GSB# 2021-2845; 2021-2846; 2022-5351
UNION# 2021-0368-0220; 2021-0368-0221;
2022-0368-1506
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Fitzpatrick et al)
Union
- and -
The Crown in Right of Ontario (Ministry of the Solicitor General)
Employer
BEFORE
Janice Johnston
Arbitrator
FOR THE UNION
Rebecca Jones Ryder Wright Holmes Bryden Nam LLP Counsel
FOR THE EMPLOYER
Maria-Kristina Ascenzi Treasury Board Secretariat Legal Services Branch Counsel
HEARING
August 8, 2023 and March 8, 2024
Decision
- There are three grievances before me in this case that were filed by two employees, Michelle Canning and Carrie Fitzpatrick. They deal with the following issues and read as follows:
i. Grievance 2021-0368-0220 filed by Fitzpatrick dated December 16, 2021:
I grieve that the employer has violated articles 2, 3, 6, 7 and 9 of the collective agreement, the occupational health and safety act, respectful workplace policy and any other applicable article, policy, regulation or legislation that apply. The employer created Probation and Parole Officer 2 (PPO2) positions (Community Reintegration Officers) within institutions that duplicate the work of Rehabilitation Officers. We already have PPO2s that work as institution liaison officers in our institution doing probation work. The wage disparity, duplication of work, replacement on committees, and inability to apply for these positions, etc. contributes to a poisoned and toxic workplace. I am also qualified to be a PO but I am not allowed to apply for these positions posted.
Settlement desired
Full redress, including but not limited to, removal of these positions from the institution or ability to apply and compete for these positions, monetary compensation.
ii. Grievance 2021-0368-0221 filed by Fitzpatrick dated December 16, 2021:
I grieve that the Employer has violated articles 2, 3, 6, 7 and 9 of the Collective Agreement, the Occupational Health and Safety Act and any other applicable article, policy, regulation, or legislation that apply. The Employer created Probation and Parole Officer 2 (PPO2) positions (Community Reintegration Officers) within institutions that duplicate the work of Rehabilitation Officers. These newly created positions are paid at the current PPO2 rate as opposed to the Rehabilitation Officer 2 rate. Top rate for PPO2 is $1678.85 weekly and top rate of Rehabilitation Officer 2 is $1351.93.
Settlement desired
full redress, including but not limited to, compensation at the PPO2 rate.
iii. Grievance filed by Canning dated June 13, 2022:
I grieve that the Employer has violated articles 2, 3, 6, 7 and 9 of the Collective Agreement, the Occupational Health and Safety Act, Pay Equity Act, Respectful Workplace Policy, and any other applicable article, policy, regulation, or legislation that apply. The Employer created Probation and Parole Officer 2 (PPO2) positions (Community Reintegration Officers) within institutions that duplicates the work of Rehabilitation Officers. CECC was not allotted a PPO2 to do this work and this work is now assigned to the Rehabilitation Officers in our institution (same training, same forms, same work). This duplication of work and performing same or similar work at a significantly lower pay rate not only violates the Pay Equity Act (as there is a significantly higher percentage of female Rehabilitation Officers compared to Probation Officer 2s) but also contributes to a poisoned and toxic workplace.
Settlement desired
Full redress, including but not limited to: the ability to apply for these new roles or cancellation of this pilot project, monetary compensation for pay disparity.
The grievors in this case were both employed as Discharge Planners (“DP”) at Central East Correctional Centre (“CECC”). The classification title for this position is Rehabilitation Officers 2 (“RO”). During the hearing they were referred to by both titles. The Community Re-Integration Officer (the “CRO”) position was created in 2021 as part of the Ontario Government's investment to hire additional probation and parole officers across the province to strengthen the supports available to help individuals safely re-enter the community. CROs are considered specialized Probation and Parole Officers (Probation Officer 2) and are paid more than Discharge Planners, as they are in a higher classification. Some correctional institutions received CROs while others did not. CECC was one of the institutions that did not receive CROs. Currently, there are 25 CROs that work at 10 institutions across the province.
The Employer takes the position that the GSB lacks jurisdiction to deal with these grievances, as they are in substance classification grievances, which the Board is precluded from dealing with by operation of both the Crown Employees Collective Bargaining Act (“CECBA”) and the OPSEU Collective Agreement. The Employer therefore asks me to dismiss the grievances for lack of jurisdiction.
