HomeMy WebLinkAbout1987-1349.Aird et al.89-09-08SElTLEMENT
EMPLOYES DE LA COURONNE
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IN TEE MATTER OF AN ARBITRATION
Under
TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEKENT BOARD
Between:
OPSEU (Aird et al)
- and -
Grievor
The Crown in Right of Ontario
(Ministry of Consumer & Commercial Relations)
Employer
Before:
E.K. Slone
I. Thomson
G. Milley
Vice-Chairperson
Member
Member
For the Grievor: B. Herlich
Counsel
Cavalluzzo, Hayes & Lennon
Barristers. & Solicitors
For the Employer: C. Peterson
Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
Hearings: July 17, 18, 1989
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This award deals with 24 grievances filed by Senior
Inspectors with the Fuel Safety Branch of the Ministry of
Consumer and Commercial Relations. They grieve their
classification as Technician 3, Fuel, seeking instead a higher
classification that, they say, more properly reflects their
duties performed. Mr. David Aird was put forward as a
representative grievor. The disposition of his case will apply
to all of the other Senior Inspectors who have grieved.
According to the evidence of Mr. Aird, there are.some 25
Inspectors working for the Ministry. They work out of five
regional offices. Mr. Air-d's office is in London.
The Inspectors perform functions in essentially three areas:
1. They ensure the safe handling, storage, utilisation,
distribution and transport of hydrocarbon fuels in the
Province.
2. They investigate all fires, explosions and asphyxiations
caused by a confirmed or suspected hydrocarbon fuel.
3. As enforcement officers, they are charged with enforcing
by prosecution or otherwise the provisions of the Enerav Act
and the Gasoline Handling Act.
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Over his eight years on the job,
Mr. Aird has experienced
some changes to the way the job is performed on a day-to-day
basis.
One of the reasons for such change has been the sheer
increase in the work load. Where once an Inspector had the time
to do spot audits of fuel users and give informal advice on safe
handling, there is now too much else to do and the Inspector is
more apt just to give out an "Inspector's Instruction" or a
ticket. Since 1985, all of the Inspectors have been designated
as Provincial Offences Officers. This gives them the additional
authority to issue tickets on the spot, which the offender may
pay in the same manner as a traffic ticket. Formerly, the
Inspectors had to make a report which led to the launching of a
prosecution.
Changing technology has also contributed to changes in the
job.
In particular, the increased use of propane - a very
volatile hydrocarbon fuel - has forced the Inspectors to make
changes to their priorities, and less time is being spent on some
duties that once occupied more time.
One of the functions that has come about since the 1985
designation, is that the Inspectors are 'occasionally called upon
to attend Court and single-handedly conduct a prosecution. This
is in addition to attending to give evidence as an expert,
something which the Inspectors have always done as a significant
part of their jobs. However, we understand that the prosecutions
conducted by the Inspectors are of the simplest kind, often
lasting no more than 15 minutes. Moreover, the Inspectors are
not called upon to do this task frequently.
For a classification grievance to succeed, the grievor must
show that his job does not fairly fit within the relevant class
standard. The class standard must necessarily contain some
general language, but it must not be phrased in such generalities
as to make the description meaningless. Like the strings of a'
musical instrument, the standard must be neither too tight nor
too loose.
The class standard for the Technician, Fuels series, so far
as it is relevant to this grievance, is as follows:
PREAMBLE
TECHNICIAN. FUEL CLASS SERIES
The Technician, Fuel series covers the positions of
employees engaged in the enforcement of the regulations and codes
of the Energy and Gasoline Handling Acts which govern the
following fuels: Propane, Fuel Oil, Gasoline and Natural Gas.
Employees in positions in these classes are responsible for
ensuring that industrial, commercial and domestic gaseous and
liquid fuel facilities meet Government regulations and standards
by inspecting the design, installation, distribution, operation
and maintenance of all types of fuel facilities governed by the
Acts.
They approve or reject according to inspection results and
prepare reports regarding inspection findings. They interpret
Government Acts, codes, and regulations to public and private
organizations, in order to provide guidance on specific provision
requirements and recommend acceptable alternatives. They
investigate complaints concerning fuel installations and initiate
corrective action.
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These employees also perform investigations in conjunction
with the Fire Marshall's Office and other government
investigation agencies to determine the cause and effect of fires
and explosions. They also prepare and present evidence at boards
of enquiry and civil courts.
They maintain an effective liaison with private industry and
government to seek, provide and exchange information. They
provide instruction on codes, standards and safety regulations to
municipal and training school personnel and may conduct technical
examinations for industrial personnel.
TECHNICIAN 3. FUEL
This class covers the positions of fuel technicians who
are fully qualified and technically competent in all types of
liquid and gaseous fuels governed by the Acts.
Under general supervision, in an assigned area of the
Province, these employees conduct inspections of all types of
fuel facilities. In addition to conducting investigations and
gathering evidence for accident reports, they analyse the
evidence and prepare conclusions as to the probable cause and
effect of fires or incidents. Also in addition to presenting
evidence at boards of enquiry or civil courts, as fully qualified
technicians, employees at this level may be designated by the
court as an "expert witness".
