HomeMy WebLinkAboutKotowych 13-06-14 In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act
Between: OPSEU
PS
7JUN 1 4 20"3
Hamilton
Reclional OffiC9
CANADIAN BLOOD SERVICES
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
LOCAL 5103
Grievance of Helen Kotowych
OPSEU File No. 2011-5103-0018
Arbitrator: Randi H. Abramsky
Appearances
For the Union: Christopher Bryden Counsel
For the Employer: Sarah Eves Counsel
Hearing: May S, 2013 in Etobicoke, Ontario, with arguments via
conference call on June 4, 2013
AWARD
The grievance in this case alleges that the grievor, Helen Kotowych, is performing
the work of a higher-rated classification in violation of the collective agreement. The
Employer, Canadian Blood Services ("Employer" or "CBS"), asserts that the grievor is
properly classified.
FACTS
The parties agreed to the following facts, as set out in the numbered paragraphs:
1. The Grievor is classified as a Clerk in the Distribution Department at CBS's
Brampton location.
2. She has been employed as a Clerk in Brampton since Feb. 21, 2012.
3. She worked as a Clerk at various CBS locations in Toronto from 19812012.
4. The parties are agreed that the Grievor spends the vast majority of her working
time performing the duties which are"checked-off' on the attached job
description,marked as Exhibit 2.
5. With respect to the activity"Prepare, post and amend staff vacation calendar",
this refers to the Grievor keeping track of and recording staff vacation
entitlements. The Grievor does not provide approval for vacation days.
6. The Grievor works in the Distribution Department and provides timekeeping or
time-keeping-type duties for employees in that department.
7. There are approximately 60 - 65 employees in the Distribution Department,
8. In addition, the Grievor performs peer review of the daily time verification reports
of Sudar Chandra, a Clerk who performs the same or similar functions in respect
of the Production Department, which has 70 employees. Ms. Chandra performs
per review with respect to the time verification reports that the Grievor prepares.
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9. The Grievor takes the position that she performs substantially the same job as
Sandra Alleyene, a Scheduler/Timekeeper in Toronto. The Employer disagrees.
10. The Parties are agreed that Ms. Alleyne does perform scheduling functions in
respect to 6-8 employees in the Donor Testing department in Toronto,which has a
total of approximately 70 employees.
11. The Grievor is of the understanding that Ms. Alleyne performs timekeeping work
substantially similar to the work performed by the Grievor.
12. The Employer takes the position that Ms. Alleyne performs substantially more
duties, including pre—populating scheduling templates; approving vacation days
and days off, and approving shift changes. The Grievor does not agree with this
characterization of Ms. Alleyne's duties.
The job description for "Scheduling/Timekeeper" was created in May, 2008. The
"General Summary" of the position states that "[u]nder the direction of the Supervisor,
Donor and Clinic Services Support, the Scheduler/Timekeeper is responsible for planning
and creating work schedules and completing associated scheduling and timekeeping
functions that meet operational needs for Donor & Clinic Services." These functions
must be done "in accordance with CBS policies, Collective Agreements, Non-Union
Terms and Conditions of employment and in accordance with all regulatory requirements
and Canadian Blood Services policies,procedures and practices."
The job description lists six "responsibilities", as follows. An asterisk will mark the
duties that the grievor asserts that she performs.
Responsibility 1.
Assess and plan staffing requirements.
Activities:
- Develop templates based on clinic staffing models for each clinic.
- Assess human resources requirements and make recommendations to the
appropriate Manager, as required.
- Assign scheduled shifts to ensure collection goals are attainable and excellence in
customer service is provided.
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- Provide expertise, make recommendations on behalf of D & CS scheduling at
Clinic Review and Clinic Scheduling meetings.
Responsibility 2.
Prepare, maintain and post work schedules for the department.
Activities:
Create work schedules based on templates and adjust to reflect changes in work
processes,policies, and procedures.
T Review shift change requests, gain management approval and update master
schedule.*
Verify quota balances for all staff and forward for management approval.*
- Post weekly staff schedules in accordance with appropriate timelines for each
functional area.
Coordinate and schedule national and regional training and meeting requirements
for all unionized staff. May be required to take minutes.
- Communicate all clinic changes to staff.
Responsibility 3.
Performs timekeeping functions for department staff.
Activities:
- Enter planned time and exceptions in SAP.*
- Prepare the payroll sheets, daily location reports for all staff on a daily bases.
- Track, investigate inquiries and make adjustments on questionable coding,
absences, scheduling concerns and entitlement balances.*
- Review/audit all timesheets for accuracy.*
- Submit ETLFs (exception time leave forms), payroll sheets, daily location reports
by designated time.