The grievances refer to articles 2, 3, 6, 7, and 9 of the collective agreement and various legislation. These sections were not central to the Union argument in this case, so I will not set them out. However, the Union specifically relied upon Article 8.1.1 which provides:
8.1.1 Where an employee is assigned temporarily to perform the duties of a position in a classification with a higher salary maximum for a period in excess of five (5) consecutive working days, they shall be paid acting pay from the day the employee commenced to perform the duties of the higher classification in accordance with the next higher rate in the higher classification, provided that where such a change results in an increase of less than three percent (3%), the employee shall receive the next higher salary rate again.
- Counsel for the Employer took me to section 51 and 52 of CECBA which state:
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. 1993, c. 38, s. 51.
(2) An order of the Grievance Settlement Board shall not require a change to be made in the classification of an employee. 1995, c. 1, s. 50.
and
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:
A classification system of employees, including creating a new classification system or amending an existing classification system.
The classification of an employee, including changing an employee’s classification. 1995, c. 1, s. 51.
(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. 1995, c. 1, s. 51.
- Employer counsel also referred to Article 22.12 and Appendix 34 of the collective agreement which provide as follows:
22.12 CLASSIFICATION
22.12.1 An employee who alleges that their position is improperly classified may discuss their claim with their immediate supervisor at any time, provided that such discussions shall not be taken into account in the application of the time limits set out in Article 22. An employee, however, shall have the right to file a grievance in accordance with the grievance procedure, specifying in their grievance what classification they claim.
22.12.2 A classification grievance as provided in Article 22.12.1 which has not been resolved by the end of the Formal Resolution Stage of this grievance procedure may be referred to the Joint System Subcommittee (JSSC) provided in Appendix 7 (Classification System Subcommittees) of this Agreement, for final resolution. Any grievances being referred to the JSSC, must be forwarded to the Employer representatives of the Committee, no later than one (1) month after the Employer’s response at the Formal Resolution Stage. The JSSC may decide on any grievance referred to it. Where the parties at the JSSC concur, their decision shall be binding on the parties and any affected employee. Where the parties at the JSSC do not concur, the matter shall remain unresolved unless and until concurrence is reached.
22.12.3 The Employer upon written request either by the employee or by the Union shall make available all information and provide copies of all documents which are relevant to the grievance.
Appendix 34 is quite lengthy so I will not set it all out. The relevant provisions are:
Both parties recognize that the current classification system is outdated and requires revision. Previous attempts to design a new system have been unsuccessful, and it is recognized that any such undertaking, because of its size and complexity, must be addressed with a large measure of care, deliberation and commitment.
The parties agree to a moratorium on any new classification grievances or complaints during the term of the collective agreement.
Counsel for the Union agreed that the Board does not have the jurisdiction to deal with classification grievances. However, she asserted that the three grievances before me were not classification grievances, but at their core were about the grievors being temporarily assigned to the CRO position during a discrete time period.
Therefore, the issue that I must determine is whether or not the grievances before me were classification grievances, or were about the temporary assignment of the grievors to the higher rated position of CRO.
Employer Argument
On December 11, 2023, counsel for the Union provided particulars to the Employer. Employer counsel pointed out that a review of the particulars makes it clear that the Union was no longer relying on the articles of the collective agreement referred to in the grievances but was now taking the position that the Employer violated the grievors' rights under Article 8 of the Collective Agreement, which addresses temporary assignments. It was alleged that the Employer violated Article 8 by assigning CRO work to the grievors from December 30, 2021, to when each grievor left her Rehabilitation Officer (“RO”) position and failing to compensate the grievors for the CRO work that they temporarily performed while in their RO positions.
Counsel for the Employer suggested that the particulars as framed appear to be an attempt by the Union to now avoid what was very clearly, in the Employer's submission, three classification grievances. Further, the Employer takes the position that the grievors are now attempting to expand the scope of their grievances, after becoming aware of the Employer's objection to the grievances on the basis that the GSB was without jurisdiction to deal with them. Therefore, in the alternative, the Employer asks me to dismiss the grievances and determine that the manner in which counsel for the Union currently seeks to frame them, constitutes an expansion of the original grievances.
