GSB# 2022-9792

UNION# 2022-0533-0026

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Deen)

Union

• and -

The Crown in Right of Ontario (Ministry of Public and Business Service Delivery)

Employer

BEFORE

Diane L. Gee

Arbitrator

FOR THE UNION

Joseanne Job Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Caroline Cohen Ministry of Government Services Legal Services Branch Senior Counsel

HEARING

May 30, 2023

Decision

1This matter is a grievance filed by Farah Deen on October 13, 2022. The “statement of grievance” set out on the grievance form reads as follows:

I grieve that my rights have been violated through articles XXX as well as any other article, policy or legislation made known in the course of this grievance.

Immediately thereafter, “ARTICLE 2” is written in by hand. The grievance advances an allegation that the Employer is in violation of Article 2 of the Collective Agreement. Article 2 is the management rights clause.

2The grievance states that the settlement desired is:

Full redress, including but not limited to the following: Hiring an independent company to do the evaluation of the two job duties that were amalgamated to one on August 16th, 2022.

At the hearing of this matter, Ms. Deen confirmed that she was asking for the job specifications to be reviewed with the expectation that the classification would be raised to a higher level.

3The Employer moved that the grievance be dismissed on the basis that the grievance is a classification grievance for which no remedy is permitted under section 51 of the Crown Employees Collective Bargaining Act (CECBA). Sections 51 and 52 of CECBA provide as follows:

PART V – GRIEVANCE SETTLEMENT BOARD

Classification grievances, restriction

51 (1) An order of the Grievance Settlement Board shall not require the creation of a new classification of employees or the alteration of an existing classification.

Same

(2) An order of the Grievance Settlement Board shall not require a change to be made in the classification of an employee.

PART VI – MISCELLANEOUS

Classification issues

52 (1) A provision in an agreement entered into that provides for the determination by an arbitrator, a board of arbitration or another tribunal of any of the following matters is void:

1. A classification system of employees, including creating a new classification system or amending an existing classification system.

2. The classification of an employee, including changing an

employee’s classification.

Same

(2) Subsection (1) applies to agreements entered into before or after the date on which the Labour Relations and Employment Statute Law Amendment Act, 1995 receives Royal Assent.

4The Employer relies on Ontario Public Service Employees Union (Metcalfe et al) and The Crown in Right of Ontario (Ministry of Government Services), 2012 CanLII 6212 (ON GSB); Ontario Public Service Employees Union (Foreman et al) and The Crown in Right of Ontario (Ministry of Education), GSB #2002-1806 etc. (Abramsky – March 31, 2005); Ontario Public Service Employees Union (Wilson/Anastakos et al) and The Crown in Right of Ontario (Ministry of Transportation), GSB #0147/95 etc. (Dissanayake – March 28, 2001) in which the Board found that section 51 of CECBA is clear that classification grievances are not permitted, in that the Board has no jurisdiction to provide a remedy.

5I find that this grievance is a classification grievance in respect of which section 51 of CECBA provides the Board has no jurisdiction to provide a remedy. As such, this grievance is hereby dismissed.