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HomeMy WebLinkAbout1996-2086ROSAMOND98_12_16 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 32~-1396 GSB # 2086/96 OPSEU 96H173 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT - ~ Before - THE GRIEV ANCE SETTLEMENT BOARD BETWEEN OntarIO PublIc ServIce Employees Umon (Susan Rosamond) Grievor - and - The Crown m Right of OntarIO (Mimstry of CItIzenshIp, Culture and RecreatIOn) Employer BEFORE D.J,D LeIghton V Ice-ChaIr FOR THE George RIchards GRIEVOR Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE Jonathan D Cocker EMPLOYER Counsel, Legal ServIces Branch Management Board SecretarIat HEARINGS October 7, 1998 December 3, 1998 Ms Susan Rosamond's gnevance, dated June 3, 1996, alleges that "the Employer has downgraded my classification from OAG-9 to OAG-8" She seeks the followmg remedy' The Employer reinstate my classificatIon to OAG-9 retroactIvely to March 31, 1996 To be compensated m full from pomt of downgrade to remstatement With mterest at current bank rates That the penod of time during the downgrade be revIewed and adjustments With respect to my surplus be made where appropriate At the outset of the heanng mto the matter, the Employer made a motIon to the board that the grIevance was marbItrable smce It IS a classIficatIon gnevance The Umoni:eok the pOSItIon that the case IS not a tradItIonal classIficatIon grIevance, and that at ItS "pIth and substance" It IS a bumping rights case The parties agreed to the following facts for the purpose of the prelImmary motion Ms Rosamond began With the Ontario Public ServIce m October 1985 at Northern Development and Mmes From September 1987 to August 1993 she worked for Northern Development CorporatIon She won a competItIOn for office secretary, OAG9, at the Kenora office of the then Mimstry of Culture, Tourism and Recreation m August 1993 She worked in this positIOn untIl she receIved her surplus notIce on May 21, 1996 In 1995, the Mmlstry of Culture, Tounsm and RecreatIon was reorganized and merged in part with the Ministry of Citizenship to become the MmIstry of Culture, CItIzenshIp and RecreatIon As part of the mtegratIon process, the Employer reviewed the classificatIOns of regional and head office staff domg SImilar work. The Employer notIfied the Union about the reVIew of the classifications in the fall of 1995 The mtegratIon also meant that some employees would be surplussed. A memorandum dated May 2, 1996 from Ms NaomI AlbOlm, Deputy Mlmster, stated. Page 2 of 8 - In order to ensure consistency between the integratmg Ministries and equal access to employment stabihty nghts, a number of regIonal support staff WIll be reclassIfied from OAG-91evel to OAG-8 and OAG-10 level to OAG-9 The Gnevor's claSSIfication was downgraded from OAG-9 to OAG-8 as a part of the reVIew of claSSIfications done because of the merger She was notIfied m March 1996 of the change m her classification She received her surplus notice on May 21, 1996 Counsel for the Employer, Mr Cocker, argued that Ms Rosamund's grIevance IS a claSSIficatIon grievance and, therefore, the board has no jurisdictIOn to hear the case Pursuant to the Social Contract Act, the partIes agreed to a moratonum on ~- claSSIficatIOn gnevances in 1993 The Crown Employees Collective Bargaming Act was amended m 1993 and prOVISIOns givmg the board JunsdIctIOn to deCIde claSSIficatIOn grievances were repealed and the following substItuted. SectIOn 52(1) A prOVISIOn m an agreement entered mto that provIdes for the determmation by an arbitrator, a board of arbItration or another tribunal of any of the follOWIng matters is VOId. 1 A classificatIon system of employees, mcludmg creatmg a new claSSIficatIon system or amendmg an eXIsting claSSIficatIOn system. 