GSB#2016-0887, 2016-1198

UNION#2016-0429-0003, 2016-0634-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gaffney-Jacob/Taylor)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Lesley Gilchrist Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 17, 2017

Decision

1Ms. Cheryl Gaffney-Jacob and Ms. Anne Taylor have filed grievances dated June 20 and 21, 2016 respectively, alleging that the employer had contravened the collective agreement by not placing them at the proper level on the pay grid, and seeking that they be placed at the top of the pay grid.

2The grievances came before me for mediation-arbitration pursuant to article 22.16 of the collective agreement. Mediation efforts did not result in a resolution, and I received submissions from the parties.

3At the heart of the grievances is the claim by Ms. Gaffney-Jacob and Ms. Taylor, who worked as Engineering Service Technicians at the ministry offices in Kingston (Eastern Regional Office) and North Bay (North Eastern Regional Office) respectively, that while they performed the same duties and responsibilities, they are paid less than Engineering Services Technicians in the Central Regional office.

4The union claims that since 2001 the grievors had repeatedly raised with management that their positions are classified lower than their colleagues in the Central Regional Office, and are consequently paid less. In 2013 the employer finally undertook a review of the duties and responsibilities, and in 2015 upgraded the classification of the positions they held to the same level as their colleagues in the Centre Regional Office. However, they were placed only at step 4 of the pay grid, while Engineering Services Technicians in the Central Regional Office were, and continue to be, at the top step of the grid. Therefore, the union claims that the discrepancy and the unfairness continues.

5There is no doubt that the grievors feel very sincerely and strongly, that they are treated unfairly. They are convinced that they have the same duties and responsibilities as their colleagues in the Central Regional Office, but are paid less. This has significant financial impact on the grievors, and will have adverse impact on their pension entitlement.

6The employer disagreed that the grievors were treated unfairly. The employer had properly followed all applicable policies and procedures in relation to job evaluation and classification of positions. The review conducted in accordance with those policies and procedures resulted in the reclassification of the grievors’ positions upward. However, it did not result in placement of the grievors at the top of the pay grid for the new classification. While this was unfortunate, there was no violation of the collective agreement. The union had not asserted any facts that could constitute a violation of any provision of the collective agreement.

7The employer submitted that in any event, the instant grievances are in effect grieving the classification of the grievors’ positions. The Board lacks jurisdiction to order any upward reclassification. Reliance was placed on section 51 of the Crown Employees Collective Bargaining Act and Re Alix et al, 2013-0433 (Dissanayake).

8In Re Alix et al (supra) at para.6, the Board wrote:

Although no reclassification is explicitly sought, such an increase can be obtained from the Board only through an order for upward reclassification of the grievors’ position. However, section 51 of the Crown Employees Collective Bargaining Act explicitly prohibits the Board from assuming jurisdiction to make such an order.

9The foregoing statement equally applies here. The grievances are in substance classification grievances. The union did not argue otherwise. Therefore, even if the grievors’ assertion of unfairness is accepted as proven, the Board is still constrained by the statutory prohibition and has no jurisdiction with regard to these grievances.

10Accordingly both grievances are hereby dismissed.