HomeMy WebLinkAbout2021-2845.Fitzpatrick et al.24-03-25 DecisionCrown Employees
Grievance
Settlement Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB# 2021-2845; 2021-2846; 2022-5351
UNION# 2021-0368-0220; 2021-0368-0221;
2022-0368-1506
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Fitzpatrick et al) Union
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The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Janice Johnston Arbitrator
FOR THE UNION Rebecca Jones
Ryder Wright Holmes Bryden Nam LLP
Counsel
FOR THE EMPLOYER Maria-Kristina Ascenzi
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING August 8, 2023 and March 8, 2024
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Decision
1. There are three grievances before me in this case that were filed by two employees,
Michelle Canning and Carrie Fitzpatrick. They deal with the following issues and
read as follows:
i. Grievance 2021-0368-0220 filed by Fitzpatrick dated December 16, 2021:
I grieve that the employer has violated articles 2, 3, 6, 7 and 9 of the
collective agreement, the occupational health and safety act, respectful
workplace policy and any other applicable article, policy, regulation or
legislation that apply. The employer created Probation and Parole Officer
2 (PPO2) positions (Community Reintegration Officers) within institutions
that duplicate the work of Rehabilitation Officers. We already have PPO2s
that work as institution liaison officers in our institution doing probation
work. The wage disparity, duplication of work, replacement on
committees, and inability to apply for these positions, etc. contributes to a
poisoned and toxic workplace. I am also qualified to be a PO but I am not
allowed to apply for these positions posted.
Settlement desired
Full redress, including but not limited to, removal of these positions from
the institution or ability to apply and compete for these positions, monetary
compensation.
ii. Grievance 2021-0368-0221 filed by Fitzpatrick dated December 16, 2021:
I grieve that the Employer has violated articles 2, 3, 6, 7 and 9 of the
Collective Agreement, the Occupational Health and Safety Act and any
other applicable article, policy, regulation, or legislation that apply. The
Employer created Probation and Parole Officer 2 (PPO2) positions
(Community Reintegration Officers) within institutions that duplicate the
work of Rehabilitation Officers. These newly created positions are paid at
the current PPO2 rate as opposed to the Rehabilitation Officer 2 rate. Top
rate for PPO2 is $1678.85 weekly and top rate of Rehabilitation Officer 2
is $1351.93.
Settlement desired
full redress, including but not limited to, compensation at the PPO2 rate.
iii. Grievance filed by Canning dated June 13, 2022:
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I grieve that the Employer has violated articles 2, 3, 6, 7 and 9 of the
Collective Agreement, the Occupational Health and Safety Act, Pay Equity
Act, Respectful Workplace Policy, and any other applicable article, policy,
regulation, or legislation that apply. The Employer created Probation and
Parole Officer 2 (PPO2) positions (Community Reintegration Officers)
within institutions that duplicates the work of Rehabilitation Officers. CECC
was not allotted a PPO2 to do this work and this work is now assigned to
the Rehabilitation Officers in our institution (same training, same forms,
same work). This duplication of work and performing same or similar work
at a significantly lower pay rate not only violates the Pay Equity Act (as
there is a significantly higher percentage of female Rehabilitation Officers
compared to Probation Officer 2s) but also contributes to a poisoned and
toxic workplace.
Settlement desired
Full redress, including but not limited to: the ability to apply for these new
roles or cancellation of this pilot project, monetary compensation for pay
disparity.
2. The grievors in this case were both employed as Discharge Planners (“DP”) at
Central East Correctional Centre (“CECC”). The classification title for this position is
Rehabilitation Officers 2 (“RO”). During the hearing they were referred to by both
titles. The Community Re-Integration Officer (the “CRO”) position was created in
2021 as part of the Ontario Government's investment to hire additional probation and
parole officers across the province to strengthen the supports available to help
individuals safely re-enter the community. CROs are considered specialized
Probation and Parole Officers (Probation Officer 2) and are paid more than
Discharge Planners, as they are in a higher classification. Some correctional
institutions received CROs while others did not. CECC was one of the institutions
that did not receive CROs. Currently, there are 25 CROs that work at 10 institutions
across the province.