2 The claSSIficatIon of an employee mcludmg changing an employee's claSSIficatIOn The current collectIve agreement provIdes for claSSIficatIon gnevances to be revIewed and deCIded by ajomt committee oflabour and management - the Joint System SubcommIttee (JSSC) of the CERC Appendix 7, SectIOn 3 provIdes The JSSC of the CERC shall, in addItIon, review and deCIde on all compla1nts or dIfferences mvolvmg allegatIOns of improper claSSIficatIOn Counsel argued further that the issue of whether the board could hear classificatIOn grievances on the ments after the amendments to CECBA has been deCIded m OPSEU (AItken et all and the MInIStry of Health, 678/87 (Gorsky) The board found that It had no JurisdictIon to decide a classIfication gnevance Counsel Page 3 of 8 - argued that gIVen ATU (Blake et al) and Toronto Area TransIt OperatIng Authontv, 1276/87 (ShIme), the board should follow Aitken unless there are exceptIOnal CIrcumstances RepresentatIve for the Umon, Mr RIchards, acknowledged that the board has no junsdIction to hear claSSIficatIOn grievances However, the Umon argued Ms Rosamund's gnevance was In "pith and substance" a gnevance about her bumping rights after beIng surplussed. The Union argued that the board should consider the true nature of the gnevance and cited OPSEU (IrwIn) and The MInIStry of Health, 9/75 (Beatty)-as authonty for thIS proposition The '~core" of the grievance before me is that Ms Rosamund wanted to return to her prevIOUS positIOn at Northem Development CorporatIon, however, haVIng had her clasSIfication downgraded, she could not, gIven the rules of bumpmg Her previous posItIon at Northern Development was clasSIfied at OAG-9 The provISIOns in the collective agreement under ArtIcle 20 4 1 do not permit an mdIvidual to bump up a clasSIfication Thus, Mr RIchards asked me to conclude that Ms Rosamund's complaInt IS not a clasSIficatIon grIevance in the tradItIonal sense Mr Richards argued that AItken can be dIstmguished from the facts before me He was of the view that Aitken was more of a tradItIonal clasSIfication gnevance smce there was a dIspute between the Employer and the Umon as to the Grievor's classificatIon when she took an underfill positIon. The grIevor in AItken claimed she should have gone mto the underfill pOSItIon at the clasSIfication of the pOSItIOn Clerk General 3 Instead she was clasSIfied as Clerk General 2 Mr Richards conceded that It was necessary in the case before me to address the classificatIOn of the Gnevor, but only to assess her bumpmg rights under Article 20 Page 4 of 8 In addItIon, the Union argued that the moratorium and the subsequent change to handlmg of classIficatIOn gnevances was not mtended to cover the kmd of case before me The scope of restnctIons on classificatIon gnevances did not mclude a complamt about downgrading, but was mtended to cover people trymg to bump up to a higher classIfication In the alternatIve, the UnIon argued that a gnevance filed m 1986, by the previous mcumbent of Ms Rosamund's Job, was resolved by a memorandum of settlement m 1991 when the Employer agreed to re-classIfy the pOSItIon from OAG-7 to OAG-9 In Mr RIchard's submISSIOn, the Employer is bound by the terms of thIS settlement and cannot change the classIfication of the positions In response to the UnIon's arguments, the Employer submItted that while there may be two Issues before the board in this case, the first to be dealt With is whether or not the downgradmg of the Gnevor's claSSIficatIOn was proper Counsel reIterated that the present scheme for dealing With classificatIOn grievances was under the collectIve agreement and that the amendments to CECBA removed the board's junsdIction to hear classIfication gnevances on the merits In response to the alternatIve submiSSIOn made by the UnIon, the Employer argued that the MmIstry was going through a major restructuring, that the Union was notified of the reVIew of claSSIficatIOns by the Employer, and that It would be unreasonable to argue that the Employer could never change a classificatIon once a settlement had been reached The restructuring and mergmg of the mmIstnes permItted the Employer to reVIew and change claSSIficatIOns The Employer was, therefore, not bound by the previous minutes of settlement. Page 5 of 8 DECISION Havmg carefully conSIdered the