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HomeMy WebLinkAbout1980-0288.Alam.81-10-30Between: Before: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Grievor: For the Employer: Hearing: Mrs. IM. Alam - And - Griever The Crown in Right of Ontario (Ministry of Community and Social Services) Employer E.E. Palmer, Q.C. Vice Chairman K . Preston Member E. McIntyre LMember R. Anand, Counsel Cameron, Brewin & Scott R. ,McCully, Counsel .Ministry of Community and Social Services May 14, 1981 -2- The present arbitration arises out of a grievance filed by Mrs. M. Alam, the statement of which reads: I hereby grieve that my employer has failed to maintain my salary at the maximum rate for a Statistician 2 a5 directed by the decision of the P.S.C.B. released February 1978. The settlement r~equired by Mrs. Alam was: I request that my salary be adjusted to the current salary rate of $20,299.00. or $389.03 per week to &sequent general increases as they occur and that I receive compensation for the loss of salary from the date that the Ministry permitted my rate to falJ behind the prevailing rate of a Statistician 2. This grievance was filed on 7 February 1986 and was not resolved by the parties. Consequently, a hearing in this matter was required. Such took place in Toronto, Ontario, on 14 May 1981. At this initial hearing, no question arose concerning the composition of the Board, but there was a preliminary objection made to jurisdiction The facts upon which this jurisdictional argument was based were not really in dispute. Thus, it appears that the Grievor was initially’ hired by the Government on 8 April 1974 in a position outside the present collective bargaining unit, where she remained until 23 June 1976 at which time she was terminated on the basis that she was not doing the work for which she was employed and was considered to be untrainable. At that point a question arose as to the appropriate forum to determine the validity of Mrs. Alam’s termination and a decision was subsequently issued by the Ontario Public -3- Service Labour Relations Tribunal (Exhibit IX) which held that Mrs. Alam was not an employee within the meaning of the Crown Employees Collective Bargaining Act and, consequently, that her grievance should be heard by the Public Service Grievance Board, rather than the present tribunal. Subsequently, the Griever’s claim of unjust dismissal was heard by the Public Service Grievance Board and a decision was issued (Exhibit VIII) reinstating the Grievor in employment under the following terms: It then follows that the remedy in the present case is to make the Grievor a genuine offer of a position more in keeping with her talents and her obvious intelligence. This may be, and possibly should be, elsewhere in the Ministry or even elsewhere in the service. The Board directs that the Grievor shall be returned to the employ of the Ministry as of the date of her dismissal and at whatever salary she was being paid at tie time (June Zkd, 1976). Upon her recall to work she will be paid the rate of her new position provided it is not less than the maximum salary rate of Statistician 2. If upon being offered a position in keeping with her abilities she chooses not to accept it Mrs. Alam may be released from employment with an option to resign in lieu of termination. Following the issuance of the above award, some difficulties arose in implementing it. The reason for this was the problems finding a job which would fit the requirements set out above. In any event, on 9 August 1978 a job was offered to the Grievor in the present bargaining unit as a Vocational Rehabilitation Services Case Aide, which then had a maximum salary of $13,242.00 per year (Exhibit Xl. At that time, however, the maximum salary of a Statistician 2 was higher than this sum and so she was offered that salary for the foregoing job. This letter contained the following statement: ,?. a -4- The effect of the Board’s award results in a ‘red circle’ type situation. This will k~eliminated when either the maximum of the Social Work Assistant exceeds that of the top rate of a Statistician 2 or through promotional procedures you advanced to a salary range whose maximum exceeds that of the current Statistician 2 range. This offer was accepted by the Grievor and she began employment with the appropriate office. The thrust of the problem that here exists, however, is that the Griever did not receive the normal increases which were subsequently gained for the position of Statistician 2; rather, the Employer chose to retain the salary rate in effect at the time of her reinstatement and presumably would do so until the rate of her classified job exceeded that which she was initially paid or she moved to another job. The Griever took the view, however, that she was entitled to the maximum rate of the Statistician 2 job as it existed from time to time and so some one and one-half years later filed the instant grievance. One should note, however, that in the interim there would appear to have been some discussions between the parties regarding this point. Thus, for the purposes of this case, we have no evidence as to whether there was any question of undue delay and are not in a position to make a decision on this point. It was on the basis of the foregoing, then, that an objection was lodged with respect to the jurisdiction of the instant Board to hear this matter. -5- The position of the Employer in this case was simple and rather straightforward. Thus, it was their view that the claim of Mrs. Alam related to the effect of an award handed down in a jurisdiction other than that