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HomeMy WebLinkAbout2019-1615.MacIver.21-04-01 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2019-1615 UNION# 2019-0411-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (MacIver) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Gregg Gray Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Michael Kuk Treasury Board Secretariat Labour Relations Intern HEARING March 25, 2021 -2- DECISION [1] The Employer and the Union at the Ottawa Carleton Detention Centre (“OCDC”) agreed to participate in mediation-arbitration in accordance with the Local Mediation- Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without detailed written reasons. [2] Jason MacIver is a Recreation Officer 2 (RO2) at the OCDC. He filed a grievance dated August 6, 2019 claiming that the Employer breached the collective agreement by assigning him an incorrect anniversary date, thereby affecting the date on which Mr. MacIver was entitled to merit increases. By way of remedy the grievor seeks to have his anniversary date changed, the requisite wage rate adjustments made, and to be compensated for all lost entitlements that flow from the wage rate adjustment. [3] The grievor was hired as a Fixed Term (FXT) Correctional Officer (CO)1 at the TSDC on December 16, 2013. Early in 2017 Mr. MacIver applied for two positions at the OCDC: A Recreation Officer position and a Correctional Officer position. He was successful in both competitions. On February 15, 2017 the grievor was advised by letter that he was the successful candidate for the CO position at the OCDC. There is no such letter regarding the RO position. According to the grievor, he spoke to someone acting for the Employer and was verbally advised that he was a successful applicant for that position. At that time, he advised them that he wanted the RO position. There is no tangible evidence from any party to confirm that conversation. [4] However, the Employer provided a copy of emails dated April 12, 2017 between a Recruitment Assistant at Recruitment Services, Shared Services, and the Deputy Superintendent of Services at the OCDC regarding hiring letters for the successful candidates for the RO position. The Deputy Superintendent advised that he had not received letters of hire for three individuals, including the grievor. The Recruitment Assistant indicated in response that she had not received any hiring documents for those three, but that conditional offer letters could be drafted once the start dates were provided. The Deputy Superintendent advised that the start date for all ROs was going to be April 24, 2017. [5] Following this exchange, it appears that an offer letter was drafted for Mr. MacIver, but was never ultimately sent to him. [6] Nonetheless, on April 3, 2017, the grievor had already begun working at the OCDC. For one week, from Monday to Friday, he sat in a room at the OCDC familiarizing himself with the Standing Orders at that institution and generally orienting himself there. -3- [7] According to the Union, since the grievor had not been required to wear a CO uniform, had not been issued handcuffs, or been assigned a unit in that week, that confirms that he had been hired as a RO. The Employer maintains that the grievor was simply in orientation at the time, and that whether he had been a CO or an RO, he would have been required to read all the OCDC standing orders before being assigned to a unit. [8] Before the commencement of his second week at the OCDC, on April 10, 2017, Mr. MacIver was administratively suspended with pay pending an investigation of an incident that occurred at the TSDC on March 15, 2017. The grievor had been involved in that incident prior to transferring to the OCDC. Ultimately, arising out of that investigation, the grievor received a small disciplinary suspension without pay. That discipline has been grieved and is being arbitrated. [9] The grievor states that at the time of the administrative suspension, Mike Wood, Superintendent for the OCDC at the time, advised him that he would continue to be paid at the CO wage rate while on administrative suspension. The CO wage rate is higher than the RO wage rate. [10] The administrative suspension was lifted on August 21, 2017, at which time the grievor was so advised by a letter, and was told to contact a sergeant regarding his return to work at the OCDC. [11] According to the Employer’s pay records, for the entire time from when the grievor started at the OCDC, including the orientation week and the administrative suspension period, the grievor was recorded as being in a CO position, and was paid the wage rate commensurate with that classification. It was only when he returned to work that he began as a RO. As such, the Employer considers his anniversary date to be September 1. [12] The Union claims that the grievor’s anniversary date should have become April 1, when Mr. MacIver first transferred to the OCDC as a RO, and that as a result of the Employer’s actions, the grievor receives merit increases