Responsibility 4.
Arrange for accommodations for staff traveling to mobile clinics.
Activities:
- Book rooms for all Donor and Clinic Services staff requiring overnight
accommodation.
- Confirm and communicate accommodation arrangements with employees.
Responsibility S.
Performs other activities.
Activities:
- Conduct information sessions to new staff on payroll documentation, and
administrative requirements within the department.
- Prepare,post and amend staff vacation calendar.
- Track actual versus scheduled hours.*
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- Maintain/track logs for Saturday rotation, sick calls, replacement calls, turnaround
time.
- Prepare LHP calculation of daily hours worked for ESS entry.
- Provide after hour sick replacement on call coverage.
Attend timekeeper conference calls and meetings as required.*
- Communicate with management in regards to confidential staff issues.*
Perform other related duties as required.
The Grievor is currently classified as a Clerk. The job description, which is
contained in the collective agreement, states that the position "is responsible for
clerical work." The "duties and responsibilities" include "some or all of the
following responsibilities":
1. Compiles, types/keyboards, updates, files and maintains correspondence, reports,
templates, manuals and statistical data.
2. Handles mail system (including build mail); opens and distributes mail.
3. Receives and direct all incoming telephone calls to appropriate person(s); takes
messages.
4. Maintains various records systems.
5. Clerks hired to work in Collection/Donor Services department may be required to
perform all of some of the duties as outlined in the Donor Services Representative
job description with the exception of mobile clinics.
6. Performs receptionist duties.
7. Operators automated and other office equipment.
S. Maintains and keeps records of requisition supplies; reports faulty supplies and
equipment.
9. Prepares, scans and microfiches documents.
10. Coordinates, completes and updates work assignments, attendance records and
staffing/volunteer schedules.
11. Coordinates the reporting and replacement of absent staff/volunteers; maintains
relevant records.
12. Arranges alternate methods of transportation for staff;
13. Schedules fimetions/meetings and records minutes of meetings
19. Performs other department related tasks and duties as assigned.
The relevant provisions of the collective agreement include the following:
ARTICLE 30—POSITION DESCRIPTION
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30.02 The Position Descriptions shall accurately reflect only those duties which arc
applicable to all members of that position.
30.03 Any employee who is not required by her Centre's administration to perform all
of the standard duties of her Position Description shall receive no reduction in her weekly
rate of pay.
30.04 An employee cannot be required to perform duties which are not contained in his
position description.
30.06
(a) If the Employer creates a new Position Description it shall establish the job
description and wage rate and give written notice to the Union of the new wage rate.
(b) If the Union objects within thirty (30) days of the receipt of the written notice from
the Employer of the wage rate, such objection shall become the basis of a meeting
between a representative of the Union and a representative of the Employer. Should such
a meeting result in a revision to the wages, the wage rate shall be retroactive to the date
of implementation of the new Position Description, unless otherwise mutually agreed.
(c) Failing resolution of the objections, the matter shall be determined by arbitration.
30.07 Revisions to any of the Position Descriptions referred to in Article 30.01 may be
proposed by the Employer (all four (4) Ontario Centres acting in concert) to the Union at
any time during the term of this Agreement, provided that:
REASONS FOR DECISION
The generally accepted test for determining whether an individual is performing
the work of another position or classification is whether s/he is "carrying out the
functions that make up the `central core' of the other classification."Re Dominion Stores
Ltd. and Retail, Wholesale & Department Store Union (1976), 13 L.A.C. (2d) 433
(Rayner). It is not enough if only certain functions are performed; rather the "essential
duties of the higher classification" must be performed. Re Fairview Nursing Home
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Ine.Ltd. and London and District Service Workers Union, Local 220 (1983), 9 L.A.C.
(3d) 342 (Rayner). The onus is on the Union to establish this. Re Dominion Stores Ltd.,
supra; Re Fairview Nursing Home Inc. Ltd., supra; Re American Standard Products
(Canada)Ltd. and United Steelworkers, Local 2000(1973), 2 L.A.C. (2d) 431 (Brown)
The grievor, who is classified as a Clerk, asserts that she is performing a number
of the duties of the Scheduler/Timekeeper position. The Union acknowledges that the
grievor does not perform the job function of scheduling. Her duties involve the
timekeeping aspects of the job, which in the Union's submission, go beyond the duties of
a Clerk. It relies on Article 30.04 of the collective agreement, which states that "[a]n
employee cannot be required to perform duties which are not contained in his position
description" and Article 30.03, which states that "[a]ny employee who is not required by
her Centre's administration to perform all of the standard duties of her Position
Description shall receive no reduction in her weekly rate of pay." The Union asserts that
these provisions demonstrate that the grievor need not perform all of the duties of the
Scheduler/Timekeeper job, and that her duties must fall within the position description
which, it asserts,is the Scheduler/Timekeeper position description.
