HomeMy WebLinkAbout1983-0117.Gaston.89-06-29EMPLOY& DE LA COURONNE
OEL’ONTAMO
CQMMISSION DE
REGLEMENT
DES GRIEFS
180 OUNOAS STREET WEST, TORONTO ONTAR10. U.54 125..S”ITES,W
,Bo. RUE O”NDA.9 OVEST. TORONTO. (ONTARIOJ MS0 US - S”RSA”S100
TELEPHO,.‘E/T&6PHONE
“‘“5w-qj-9f17,~3
IN TEE HATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYESS COLLECTIVE BARGAINING ACT
Before
TEE GRIEVANCE SETTLENENT BOARD
Between:
Before:
OPSEU (Thomas Gaston)
Griever
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
E.B. Jollfffe
I. Freedman
G.J. Milley
Vice-Chairperson
Member
Member
For the Griever: S. Goudge
Counsel Gowling & Henderson
Barristers & Solicitors
For the Employer: J.P. Benedict
Manager
'Staff Relations and Compensation
Ministry of Correctional Services
Eearinq: November 0, 1989
SECOND SUPPLEMENTARY DECISION
The background of this matter was explained by our first
supplementary decision, dated January 8, 1988, in which the first
paragraph said: “In respect of the penalty of dismissal imposed
on him, the grievance of Thomas F. Gaston was remitted to this
Board by the Divisional Court in its judgment of May 7, 1986.”
It was decided by the Board.(at page.91 that “the Grievor shall
be reinstated in a substantially equivalent position as of June
1, 1986, with compensation for his net losses as and from that
date.” It was further said that “if the parties fail to agree on
compensation, either may apply to the Board for a further
hearing .D
Unfortunately, the parties failed to agree on
compensation and it became necessary to hold another hearing on
November 8, 1988.
In brief, the Grievor’s employment history is as follows:
.(l) He served as a probationary Correctional Officer 1
at the Metropolitan Toronto East Detention Centre from June 21,
1982 to January 12, 1983, when he was discharged. Had he not
been discharged, he would --- in the normal course --- have
become a CO2 one year after hiring, i.e. on June 21, 1983:
2” -3-
(2) His discharge was made effective January 12, 1983;
(3) By order of this Board on January 8, 1988 (pursuant
to a Divisional Court judgment) he was reinstated with effect
from June 1, 1986, but by reason of subsections (4) and (5) in
Section 19 of the Crown Employees Collective Bargaining Act, the
reinstatement was not to be in his former position but in a
“substant i
March 14
(4) The Ministry re-employed the Grievor as and from
I 1988, at the Metropolitan Toronto East Detention
ally equivalent position.”
Centre, in the classification of a “Security Officer 2” but with
the same salary as a Correctional Officer 1, and with seniority
dating from June 1, 1986.
Testimony was given by the Grievor in considerable
detail about what he has been paid and what he claims ought to
,lations are set out by have been paid. The Ministry’s calcu
letters to the Grievor, Exhibits 2
reproduced on the next two pages hereof:
and 3. Exhibit 2 is
While we do not think it necessary to discuss all the
detailed calculations put before us, it appears that the
following issues must be resolved:
Ontario F~ulmlllt: (416) 231.3240 .
March 10, 1988
I
lil3 1 6 it
MAR 14 1988
Mr. Thomas Gaston &ncdfCj
c/o Superintendent
-7J. f, Iu..
Toronto East Detention Centre I H”!!eN RfSOIJtiCE~ MANAGEMtNs :
Dear Mr. Gestonr
~.. -..
This will confirm our telephone conversation of March 9,
1988 concerning your reinstatement pursuant to the decision rendered by the Grievance Settlement Board in G.S.B.
#117/83.
