargaininq Act, the appropriate remedy was to issue a Berry order, retroactive to November 24, 1989. In support, the following authorities were submitted: Berry and Alcampo and Ministry of Community and Social Services 217/83, 218/83 (Verity); OPSEU (Zinqer et al) and Ministry of Correctional Services 4/85 (Brent); and OPSEU (Angus et al) and Ministry of Correctional Services 203/84 (Brandt) . Counsel for the Employer generally agreed with the Union's jurisdictional argument. However, Ms. Murray contended that it was unnecessary to determine the rate of pay for the value of work performed by the grievor because the award contained no finding that any work had been performed. The Employer argued, that in these unusual circumstances, the panel should direct the Employer to pay the grievor the sum of $1.00. In the unusual circumstances of this particular case, the remedy proposed of a lump sum payment to the grievor, we think, is a practical remedy. We strongly recommend that remedy to the parties as the appropriate resolution of this matter. Clearly, s . ,18 ( 1 ) ( a) of the Crown Employees Collective Barqaininq Act gives , 5 to the Employer the exclusive authority to classify employees and provides that the matter "will not be the subject of collective bargaining nor come within the jurisdiction of a board". We would agree with the' Union I s submission that we have no authority to assess the value of work performed by an employee found to have been improperly classified. The Divisional Court Judgment, dated March 13, 1986 in OPSEU (Carol Berry et al) and Ministrv of Community and Social Services makes it clear that in a case of improper classification, the Employer is obliged,to find or create a proper classification. Accordingly, if the matter cannot be resolved by the agreement of the parties by way of a lump sum payment, there is no alternative but to make a Berry order. In the result, we make such an order to be complied with within four months of the issuance of this decision, with full retroactivity to November 24, 1990, the date the grievor's claim was first brought .to the Employer's attention. DATED at Brantford, Ontario, this 2nd day of February 1993. -- ~ \- ~ - ,...__ - _.L" ;;e... _., ... ~.............,..7.......",. R. L. VERITY, Q.C. - VICE~HAIRPERSON £ /J "/ , '1/ /~l' /~ f.' / . . . .' . . . . ~ _ w '{. ~ . . . -.-~-.-._. . , . . . . . . L. J~PJtB::_ - EMBER -. ,---' .1: 1. . ~ i. ~ s. e. ~ t. n. . . (. ~i.t.t~q,u.t.. .~r.i.t.t.e.n. .r.e.a.s.o.nJ D. HALPERT - MEMBER '.