Counsel for the Employer pointed out that CECBA, which governs the GSB, was amended in 1995 to include the current version of s.51. Subsection 1 explicitly prohibits the GSB from creating new classifications or from altering an existing classification. Subsection 2 clearly states that no order of the Board shall require a change to be made in the classification of an employee. Section 52 of CECBA reinforces the message that classification grievances are invalid, by expanding the prohibition on dealing with classification matters beyond the GSB to all boards of arbitration. Specifically, Section 52 voids any agreement that provides an arbitrator, board, or tribunal with the authority to tinker with the classification system, or to determine or change an employee's classification.
OPSEU and the Crown have reflected this legislative reality in their collective agreement. Specifically, Article 22.12 sets up a separate process and forum, that being the Joint System Subcommittee (JSSC), to deal with classification issues. The Collective agreement also contains Appendix 34 entitled the Classification System, which sets out the JSSC process in greater detail, and which stipulates, at paragraph 15, that the Parties agree to a moratorium on classification grievances.
In support of her position, Employer counsel first referred to OPSEU ((Foreman et al.) and The Crown in Right of Ontario (Ministry of Education), GSB# 2002-1806 (Abramsky). In that case, the Employer raised a preliminary objection to the Board's jurisdiction to hear the grievance. It was alleged that the Union had engaged in a back door attempt to challenge the grievors’ classification and wage rate by framing the claim for wages under article 32.6.1 of the collective agreement. It reads, “The rate of the equivalent civil service classification shall apply. If there is no equivalent classification the rate shall be set by the Ministry and the Union shall have the right to negotiate the rate during the appropriate salary negotiations.” The Employer argued that regardless of the Union's characterization of the matter, the substance of the claim was that the grievors were performing the work of a different classification and should be paid accordingly. The Employer argued that to uphold this grievance, the Board would have to find that the grievors are performing the work of a different classification, which is the exact same analysis required in classification grievances.
In that case Arbitrator Abramsky concluded:
…In my view, even though the grievors are not seeking a change in their classification and are only seeking monetary relief, they are challenging the classification allocated to them by the Employer for pay purposes. In my view, the argument that Article 32.6.1 allows the grievors to assert that their own classification is not the proper "equivalent civil service classification" for pay purposes - and that the equivalent one is another classification - is indeed a "back door" to having the Board determine their proper classification. If accepted, it would create a loophole that would allow unclassified employees to bring what is, in effect, classification disputes before the Board. Yet the parties have agreed that "all complaints or differences involving allegations of improper classification" are to be decided by the JSSC.
Counsel for the Employer argued that the issue in OPSEU (Boyer) and Ministry of the Environment, GSB #0742/00 (Abramsky) was the same as the issue before me. In it, the grievor also alleged a violation of Article 8.1.1 of the collective agreement, which is the acting pay provision in regard to temporary assignments. Specifically, the grievor alleged that the Employer had assigned him to perform the duties of a higher rated classification. The grievor had also filed a classification grievance alleging the same thing, which was pending before the JSSC, and had earlier made similar claims. The Employer alleged that the grievance should be dismissed as it was a disguised classification grievance. The grievor's Article 8.1.1 claim could not be decided without deciding the classification issue and that the same kind of analysis that would be required in his classification grievance would be required in the Article 8.1.1 claim.
As in the case before me, the Union in the Boyer case asserted that it was not a classification grievance, but a bona fide temporary assignment grievance. It was argued that the grievor was not seeking a change in his classification or a reclassification, nor was he claiming that he was improperly classified. Instead, he was seeking monetary compensation for the period he was performing the work at issue.
VC Abramsky determined that the grievance was, in effect, a classification grievance over which the Board had no jurisdiction. She concluded that there was no allegation of any change in his duties and that the grievance was part of "an ongoing contention that the duties regularly assigned to him were beyond the work of an employee classified as an EO 2 and constituted the duties of an EO 4. That is a classification issue." She determined that "[h]is concern, though phrased as a temporary assignment dispute, is that he is not properly classified as an EO 2."
In support of her position, counsel for the Employer also referred to OPSEU (Union) and the Ministry of Training, Colleges and Universities, GSB# 2012-0651 (Carrier); OPSEU (Wilson/Anastaskos et al) and the Ministry of Transportation, GSB# 1995-0147 (Dissanayake); OPSEU (Delost) and the Ministry of Energy, Northern Development and Mines, GSB# 2018-2713 (Petryshen); and OPSEU (Deen) and the Ministry of Public and Business Service Delivery, GSB# 2022-9792 (Gee).