. . . . -a--. --..- . . ,.. “* As discussed, you were advised by me to report for duty at
the Toronto East Detention Centre at 0815 hours on Monday,
March 14, 1988. You .will be utilized in a cagacity which complies with the Board’s direction in G.S.B. #117/83 as
well as Sections 19(4) and 19(S) of the Crown Employees Collective Bargaining Act. You will be provided with an
orientation period and your hours of work will initally be
0815 hours to 1645 hours, with a half hour unpaid lunch
period.
The following new information is provided since our
con*ersation and relates to the issue of compensation
pursuant to G.S.B. #117/83. At the time of your dismissal
you were classified at the level, and in the capacity of
Correctional .Officer 1. At page 8 of the aforementioned,
Vice-Chairman Jolliffe( states; ‘when the Act refers to
“another substantially equivalent position,= it is
understood the salary payable must be approximately
equivalent to that of a correctional officer.” fin light.of
that direction, your reinstatement will be treated as
follows:
1. Although the position you will be occupying upon reinstatement will be classitfhieed as a Security
Officer 2 (by virtue of nature of the
responsibilities therein), you will be reinstated at the 1986 minimum rate for Correctional Officer 1 ($11.55 per hour), effective June 1, 1986.
2. Et fective January 1, 1987 you will receive the
revised minimum rate for Correctional Officer 1 of
$12.68 per hour.
* . . .
-3-
Page 2
Mr. Thomas Gaston
3.
4.
5.
Effec,tive June 1, 1987 you will progress to the
maximum rate for Correctional Officer 1 of $13.92
per hour. This action presumes a twelve month salary review from the date of reinstatement.
Effective January 1, 1988 you will receive the revised current maximum rate for Correctional Officer 1 of $14.55 per hour,
Thereaf te’r , G ou will continue to be paid at the maximum. rate of Correctional Officer 1, including any future revisions to that rate, until such time
as the maximum rate for Security Officer 2 surpasses the maximum rate for Correctional
,Officer 1 g
Ms. H. Capobianco, Area Personnel Administrator, will be
contacting you following your. reinstatement to arrange a j meeting with you, and your representative, for the purpose
of calculating the compensation for your net salary losses
for the period June 1, 1986 to March 14, 1988. I have provided Rs. regarding Capobianco with the affidavit you sent me your earnin.s -..&Mi.;g-ihT-6~~i5d “junb ‘~1 ;‘..lges tb’
December 31, 1988. It is ‘my understanding that you may be receiving U.I.C. benefits for the period January 1, 1988 to
date.
As discussed with you on March 9, 1988, your return to work
at this time does not signify your agreement to the aforementioned salary treatment and it is understood that
the issue of compensation may well be remitted back to the
Grievance Settlement Board.
I wish you luck as you rejoin the staff of the Toronto East Detention Centre.
Yours truly,
JFA. Wallen Regional Personnel Administrator
JAW: ac
C.C. Hr. R. MacDonald - Deputy Rinister
Mr. L. Crispino, Assistant Deputy Minister, Operations Mr. J. L. Main, Regional Director
Mr. G. Simpson, Superintendent, TEDC
Mr:J. G. Walter, Director , Human Resources Management Mr. R. Whitworth, Area Staff Representative, OPSEU
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(1) es the Board's direction correctly -- implemented
with the Griever's reinstatement as of June L 1986, as a --- -
Security Officer 2.1 -
In view of the fact that the duties of a. CO involve
daily contact with inmates, it is obvious that Section lS(4) and
(5) of the Act made it impossible to reinstate the Srievor in the
CO1 classification. We cannot find fault with the Ministry’s
decision to reinstate him in a different classification, that of
a Security Officer. Mr. Benedict has filed as part of Exhibit 9
the Class Standard for a Security Officer 2, as follows:
This class covers positions of employees who, in addition to duties ard responsibilities described at the first level in
‘this series, are required to man an electronically operated
security control centre, consisting of such equipnent as
control console(s), closed circuit T.V. system (CameraS and monitors) , video-tape recorders, etc., as part of their
regular duties, normally involving not less than 25% of their _~
total warking time. I
Since the above standard includes the duties of an Sol,
its standard must also be quoted:
Ihis Class covers positions of employees responsible for
guaygutq an assign+ area of provincial building and prOPertY unauthorized entry, fire, theft, flooding,
interruption to service of installed equiprent, etc. These
e@oYees make rcurds of the area, punching tima clock at
designated stations to record tours of inspection, secure windows ard doors, extinguish lights, check services and
equipnent for satisfactory operation, answer telephone and lX%sonal inquiries, relay massages, provide information or
directions, sign for deliveries and maintain records of persons and materials enteriw or leaving the area during certain hours.