Duties and responsibilities at this level may also include
providing technical guidance and instruction to subordinate
technicians when conducting inspections and investigations of
fuels in which they are not fully qualified, and in the
preparations of conclusions as to the probable cause of fires or
incidents.
Skills and Knowledge
Knowledge of all types of liquid and gaseous fuels governed
by the Acts and a thorough understanding of all related
provisions, rules and regulations are required to enforce and
interpret legislation,to the public and private organisations,
provide technical guidance and instruction to subordinate
inspectors and to act as an expert witness, as required.
Excellent powers of observation, ability to assess, evaluate and
analyze situations are necessary to conduct inspections and
investigations and determine probable cause of fires and
incidents. Effective oral and writing skills are required to
liaise with industry and public, other government agencies and
departments, media, etc. to ptrepare comprehensive reports and
conclusions, to present evidence, and when designated as an
expert witness."
.i
2
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These class standards are fairly modern (1981), and it was
not seriously contested that by and large they describe the
grievor's job perfectly, but for their failure to refer to the
prosecutorial and Provincial Offences Officer functions. It was
argued that there is also nothing in the standards to cover a
function that the grievor performs, of being on the spot in an
emergency situation attempting to prevent further damage or
injury, and providing technical knowhow to the police or fire
departments.
As we see it, the crux of the problem seems to be an
unfortunate choiCe of words in the class standards, where they
refer to "prepar[ingl and present[ing] evidence at boards of
enquiry and civil courts". On the evidence, almost all of the
court duties involve criminal or quasi-criminal prosecutions,
which take place in a court that could not fairly be described as
a "civil courtW. As for "boards of enquiry", no one at the
hearing seemed to know what was meant by that term. The grievor
occasionally attends at a coroner's inquest, which might be
characterized as a board of enquiry. As for attendances in civil
courts, this almost never happens because the grievors are not
compellable witnesses in civil proceedings (i.e. in private
disputes concerning matters which the grievor may have
investigated as part of his public duties.)
There was no evidence that Inspectors have ever participated
to any extent in civil matters, and it is not disputed that
Inspectors have always been involved in criminal and quasi-
criminal prosecutions, dating back to long before the drafting of
the class standards. What then are we to make of the failure to
mention these types of proceedings, and the inclusion of civil
proceedings in which no role is currently played? The only
conclusion that we are prepared to come to, is that the drafter
of that document was unsophisticated in his or her understanding
of the judicial system, and applied several misnomers. The word
"civil" could easily be deleted and would never be missed.
Although it is a word that attempts to qualify the type of court
attended, it is simply a poorly-chosen word that has not misled
anyone in any real way and ought to simply be ignored. Moreover,
there are other references in the document to "the court", which
in our view amply cover those functions performed by the grievor.
While it is also true that there is no explicit mention of
the prosecutorial function or the Provincial Offences Officer
designation, it is our view that these functions are amply
covered within the language of the document. The function of
"presenting evidence at . ..courts" is close enough to cover the
prosecutorial function, which after all is an infrequent
occurrence and on the evidence before us only occurs in the
simplest of cases. As for the Provincial Officer designation, it
is fundamental to the job that the grievers "enforce" the
a
relevant legislation and regulations. The ability to issue a
ticket on the spot to an offender is merely in aid of that
purpose, and to use the analogy given by the grievor's supervisor
Mr. Ingram, amounts to simply another tool in the Inspectors'
toolbox.
As for the very infrequent occasions when the Inspectors
lend their assistance in an emergency, in our view this is also
covered by the language of the class standards. This is not so
different than the conducting of investigations and inspections
that are part of the daily job. The only difference is that once
in a while the Inspector gets to see a situation of potential as
opposed to actualised danger. Were this a frequent occurrence,
it might change the complexion of the job, but as a highly-
infrequent occurrence it cannot be said to take the job out of
the investigation and inspection functions altogether.
On the caselaw which we have considered, the addition of new
duties may take a job out of its original classification, but
only where those duties are of such a kind or occur in such a
degree as to amount to a different job altogether. See for
example Baldwin and Lvng, GSB 539/84 (Palmer) and Fenske, GSB
494/85 (Verity). As these and other cases show, the propriety of
the classification is a factual issue to be decided on the merits
of each case. In the instant case, we cannot find that the job
as performed is something other than the type of job contemplated
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by the class standards. The onus is on the grievor to show that
he is actually performing a job, the essence or core duties of
which do not fit within the class standard to which it has been
assigned by the employer. In the instant case, we see a class
standard that (subject to the poor choice of words to describe
the courts in which the grievers appear), is well drafted and
neatly describes the job being done by the grievor.
In the result, these grievances are dismissed.
Dated at Toronto this 8th day of Sept., 1989.
Eric K. Slone, Vice-Chairperson
C. Milley, Member