The Employer contends that the grievor performs none of the scheduling duties,
which it asserts are the "central core" of the position and the basis of its higher rating. It
argues that while she performs "timekeeping" duties, she does not perform all of them,
and in its view, the timekeeping duties that she performs fall within the Clerk duties, as
outlined in the Clerk Position Description. The Employer submits that there is an overlap
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between the timekeeping duties of the Scheduler/Timekeeper position and the Clerk
position, but that does not place her in the higher classification.
Considering the agreed facts and the case law provided, I conclude that the
grievor does not perform the "central core" duties of the Scheduler/Timekeeper position.
The Scheduler/Timekeeper position description sets out one position — not two separate
jobs, and it is undisputed that the grievor performs no scheduling duties.
The "General Summary" of the position states that the position "is responsible for
planning and creating work schedules and completing associated scheduling and
timekeeping functions that meet the operational needs for Donor & Clinic Services." The
schedules must be in accordance with Employer policies and procedures, collective
agreements, non-union terms and conditions of employment and all regulatory
requirements. The Position Description then sets out five "responsibilities" — (1) assess
and plan staffing requirements; (2) prepare, maintain and post work schedules for the
department; (3) perform timekeeping functions for department staff; (4) arrange for
accommodations for staff traveling to mobile clinics and(5)perform other activities.
The grievor performs no duties in the first area of responsibility. The activities
listed include developing templates based on clinic staffing models for each clinic;
assessing human resources requirements and making recommendations to management;
assigning scheduled shifts to ensure collection goals are attainable and excellence in
customer service is provided; and providing expertise, snaking recommendations on
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behalf of donor and clinic services schedule at Clinic Review and Clinic Scheduling
meetings.
In terms of the second area of responsibility — prepare, maintain and post work
schedules for the department — the grievor performs two of six listed activities. She
"[r]eviews shift change requests, gain management approvals and updates the Feaster
schedule." She also "verifies quota balances for all staff and forwards for management
approval." She does not "[c]reate work schedules based on templates or adjust to reflect
changes in work processes, policies or procedures." She does not "[p]ost weekly
schedules in accordance with appropriate timelines for each functional area." She does
not "[c]oordinate and schedule national and regional training and meeting requirements
for all unionized staff."
Responsibility 3 — performs timekeeping functions for department staff-- is the
responsibility that the grievor performs three of five listed activities. She "[e]nter[s]
planned time and exceptions in SAP." She "[t]rack[s], investigate[s] inquiries and
make[s] adjustments on questionable coding, absences, scheduling concerns and
entitlement balances." She "[r]eview[s]/audit[s] all time sheets for accuracy." She does
not"[p]repare the payroll sheets, daily location reports for all staff on a daily basis." She
does not "[s]ubmit ETLFs (exception time leave forms), payroll sheets, daily location
reports by designated time."
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In regard to Responsibility 4 — arrangement for accommodations for staff
traveling to mobile clinics—the grievor performs neither of the listed activities. In regard
to Responsibility 5 — performs other activities — the grievor performs four of the nine
listed activities. She "[t]rack[s] actual versus scheduled hours", she "[p]repare[s], post[s]
and amend[s] staff vacation calendar[s]," This, according to the agreed facts, refers to
keeping track of and recording staff vacation entitlement. She does not approve vacation
dates. She "[a]ttend[s] timekeeper conference calls and meetings as required" and
"[c]ommunicate[s] with management in regard to confidential staff issues." She does not
"[cjonduct information sessions to new staff on payroll documentation, and
administrative requirements within the department." She does not "[m]aintain/track logs
for Saturday rotation, sick calls, replacement calls, turnaround time." She does not
"[p]repare LHP calculation of daily hours worked for ESS entry." She does not
"[p]rovide after hour sick replacement on call coverage."
As is evident, she performs some, but does not perform many of the duties of the
position. In Re Regional Municipality of Waterloo (Sunnyside Home) and London and
District Service Workers' Union, Local 220 (1978), 20 L.A.C.(2d) 77 (Roberts), the
arbitrator explained the rationale behind the "central core" standard as follows, at pp. 81-
82 [citations omitted]
Under settled principles of arbitration law, an employee does not have to perform
all of the duties of a higher rated category .... The employee must perform the
central core of the duties of the higher category.