encompassed by the present Collective Agreement. Consequently, it was urged that the instant Board has no jurisdiction to deal with the instant matter. In their view, we are limited to an interpretation of the Collective Agreement in effect between the parties (Exhibit I) and the claim of Mrs. Alam does not relate to that point. Again, it was noted that no legislation provides any additional bases for the claim of the Union. Put another way, it was the view of the Employer that our jurisdiction is limited to interpreting the Collective Agreement and the claim of Mrs. Alam does not relate to that document. The position of the Union in this case was that the earlier award which related to Mrs. Aiam required the Employer to pay Mrs. Alam the current rate of Statistician 2 as it existed from time to time and this had not been done. The view of the Union in this earlier award is that it was not meant to penalize Mrs. Alam and nothing in it gave the right to the Employer to red-circle her. In the view of the Union, such a decision had been made by use of internal policies of the Employer and, as such, were not in accord with either the wording or intent of the earlier decision. It was also stressed by the Union in this case that Mrs. Alam had been placed in the instant bargaining unit by the Employer and that, at this point, .Mrs. Alam had no forum in which to have the matter heard other than the instant Board. I -6- Against this background, it was urged that one should notionally accept the view that the Grievor, although in one sense operating in the classification of a Vocational Rehabilitation Services Case Aide, for the purposes of pay should be considered to be a Statistician 2 It was urged that this would meet the requirements of the Employer and Mrs. Alam to conform to the earlier award. As an alternative argument, the Union suggested that what had occurred in the instant case is that management had created a specific classification for IMrs. Alam by melding the duties of the Case Aide with the salary of a Statistician 2 and that this fact gives the instant Board jurisdiction TO hear this matter. Having considered the foregoing, it is our view that the argument of the Employer is correct in this matter. Quite simply, it would seem to this Board that the thrust of the argument of the Union in this case is to require the Board to interpret either the effect of the earlier award relating to Mrs. ‘Alam or to deal with an agreement between Mrs. Alam and the’ Employer relating to payment. In our view, neither of these matters are ones which we have jurisdiction to hear. Basically, our jursidiction is limited to interpreting the~terms of the instant Collective Agreement in effect between the parties (Exhibit I) and the instant matter does not arise out of this document. While one can have great sympathy for the position of the Grievor, who-cannot have the merits of her claim determined in this forum, there is no authority to hold that the mere lack of a remedy elsewhere creates jurisdiction in this Board. -7- Consequently, it is the award of this Board that the grievance in the instant case be dismissed for lack of jurisdiction. DATED at London, Ontario this 30th day of October, 1981. E. E. Palmer, Vice Chairman K. Preston, Member “I dissent” E. IMcIntyre, Member .,. -c .’ DISSENT I have read the award of the majority and find that I must dissent. While it is quite correct to conclude that this Board has jurisdiction to deal only with issues arising either out of the Collective Agreement(s) between the parties or anything pertaining to Section 17(2) of the Crown Employees Collective Bargaining Act, it is important to note that the Collective Agreement between the parties consists not only of the working conditions collective agreement, but also entails the wages collective agreement which is separately negotiated. Accordingly, the jurisdictional framework for this Board is any difference between the parties arising out of the interpretation, application, administration or alleged contravention of either Collective Agreement as well as the grievances arising under Section 17(2) of the Act. The essence of the Griever’s claim in this case is that she is being improperly paid. The fact of the matter is that she is being paid a salary which, because of its unusual method of calculation, is not one which is contemplated by the wages collective agreement between the parties. In my view, the Board clearly would be entitled to consider whether this individual is being properly paid in accordance with this Agreement. There the Board should have jurisdiction to deal with the matter. It may well be that the evidentiary foundation for her case, being a decision of a prior tribunal, or an agreement between the parties, is not a matter that is admissable or relevant to the decision of the Board on the merits. However, that does not go to the question of jurisdiction. If this individual is not being paid in accordance with -2- one, of the classifications within the Agreement, and clearly she is not, surely the Board has jurisdiction to determine whether that constitutes a violation of the Agreement. Looked at in another light, ‘this matter can be seen as a classification grievance. The Crievor has the right under the Collective Agreement (see Article 5) as well as under Section 17(2) of the Act which gives the Board jurisdiction to entertain such a grievance. Again, it may be r that the evidentiary foundation of such a grievance may not be proper nor one which can be entertained. Again, that is not sufficient to deprive the Bqard of jurisdiction. E. LMcIntyre /as