3. The Employer takes the position that the GSB lacks jurisdiction to deal with these
grievances, as they are in substance classification grievances, which the Board is
precluded from dealing with by operation of both the Crown Employees Collective
Bargaining Act (“CECBA”) and the OPSEU Collective Agreement. The Employer
therefore asks me to dismiss the grievances for lack of jurisdiction.
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4. The grievances refer to articles 2, 3, 6, 7, and 9 of the collective agreement and
various legislation. These sections were not central to the Union argument in this
case, so I will not set them out. However, the Union specifically relied upon Article
8.1.1 which provides:
8.1.1 Where an employee is assigned temporarily to perform the duties
of a position in a classification with a higher salary maximum for a period
in excess of five (5) consecutive working days, they shall be paid acting
pay from the day the employee commenced to perform the duties of the
higher classification in accordance with the next higher rate in the higher
classification, provided that where such a change results in an increase
of less than three percent (3%), the employee shall receive the next
higher salary rate again.
5. Counsel for the Employer took me to section 51 and 52 of CECBA which state:
Classification grievances, restriction
51 (1) An order of the Grievance Settlement Board shall not require the creation
of a new classification of employees or the alteration of an existing
classification. 1993, c. 38, s. 51.
(2) An order of the Grievance Settlement Board shall not require a change to
be made in the classification of an employee. 1995, c. 1, s. 50.
and
52 (1) A provision in an agreement entered into that provides for the
determination by an arbitrator, a board of arbitration or another tribunal of
any of the following matters is void:
1. A classification system of employees, including creating a new
classification system or amending an existing classification
system.
2. The classification of an employee, including changing an
employee’s classification. 1995, c. 1, s. 51.
(2) Subsection (1) applies to agreements entered into before or after the
date on which the Labour Relations and Employment Statute Law
Amendment Act, 1995 receives Royal Assent. 1995, c. 1, s. 51.
6. Employer counsel also referred to Article 22.12 and Appendix 34 of the collective
agreement which provide as follows:
22.12 CLASSIFICATION
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22.12.1 An employee who alleges that their position is improperly classified
may discuss their claim with their immediate supervisor at any time,
provided that such discussions shall not be taken into account in the
application of the time limits set out in Article 22. An employee, however,
shall have the right to file a grievance in accordance with the grievance
procedure, specifying in their grievance what classification they claim.
22.12.2 A classification grievance as provided in Article 22.12.1 which has
not been resolved by the end of the Formal Resolution Stage of this
grievance procedure may be referred to the Joint System Subcommittee
(JSSC) provided in Appendix 7 (Classification System Subcommittees) of
this Agreement, for final resolution. Any grievances being referred to the
JSSC, must be forwarded to the Employer representatives of the
Committee, no later than one (1) month after the Employer’s response at the
Formal Resolution Stage. The JSSC may decide on any grievance referred
to it. Where the parties at the JSSC concur, their decision shall be binding
on the parties and any affected employee. Where the parties at the JSSC do
not concur, the matter shall remain unresolved unless and until concurrence
is reached.
22.12.3 The Employer upon written request either by the employee or by the
Union shall make available all information and provide copies of all
documents which are relevant to the grievance.
Appendix 34 is quite lengthy so I will not set it all out. The relevant
provisions are:
Both parties recognize that the current classification system is outdated and
requires revision. Previous attempts to design a new system have been
unsuccessful, and it is recognized that any such undertaking, because of its
size and complexity, must be addressed with a large measure of care,
deliberation and commitment.
…
15. The parties agree to a moratorium on any new classification grievances
or complaints during the term of the collective agreement.