four months later than he should. [13] The Employer maintains that none of the new ROs who started following the posting for the RO positions began work in that capacity until April 24, 2017. However, by that time the grievor was already on administrative suspension, and since he had been paid as a CO from April 3, 2017 on till April 10th, when he began the administrative suspension, he continued to be paid the CO wage rate until the administrative suspension was lifted. Hence, following August 21, 2017 was the earliest that the grievor could have begun working as a RO. The Employer notes that at no time during the April to late August 2017 period did the grievor ever raise a concern that he was being paid at the CO wage rate rather than the lower RO wage rate. [14] One year after he had started working as an RO, on September 1, 2018 the grievor received a merit increase, and did not raise any concern regarding his anniversary date. In March 2019, in response to the grievor’s request for clarification about the date on which he should receive a merit increase, he was advised by a Human -4- Resources Advisor for the Employer why his anniversary date was September 1st. However, it was not until August 2019 that this grievance was filed. As such, the Employer argues that the grievance is untimely. [15] The Union’s response to the timeliness issue is that a merit increase is an ongoing issue until an employee reaches the top rate in their classification. As such, while the grievor did not file a grievance in September 2018, he was due for another merit increase in September 2019, and he filed a timely grievance at that time. [16] The Employer has a third argument against this grievance. It maintains that on the basis of the facts in this case, the grievor should not have had any change to his anniversary date, which had been November prior to his move to the OCDC, and that the Ministry made a mistake in changing it to September 1. The technical argument is one based on the differences between the language in Article 7.1 of the collective agreement (which addresses pay administration in promotions; that provision addresses getting a new anniversary date) and Article 7.6 (which addresses pay administration in demotions, and has no language re getting a new anniversary date). The Employer also relies on the Merit Increase Directive. [17] Based on the latter argument, the Employer states that the grievor got favourable treatment and benefited as a result of the OCDC’s mistake in changing Mr. MacIver’s anniversary date from November to September. [18] Having considered the documents and submissions of the parties, it seems that as of April 3, 2017, when Mr. MacIver started working at the OCDC, the only position that he had definitively been offered in writing as of February 15, 2017 was the CO position at the OCDC. I therefore find that is the position to which he transferred from the TSDC. This finding is borne out by the fact that the grievor was being paid as a CO from April 3, 2017 on. [19] The internal emails dated April 12, 2017 between Shared Services staff and the Deputy Superintendent at the OCDC further indicate that the grievor had not been confirmed into the RO position by that date. This is not to say that the grievor had not been advised verbally that he was going to get one of the RO positions, but rather that as of the time he started at the OCDC on April 3rd, he was not in a RO position. As is clear from the documents before me, none of the new ROs was to start in those jobs until April 24, 2017. [20] Since the grievor was administratively suspended on April 10, 2017, whether he had received an offer letter or not, he could not have begun to work as an RO as of April 24, 2017 because he was no longer in the workplace. The Superintendent at the OCDC had told the grievor that he would be paid at the CO rate of pay while on administrative suspension, and Mr. MacIver was paid at that rate until that suspension was lifted on August 21, 2017. He never complained about that, and received the benefit of the higher wage rate. [21] I am satisfied that, whether it should have done so or not, the Employer changed the grievor’s anniversary date to September 1 because Mr. MacIver did not start in the -5- lower wage position until after August 21, 2017, and the practice in that instance is to go to the beginning of the next month. There was no dispute about the practice being that if a person begins a job in the first 15 days of the month, they are assigned the first of that month as their anniversary date, and if they begin their job in the latter half of the month, their anniversary date is the first of the month following. [22] For all of these reasons, I can find no breach of the collective agreement in this instance. [23] In light of my finding on the merits, it is unnecessary to address the Employer’s other arguments. [24] The grievance is hereby dismissed. Dated at Toronto, Ontario this 1st day of April, 2021. “Gail Misra” _____________________ Gail Misra, Arbitrator