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HomeMy WebLinkAbout1985-0891.Bahl et al.89-10-16c ~ 3; ONTARIO EMPLoYtsSDELA CO”RONNE CROWNEMPLOYEES DEL’ONTARIO GRIEVANCE COMMISSION DE SElTLEMENT RkGLEMENT BOARD DES GRIEFS IN THE HATTER OF AN ARBITRATION Under TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Bahl eta al) Grievor - and - The Crown in Right of Ontario (Ministry qf the Attorney General) Employer ~Before: J.W. Samuels Vice-Chairperson I. Thomson Member L. Turtle Member For the Grievor: A~. Ryder Counsel Ryder, Whitaker, Wright and Chapman Barristers & Solicitors For the Employer: B..Bowlby Counsel Hicks Morley Hamilton Stewart Stor~ie Barristers & Solicitors Hearing: September 21, 1989 INTERIM DECISION 2 We issued an award in this matter on March 24, 1987. The Union claims that our order was not implemented properly and has asked us to reconvene. This award concerns various preliminary objections raised by the Ministry when we reconvened. The eight grievors are all the Warrants and Claims Clerks in the Travel and Claims Section of the Finance Branch of the Ministry of the Attorney-General. They were classified as Clerk 4 General. On August 21, 1985, they grieved that they ought to be Clerk 5 General because the Senior Clerk in their office, Ms. A. Moore, was a Clerk 5 and the grievors said they did essentially the same work as the Senior Clerk. Our hearings took place on October 9 and November 19, 1986, and February 18, 1987. As we have said, our award was issued on March 24, 1987. In the award, we found that the grievors did do substantially the same job as Ms. Moore and we said that, therefore, they ought to be classified as Clerk 5 General. On pages 12-13 of the award, we wrote: ! : . . ..in our case, it would simply not .be reasonable to find that the grievors do substantially the same work as Ms. Moore, yet leave them in a lower classification, with lower wages, than Ms. Moore. The whole purpose of a classification system is to ensure that employees doing the same job are classified and paid the same. In sum, the Union has demonstrated that the grievors perform substantially the same job as Ms. Moore. Ms. Moore is classified-as a Clerk 5 General. The grievors ought to be classified ‘as. Clerk 5 General. Now with respect to retroactivity, the grievances were filed on August 21, 1985, but ask for retroactive pay back to January 1, 1983. We heard nothing to e$ain why the grievors failed to make their claim in 1982 when the reorganization which cause,d then problem : . 3 occurred. As far as we know, the grievors did not make their claim until the grievances were filed. In these circumstances, there is no reason to grant a remedy beyond 20 days before the grievance was filed . . . . . . . Thus, we order that the grievors be reclassified to Clerk 5 General, and that they be compensated for lost wages and benefits back to August 1, 1985. And we will retain our jurisdiction to determine any matters arising out of this order, should the parties not be able to ’ agree upon this themselves. We were not aware, when we issued this earlier award, that the grievers and Ms. Moore had been, reclassified already under the new OAG system. In November 1986, before our last day of hearing, the grievors were informed that they had been reclassified to OAG 8, effective December 31, 1985, and they had immediately filed new grievances against this classification because Ms. Moore had been reclassified to an,OAG 10. Neither party had thought fit to inform the Board of these developments before we heard the last evidence and argument and issued our award. Thus, when we said that’the grievbrs ought to be classified as Clerk 5 General, we were talking about a classification which had already been _, abolished in their office, because their office was now entirely reclassified under the new OAG system. The grievors could have been Clerk 5 ,. General only from August 1, 1985 (being 20 days before their grievances ., were filed) to December 31, 198.5 (being the effective date of their reclassification under the OAG system), a period of.five months, whereas our clear~.intention was to determine the.grievor’s appropriate classification from August 1, 1985 up to the date of our award. -,. After our award was issued, the grievors were told that they would be treated .as if, they were Clerk 5~ General immediately before their reclassification to OAG 8, and since the salary level of the Clerk 5 was higher than OAG 8, their salaries would be red-circled until the OAG 8 , 4 maximum exceeded the 1986 Clerk 5 salary. They would remain classified as OAG 