7. Counsel for the Union agreed that the Board does not have the jurisdiction to deal
with classification grievances. However, she asserted that the three grievances
before me were not classification grievances, but at their core were about the
grievors being temporarily assigned to the CRO position during a discrete time
period.
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8. Therefore, the issue that I must determine is whether or not the grievances before
me were classification grievances, or were about the temporary assignment of the
grievors to the higher rated position of CRO.
Employer Argument
9. On December 11, 2023, counsel for the Union provided particulars to the
Employer. Employer counsel pointed out that a review of the particulars makes it
clear that the Union was no longer relying on the articles of the collective
agreement referred to in the grievances but was now taking the position that the
Employer violated the grievors' rights under Article 8 of the Collective Agreement,
which addresses temporary assignments. It was alleged that the Employer
violated Article 8 by assigning CRO work to the grievors from December 30, 2021,
to when each grievor left her Rehabilitation Officer (“RO”) position and failing to
compensate the grievors for the CRO work that they temporarily performed while in
their RO positions.
10. Counsel for the Employer suggested that the particulars as framed appear to be an
attempt by the Union to now avoid what was very clearly, in the Employer's
submission, three classification grievances. Further, the Employer takes the
position that the grievors are now attempting to expand the scope of their
grievances, after becoming aware of the Employer's objection to the grievances on
the basis that the GSB was without jurisdiction to deal with them. Therefore, in the
alternative, the Employer asks me to dismiss the grievances and determine that the
manner in which counsel for the Union currently seeks to frame them, constitutes
an expansion of the original grievances.
11. Counsel for the Employer pointed out that CECBA, which governs the GSB, was
amended in 1995 to include the current version of s.51. Subsection 1 explicitly
prohibits the GSB from creating new classifications or from altering an existing
classification. Subsection 2 clearly states that no order of the Board shall require a
change to be made in the classification of an employee. Section 52 of CECBA
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reinforces the message that classification grievances are invalid, by expanding the
prohibition on dealing with classification matters beyond the GSB to all boards of
arbitration. Specifically, Section 52 voids any agreement that provides an
arbitrator, board, or tribunal with the authority to tinker with the classification
system, or to determine or change an employee's classification.
12. OPSEU and the Crown have reflected this legislative reality in their collective
agreement. Specifically, Article 22.12 sets up a separate process and forum, that
being the Joint System Subcommittee (JSSC), to deal with classification issues.
The Collective agreement also contains Appendix 34 entitled the Classification
System, which sets out the JSSC process in greater detail, and which stipulates, at
paragraph 15, that the Parties agree to a moratorium on classification grievances.
13. In support of her position, Employer counsel first referred to OPSEU ((Foreman et
al.) and The Crown in Right of Ontario (Ministry of Education), GSB# 2002-1806
(Abramsky). In that case, the Employer raised a preliminary objection to the Board's
jurisdiction to hear the grievance. It was alleged that the Union had engaged in a
back door attempt to challenge the grievors’ classification and wage rate by framing
the claim for wages under article 32.6.1 of the collective agreement. It reads, “The
rate of the equivalent civil service classification shall apply. If there is no equivalent
classification the rate shall be set by the Ministry and the Union shall have the right
to negotiate the rate during the appropriate salary negotiations.” The Employer
argued that regardless of the Union's characterization of the matter, the substance of
the claim was that the grievors were performing the work of a different classification
and should be paid accordingly. The Employer argued that to uphold this grievance,
the Board would have to find that the grievors are performing the work of a different
classification, which is the exact same analysis required in classification grievances.
14. In that case Arbitrator Abramsky concluded:
…In my view, even though the grievors are not seeking a change in their
classification and are only seeking monetary relief, they are challenging
the classification allocated to them by the Employer for pay purposes. In
my view, the argument that Article 32.6.1 allows the grievors to assert that
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their own classification is not the proper "equivalent civil service
classification" for pay purposes - and that the equivalent one is another
classification - is indeed a "back door" to having the Board determine their
proper classification. If accepted, it would create a loophole that would
allow unclassified employees to bring what is, in effect, classification
disputes before the Board. Yet the parties have agreed that "all complaints
or differences involving allegations of improper classification" are to be
decided by the JSSC.
