P/0185/96
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
John Fernandes
Grievor
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
BEFORE
D.J.D. Leighton
Vice-Chair
FOR THE GRIEVOR
John Fernandes
FOR THE EMPLOYER
Melissa Nixon, Counsel Legal Services Branch Management Board Secretariat
HEARING
May 16, 2000.
Decision
Mr. John Fernandes began work with the Ministry of Transportation in July 1968 as a cartographer. In February 1973, he was appointed Cartography Supervisor, a position classified as TM15 (Technical Module). He worked in this position until September 1997 when he retired from the Ontario Public Service. On February 27, 1997 he forwarded a grievance to the board alleging:
I have been under classified for some time and the enclosed correspondence indicates that I have been disputing this with management. My superior Mr. Tim Wood who concurred with me referred my grievance to senior management for reclassification to TM 16. This request was turned down by our Human Resources in March 1990.
However, I am now disputing the fact that the Ministry of Natural Resources (MNR) cartographers and their supervisor had increased in pay when their job specifications were rewritten in 1989 , but this pay increase inadvertently perhaps, was not applied to my position,
Since we do exactly the same type of work MNR do, i.e., produce map products, our senior cartographers and my job specifications were rewritten in the Ministry of Transportation in 1989. The senior cartographers approached senior management for a pay raise based on the new job specifications but the Human Resources turned down their request. The senior cartographers with the aid of OPSEU appealed the decision which went to arbitration. In July 1995 the arbitrator awarded senior cartographers approximately 9% pay raise back dating to 1990. Except I was not fortunate to get any raise in pay from the out come of this award.
At the outset of the hearing into this matter, counsel for the employer, Ms. Nixon, made a preliminary motion to dismiss the grievance as inarbitrable for three reasons:
the grievance is essentially a classification grievance;
the grievance seeks retroactive increases in pay based on a claim that OPSEU cartographers received an increase in July of 1995 through an arbitration decision;
the grievance is not timely.
The parties agreed to the facts for the purpose of the preliminary and the board proceeded to hear argument based on the agreed statement of facts and documents.
Ms. Nixon argued that the documentary evidence shows that Mr. Fernandes complained about being underclassified in 1989. Also it was 1989 when the grievor learned that cartographers in the Ministry of Natural Resources had been reclassified because of changes in technology. These cartographers received an increase in pay with the reclassification. It was as result of the reclassification of the cartographers at MNR that cartographers in the bargaining unit (OPSEU) of MOT grieved. A subsequent arbitration award gave them a 9% increase in salary. Mr. Fernandes’ grievance letter dated February 27, 1997 also makes claims based on this OPSEU award.
Mr. Nixon argued that subsection 31(4) of Regulation 977, passed pursuant to the Public Service Act, R.S.O. 1990 c.P.47, as amended, prohibits the board from hearing a grievance which seeks a review of the job classification of an individual. She also cited Kranyak and the Ministry of Skills Development P/0003/91 (Willes) and McLagan et al. and the Ministry of the Solicitor General and Correctional Services P/0019/95 et al. (Willes) which held that the board has no jurisdiction to hear classification grievances.
The grievor also made a claim for the same treatment as bargaining unit employees, and counsel argued that the board has no jurisdiction to hear this issue. There is no claim of discrimination or bad faith or breach of working conditions or terms of employment. Counsel asked the board to review Marrison and the Ministry of Correctional Services P/0004/88 (Emrich); Scott et al. and the Ministry of Transportation P/0001/96 et al. (Lynk), and McConnell et al. and the Ministry of Transportation P/0051/93 et al. (Leighton).
Finally, counsel argued that Mr. Fernandes knew about his grievance in 1989, but did not grieve until 1997. He knew about the award which gave the bargaining unit employees a higher classification in 1995, but still did not grieve until 1997. This kind of delay is unfair to the employer. Counsel asked the board to dismiss the grievance as inarbitrable on any one of these grounds.
Mr. Fernandes argued that as long as justice is to be done, it does not matter if the grievance is late. He was of the view that given the bargaining unit employees were given a higher classification and given his supervisor was reclassified to a higher level, it was a gross injustice to him not to be likewise reclassified. He was of the view that he was entitled to compensation based on a 9% increase in his salary from 1989 to the date of his retirement in 1997.
DECISION
Having carefully considered the submissions of the parties, I have decided to dismiss Mr. Fernandes’ grievance. His complaint is essentially a classification grievance, for which this board has no jurisdiction. His complaint in his own words is that he has been “under-classified” as a TM15 and he sought to be reclassified as a TM16. In so far as the grievance makes a claim for relief based on what OPSEU bargaining unit employees were given pursuant to an arbitration award, it is also inarbitrable. There is no allegation here of a breach of a working condition or term of employment. There is no allegation of discrimination or bad faith. Finally, the grievance is out of time. This board has held consistently that it will consider the grievor’s reason for delay. However, no evidence that would justify the delay was provided.
Thus, for the reasons noted above, the motion to dismiss the grievance as inarbitrable is granted, and the grievance is dismissed.
Dated at Toronto this 25th day of May, 2000.