HomeMy WebLinkAbout2004-1463.Beek et al.11-02-22 Decision
Commission de
Crown Employees
Grievance
UqJOHPHQWGHVJULHIV
Settlement Board
GHVHPSOR\pVGHOD
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 7pO
Fax (416) 326-1396 7pOpF
GSB#2004-1463, 2004-1464, 2004-1473, 2004-1814, 2004-1984, 2004-1985,
2004-2277, 2004-2518, 2004-3174, 2005-0978, 2005-2501
UNION#2003-0517-0069, 2003-0517-0070, 2004-0517-0055, 2004-0517-0061,
2004-0368-0083, 2004-0517-0078, 2004-0234-0530, 2004-0234-0595, 2004-0234-0664,
2005-0517-0012, 2005-0234-0308
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Beek et al)
Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFOREKen Petryshen Vice-Chair
FOR THE UNIONTim Hannigan
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYERPeter Dailleboust
Ministry of Government Services
Legal Services Branch
Counsel
HEARING
February 16, 2011.
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Decision
[1]I have before me twelve grievances fLOHGE\HOHYHQ&RUUHFWLRQDO2IILFHUV ³&2V´
which essentially allege that the Employer improperly placed them at the first pay level of their
classification when they were rehired by the Ministry. One grievance was filed in 2002 and the
majority of the others were filed in 2004. In a decision dated July 12, 2007, I found that the GSB
did have the jurisdiction to entertain these grLHYDQFHVDQGWKDW³WKH8QLRQZLOOKDYHWKH
opportunity to establish that the Employer exercised its discretion improperly when it placed the
grievors at the first step RIWKH&2VDODU\UDQJH´
[2]One of the twelve grievances, dated October 23, 2002, was filed by Ms. T. Shipticki.
The parties resolved her grievance at the hearing on February 16, 2011. The facts which were
relevant to the resolution of her grievance are very distinct from the facts giving rise to the other
eleven grievances.
[3]Counsel provided me with the essential circumstances giving rise to the unresolved
grievances and the positions each party took with respect to them. During a transitional process
taking place within the Ministry at the time, COs were leaving their respective institutions and
the Ministry as well. A number of individuals were eventually rehired as COs. The remaining
grievors were rehired as COs after a period of separation from the Ministry that exceeded 6
months, but was less than 24 months. When rehired, they were paid the minimum rate of the
CO2 classification. They claim that other COs were rehired under similar circumstances, but
were paid at a higher level on the grid. The Union takes the position that this different treatment
constitutes a contravention of the Collective Agreement.
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[4]7KH(PSOR\HUKDVD³3D\RQ$VVLJQPHQW2SHUDWLQJ3ROLF\´WKDWZDVUHYLVHG
November 6, 1998. The relevant provision of this policy is as follows:
INITIAL ASSIGNMENT±1(:(03/2<((6
Non-provisional
.
New employees must be paid at the minimum rate of the salary range of the
class of the position to which they are assigned. Market conditions or cases
where candidates have better-than-average experience and qualifications may
justify exceptions.
[5]The Employer also has a rehire policy for COs that is dated August 2004. Although
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aspects of the Policy are as follows:
a)Re-employment within 6 months of separation from Correctional Services,
shall be reappointed to same class and salary at time of separation provided
clearance received in areas of references, security and medical. Individuals
who have not completed basic training, i.e. the Correctional Studies
Introductory Program, will be required to complete prior to re-hire.
E
5HHPSOR\PHQWZLWKLQ±PRQWhs of separation from Correctional
Services, shall be reappointed to minimum of salary rate of applicable
classification (CO1/CO2) provided additional criteria as outlined in part A is
fulfilled (clearances and training). Updating the training may be necessary
and shall be reviewed by the manager and staff training representatives.
c) Re-employment after 24 months of separation from Correctional Services,
shall be treated as a new hire and all aspects of the recruitment, clearances and
training program shall apply.
[6]The treatment of the grievors when rehired was consistent with the Policy and they do
not claim otherwise. They were rehired after a six month separation from the Ministry and
placed at the first step of the CO2 salary range. As noted previously, they complain that they
were in the same position as other individuals rehired by the Ministry, but were treated
differently because these other COs were placed at a higher level of the salary range upon rehire.
The COs with whom the grievors compare themVHOYHV ³WKHFRPSDUDWRUV´
ZHUHHPSOR\HG
during their separation from the Ministry at the Central North CoUUHFWLRQDO&HQWUH ³&1&&´
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At the time, the CNCC was a privately run correctional facility. During their period of
separation, the grievors were not employed performing correctional duties.
[7]Although the grievors and the Union alleged otherwise, it is clear that the grievors
and the comparator COs were not in the same situation. During their period of separation from
the Ministry, the comparators were engaged in performing correctional duties at the CNCC, the
same type of duties they performed for the Ministry before their separation and after they were
rehired. In exercising its discretion as to where to place the comparators on the wage grid upon
their rehire, the Employer took into account that they had continued to perform correctional
duties during their separation from the Ministry and placed them above the entry level. In my
view, there is nothing improper about the way the Employer exercised its discretion in this
instance. It is not particularly surprising that the Ministry might exercise its discretion
differently in the case of a returning employee who had worked during separation as a
Correctional Officer at the CNCC than it would in the case of a returning employee who did not
have correctional experience during their separation. Given that the grievors were in a different
situation than the comparators and that the Employer exercised its discretion properly when it
placed the grievors and the comparators on the salary grid, it is my conclusion that there has not
been a contravention of the Collective Agreement in this instance.
[8]Accordingly, for the foregoing reasons, the eleven remaining grievances are hereby
dismissed.
nd
Dated at Toronto this 22 day of February 2011.
Ken Petryshen, Vice-Chair