8. Thus, they would remain behind Ms. Moore. The Union says that this is a violation of our eariier award. The gist of our award was that the grievors were doing the same work as Ms. Moore and therefore ought to have the same classification as she did. Thus, the Union claims now’that, in order to implement our earlier award, the Ministry must reclassify the grievors as OAG 10, so that they will have the same classification as Ms. Moore. The Ministry argues that our earlier award could deal only with a claim under the old classification system. The grievors had requested reclassification to Clerk 5 General, and we could not entertain a claim to a classification under the OAG system. Article 27.11.2 of the collective agreement provides that, when a classification grievance is filed, the Board shall be limited to “(a) confirming that the grievor is properly classified in an existing classification, or (b) finding that the grievor would be properly classified in the job classification which he claimed in his grievance”. But, in our view, this limitation has been overturned by the courts in the judicial reviews of Berry, 217/83. In Berry, the Board (a panel chaired by the same Vice-Chairman who now has the’p&ilege to write this award) found that the grievors were not properly classified in their existing classification, but would also not be properly classified in the classification requested. So the grievances were dismissed. This decision was appealed to the Ontario l%visional Court, which overturned the award in a decision ~. dated March 13, 1986. Mr. Justice Reid held that the governing provision was section 18(2)(a) of the Crown Employees Collective Bargaining A~ct, which gives an employee the right to grieve that his position has been improperly classified. The collective agreement cannot limit this right. Pursuant to section 1.9~..of, the- &t,Fthe;~-E-o.ard is to’ “decide%e iii%eF’, and I ;.. 5 the matter grieved was improper classification. The Board’s jurisdiction is unrestricted. Its mandate is remedial. (See page 20 of the decision, found at (1986), 15 Ontario Appeal Cases 15.) The Court ordered that management must create a classification which is appropriate. Following this judgment, management did take certain action and the matter came back to the Grievance Settlement Board before a panel chaired by Mr. Verity. This later history his not relevant for our purposes here. What is critical is the Court’s instruction to this Board to “decide the matter”, and to remedy the aggrieved situation. The Ministry goes on to argue that the new OAG system determines classification based on a different range of factors than the old classification system. That OAG considers more than job duties. Our previous award was based on the similarity of job duties between Ms. Moore and the grievors, and did not take into account the full range of factors now to be considered under OAG. The parties did not introduce evidence or argument concerning classification under OAG. In our view, there is some merit in the Ministry’s point. Suppose, for example, that our earlier award had been in 1983. Thereafter the grievors would have had the same classification as Ms. Moore until December 31, 1985, when OAG was ~introduced. Upon the introduction of OAG, every employees would be reclassified according to the OAG factors, and it’may have been the case that Ms. Moore would wind up with a different classification from the grievors. The introduction of the OAG system has changed the rules for classification. We know now that the OAG situation should have been put before us by the parties before we issued our earlier award. In order to provide for effective implementation of our award, in light of the introduction of the OAG classifications before we had concluded the hearing and issued our 6 award, we will reopen our hearin, 0 in order to entertain evidence and argument concerning the new factors which must be considered under OAG. However, we will not reopen our findings in the earlier award. In particular, we found that the grievors were doing substantially the same job as Ms. Moore, and that finding stands. The onus is on the Ministry to show that there are new factors to be considered which would make a difference in this case once OAG is introduced.. The Board will not proceed with the 1986 grievances filed after the introduction of OAG. For the time being, they will be subsumed under our proceedings. We have agreed to reconvene on November 14,1989. Done at London, Ontario, this 16th day of October, 1989. I. J. Thomson, Member .i: L. Turtle, Member , _. --.i ‘. -