15. Counsel for the Employer argued that the issue in OPSEU (Boyer) and Ministry of
the Environment, GSB #0742/00 (Abramsky) was the same as the issue before me.
In it, the grievor also alleged a violation of Article 8.1.1 of the collective agreement,
which is the acting pay provision in regard to temporary assignments. Specifically,
the grievor alleged that the Employer had assigned him to perform the duties of a
higher rated classification. The grievor had also filed a classification grievance
alleging the same thing, which was pending before the JSSC, and had earlier made
similar claims. The Employer alleged that the grievance should be dismissed as it
was a disguised classification grievance. The grievor's Article 8.1.1 claim could not
be decided without deciding the classification issue and that the same kind of
analysis that would be required in his classification grievance would be required in
the Article 8.1.1 claim.
16. As in the case before me, the Union in the Boyer case asserted that it was not a
classification grievance, but a bona fide temporary assignment grievance. It was
argued that the grievor was not seeking a change in his classification or a
reclassification, nor was he claiming that he was improperly classified. Instead, he
was seeking monetary compensation for the period he was performing the work at
issue.
17. VC Abramsky determined that the grievance was, in effect, a classification grievance
over which the Board had no jurisdiction. She concluded that there was no
allegation of any change in his duties and that the grievance was part of "an ongoing
contention that the duties regularly assigned to him were beyond the work of an
employee classified as an EO 2 and constituted the duties of an EO 4. That is a
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classification issue." She determined that "[h]is concern, though phrased as a
temporary assignment dispute, is that he is not properly classified as an EO 2."
18. In support of her position, counsel for the Employer also referred to OPSEU
(Union) and the Ministry of Training, Colleges and Universities, GSB# 2012-0651
(Carrier); OPSEU (Wilson/Anastaskos et al) and the Ministry of Transportation,
GSB# 1995-0147 (Dissanayake); OPSEU (Delost) and the Ministry of Energy,
Northern Development and Mines, GSB# 2018-2713 (Petryshen); and OPSEU
(Deen) and the Ministry of Public and Business Service Delivery, GSB# 2022-9792
(Gee).
19. Counsel for the Employer asked that I keep two principles in mind. First, that I
should not be duped into opining on classification issues by creative framing or
pleading. And second, that I am without jurisdiction to render a decision which
involves determining the proper classification of a grievor at some point in time. In
reviewing the grievance forms, the grievors cited five different articles, articles 2, 3,
6, 7 and 9. None of which, are sufficiently particularized to justify any breach. The
Union has now attempted to rely on article 8, the temporary assignment provision, in
a creative attempt to argue that I have jurisdiction over these matters.
20. However, in the Employer's view, it is very clear what the grievors want and what
they are attempting to do. They want to be paid at the higher classification rate,
because in their view, they are doing the work of the CRO. This is exactly the kind of
analysis the Board is not permitted to engage in.
21. The Employer submitted that our case is analogous and falls squarely within the
reasoning of the Boyer Case. Although now phrased as a temporary assignment
dispute, the real issue is that the grievors claim they are not properly classified. Like
Boyer, the grievors have not alleged any change in duties. At paragraph 9 of the
union’s particulars, it is asserted that, "everything noted on the CRO policy checklist
are duties they completed in their RO positions. Completing the same forms, and
had the same SharePoint access…"
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22. Counsel for the Employer took the position that the real issue in dispute in this case
was the grievors’ unhappiness with the creation of the CRO position and desire to
have the position eliminated as they alleged it was duplicative of the work of the
Discharge Planner (Rehab Officer 2). The remedies requested in the grievances
were the removal of position, or the ability to apply and compete for the positions, or
compensation.