submIsSIOns and cases prOVIded by the parties, I have decided to grant the prelimmary motJ.on and, therefore, dismIss the grIevance Pursuant to the SOCIal Contract Act and local agreements, a moratonum was placed on all classificatIOn grievances until March 1996 Appendix 7, SectIOn 10 5 extended the moratonum until June 1, 1998 CECBA was amended m 1993, elImmating the board's Junsdiction to hear claSSIfication grievances Section 52(1) now prOVIdes that any agreement between the partIes that classification gnevances be determined by an arbItrator or a board of arbitratIOn are void. AppendIX 7, SectIOn 3 of the current collectIve agreement prOVIdes that all complaints regardmg claSSIficatIOns may be brought to the JSSC There is nothmg m the provision of the collectIve agreement to suggest that only "traditIOnal" grievances should be brought to thIS commIttee The Issue before me IS SImilar to what was deCIded by the board in AItken. The board found that there was a dispute between the partIes as to the gnevor's correct claSSIfication at the tIme of her appointment to an underfill pOSItIon The board held that glVen there was such a dispute then the board had to decide whether the grlevor was a Clerk General 2 or a Clerk General 3 at the time of her appointment. It is difficult to see how a grievance that reqUIres the deternunation of the grlevor's correct claSSIficatIon at some pomt IS not a classIficatJ.on grIevance because the ultImate Issue for deterrmnatIOn mvolves placement on a salary grid. If the umon's submission were accepted, then It would be possible to dIsgUIse many claSSIficatIon grievances, WhICh are largely driven by a legitimate deSIre to be peud at a grievor's proper claSSIficatIon level, by formulating the grievance as reusmg an - ultImate Issue that does not refer to her having been mIs-claSSIfied, even If the ultimate Issue cannot be deCIded without first determimng such an Issue Page 6 of 8 -, The board in AItken based its decisIOn on the local appendIX, or agreement to the sectoral framework agreement dated August 1, 1993, and decIded that the gnevance was in arbItrable The local agreernents expired m March 1996 The case before me IS sImilar m that It would reqUire an exammatIOn of the Job that the Gnevor was doing before her claSSIfication was downgraded from an OAG-9 -- to an OAG-8, in order to decide the second Issue of whether or not Ms Rosamund had been denied her rights under ArtIcle 20 I am of the VIew that the language m AppendIX 7, SectIOn 3 IS clear and unambIguous m statIng that the JSSC has the JurisdictIon to reVIew and decide on "all complamts or differences involvmg allegations of Improper claSSIfication." There IS nothing m thIS language to suggest that It only covers claSSIfication gnevances where the grievor IS allegmg, m the tradItional way, that hIS or her classificatIOn should be hIgher Finally, I am not convInced by the argument that once the Employer has made a settlement agreement regarding a classificatIon It can not change It when there has been substantial change m the workplace The parties agreed on the facts that there was a merger of two Mmlstries and a reorganIzatIon that was gomg to lead to surplussmg of employees The Umon was notIfied m the fall of 1995 that the Employer would be reviewing all of the claSSIfications of the employees in the field in order to be fmr to all employees who would be surplussed, That IS, because two ministnes were bemg merged and claSSIfications mIght not be uniform between them, the Employer revIewed the claSSIficatIOns m order to be fmr to all. ThIS led to a downgrading of classificatIOns for employees m the field m OAG-9 and OAG-10 pOSItIons It was not Just the Grievor who was downgraded Moreover, there was no allegation by the Umon of bad faith or any Improper motIve in makIng the decision to downgrade Ms Rosamund. Page 7 of 8 _.~---- For all the reasons noted above, I find that thIS grIevance IS marbltrable and is, therefore, msmissed Dated at Toronto thIS 16th day of December, 1998 ~ ---- Page 8 of 8