,’ - 7 -
The duties are usually carried out on a shift basis ~with
instructions supervisor-on-call,
firefighters or EintZEZtaf f , as appropriate,
police,
in case of
unusual occurrences and to make reports on such occurrences to their supervisors. On occasions, when instructed to act
as security police officers, these employees have the
authority to enforce prescrib&maximum security measures in
a specifically assigned area.
l’hsy may also be required to carry cut a variety of such
other tasks as serving gas and oil, removing smr raisiq
an.3 lowering the flag, opsnirg offices for work,. assisting
With maintenance, operating fire-fighting eguipnent In
eoxgencies, performing janitorial duties, etc.
This level may also be used as the training level for prcbationary or seasonal employees assigned to positions
allocated to the second level in this series.
It is apparent that on their face the standards above do
not require direct contact with inmates; their behaviour in
certain locations is to be monitored by remote control, an
important part of So2 duties, i.e. when functioning at the
“electronically operated security control centre.” The Grievor
in his testimony made clear that in fact he has been performing
the duties of an SO2, as described in the standards quoted above.
Our opinion is that the Ministry made a serious effort to comply
with the Board’s direction by placing the Grievor in an SO
classification. That, however, is not the end of the matter.
(2) Was the Board's direction correctly -- implemented
when the Griever's salary was fixed as and from June 1, 1986 & -- - --- --
the minimum rate of a CO1 and as and from January - --e----p 1. 1987, at the
revised minimum rate of a CO11 ----
-8- , :z
The Grievor has pointed out that had he not be’en
discharged in January, 1983, his probationary year would have
expired on June 21, 1983, and he would have become a full-fledged
co2. However, on the date of his discharge he had served for six
months and 22 days, so that about five months and eight days
remained. He reasons that this ought to have been recognized in
the Ministry’s calculations and he concedes that the end of his
probationary year can be deemed to have arrived at or before the
end of December, 1986 --- actually in November, 1986.
Thereafter, he argues, he ought to be paid, not at the minimum
rate for a Cal, but at the rate for a CO2. In support of that
argument, he emphasizes that there is no other employee at the
M.T.E.D.C. classified as a Security Officer and that when he is
off shift his functions are regularly performed by a C02.
In our view, the Griever’s submission on this point is
well-founded. It cannot be said that he occupies a
“substantially equivalent position” to that he occupied in 1982
and early 1983, when he is to be indef initely denied the salary
of a CO2 while performing identically the same duties as CO2
employees who happen to work different shifts. We do not
question the decision to calculate his pay at the CO1 rate from
June 1 to December 31, 1986, but his pay thereafter should be
calculated at the CO2 rate. It would not be logical to treat his
initial entitlement to be at the CO1 rate for one period, but not
at the CO2 rate in subsequent periods. When it was indicated in
Exhibit 3 that his pay would “continue” ,to be paid at CO1 ~levels,
there can be no doubt that instead of being in a “substantially
-9-
equivalent” position he was to be regarded as ,occupying a
position much inferior to that of his peers among CO2 employees.
We do not think this is consistent with either the Divisional
Court judgment or the Board’s direction. In short, his
entitlement ought to have been calculated from January 1, 1987,
at the minimum level of a CO2, and at the appropriate CO2 levels
thereafter.
