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HomeMy WebLinkAbout1984-1413.Stipe.89-09-21EMPLOY~SDE LA CO”RONNE DEL’ONT.4RIO CQMMISSION DE SEllLEMENT REGLEMENT DESGRIEFS IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Stipe) - and - Grievor The Crown in Right of Ontario (Ministry of the Environment) Employer R.J. Delisle I. Thomson A. Stapleton Vice-Chairperson Member Member For the Grievor: For the Employer: Bearing: July 25, 1989 N. Roland Counsel Cornish & Associates Barristers & Solicitors M. Milich Staff Relations Officer Management Board of Cabinet AWARD By an award dated April 21, 1988, this Board ordered that the Ministry create a classification for the grievor; Stine, 1413/84. It had been determined that his classification as Waste and Water Project Operator 2 was inappropriate and that the existing classification schemes were inadequate to the thermal sewage processing facility in which the grievor operated. At this hearing the grievor seeks the resolution of three matters. The grievor complains that the Ministry has failed to comply with this Board's earlier order and seeks a new order to comply within thirty days. Second, the grievor seeks a lump sum payment of monies as an interim measure pending the final resolution of his grievance. Third, the grievor seeks an order that interest be paid on all retroactive pay to compensate the grievor fully. With respect to the first matter the Ministry maintains it is a moot point. The day before the hearing new class standards were completed and all authorizations gained save and except for approval by the Civil Service Commission. Counsel for the Ministry stated that the Ministry would be seeking that approval within the week. The grievor notes the passage of fourteen months since the first order of this Board and asks for an order with a time limit to impress on the Ministry the need for action. Although this Board recognizes the need for time to create a new classification the griever's position has merit and the employer has not led any evidence to persuade us to the contrary. Therefore, following the 3 example of this Board in Fenske, 494/85 (Verity, September 23, 1987), we do order that the Ministry gain the necessary approval of the Commission and create the new classification within thirty days of the issuance of this award. The second matter of relief sought, a lump sum payment, is denied. The Collective Agreement provides: 5.8 When a new classification is to be created or an existing classification is to be revised, at the request of either party the parties shall meet within thirty (30) days to negotiate the salary range for the new or revised classification, provided that should no agreement be reached between the parties, then the Employer will set the salary range for the new or revised classification subject to the right of the parties to have the rate determined by arbitration. Determining the salary range resulting from the new classification is a matter for negotiation between the parties. If the parties cannot agree the rate will be determined by arbitration. Only then could it be determined the amount of retroactive pay to which the qrievor may be entitled. Counsel for the grievor, on his reading of our earlier award, believed that we could easily fix an amount to which the grievor was minimally entitled. At the earlier hearing the grievor sought the classification of Steam Plant Engineer 3 (G4 Salary Note). The Ministry resisted and maintained he deserved to be classified only Steam Plant Engineer 2. Counsel for the grievor reads the award to say that the Board decided that the qrievor was entitled at least to the classification that he sought and therefore we could apply the differential between that wage and the wage that was received by the qrievor as a Waste and 4 Water Project Operator 2 with retroactivity to twenty days before the date when the grievance was filed, December, 12, 1984. The award, however, does not bear that reading. The award states: . ..we concluded that the operation, which produces steam simply as a byproduct of its main reason for being, is considerably more complicated than a Steam Plant and that the griever's duties decidedly more complex than those of a Steam Plant Engineer. . . .we are persuaded that the classification sought, Steam Plant Engineer 3, is inappropriate and we are also persuaded by counsel for the qrievor that the entire classification scheme, Steam Plant Engineer Series, is inadequate to this unique operation at Lakeview. The Board found that the Lakeview Water Pollution Control Plant is not a Steam Plant. Its reason for being is to incinerate sludge produced from sewage treatment. The steam generated is a byproduct. That is why we decided that the Steam Plant Engineer Series was inadequate to be used to classify the qrievor's job. The award did not decide that the grievor was entitled to a certain minimal increase in classification level and to a wage rate equal to a Steam Plant Engineer (G4 Salary Note). Accordingly, the attractive simplicity of the qrievor's argument in favour of an interim down payment disappears. Article 5.8 of the Collective Agreement posits a negotiation between the parties over the appropriate new wage rate and, at this stage, we ought not to intrude ourselves into that process. The griever's argument regarding interest on the retroactive pay due the grievor is less cogent given our decision 5 to refuse a lump sum payment. However, we are of the view that should retroactive pay be found owing to the grievor, such retroactivity should be, according to the normal rule, to a date twenty days prior to the date of filing the grievance and that interest be payable thereon. As in Boner, 1563/85 (Kates), we believe that the award of interest is predicated not on any mala fides in the employer but rather on the necessity of making the grievor whole for any losses incurred as a result of the employer's mistaken application or interpretation of the collective agreement. We have determined that the grievor was improperly classified by the employer and therefore any retroactive pay due him deserves to bear interest from the date of the mis-classification, i.e. twenty days prior to the date of filing the grievance. The Board will remain seized pending the implementation of its award. Dated at Kingston, this 2ls.t day of Sept..1888. R. J. Delisle, Vice-Chairperson I. J. Thomson, Member A. Stapleton, Member