The cases indicate two reasons for applying this standard. First, few if any
employees in a job category or classification perform on a day-to-day basis all of
the duties assigned to that classification. There may be occasional or seasonal
duties, or there may be variations among the duties actually performed by different
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employees occupying the same classification, In each case,however, there will be a
central core of duties or functions demanding the same level of qualification, skill
and experience on the part of each employee in the classification.
This brings us to the second reason for adherence to the central core principle. The
reason is one of fairness. "It is simply unfair for two employees who are doing the
same kind of work, perhaps even working together, to be paid substantially
different rates where no differences in skill are exhibited."
The arbitrator further stated at p. 82, that in determining what constitutes the
"central core of the duties of a job classification", the following should be considered:
The central core of duties of a higher category must be defined sufficiently
narrowly to reflect "the reasons for differences in rates [i.e., the] basic differences
in the distinctive skill, responsibility, difficulty, training etc. involved in the
respective jobs"... Otherwise, arbitration boards would run the risk of intruding
upon the legitimate management function of creating job classifications which
reflect requirements of differences in skill etc. ....
Or, as Arbitrator Knopf succinctly stated in Re Disabled and Aged Regional Transit
System and C.U.P.E. Local 5167 (Cristiano Grievance)(2006), 86 C.L.A.S. 73, at par.
17: "One of the best ways to determine what the core duties are is to look at the reason
for the difference in rates between the positions in question."
In regard to the Scheduler/Timekeeper position, the core duties that make it a
higher rated position appear to be responsibility for "planning and creating work
schedules." There is a significant amount of judgment and knowledge that goes into that
function — knowledge of human resource and staffing requirements for the clinics and
donor service centres as well as knowledge of a range of policies and procedures,
collective agreement requirements, and nonunion terms and conditions of employment.
Creating work schedules and developing templates for clinic staffing to ensure collection
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goals and customer service involves skills and abilities that are markedly more difficult
and demanding than the timekeeping aspects of the position. Errors in scheduling can
have significant consequences—it can lead to insufficient or over-staffing, poor customer
service as well as grievances and disputes.
There is no question that the grievor performs some of the timekeeper functions
listed on the Scheduler/Timekeeper job description, though not all of them. But because
she performs none of the scheduler duties — which form the core duties and the basis for
the higher classification— she does not meet the onus for establishing that she should be
classified in the higher position.
Article 30.03 does not assist the Union in its contention that the grievor's duties in
timekeeping should be paid at the Scheduler/Timekeeper rate. Article 30.03 states that
"[a]ny employee who is not required...to perform all of the standard duties of her
Position Description shall receive no reduction in her weekly rate of pay." This provision
is a recognition that an employee may not perform all listed duties on a daily basis. This
provision protects an employee from any reduction in pay in that circumstance - if all of
the standard duties are not performed. It does not require the Employer to pay an
employee who performs some of the duties of a position—but not the core functions — at
the higher rate. As stated by Arbitrator Raynor in Re Fairview Nursing Home Inc. Ltd.
and London and District Service Workers Union, Local 220 (1983), 9 L.A.C. (3d) 352, at
par. 6:
It is not satisfactory that the employee simply establish that he or she has done
certain job functions in the higher-rated classification. It is also well established
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that if job functions are common to two or more classifications, the fact that the
employee carries out those particular job functions, does not, a fortiori, bring that
employee within the higher-rated classification.
Instead, the "employee must bring himself or herself within the `central core' of the job
functions of the higher-rated classification."
The case law recognizes that there is often an overlap in job duties between
positions. Re Ivaco Rolling Mills and U.S.W.f4., Local 7940(Campbell Grievance)(2002),
104 L.A.C. (0) 126 (Bendel); Re Municipality of Metropolitan Toronto and G U.P.E.,
Local 43 (1984), 13 L.A.C. (3d) 248 (Swan). In this case, however, the Union contends
that the timekeeping functions performed by the grievor exceed those of a Clerk. It relies
on Article 30.04 of the collective agreement which states; "An employee cannot be
required to perform duties which are not contained in his position description." The
Union asserts that because the timekeeping duties that the grievor is required to perform
exceed those of a Clerk, the principle of quantum meruit, as established by Arbitrator
Shime in Re Ontario Hydro and C.U.P.E., Local 1000 (1983), 11 L.A.C. (3d) 404, should
apply.
