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Home My WebLink About1990-0034.Bilyj & Lewis.90-09-12 - -- - - ---=== - i ¡ , . . :>.. '... fMPLOrÊS DE LA COUAONNé . . ONTARJO " CROWN EMPLOYEES DEL'ONTARiO . .......... ~>" ',11#- . - .. GRIEVANCE COMMISSION DE 1111 SETTLEMENT RÈGLEMENT SOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO. ONTARIO. M5G flS· SUITE 2100 TELEPHONElrtUPHONE 180, AUE DUNDAS OUEST. TORONTO. (ONTAFIIO) M5G fZ8· BUREAU 2fOO (416) 598-0688 0034/90 IN THB RATTER OF AN ARBITRATION under I THE CROWN EKPLOYBES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT SOARD BETWEEN O~SEU (Bilyj/Lewis) Grievor - and - The Crown in Right of Ontario . (Mini stry of Health) . Bmployer - and - M. R. Gorsky I Vice-Chairperson I I J. Laniel Member I I A. Stapleton Kember I , I ; , FOIt TBB P. Chapman GRIEVOR Counsel ~yder, Whitaker, Wright , Chapman Barristers & Solicitors FOR THE P. Young. BKPLOYER ( Counsel I - Winkler, Filion & Wakely Barristers & Solicitors I I I BEARING: August 3, 1990 , .' ,. . Q 1 - I DEe ISl-º-N The Grievors. .]oyc~ Biìyj ·:\ftd V ~d,::J. St. L8Wis. fi ì ed s~pe~at~ Ç~i~'I·~~ce5. - , 30, 1986. c 1 \~ ~ m i fig tr:at they ha.d on .JU1Y been improperly ~rassifie¿ as Clerks I I Ge:C!8~"ð.l, f~c>m March l.98l. in. the C ,3. S e 0 f Ms. Bi 1 y j . ,:J.n<Ì from December 1981. : 11 the case \) f M::õ:. St. Lew"i s . They sought reclassification as Cll?Y-ks III Genera l' . There we"!."': two other grievances filed by the Grievors on July 30. 1986. We were advised that these grievances related to the same matter as the grievances first above referred to. "- We, were al'so informed that the grievances of the" Grievors were grouped with a series of other grievances, which \ the parties agreed would be dealt with by this panel of the Board. : Anne Connelly, GSB t* 0088/90 Blackman et al. GSB #: 0086/90 Wayne Teeple, GSB =II: 0089/90 Christie and Me Gahey GSB #0090/90 Jane Waller GSB * 0262/90 -- wé' were also informed that all of the grievances are distinct and o~der of consolidation ís being sought. Counsel for the parties further informed us that each of the grievances to be heard as part of the agreement referred '!- I 'f ~, :... tQ. with the exception of the 'Jr i o<;:>vanc-r?s r~ef(,'t'~e us t c.,da.y ,. are ti) ( the pr~limir:a~-y ()bjectit)ns ~le subject of seperð.:e by s0unsel for ::h~ Employer. claiming that í:.h~ Boat·d ougr-¡ t !"lot to hea.:- them ':-~ ~ C·3 '.::::~ e :.:.: : t ~.~p ·..}ri~-s.~,.t~ :iE': lay (l3.r:hê~~ 1 :1 b!~ i f:<; i r;(; :. ::1 em _ ì I~ the,caEe of the grievances of ~he Gri~v0:s Bilyj ~~ ::(l St. L~wis. ~,...1h8:e t~e Gt"ievor Bilyj 18 said to ('lair;¡ to b~ erlti t led...tr) be classified as a Clerk r·- Gene:r-al as 0f Marcr: . 1..... - . 1981. a f!G. t. r~e G~"iev()r St. Lewis maì<es the Sð.me claim as at [teceIT'.b~~ 1 1981. the only qu~stion bef0re us is the amount, 'f l~ ::tny. 0f r~troaçti.ve payment at trle. rate for the higher I classification which each of the Gr i evons may be entitled to, as I. I each of them was reclassifed as requested. i Counse"l for the Employer ~eferred to the case of Smith, 237/81 (Ba:-"ton) , which dealt with a grievance claiming that the g~ievor had been improperly classified since July 1. 