23. Counsel pointed to the fact that the grievors never suggested in the grievances that
they were temporarily assigned to the CRO position. They never grieved Article 8 or
referred to a temporary assignment “to perform the duties of a position in a
classification with a higher salary maximum for a period in excess of five (5)
consecutive working days.”
24. At the time that the grievances were filed, it was the Employer’s understanding that it
was a classification issue. In addition, the grievors’ position at this time with respect
to a temporary assignment is inconsistent with the allegation found in all three
grievances that the work of the CRO duplicates the work of the RO position. If the
duties in the CRO job descriptions are tasks they were already completed in their
RO positions, then they could not have been temporally assigned to the position.
Work by their account, they were already doing.
25. In conclusion, counsel for the Employer argued that the Union's case flies in the face
of s.51(2) of CECBA, which clearly states the Board cannot adjust or amend an
employee's classification. It flies in the face of article 22.12 of the CA which makes it
clear classification issues are to be brought to the JSSC, not the GSB. And thirdly, it
flies in the face of this Board's jurisprudence which clearly stands for the principle
that this Board will not engage in an analysis of the propriety of classifications.
Accordingly, the Employer respectfully requested that I dismiss all three grievances
for lack of jurisdiction.
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Union Argument
26. Counsel for the Union pointed out that the grievors in this case were both employed
as Rehabilitation Officers (“RO”) at CECC. CECC was one of the institutions that did
not get any of the newly created CRO positions. She alleged that the grievors were
therefore assigned the duties of the CRO position in 2021-22. She pointed to the
particulars which had been filed, which outline the duties and responsibilities of the
CRO position and the RO position. I have reviewed them but am not going to set
them out. Counsel suggested that the grievances before me were at their core
grievances about the grievors being temporarily assigned the CRO duties during a
discrete time frame. As the CRO is a higher rated position she alleged that the
actions of the employer contravened article 8.1.1 of the collective agreement which
deals with temporary transfers.
27. Counsel for the Union acknowledged that I do not have the jurisdiction to deal with
classification grievances. However, she disagreed with the assertion of the
Employer that the grievances before me were disguised classification grievances.
She suggested that these grievances raise issues of equal pay for equal work or fair
compensation for work performed. The grievances refer to duplication and refer to
the fact that the grievors are performing the same or similar work. The grievances
also refer to a wage and pay disparity and the grievors ask to be compensated at the
higher rate.
28. Union counsel argued that the Employer violated the rights of the grievors under
Article 8 in assigning CRO work to the grievors from December 30, 2021, until each
grievor left her RO position and not compensating the grievors for the CRO work
they performed during this time. The grievors are not seeking reclassification or
suggesting that they are not properly classified.
29. In support of her position, counsel referred to Ontario Public Service Employees
Union (Dobroff et al.) v Ministry of the Environment, (the Dobroff Case), 2005
CarswellOnt 11190, 80 C.L.A.S. 84. She suggested that just as was found in that
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case, the need to compare the duties of an RO and CRO does not turn this into a
classification case. She argued that in our case it is a fairness and equity issue, as
because there were no CRO positions at CECC, they performed the duties. The
issue is not whether they were properly classified but whether they were assigned
and performed CRO duties which is a higher rated classification.
30. Union counsel relied upon Ontario Public Service Employees Union (Alani et al.) v
Ministry of Finance 2005 CarswellOnt 11199, 81 C.L.A.S. 152 and suggested that in
this case, just as in the case before me, the grievor was seeking a higher rate of pay
while performing the duties of a higher rated position. Arbitrator Fisher concluded
that it was not a classification grievance and counsel urged me to do the same.
