HomeMy WebLinkAbout1985-0022.Townsend et al.88-07-12EMPLOY~S DE L4 COURONNE OEL’ONTARIO
CfJMMISSION DE
SETTLEMENT REGLEMENT
DES GRIEFS
0022/85
IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Townsend et al)
Before:
and
The Crown in Right of'ontario
(Ministry of Correctional Services)
G. Brent Vice-Chairman
J.D. McManus Member
W.A. Lobraico Member
For the Grievers: I. Roland
Counsel
Gowling and Henderson
Barristers and Solicitors
For the Employer: J.F. Benedict
Manager Staff Relations & Compensation
Ministry of Correctional Services
Grievor-s
Employer
Hearinp: May 3, 1988
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DECISION
The decision of this Board in relation to Mr. Townsend’s classification
grievance was released in 1987. Subsequently, a complaint was lodged on
behalf of the grievor that the Ministry has not complied with the board’s,
order.
In the period between the release of the award and the date of this
hearing, Mr. D. Middleton, the Employer Member who was a member of this
panel, died. Mr. W. Lobraico, an Employer Member of this Board, was assigned
to this panel to hear and determine the issues raised by the grievor in
connection with the allegation of non-compliance. When specifically asked if
there was an objection to the composition of the panel, the parties did not
object. We therefore accept that the parties have agreed that this panel is
properly constituted and can hear and determine the issues before it.
As we understand it, the Ministry has reclassified the grievor as an
Agricultural Worker 3. No new classification was created by the Ministry, and
the grievor was not reclassified as an Industrial Worker 2. The Ministry
revised the Agricultural Worker 3 classification specification by rewriting
the paragraph that used to read:
In other positions, these employees supervise a unit of
agricultural work at an institutional farm such as the landscaping
and/or gardening operation or the management of poultry and/or
livestock. In most positions as supervising gardeners, they direct
the operation of a greenhouse and hot and cold frames to provide
floral and/or vegetable requirements for the institution.
The new paragraph reads as follows:
In other positions, which may be non-supervisory, these employees
are responsible for a unit of agricultural work at an institutional
farm such as the landscaping and/or gardening operation and/or
operation of a greenhouse of an area of approximately 900 square
metres or the management of poultry and/or livestock.
It is not the function or responsibility of thi,s panel to interpret the
earlier award. We do not wish to engage in an explanation or explication Of
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the sort of “invitation” which was issued to the Ministry. Suffice it~to say
that the thrust of the earlier award and the finding that was made was that
the grievor was performing work which was virtually identical to that of
employees classified as Industrial Officer 2. The relief ordered was his
reclassification to a classification which would reflect this finding.
Quite clearly the Ministry has not done this. The only way in which it
could have complied with the award was’to have reclassified the grievor as an
Industrial Officer 2 or to have reclassified him in a classification in the
Agricultural Series which was comparable to and at the same level as the
Industrial Officer 2. It has done neither of those things.
Whatever “invitation” was issued to the Ministry, it was not to thwart
the finding that the grievor was doing essentially the same work as ~the
Industrial Officer 2. The effect of the Ministry’s action is to effectively
deny the grievor the relief granted him by this Board.
The Ministry’s logic in doing this is certainly questionable, since it
has always taken the position, and took the position at the hearing, that the
Board lacks jurisdiction to order it to create a new classification. The only
logical and reasonable response to the Board’s award in this case was to
comply with it by reclassifying the grievor as an Industrial Off$cer 2.
Having considered everything which was placed before us, it is our
decision that the Ministry has not complied with the Board’s award in this
matter. In view of the Ministry’s position regarding the Board’s jurisdiction
to order it to create new classifications, and in view of the Ministry’s
unsuccessful attempt to implement the Board’s award, we order the Ministry to
comply by reclassifying the grievor as an Industrial Officer 2 with appro-
priate compensation retroactive to a date twenty.days before the filing of
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the grievance as ordered in the original award. We will remain seized of the
matter for the purpose of assessing compensation should the parties be unable
to agree on compensation.
DATED AT LONDON, ONTARIO THIS-12ti:DAY OF July , 1988. -. _: .~,.
h -
C/
Gail Brent, Vice-Chairman
W, Lobrhdzo , Member