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HomeMy WebLinkAbout1982-0306.Barnes.83-02-09IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearings: OPSEU (Fred Barnes) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer E. B. Jolliffe, Q.C. Vice Chairman S. D. Kaufman Member E. R. 0'Kelly Member N. Luczay Grievance Officer Ontario Public Service Employees Union D. Nagel, Manager Compensation and Staff Relations Ministry of Natural Resources October 18, 1982 November 4, 1982 November 18, 1982 -2- 'II'iiERIM DECISION The .background of the question to be determined by the Board in this interim ,decision has been correctly reviewed by counsel for both parties in wrltten submissions summarized below. 'A hearing in the matter of the grievance of Mr. Fred Barnes commenced on October 18, 1982, and continued on November 4, when evidence was completed, the Union represent- ative presented argument and the Employer's representative delivered .part of her argument. That hearing was then adjourned to November 18. On November 16, however, the Employer received a request from the Union to supply a job description or position specification in relation to a vacancy which had been adver- tised in "Topical!' (a Governmen't publication) on November 5, a.request not complied with at the time. After the Employer's representative completed her argument on November 18, the Union's representative was called on for reply, but said he wished to apply for the admission of new evidence, referring to the advertisement of November 5. - 3 - After a recess for consideration, the Board ruled as follows: evidence was A decision cn the admissibility of such new reserved; (2) The Board would consider the evidence and argument presented on October 19, November 4 and November 18; (3) The "job description" and organization chart of the advertised position should be .given to the'union by * the Employer; (4) Argument sh~ould be completed immediately; the new evidence, if admitted, would be considered after a sub- sequent hearing; (5) Written argument on the reserved,issue should be filed with the Registrar by December 18. In a written submission dated December 17, counsel for the Employer conceded that the' Board has authority to permit further evidence to be adduced, but argued that the Board ought not exercise its discretion to do so in the circumstances of this case. =.- :> I_ -” -4- .The principal ground advanced for the Employer's argument is that evidence of another job specification is irrelevant to a standards 'classification grievance case, and that the classification in dispute should be measured only against~ the relevant standards, which the Union had sought to do throughout the hearings of October 18 and November 4. The issue in the case is whether, as alieged by his grievance, Mr. Barnes' position had an "incorrect class- ification," which falls within ,the.provision in Section 18(2)(a) of the Crown Employees Collective Bargaining Act, enabling an employee to grieve "that his position has been improperly classified." It has repeatedly been held by this Board that in deciding a classification grievance we are limited to an assessment of what the grievor doesagainst (1) the relevant class standards and/or (2) the duties performed by another employee in a more senior classification. Early examples of this rule are Lynch 44/77 and Pretty 64177. More recently the approach has been explained in Beals and Cain 30/79 and in Wing 484/81. Ordinarily such evidence is adduced during the course of a hearing --- and before argument. In this case, however,, all the evidence had been heard and completed by November 4. The advertisement in "Topical" did not appear until November 5, 1988 and the Union was not aware'of it until after that date. In the circumstances we deem it proper to exercise our discretion in favour of the Union's application to admit new evidence relating to the position advertised on November 5. To assess the weight of such evidence is of course another matter. It will therefore be necessary to hold 'a further hearing limited to evidence and argument relating to the position advertised on November 5. The Registrar is requested to arrange a hearing date as soon as possible. Dated at Toronto this 9thday of February, 1983 EBJ:sol