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Home My WebLink About1981-0171.Brecht et al.83-05-09171/81 THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Employer: For the Grievor: Hearing: OPSEU (Mr. Michael Brecht et al) Grievor - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer R. J. Roberts, Vice Chairman E. R. O'Kelly, Member I. J. Thomson, Member R. B. Itenson Senior Staff Relations Officer' Staff Relations Division Civil Service Commission C. G. Paliare Counsel Cameron, Brewin L Scott Barristers & Solicitors March 24, 1983 NOTE : The original decision 171/81 Brecht, et al issued February 25, 1982, is hereby superseded for reasons stated herein. -2- 'DECISION In our original Award in this matter,whichwasreleasedon February 25, 1982, weconcludedthat we did not have jurisdiction to consider the merits of the grievance herein. It seemed to us that the grievors, who were seeking to be reclassified from Observation and DetentionHomeWOrkerLevel2 (0. & D. 2) to Supervisor of ~JuvenilesLevel2 :(S.O.J. 21,werenotentitledto seek reclassification to the latter more highly paid job because to do so would involve the Board in reviewing for. reasonableness the exercise by the Employer of an exclusive management right, i.e., the spinning out of different classificationswithinan occupational group. We reached this conclusion regretfullybecause the evidence adduced at the hearing indicated that "there seemed to be little, if any,, real difference .between.the work being performed by the S.O.J. 2's and 0. &D. 2's at the Syl Apps Centre.' (Original Award, at 6.) Upon judicial review, the Divisional Court determined that the Board did have jurisdiction to consider the merits of the grievances herein. Speaking for the Court, Callaghan, J. stated, in pertinent part: On a classification grievance the Board is generally mandated to consider two matters, namely, whether or not the griever's job measured against the relevant class standard comes within a higher classification which he seeks, .and, even if he fails to fit within the higher class standard, whether there are employees performing the same duties in a higher, more senior classification. The jurispru- dence'of the Board cited to us on this application indicates clearly that these matters have been considered by the Board on classification grievances. Such matters in no way infringe ,the management rights provisions of the Wt. We areof the view that in dismissing this grievance 'the Board declined to,exercise its jurisdiction under section 18(2) (al of the As. The Board was obliged to consider whether or not the grievor was properly classified regardless of whether or not he 'claimed in his grievance a classification in a different series. The obligation of the Board was to measure the duties performed by the grievor against either the class standard or other employees,performing the same duties. In ,failing to.detennine these matters the Board declined to exercise the juris- diction conferred..uoon it by the..legislation. . . . Re ,Cnt:ar:io~ public 'Srui.ce..E;Rploy~e~s'-Un'ion .and Ministry' o:f Commu'nity :an,d Soci'a'l Services, Unreported Decision, December 21, 1982 (Divisional Court), at 7-8. The grievances were remitted to the Board for determination in accordance with the determination of the Court. On March 24, 1983, we held a hearing at which the parties madesubmissions uponthemerits of the case. Counsel for the Employer took the position that even considering the merits the grievors were not entitled to the classification they sought. Counsel submitted that this was so because it had not been shown that the grievors.were improperly classified in the first place. It was suggested.that where a grievor claims a higher classification by showing that he is performing the same duties as other employees in that classification,hemustdemonstrate two things: first, that his present cla~ssiffcation is improper, in the sense that the duties he per~forms do not fit within his present job description: and secondlv,that the duties he performs are the same as those performed by others in the higher classification her '3s~ seeking. Because the duties being performed by the grievers at the Syl Apps Centre still fit within the' job 'description of an 0. & D. Worker 2, counsel concluded,the grievors failed to meet the first branch of the above test: hence, their grievances should fail. Werejectthis submission. Itseemstousthatneitherthe decisionoftheDivisionalCourt northeprior jurisprudenceof the Board supports the-notion that to succeed a grievor must show his existing classification is improper in the sense suggested by counsel for the Employer. The Reasons for $udgment of the Divisional court suggest that all that an employee who seeks a higher classification need show is that "there are employees performing,the same duties in a higher, more senior classification." Id. at7. - The jurisprudence of the Grievance Settlement Board generally appears to coincide with this view. In this regard we note that the only case that counsel for the Emnloyer essentiallyreliedupon to support his argument, Re Thomp~son and The Ministry off Na~tural Resources, G.S.B. #7/76 (Beatty), seems to be inapposite. That case did not - 3 - involve an employee claiming a higher classification via the route of showing that employees in the higher classification were 'performing the same duties. In that case, the grievor claimed thdt she should be,more highly classified because her duties required the same or higher level of skill than those of employees in another, higher classification. While sharing the ~grievor's sense of frustration at being in this position, the Board dismissed her ~grievance because she failed to show that she was doing essentially the same job duties as someone who had been more highly classified. The Board said, in pertinent part, "In the absence of any evidence that persons whose job duties substantially parallel those of the grievor were classified in positions other than a Clerk Typist 2, we are firmly of the view that in the light of the class standard for her position that she has been properly classified as a Clerk Typist 2." "s. at 9. Apart from these considerations,'there is a second reason why we feel that we,must zeject the position put forward by Counsel for the Employer. At the heart of his argument there seemed to rest the same notion that we initially accepted and whichlaterappearedtoberejectedby theDi'&nionalCourt, i.e., that an employee does not have the right under the collective agreement or statute to challenge a decision of the Employer to spin out, perhaps unfairly, several i ‘i, -6- separate classifications with different rates of pay assigned to each for essentially the same job. The only purpose to be served by requiring a grievor to show that his present classification is improper in the sense submitted by the Employer - would be; it seems to us, to serve this notion. Yet the Divisional Court, while not saying so directly, appeared to reject it. There is no doubt that we already have made a finding of fact that the grievors herein are performing essentially the same duties at the Syl App Centre as employees in the higher, more senior 'classification of S.O.J. 2. Applying the law 3 as we understand it to the merits of the case, then, we cqnclude that the grievors are entitled to the latter classification. It is our Award that as of the date of their grievances the grievors were entitled to the classification of S.O.J. 2. We will retain jurisdiction pending implementation by the parties of the terms of this Award. DATED AT Toronto, Ontario this 9th dav of May,, 1983. R. J. Roberts, Vice Chairman I. J. Thomson, Member E. R. O'Kelly, Member