We cannot agree -with the Ministry’s view that the
Grievor’s probationary period of 12 months ran from June 1,
1986. This was not “substantially equivalent” treatment. As
previously indicated he had served as a probationary employee
from June 21, 1982, to January 12, 1983. In accordance with his
concession, we find that his probationary period must be deemed
to have expired by December 31, 1986, and thereafter he became
entitled from time to time to the appropriate CO2 levels. When
other officers performing the same functions are paid at those
levels, it is necessary that the Grievor receives “substantially
equivalent” treatment.
(3) Was the Board's direction correctly implemented &I
related matters?
We cannot agree with statements on page 2 of Exhibit 3,
which is a letter to the Grievor from the Area Personnel
Administrator, dated March 23, 1988.
- 10 -
Ms. Capobianco said the Griever’s “continuous service
date” would be “June 1, 1986” as also would be his. “pension
credit date” .and his “benefit credit date’.” For reasons already
indicated, the dates of these three should be June 21, 1982. The
Grievor was not a new employee as of June 1, 1986.
The Area:Personnel Administrator also said.the Griever’s
“regular staff appt. date” would be June 1, 1987. The date
should be January 1, 1987, for reasons previously stated. The
date chosen, June 1, 1987, was based on the theory that the
Gr ievor was a new employee, hired on June 1, 198.6, which is not
correct. He was retroactively reinstated as of June 1, 1986,‘and ---
his probationary year expired before January 1, 1987.
Counsel for the Employee referred to Article 25 of the
Collective Agreement which defines “an employee’s length of
continuous service.” It is true that such service will
accumulate “upon completion of a probationary period of not more
than one year.. .” Thus it did not’accumulate in the Griever’s
case until he completed his probationary year at or before the
end of 1986. Nevertheless, it had commenced under.Article 25.1
(b) when he was hired in June, 1982, and his service thereafter
was “unbroken” because it was never lawfully terminated. Article
25.4(b) makes clear that continuous service shall be deemed to
have terminated if an employee is dismissed (as the Grievor was)
unless “such dismissal is reversed through the grievance
procedure,’ which is exactly what resulted from the judgment of
the Divisional Court.
- 11 -
It was the Court’s view, implemented by this Board, that
although the Grievor had a certain degree of guilt, discharge was
not the proper penalty. It is for this reason that his service
must be deemed to have been resumed on June 1, 1986, the
effective date of his reinstatement, and not on March 14, 1988,
when he was actually called back to work, or on June 1, 1987, as
the Ministry ,seems to suggest.
In her letter of March 23, 1988, Exhibit 3, Ms.
Capobianco said:
The attached calculations will however be forwarded to the
payroll section for processing, Should the Grievance
Settlement Board decide you are entitled to additional
znsation we will muend ycur records accordingly at that
.
With another letter , Exhibit 4, dated April 15, 1988, -I
Ms. Capobianco attached revised particulars of her calculations,
.including pay, shift .premiums, holiday credits, vacation credits,
overtime and interest, and also specifying deductions to be made
for employment earnings, U.I.C. benefits and deductions required
by statute. On his part the Grievor filed his own calculations
in respect of each item, some of which suggest that arithmetic
errors had been made by the Area Administrator in favour of the
Griever and others in favour of the Employer.
All such calculations should now be reviewed and amended
by the responsible Personnel officers to conform with the !
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findings explained earlier in this decision. .As for the
arithmetic errors, if any, they can be corrected in the course of
the review.
We should add, however, that we do not think the
Employer’s calculation of lost overtime was unreasonable.
Moreover, we do not accept the Grievor’s contention that he was
entitled to 2080 hours of work per annum. Article 7 of the
Agreement does not specify “annual” hours; it speaks only of
normal weekly and daily hours. On the other hand we agree with.
the Griever’s contention that the interest item ought to have
been calculated by reference to 22.5 months rather than 21 months
--- a contention not seriously challenged by the Employer.