Counsel for the Employer asked that I keep two principles in mind. First, that I should not be duped into opining on classification issues by creative framing or pleading. And second, that I am without jurisdiction to render a decision which involves determining the proper classification of a grievor at some point in time. In reviewing the grievance forms, the grievors cited five different articles, articles 2, 3, 6, 7 and 9. None of which, are sufficiently particularized to justify any breach. The Union has now attempted to rely on article 8, the temporary assignment provision, in a creative attempt to argue that I have jurisdiction over these matters.
However, in the Employer's view, it is very clear what the grievors want and what they are attempting to do. They want to be paid at the higher classification rate, because in their view, they are doing the work of the CRO. This is exactly the kind of analysis the Board is not permitted to engage in.
The Employer submitted that our case is analogous and falls squarely within the reasoning of the Boyer Case. Although now phrased as a temporary assignment dispute, the real issue is that the grievors claim they are not properly classified. Like Boyer, the grievors have not alleged any change in duties. At paragraph 9 of the union’s particulars, it is asserted that, "everything noted on the CRO policy checklist are duties they completed in their RO positions. Completing the same forms, and had the same SharePoint access…"
Counsel for the Employer took the position that the real issue in dispute in this case was the grievors’ unhappiness with the creation of the CRO position and desire to have the position eliminated as they alleged it was duplicative of the work of the Discharge Planner (Rehab Officer 2). The remedies requested in the grievances were the removal of position, or the ability to apply and compete for the positions, or compensation.
Counsel pointed to the fact that the grievors never suggested in the grievances that they were temporarily assigned to the CRO position. They never grieved Article 8 or referred to a temporary assignment “to perform the duties of a position in a classification with a higher salary maximum for a period in excess of five (5) consecutive working days.”
At the time that the grievances were filed, it was the Employer’s understanding that it was a classification issue. In addition, the grievors’ position at this time with respect to a temporary assignment is inconsistent with the allegation found in all three grievances that the work of the CRO duplicates the work of the RO position. If the duties in the CRO job descriptions are tasks they were already completed in their RO positions, then they could not have been temporally assigned to the position. Work by their account, they were already doing.
In conclusion, counsel for the Employer argued that the Union's case flies in the face of s.51(2) of CECBA, which clearly states the Board cannot adjust or amend an employee's classification. It flies in the face of article 22.12 of the CA which makes it clear classification issues are to be brought to the JSSC, not the GSB. And thirdly, it flies in the face of this Board's jurisprudence which clearly stands for the principle that this Board will not engage in an analysis of the propriety of classifications. Accordingly, the Employer respectfully requested that I dismiss all three grievances for lack of jurisdiction.
Union Argument
Counsel for the Union pointed out that the grievors in this case were both employed as Rehabilitation Officers (“RO”) at CECC. CECC was one of the institutions that did not get any of the newly created CRO positions. She alleged that the grievors were therefore assigned the duties of the CRO position in 2021-22. She pointed to the particulars which had been filed, which outline the duties and responsibilities of the CRO position and the RO position. I have reviewed them but am not going to set them out. Counsel suggested that the grievances before me were at their core grievances about the grievors being temporarily assigned the CRO duties during a discrete time frame. As the CRO is a higher rated position she alleged that the actions of the employer contravened article 8.1.1 of the collective agreement which deals with temporary transfers.
Counsel for the Union acknowledged that I do not have the jurisdiction to deal with classification grievances. However, she disagreed with the assertion of the Employer that the grievances before me were disguised classification grievances. She suggested that these grievances raise issues of equal pay for equal work or fair compensation for work performed. The grievances refer to duplication and refer to the fact that the grievors are performing the same or similar work. The grievances also refer to a wage and pay disparity and the grievors ask to be compensated at the higher rate.
Union counsel argued that the Employer violated the rights of the grievors under Article 8 in assigning CRO work to the grievors from December 30, 2021, until each grievor left her RO position and not compensating the grievors for the CRO work they performed during this time. The grievors are not seeking reclassification or suggesting that they are not properly classified.
In support of her position, counsel referred to Ontario Public Service Employees Union (Dobroff et al.) v Ministry of the Environment, (the Dobroff Case), 2005 CarswellOnt 11190, 80 C.L.A.S. 84. She suggested that just as was found in that case, the need to compare the duties of an RO and CRO does not turn this into a classification case. She argued that in our case it is a fairness and equity issue, as because there were no CRO positions at CECC, they performed the duties. The issue is not whether they were properly classified but whether they were assigned and performed CRO duties which is a higher rated classification.