In Re Ontario Hydra, the arbitrator determined that duties required of the grievors
did not fall clearly into either classification suggested by the parties. The work required
did not meet the "core duties" of the higher-rated position, but extended beyond (and not
merely incidental to) their normal classification. In that situation, the arbitrator
determined that the principle of quantum meruit—that a person should be paid what he or
she reasonably deserves — should apply, and remitted the matter to the parties to
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determine the amount of compensation. The Union cited one other case that applied this
principle. Re Commonwealth Plywood Co. and United Brotherhood of Carpenters and
Joiners of America, Local 2000 (Beauchamp Grievance) [1998] O.L.A.A. No. 958
(Roach)
The Employer strongly opposes this alternative approach, citing a number of
decisions which either outright reject it, or treat it with caution. Re Cargill Foods and
U.F.C.W., Local 633 (1996), 43 C.L.A.S. 463 (Bendel); Re South Bruce Grey Health
Centre and OPSEU, Local 275 (2008), 173 L.A.C. (4'h) 83 (Rayner); Re Diagnostic
Services of Manitoba and Manitoba Association of Health Care Professionals
(Schroadter) (2009), 100 C.L.A.S. 248 (Korpesho). It also argues that the collective
agreement provides a detailed process in Article 30 for the introduction of new positions,
and asserts that in light of such contractual provisions, it would be inappropriate to resort
to a quantum meruit approach.
For the following reasons I determine that a quantum meruit approach is not
appropriate in this matter. The approach requires a determination that the duties required
of an employee exceed those in his or her own classification. With respect, I cannot
make that determination here.
In my view, all of the timekeeper duties performed by the grievor fall within one,
or more, of the listed Clerk duties. The "review shift change requests, gain management
approval and update master schedules" and`verify quota balance for all staff and forward
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for management approval" falls within#10 coordinate, complete and update attendance
records and schedules. "Enter planned time and exceptions in SAP" falls within ##4 -
maintain various record systems, as well as #1 — updates and maintains reports and
templates. "Track, investigate inquiries and make adjustments on questionable coding,
absences, scheduling concerns and entitlement balances" falls within #10 and #11 --
coordinates, completes and updates attendance records and schedules; coordinates the
reporting and replacement of absent staff, maintain relevant records. "Review/audit all
timesheets for accuracy" also falls within #10 and #11. "Track actual versus scheduled
hours" falls within #1 — compiles reports. "Prepare, post and amend staff vacation
calendar" falls within #10. "Attend timekeeper conference calls and meetings as
required" falls within #19 — performs other department related tasks and duties as
assigned. Finally, "communicates with management in regard to confidential staff issues"
falls within #11 — coordinates the reporting and replacement of absent staff.
Consequently, I cannot agree with the Union's contention that the Clerk position
description does not include the grievor's timekeeping duties.
I also cannot agree that to so construe the Clerk position description would
deprive the timekeeping aspects of the Scheduler/Timekeeper of any real meaning. There
are specific references in the Clerk job description to coordinating, keeping and updating
attendance records and schedules. As noted, the case law recognizes that duties often
overlap more than one position. The timekeeping tasks assigned to the grievor fall within
the area of overlap between the duties of Scheduler/Timekeeper and Clerk. Re Ivaco
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Rolling Mills, supra; Re St. Mary's Cement and C.A.W.-Canada, Local 222 (2009), 183
L.A.C. (4t) 170 (Devlin).
There is no question that the duties and responsibilities of the Clerk position are
broadly worded-- and necessarily so given the type of enterprise that is CBS. There are
undoubtedly many clerk positions, working in various departments in various capacities,
doing a variety of things. The key is whether the work is predominantly clerical work.
In very large part, the grievor's work is predominantly clerical. This is not to imply that
there is no judgment or skill involved in her duties, or the exercise of discretion. There
most certainly is judgment, skill and discretion required, but for the reasons expressed
above, I conclude that her timekeeping duties fall within the job description of Clerk.
Finally, although facts were presented concerning Ms. Alleyne, the Union did not
raise an argument concerning her in closing. The facts, however, show that although
there is similarity between much of what Ms. Alleyne and the grievor do, Ms. Alleyne
does more. Significantly, the parties agreed that she performs scheduling duties. She
may do so for a relatively small group — some 6 to 8 employees. But that fact
distinguishes the duties of Ms. Alleyne from those of the grievor. Those scheduling
duties are a legitimate basis for the Employer to classify Ms. Alleyne as a
Scheduler/Timekeeper.
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CONCLUSION
For all the reasons set out above, the grievance must be dismissed.
Issued this 14th day of June, 2013.
/s/ Randi H. -4bramsky
Randi H. Abramsky, Arbitrator
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