In his argument, Mr. Benedict cited the reasoning, of
Professor Swinton, who wrote the Board’s supplementary “award” in
Travers 79/79 and 213/78. He said the Ministry has been guided
by the principles enunciated in that case. It seems to us that
in this case the Employer has indeed tried to apply consistently
what was said in Travers. Nevertheless, Prof. Swinton was
careful to point out that the application of Section 19(4) in the
Act “will always have to be tailored to fit the circumstances of
the case,’ pages 1 and 2. Similarly it was said at page 6 that
“this award will be by no means exhaustive as to the parties’
obligations and rights under s.l8(3a)” --- which is now Section
19(Q) --- “nor should it be, as the application of the subsection
must vary with the facts of each case. All that we can hope to
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do, is to elaborate some guidelines which may assist in the
resolution of other cases...”
In Travers the Board considered the Employer’s~ offer of
a Clerk 3 General position at the Mimic0 Correctional Cent,re, and
also existing vacancies at the same level in the Niagara and
Hamilton Wentworth Detention Centres. The Board also considered
the Control Module Operator’s job at Niagara, but rejected that
option for the reasons stated at pages 8 and 9 of the decision,
particularly “because it would require the employer to fashion a
new position for the grievor.”
In this case, however, we do not think that such a
problem arises. Although the Griever’s work has been
“classif ied” in the SO series, not the CO series, the fact is
that in all but name the position already existed when the
Grievor was called back to work. The evidence is clear that the
duties required were and are regularly performed by CO2’s. When
the Grievor is on the day shift or the afternoon shift, the
Control Module is manned by himself and one other officer, a CO
2. When he is on the night shift he works
there the same work is done by one or more
is no need for any physical contact with i
are often under electronic surveillance.
other officers are called.
alone. When he is not
CO 2 officers. There
nmates, although th:ey
If trouble develops,
Mr. Benedict argues that the Grievor is thus not
required to perform all the duties of a CO. This is true and it -
- 14 -
would also be true of a CO2 assigned to work the night shift
alone. We do not find the argument convincing, since there are
many .positions in the public service where incumbents are never
called on to perform all the functions described in ,their class -
standard or position specification. As for the element of risk,
it may be greater for officers assigned to other duties, but
experience has shown that in a penal or correctional institution
there is a certain potential risk for every employee in the
institution, whether male or female, as well as for the inmates
themselves.
In Travers, the board eventually decided, for the
reasons it gave, to adopt “a compromise position.” In that case
the Grievor was reinstated as a Clerk 3 General at Hamilton-
Wentworth D.C. at the rate of pay for a CO2 of his experience and
was to remain at that level “until the maximum pay level for the
Clerk 3 General reaches it,” and thereafter was to be paid as a
Clerk’ 3 General, That solution undoubtedly inspired the
Ministry’s proposal in this case (as stated at page 2 of Exhibit
2) that:
. ..you will contime to be paid at the maximum rate of
Correctional Officer 1, including any future revisions to
that rate, until such time as the maximmn rate for Security
Officer 2 surpasses the maximum rate~for Correctional Officer
1.
The difference between Travers and this case is that
Travers was to begin and continue doing the work of a Clerk 3
General, but this Grievor (since his reinstatement) has been
- 15 -
doing the same work as other officers do in the Control Module.
His classification may have a different name, but the work is
normally done by other officers classified as C02. We are
obliged to agree with Mr. Goudge’s argument that the rate of pay
should correspond with the duties performed. This Grievor is not
performing the duties of a Clerk 3 General or a COl: his duties
are the same as those of any CO2 assigned to the Control Module.
We take this view’notwithstanding the fact that salary levels in
the SO series are lower than in the CO series.
