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HomeMy WebLinkAbout1985-0314.Dickie.86-07-31Between Before: 0314185 .- \ IN THE MATTER OF AN ARBITRATION : - Under - i, ,, - . ~. . *THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT :-:>iy i L ,.,! ;:j=; :b THE GRIEVANCE SETTLEMENT BOARD OPSEU (J. Dickie) - and - The Crown in Right of Ontario (Ministry of Health) Grievor Employer E.E. Palmer, Q.C. Vice-Chairman R. Russell Member G.A. Peckham Member For the Grievor: Ms. Sandra laycock Grievance Officer Ontario Public Service Employees Union For the Employer: Ms. Leslie McIntosh Crown Law.Office, Civil Ministry of the Attorney General Hearing: DECISION 2. The present arbitration arises out of a grievance filed by Mr. G. J. Dickie on 4 April 1985, alleging he had been improperly denied merit increase effective 1 February 1985. Consequently, he wished to have thiamerit increase put into effect in a retroactive manner. This matter was not settled during the grievance procedure in effect between the parties and, accordingly, the present arbitra- tion was necessitated'? In relation to this matter a hearing was held in Toronto, Ontario, at the office of the Grievance Settlement Board on 12 May 1986. At that time the Employer indicated~that it was their view that the present matter was not arbitrable. Initially, the parties set out an agreed Statement of Facts which should deal with much of the evidence in this matter. The relevant parts of this read [see Exhibit III: AGREED STATEMENT OF FACTS 1. . Mr. Dickie was hired on July 26, 1972 as a Psy- chiatric Nursing Assistant at the Penetanguishene Mental Health Centre. 2. He was successful in a competition for and was pro- moted to the Nurse II General classification, at the minimum salary range for that classification, effective January 24, 1980. 3. His anniversary date was established as February 1st. His position is in a classification for which annual one step increases may be provided. 4. Mr. Dickie received annual one step increases on February 1, 1981. February 1, 1982, February 1, 1983, and February 1, 1984. 5. Mr. Dickie was on sick leave with pay from January 12. 1984 to May 7, 1984 .(115 ,calendar days). 6. The Grievor's anniversary date was deferred until May 1st. . 3. 7. A copy of the Employer's policy with respect to one step increases is attached as Schedule A. [the details of this policy are not set out at this time.1 0. A copy of the Employer's policy with respect to Employee Benefits is attached as Schedule B. [the details of this policy are not set out at this time.1 9. A copy of an excerpt from.the Employer's Benefits Administration Manual is attached as Schedule C. [the, details of this policy are not set out at this time.1 Additionally, certain verbal testimony was solicited at 'the hearing. This can be set out rather briefly. Thus, for the Union, the grievor, Mr. Dickie, was called and identified a Performance Appraisal dated 10 October 1984, such appraisal covering his activities over the previous year. Additionally, the Union called Mr. M. Brunelle, who was employed as a Registered Nurse at the Mental.Health Centre at Penetang since 1972. Mr. Brunelle was the Vice-President of the Union and a Union steward. Basically, his testimony went to the fact that he could not recall similar issues arising before the present one, al- though two more had occurred after Mr. Dickie's grievance. He indi- cated, however, that such might not have come to his attention. For the Employer, ,the only witness called was Mr. J. Callas, the Regional Personnel Administrator for the Ministry of Health. His jurisdiction covered the area in question and he had been in this position since 1972. He disputed the earlier~testimony of Mr. Brunelle and indicated that similar situations to that which applied to Mr. Dickie had occurred. In this regard, he gave the example of Peggy Emory in the Nursing Department tiho had an extension from 1 April 1983 to 1 September 1983 due to absence on sick leave. Simi- larly, he indicated that a Michelle Harrison was also extended from r . . 4. i.. ~.. :. I ~. .,I .A :_:. : 1 August 1982 to 1 October 1982 for the same reasons. pgain, he agreed'there had been several instances since the time of this grievance.'where the similar situation had occurred. Mr. Callas also discussed the way in which merit increases are dealt with. Basically, it was his view that these were done on an annual basis or sooner. However, where there was an excess of 60 days absence, there was a deferral. Flowing from the foregoing, the parties presented their argument in this matter in relatively brief form. Essentially, the case for the Union was that neither Article 25 nor Article 51 of the collective agreement touch on the issue in question; rather, it was their position that the parties have negotiated semi-annual benefits and that these are contained in the wage schedules. Thus, turning to the sections in the Employer's Policy with resepct to Benefits; an analysis is made of these matters.' Specifically, it was urged that these documents indicate that where an employee's activities are satisfactory during the year, they are to be given the-appropriate benefits. Again, in situations where leaves of absence are to affect. the effective date of such payments, sick leave is not enclosed. Indeed, the only part of the Policy Manual, which touches on this matter, in the opinion of the Union, is not one to which employees have access and does not form an integral part of that document. Thus, it was urged that the Employer must pay as required. To do as'they did in this case, such rules must be brought to the attention of the employee and;further, they must not CbnfliCt with the existing collective agreement. Finally, the Union noted that in this situation, a* argument relating to estoppe.1 ) ‘,‘.~ ‘; ,,~ ..” ~,.. .i >~( :; ,,:,;:: ; ,,:.:: ::,~ ~. 5. can be made as employees must know where they stand in these matters before. any action is taken. Attractive though the foregoing may seem, the Employer raised a point which goes directly to the jurisdiction of this Board and, in our opinion, is a complete answer to it. Thus, in the Crown Employees Collective Bargaining Act, R.S.O. 1980, c.109, s.18(1), it reads: 18. (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of ~positions; and (bl merit system,. training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent. and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. Clearly, the foregoing indicates that the "merit system" is something which is a “exclusive function of the employer to manage.," Further, the final words of that section appear dispositive of the 'present matter, i.e., that "such matters-will not be the subject of collective bargaining nor come within the jurisdiction of a board3 In this regard, reference must had to Section l(l)(c), which clearly indicates that the word "board" covers the present board of arbitra- tion which is established pursuant to this Act. Obviously, the request of the Union asks us to determine the way in which the Employer has managed the merit system which is established. This, in our opinion, is something we cannot do. All the right the Union 6. has with respect to this system is to have the ability to review "the governing principles" of this plan with the Employer. Having concluded that this is the case, it is unnecessary for the Board to go further. Indeed, given the foregoing legisla- tion, it would seem improper for us to comment further on this matter. Accordingly, this grievance is dismissed. DATED at Lynden, Ontario, this 31st day of July, 1986. E. E. Palmer, Q.C. “I dissent” (Dissent to follow) R. Russell G. A. Peckham