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Home My WebLink About1991-1618.Kanerva.94-04-13i -- ONTARIO EMPLO¥~;S DE LA COURONNE CROWN EMPLO YEE~ DE L 'ONTARIO '- GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180. RUE DUNDAS OUEST, BUREACt 2;00, TORONTO (ONTAt~IO), MSG tZ8 FAC$1MH. E/T~'L~COPlE : (416) 32.6-1396 IN THE MATTER OF ~N AI~ITR~TION Under ~' THE CROWN EMPLOYEES COLLECTIVE BARGAINING 3%CT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU. (Kanerva) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: R. Verity Vice-chairperson M. Lyons Member D. Clark Member FOR T~E M. Bevan. ~NION Grievance officer Ontario Public Service Employees Union FOR THE M. Mously EMPLOYER Grievance Administration Officer Ministry of CorrectiOnal Services HE]%RING February 11, 1994 SUPPLEMENTARY DECISION On April 17, 1990, Shawn Kanerva was dismissed from employment as a correctional officer 2 (C.O.2) at the Sudbury and District Jail, following a suspension without pay on April 3. The reasons for dismissal were breach of security for carrying a message on behalf of an inmate outside the jail without the knowledge of jail authorities, and alleged trafficking in narcotics in the jail. Mr. Kanerva grieved that he was suspended and discharged without just cause. By way of remedy, he sought reinstatement with full remedial redress. The grievances were heard over seven hearing days between February 17, 1992 and September 2, 1992. In a decision dated December !6, 1992, the Board found that the grievor lmowinglyviolated the jail's Standing Orders and the Ministry's Manual of Standards And Procedures, but that the drag dealing allegations had not been established on the civil burden of proof. In the result, the Board ordered that the grievor be reinstated "to the position of a correctional officer, without pay, but without loss of seniority." In effect, while the dismissal was set aside under the provisions of s.190) of the Crown Employees Collective Bargaining Act, the substituted penalty imposed a lengthy suspension of almost two years and _nine months. In a written dissent, Mr. Clark would have clL~ni.q.sed the grievance on a finding that the employer's evidence was sufficient to establish Ixafficlcing in narcotics. Mr. Lyons filed a partial dissent limited solely to the length of the suspension imposed. While he agreed with the reinstatement, Mr. Lyons would have given the grievor a two month suspension without pay. In the award of December 16, the Board retained 3 jurisdiction "in the event of any difficulty encountered in the implementaffon of this decision." Following the release of the award, we were advised that a dispute had arisen between th~ parties in the implementation of the Board's remedial order. The dispute relates to the propriety of the employer's.placement of the grievor upon reinstatement at the first step of the C.O.2 pay level. The employer placed the grievor on the same pay level as he was at the time of dismissal. The union contends that he should have been placed at the top level of the three level pay scale. Thus the matter in dispute is whether or not the grievor' should have been reinstated at the bottom or 'the top level of the pay Scale. Essentially, the material facts ~are not in dispute. The grievor commenced employment wi.th the Ministry on April 16, 1986 in the unclassified position of C.O.1. For the period April 16, 1986 to October .2, 1988, he was employed as an unclassified officer under a series of term appointments. On October 3, 1988, the grievor was hired as a classified C.O.1. On October 3, 1989, he was reclassified as a C.O.2 at which time he was placed at the first step of a three level pay'scale.' His next pay merit increase was scheduled for November 1, 1990. However, he was dismissed on April 17, 1990. At that t/me, the grievor had completed approximately 6 months'of the 12 months required for the first pay merit increase. ~ Following the Board's decision, the grievor was reinstated to the position of C.O.2 at the Sudbury Jail effective December 24, 1992. At the time of reinstatement, he was 4 placed at the first step of the C.0.2 pay scale. His anniversary date was adjusted to July 1, 1993 to reflect the six month period already worked at that level. The union contends that the employer failed to comply with the Board's award in that he should have been placed at the top level of the classification, based on the board's order that there would be no loss of seniority. The thrust of the union's argument was that a basic inequity arose with the implementation of the Social Contract that the Board could not have foreseen. Mr. Bevan seeks correction of that inequity. Under the Social Contract, "no merit increase, movement in salary step, progress through the range or salary grid shall be granted for three years from June 14, 1993." On behalf of the union, Mr. Bevan calculated the grievor's loss as a result of the suspension without pay and submitted rough estimates of the further loss incurred upon reinstatement, due to placement at step I of the salary grid from December 1992 until the end of the Social Contract in 1996. The union contended that ff the grievor had been placed at the top level of the salary scale, he would not have been as adversely affected by the impact of the Social Contract. The union requests an order that the grievor be placed at step 3 of the C.O.2 pay grid retroactive to December 24, 1992. The employer does not take issue with the Board's jurisdiction in the request to clarify its intent. However, the employer argues that since the Social Contract could not have been a consideration at' the time of the issuance of the award, the Board must declare that it is "functus officio" in that regard. Alternatively, the employer contends that the Social Contract was a negotiated agreement between the parties and that the union is therefore bound by the terms of that agreement. The thrust of the employer's position is that the grievor's ability to move to the next step of the salary scale was interrupted by the period, of suspension. The employer relies upon the guidelines of the policy pay administration as contained in the Ontario manual of administration whereby entitlement of a public servant to a one step' increase is granted either annually or semi~annually as prescribed in the applicable salary schedule "providing his work has been satisfactory". Reference was made to the following authorit/es:' OPSEU (Esmail) and Ministry of Revenue, 1186/87 (Dissanayake); and OPSEU (Kidd) and Ministry of Revenue, 2501/90 (Verity). We begin by saying that once an award is issued, that award is final and binding up6n the parl/es. There/s no general power to reconsider an award for purposes of clarification, except upon the joint request of the parties. Once an award is issued, the Board of Arbitration is said to be "functus officio". In the instant matter, the. parties seek a "clarification" on the issue of the grievor's placement on the salary grid following reinstatement. It must be said that neither party addressed that issue at the hiaring. However, for purposes of clarification it may be said that the Board's intent in ordering reinstatement following a lengthy period of suspension was to place the grievor in 'the identical circumstances that he was in prior to the dismi.~al. Clearly, the one' step salary increase policy of the government is not an automatic entitlement_ Rather, a staged salary increase, annually or semi-annually as the ease may be, involves a decision making process on the part of the employer, based on the satisfactory performance of an employee. It would be unreasonable, we think, to allow the grievor to progress automatically from step i to step 3 of the C.O.2 classification in circumstances where he was not in the workplace 6 and where it was found that his mi~onduct constituted a serious breach of the rules and regulations. In all probability, the issue in dispute arises as a result of the effect of the Social Contract. It must be said that at the time the award was issued, the Board could not have anticipated the concept of the Social Contract. Clearly, the Board is "functus officio" with regard to any consideration of the effects of the Social Contract. In the result, the additional remedial request is denied and we find that the award has been properly implemented. DATED at Brantford, Ontario, this , 13 :lay of Apr i ! 1994. IL L. VERITY, Q.C. - VICE-CHAIRPERSON ....... ................................................... D. CLARK - MEMBER