GSB#2016-1730

UNION#2016-0411-0020

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Fusco)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Brian P. Sheehan

Vice-Chair

FOR THE UNION

Dan Sidsworth Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Ann Fowler Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor

HEARING

June 6, 2017

Decision

1The Employer and the Union at the Ottawa-Carleton Detention Centre agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Vice-Chair with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement; and it is without prejudice or precedent.

2The facts in this matter are not in dispute.

3The grievor is employed in the position of a Psychologist 1 at the Ottawa-Carleton Detention Centre.

4The grievor’s start date with the Employer was November 12, 2013.

5The written offer of employment to the grievor was dated September 16, 2013, and provided as follows, regarding the rate of pay for the grievor:

Your position is full-time at 36.25 hours per week and is classified at 09380- Psychologist 1 level. The current salary range for this classification level is $1,474.27 to $1,892.04 per week. Your starting salary will be $1,474.27 per week. You have an annual salary review date of November 1, 2014 to allow for salary progression through the pay range. Eligibility for salary progression is based on performance in the position and is subject to salary administration provisions in the collective agreement.

6The grievor accepted the offer of employment and was paid the starting salary of $1,474.27 per week.

7The grievor claims that she made inquiries at the time of her hiring as to whether her starting salary could reflect the fact that she had four years of experience as a Forensic Psychologist with the British Columbia Provincial Health Services Authority. According to the grievor, she was advised that this was not possible, as all employees commencing employment in the Psychologist 1 position started at the lowest step (the “start rate”) on the salary grid.

8In July 2016, the grievor learned that an employee newly hired into the Psychologist 1 position, who had a prior work history similar to hers, did, in fact, receive credit for that work history in terms of her starting salary. Specifically, that employee’s starting salary was several steps higher than the start rate on the salary grid pertaining to the Psychologist 1 position.

9The Employer does not deny that the grievor was advised at the time she was hired that all employees commencing employment in the Psychologist 1 position started at the start rate. It was, in fact, the position of the Employer, at that time, that all new employees to the Psychologist 1 position were to be paid the start rate. The Employer subsequently, however, had some difficulty in recruiting suitable candidates for the Psychologist 1 position so they adjusted their policy; adopting the view that in certain instances, credit would be granted for prior work experience, in terms of the starting salary of a newly-hired Psychologist 1.

10It is understandable that the grievor may have found it frustrating that the Psychologist 1 hired in 2016 had her starting salary adjusted upward, in recognition of her prior work history. That is— it is recognized that it could be viewed, at one level, as “unfair” that the grievor’s request to receive credit for her prior work experience was not granted on the basis that it was the Employer’s policy, at the time, that all individuals hired into the Psychologist 1 position commenced at the start rate; yet thereafter, the Employer did not apply that policy with respect to another new hire. That being said, an arbitrator only has jurisdiction to grant remedial relief upon a finding that the collective agreement has been violated. The facts in this matter, in my view, unequivocally do not establish such a violation of the collective agreement.

11The grievor was advised of her starting salary at the time she accepted the offer of employment from the Employer. That salary was in accord with the provisions of the collective agreement. Subsequently, due to a recruitment concern, the Employer changed its policy and allowed for, on a discretionary basis, the adjustment of the starting salary of individuals hired into the Psychologist 1 position, in light of the candidate’s prior work history. That change in policy was not contrary to the provisions of the collective agreement; and, the fact that another individual was (some two and a half years after the grievor was hired), in fact, given credit for her particular work history and received, on a relative basis, a starting salary above that of the grievor is not a sufficient basis to find that the Employer violated the collective agreement.

12Absent a finding that the collective agreement has been violated, the grievance must be dismissed.