1978 and the issu~ before the Board ,was: " whether or not it (had J jurisdiction to deal with {the grievor'sl request for a retroactive salary increase between July 1. 1978 and July 1. 1980.". In the 'Smith case, the grievor had been granted the reclassificatjon sought in the grievance on October 1. 1980, ,. whereas the,:.... grievance was filed on November 21. 1980. In the .'\.. . Smith case, the Board held that it was without jurisdiction to deal with the grievance limited to retroactive salary. Counsel for the Employer argued, in the alternative, \ I ¡ _." ."" J , thôt if we ruled that we haè jurisdiction to ,jea l ;+-1-, t1""le cl·:tim W _ ."., fr·r ~et~oaçtivity. notwithstanding that the!"'''? .....qS :;0 I)utstð.nding i s 21J e of improper claSSlfication. then the on U::, was on the ;..;':-~ -: E_';;I(:--~"3 :..~) '= '3 ~ ~ t~ 11 S h d bôsis fSIY' depa:r-t i ~ì.g :" y ~):r:. th'3 t W'Õ'rlt:, y-d.:-..y l-etyoactivity ~~ule. In her .':>perll ng statement. counsel for the G'( i eyers advi',3,:;>d 'J.S that both of them h,J.d been inf0rmed of the nature of t~e objection that w()uld be raised by counsel for the Employer and that the Grievor B i ly j had indicated hel" inter.t:on to withdraw her grievance. Counsel for the Grievors further advised us that she had not yet received a duly executed withdrawal of· grievance from the Grievor Bilyj. Counsel for the Grievors also advísed us that the Grievor St. Lewis had not given her any instructions as to how she wished her case to be dealt with in her' absence. Counsel for , the' Grievor St. Lewis~also informed us that she had advised the , Gr"i€vor of the necessity to call evidence to establish a basis for our departing from the twenty-day retroactivity rule. The Grievor St. LeWis was advised that her failure to attend at the hearing and to giveevìdence could result in her grievance_,being dismissed. The advice to the Grievor St. Lewis was confirmed in writing. In the circumstances. we do not have to deal wi th the , I í ~~' , ~~ ?~~i t h case. There were I1'J e~t~nudtina ~ir~umstances given r- ", - , 1?::(c':,:se the non-attendance of . : nEt ()r.: 8'/{)rS . ....... Employer was i [~e I l)Y'e ç~\:tY' ed to proceed with the heô.:( i n,::..f , alì.d... if necessary, tt:' i I -~_;i(l': .:. 7 ~::", J -: : ' ;:;.. r"' ,- ..:... ~:t ;: d .~ ;g'lrne !-, ~ '.~·n t r~~ ~E~!'-i ~s r;f . +hp {~!"':' ,:?'/(11~5 . _ . ... __ .-.. 4 '_~ _ 1~ . I _ C 1 ':\ :. r:-~s f (l't"" ret,ro.:ict i vi ty . Ev~n if we f')u!"'ld t r:::. t we 1"!1~1:l j 111' i s:i i c t i o"n to dea.l with th~ subject of r-etr')ð.ct ivi t.y. in nit:' .3. bs ~ r~ C' E- () f ön.y evi denC8 as t ,) wl:y 'we ought to depar-t f 1'-- f)rrl t. [j. ~ twe!;ï:y-d~y rule. there is :iO· bt3~sis to; d0ing so a.nd "the griev.~nçes would fa.il. in any <:,v~r,t. That is. even i: wé fi)Und thð.t the :?r- i evors shoul d ha,'/e l.")e e:-~ 1'eclô.ssified at the time specified by them. The onus is on the Grievors to establish the special' circumstances that would permi t a departure from the tw~nty-day rule. We were advised that ;>'0 evidence was to be adduced or: behalf of the Grievors· in sllpport of their positions. Acc')rdingly. the Grievances are dis:nissed. Dated at Toronto this 12th day of September 1QQO. , ~L~ ~ - VICE-CHAIRPERSON ~m~1 -~ J. C. Laniel - MEMBER ... . .. d::c r /_~~ .z& ¿~ A. G. ~tapleton MEMBER .