Mr. Benedict has suggested that once the Board’s
direction “has been met by reinstatement there’s no further
jurisdiction. If the treatment is unfair, he can grieve under
Article 4.” The difficulty with this suggestion is that in our
decision of January 8, 1988, the Board directed reinstatement to
a substantially equivalent position (after a lengthy suspension
without pay) “with compensation for net losses as and from June
1, 1986,” and further (at page 9) explicitly reserved
jurisdiction by stating that “if the parties fail to agree on
compensation, either may apply to the board for a further
hearing . ” Obviously, reinstatement and compensation are
inextricably connected and one cannot be severed from the other.
The Board has found herein that the Grievor was duly reinstated
in 1988, in the sense that he was called back to work, but the
matter of his compensation , which is vital in considering whether
his position is “substantially equivalent,” remained unsettled
and led to a further hearing. Mr. Goudge gave qualified
approval to the reinstatement itself, but claimed it was not
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really . equivalent to the former position because .the Griever 1s
barred from promotion or even transfer. This is an issue beyond
our jurisdiction. The Board has authority to direct when deemed
appropriate a reinstatement but'there is no power to dictate the
future couK*e of the Grievor's career. Even in cases where
Section l9(4) does not apply, a reinstatement.carries with it no
assurance that the reinstated employee will ever qualify fOK a
promotion or a transfer. He may or may not do so. If this be a
form of "discrimination," as Mr. Goudge suggests, it is far
beyond our control.
The scope of the questions discussed herein does 'not
lend itself to a summary of what has been decided. On a careful
reading, however, it should be possible for the parties to
determine the amendments necessary to the detailed calculations
appearing in Exhibits 2 and 3. If, however, it seems again
impossible to agree on the details, the Board is ,prepared to
convene again at the request of either party and expressly
reserves its jurisdiction to resolve any remaining differences in
respect of compensation.
Dated at Rockwood, this R.g'Kh
day of IU,,e~, 1989
~4fW?,
-E.BY---Y 'Jolliffe,~ Vice-Chairperson
7 I
./
Lz CL i 1
'I. Freedman, Member
"I dissent" (Dissent attached)
G.J. Milley, Member
DISSENT Re: Gaston 117/83
I have reviewed the majority decision in
and, with respect, I find I am unable to
colleagues' conclusions.
the above matter
agree with my
The core of their rationale is articulated on page 8 of the
award where they say:
"In our view, the Griever’s submission on this point
is well-founded. It cannot be said that he occupies
a "substantially equivalent position" to that he
occupied in 1982 and early in 1983, when he is to be
indefinitely denied the salary of a CO2 while performing
identically the same duties as CO2 employees who happen
to work different shifts. We do not question the decision
to calculate his pay at the CO1 rate from June 1 to Dee- .
ember 31,1986, but his pay thereafter should be calcul-
ated at the CO2 rate. It would not be logical to treat
his initial entitlement to be at the CO1 rate for one
period, but not at the CO2 rate in subsequent periods.
When it was indicated in exhibit 3 that his pay would
'continue' to be paid at CO1 levels, there can be no
doubt that instead of being in a 'substantially
equivalent' position he was to be regarded as occup-
ying a position much inferior to that of his peers
among CO2 employees. We do not think this is consistent
with either the Divisional Court judgement or the
Board's direction."
I could accept that the grievor be credited with the six months
from June to December. However, I have the greatest difficulty
with the proposition that once he completed his probationary
year, he is automatically entitled to the CO2 rate. The uncont-
radicted evidence of the Employer is that to progress from CO1
to CO2 there dare, in addition to serving the probationary
period, other particular mandatory requirements:
(a). Complete successfully the prescribed staff training course
and,
(b) Exhibit acceptable performance during your probationary
year
"you must also realize that, during your probationary year
pase 2
you may be called upon to do varied duties related to the
Correctional Officer's position".
Again, with respect to (a), the evidence is that the grievor
did not at any time complete the prescribed staff training
course. With respect to (b), it can hardly be said that a
probationary peried interrupted by a three year suspension
for misdemeanour is acceptable performance.