31. In Ontario Public Service Employees Union (Boyer) v Ministry of the Environment
(GSB#0742/00) Arbitrator Abramsky cautioned that, “Each case must be carefully
evaluated on its specific facts and bona fide temporary assignment grievances
should not lightly be dismissed as disguised classification grievances.” Counsel
asked that I do not dismiss these grievances but allow them to proceed to enable an
evaluation of the specific facts of this case. Counsel suggested that the fact that the
job duties of two positions are being compared does not make a grievance a
classification grievance. The purpose of, or reason for, the comparison is important.
She argued that context is important and that in our case because the were no CRO
positions at CECC, the grievors were temporarily assigned that work. She asked
that I dismiss the preliminary motion by the Employer.
32. In reply, counsel for the Employer argued that the cases relied upon by the Union
were easily distinguished from our case. In the Dobroff Case, the grievor was not
seeking reclassification but argued the denial of a temporary assignment. In our
case, the grievances asserted that the work was “duplicative” and there was no
assertion that the grievors had taken on any new or different duties.
Decision
33. As was noted by Arbitrator Dissanayake in the Dobroff Case at paragraph 15, “This
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brings us full circle to the basic proposition that the critical issue is whether or not
the substance of a particular grievance is an allegation of improper classification,
and that in deciding that issue the specific facts of each case are determinative.” A
careful analysis of the facts in each case was also seen by Arbitrator Abramsky to
be important. I agree. Cases such as the one before me turn on their facts.
34. A careful review of the grievances before me makes it very clear that what is being
raised is a classification issue. No where in any of the grievances is there a
reference to “temporary transfer.” There is no claim that the grievors have had a
change in duties. In fact, the opposite is true as all three grievances allege that the
new CRO positions “duplicate the work of the Rehabilitation officers.” This to me
sounds like an assertion that the work the new CRO position was performing
duplicates the work performed by the grievors. In order to determine this claim by
the grievors, it would be necessary to engage in an analysis of the duties
performed by the two classifications. Clearly assessing if there is an overlap or
duplication of duties between two classifications, is a classification issue.
35. There is no assertion in the grievance that the duties performed by the grievors as
ROs changed when the new CRO positions were created. There is no claim that
the grievors were assigned to and performed the different duties of the higher rated
CRO. The claim is that they should be paid the same amount as a CRO as the
duties of the CRO duplicated the duties they performed as a RO. While it is true
that the grievances ask for monetary compensation, it is not because they assert
that they were temporarily performing the duties of the higher rated position, but
because they assert that the duties of the higher rated position duplicate the duties
they perform.
36. As was noted by Employer counsel, in the Dobroff Case the grievor was not
seeking reclassification but argued that the denial of a temporary assignment to the
classification he was part of, while granting it to a similar classification, was done in
bad faith. In the Dobroff Case, the main issue was whether or not differential
treatment of two classifications in the granting of a temporary assignment, was for
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legitimate business or operational reasons. The Union was arguing that the
assignment was done in bad faith. As was noted in the last sentence of paragraph
21, “If that is established to be so, the union’s argument that there was no
legitimate operational or business explanation for the differential treatment will be
buttressed. That would be the sole purpose of the comparison (emphasis
added).” Thus, the facts were very different in that case and it is easily
distinguishable from the case before me. There are no allegations of bad faith or
improper exercise of management rights in this case.
37. Accordingly, based on the specific facts of this case I conclude that the three
grievances before me are in essence classification grievances. Having come to that
conclusion I must uphold the preliminary objection raised by the Employer and
conclude that I am without jurisdiction to deal with them.
38. Given that I have come to this conclusion, it is not necessary to deal with the
alternative argument raised by the Employer that the Union has improperly
expanded the scope of the three grievances and I decline to do so.
39. The grievances are therefore dismissed. The previously scheduled dates of
August 1 and 7, 2024 are cancelled.
40. In the event that the parties have any difficulties with regard to the interpretation or
implementation of this decision I shall remain seized.
Dated at Toronto, Ontario this 25th day of March 2024.
“Janice Johnston”
Janice Johnston, Arbitrator