Union counsel relied upon Ontario Public Service Employees Union (Alani et al.) v Ministry of Finance 2005 CarswellOnt 11199, 81 C.L.A.S. 152 and suggested that in this case, just as in the case before me, the grievor was seeking a higher rate of pay while performing the duties of a higher rated position. Arbitrator Fisher concluded that it was not a classification grievance and counsel urged me to do the same.
In Ontario Public Service Employees Union (Boyer) v Ministry of the Environment (GSB#0742/00) Arbitrator Abramsky cautioned that, “Each case must be carefully evaluated on its specific facts and bona fide temporary assignment grievances should not lightly be dismissed as disguised classification grievances.” Counsel asked that I do not dismiss these grievances but allow them to proceed to enable an evaluation of the specific facts of this case. Counsel suggested that the fact that the job duties of two positions are being compared does not make a grievance a classification grievance. The purpose of, or reason for, the comparison is important. She argued that context is important and that in our case because the were no CRO positions at CECC, the grievors were temporarily assigned that work. She asked that I dismiss the preliminary motion by the Employer.
In reply, counsel for the Employer argued that the cases relied upon by the Union were easily distinguished from our case. In the Dobroff Case, the grievor was not seeking reclassification but argued the denial of a temporary assignment. In our case, the grievances asserted that the work was “duplicative” and there was no assertion that the grievors had taken on any new or different duties.
Decision
As was noted by Arbitrator Dissanayake in the Dobroff Case at paragraph 15, “This brings us full circle to the basic proposition that the critical issue is whether or not the substance of a particular grievance is an allegation of improper classification, and that in deciding that issue the specific facts of each case are determinative.” A careful analysis of the facts in each case was also seen by Arbitrator Abramsky to be important. I agree. Cases such as the one before me turn on their facts.
A careful review of the grievances before me makes it very clear that what is being raised is a classification issue. No where in any of the grievances is there a reference to “temporary transfer.” There is no claim that the grievors have had a change in duties. In fact, the opposite is true as all three grievances allege that the new CRO positions “duplicate the work of the Rehabilitation officers.” This to me sounds like an assertion that the work the new CRO position was performing duplicates the work performed by the grievors. In order to determine this claim by the grievors, it would be necessary to engage in an analysis of the duties performed by the two classifications. Clearly assessing if there is an overlap or duplication of duties between two classifications, is a classification issue.
There is no assertion in the grievance that the duties performed by the grievors as ROs changed when the new CRO positions were created. There is no claim that the grievors were assigned to and performed the different duties of the higher rated CRO. The claim is that they should be paid the same amount as a CRO as the duties of the CRO duplicated the duties they performed as a RO. While it is true that the grievances ask for monetary compensation, it is not because they assert that they were temporarily performing the duties of the higher rated position, but because they assert that the duties of the higher rated position duplicate the duties they perform.
As was noted by Employer counsel, in the Dobroff Case the grievor was not seeking reclassification but argued that the denial of a temporary assignment to the classification he was part of, while granting it to a similar classification, was done in bad faith. In the Dobroff Case, the main issue was whether or not differential treatment of two classifications in the granting of a temporary assignment, was for legitimate business or operational reasons. The Union was arguing that the assignment was done in bad faith. As was noted in the last sentence of paragraph 21, “If that is established to be so, the union’s argument that there was no legitimate operational or business explanation for the differential treatment will be buttressed. That would be the sole purpose of the comparison (emphasis added).” Thus, the facts were very different in that case and it is easily distinguishable from the case before me. There are no allegations of bad faith or improper exercise of management rights in this case.
Accordingly, based on the specific facts of this case I conclude that the three grievances before me are in essence classification grievances. Having come to that conclusion I must uphold the preliminary objection raised by the Employer and conclude that I am without jurisdiction to deal with them.
Given that I have come to this conclusion, it is not necessary to deal with the alternative argument raised by the Employer that the Union has improperly expanded the scope of the three grievances and I decline to do so.
The grievances are therefore dismissed. The previously scheduled dates of August 1 and 7, 2024 are cancelled.
In the event that the parties have any difficulties with regard to the interpretation or implementation of this decision I shall remain seized.
Dated at Toronto, Ontario this 25th day of March 2024.