Finally, the grievor during the six months following his re-
instatement could only be called upon to do a limited number
of varied duties related to the Correctional Officer position
because of the restrictions placed upon him by Section 19 of
the Crown Employees Collective Bargaining Act.
It is evident, therefore, that even though the grievor had
completed a year's serv4ce by January 1,1987, he failed to
fulfill the requirements leading to CO2 classification and
as such, could not be entitled to the CO2 rate.
The majority report also parenthetically decries the situat-
where the grievor is indefinitely denied the CO2 salary while
performing identically the same duties as CO2 employees on
different shifts,in the Control Module. He should, they say,
be paid the same rate as they are. But , how sound is this
contention? Surely, the fact that two employees do identical
work does not necessarily mean they are entitled to the same
rate. There are other considerations involved. The very first
paragraph of the Class Standard says qualfffed Correction
Officers “May be assigned to any functional area in the
institution, either on a long term basis or as dictated by
day-to-day needs". Thus, while a qualified CO2 may be working
in a Control Module today, he may well be working elsewhere
.
paoe 3
tomorrow. The'grievor, on the other hand, does not meet the
qualifications of a C02, he is unable, by virtue of his res-
trictions, to associate with the inmates and is confined to
a work shift in the Control Module only. Pay rates are
predicated on Class Standards. If the grievor is unable to
fulfil the requirements of the Class Standard and and is
unable to service the inmates - the primary function of any
Correctional Officer - one has to be somewhat imaginative to
contend he is entitled to the CO2 rate.
A reference is made, on page 8, to the fact that instead of
being in a "substantially equivalent" position, the grievor
was to be regarded as occupying a position much inferior to
that of his peers among CO2 employees. That this is inconsistent
with either the Divisional Court Judgement or the Board's
direction. With respect, the term "substantially equivalent"
does not appear to have been interpreted, heretofore, as
requiring a correlation with the position of one’s peers.
Rather, it has been in relation to the rate of pay he was
receiving at the time of h is dismissal. Nor, can I find any
reference to the griever's peers , either in the Court Judgement
or the Board's direction.
The award distinguishes itself from Travers on the basis that
this grievor is doing the same work as other officers in the
Control Module while Travers was re-instated as a Clerk 3
General. However, the principles involved in Travers and
the instant case are the same. Travers was re-instated on
a red circle rate as was~done in the case of the grievor.
It is also significant that my colleagues dismiss the potential
risk in a Correctional Institution as being &op~n8drrtor~C02'8
but that it is applicable to other employees as
in contrast to the Travers case which states:
pase 4
well. This is
"It is relevant to consider that a portion of the Corr- ectional Officer 2 salary reflects a premium paid for
dangerous work (similar to the $1000 premium paid other
Ministry Employees with inmate contact). A person acting
as a Clerk 3 General is not subject to hazardous condit-
ions. As well, part of the higher salary may reflect the
rotating shift aspect of the Correctional Officer 2 job.
. . . He is guaranteed his previous salary as of the date
of re-instatement."
Nor nas the present grievor subject to dangerous work as he
was confined to the Control Module and not permitted to inter-
act with the inmates. He too, was guaranteed his previoue
salary as of the date of re-instatement.
Again, in Re: Thibert,McGill and Junq and in Re: Karl Van't
Hullenaar the danger pay principle was recognized as was the
red circle rates for the re-instated grievors. This same
procedure was followed here.
The current award flies in the face of previous awards and
adds a new dimension to the meaning of the words qsubstant-
ially equivalent: a dimension which says the re-instated
grievor must not only be paid his previous salary on re-
instatement but, in addition, must have his rate increased
to correspond with that of his peers doing the' same work.
With respect, I must reject this new interpretation. If there
is a problem with the rate of the Security Officer in the Con-
trol Module (and there is no evidence there is), then I would
suggest it ought to be pursued through other channels rather
than the re-instatement procedure of a dismissed employee.
Respectfully submitted,