HomeMy WebLinkAbout1988-0048.Hepplestone.92-03-15 ONTARIO EMPI. O¥/~$ DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTARIO
GRIEVANCE C.OMMISSION OE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
~80 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/T~L~:'PHONE; (476) 326-1388
180, RUE DUNDAS OUEST, BUREAU 21~, TORON~ (ONTAR~]. M5G IZ~ FACSIMILE/T~L~COPtE ~ (416) 326-~396.
48/88
IN THE MATTER OF AN ARB[TRATION
Under.
THE CROWN EHPLOYEE8 COLLECTIVE B/~GA~N~NG ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Hepplestone)
Grievor
- and -
The Crown in Right of ontario
(Ministry of Culture and Communications)
Employer
BEFORE: N. Dissanayake Vice-Chairperson
J. McManus Member
C. Linton Member
FOR THE G. Richards
GRIEVOR Senior Grievance Officer
Ontario Public Service Employees Union
FOR THE D. Costen
EMPLOYER Legal Services Branch
Human Resources Secretariat
Management Board of Cabinet
HEARING October 4, 1989
March 2., 1990
January 23, 30, 1991
DECISION
Mr. Alf Hepplestone has grieved that the position he
holds at the Ontario Science Centre (OSC), is improperly
classified as Museum Assistant 3 (MA 3). He seeks
reclassification as Preparator 2, or in the alternative seeks
"a Berry order" that his position be properly classified.
The union relies on a class definition argument, and in
the alternative, on a class usage argument~ The MA 3 and
Preparator 2 class standards respectively, read as follows:
MUSEUM ASSISTANT 3
CLASS DEFINITION:
This class covers the positions of Museum
Assistants who are responsible for a project in the
Centennial Centre of Science and Technology. Under
the direction-of a senior museum official, they
plan, develop and operate a specific programme or
project in the museum. They may train and supervise
staff and may participate in the professional
planning for the entire museum. These projects may
be curatorial, administrative, educational or
interpretive in value.
OUALIFICATIONS:
1. Graduation from a university of recognized
standing or an acceptable equivalent of
education and experience. Guthe Formula to
apply.
2. Several years' progressively responsible
experience in the museum or a directly related
field.
3. Independent judgement; proven administrative
ability; personal suitability.
April 1966
PREPARATOR 2
CLASS DEFINITION:
This class covers positions of employees who
perform work at the journey-man level in one or more
of the skilled trades, and who regularly supervise
two or more Preparators or other employees at the
Centennial Centre of Science and Technology. They
work under the general direction of a more senior
Preparator.
These employees normally are' responsible for
a workshop or laboratory, its contents, and for the
quality of work performed in their workshop or
laboratory. They ensure that tools and equipment
are in satisfactory condition and that the highest
museum standards of workmanship are maintained.
They keep abreast of methods of museum preparation,
and develop and improve methods and techniques in
their areas. They assist in training staff and may
be required to assist on other projects of exhibits.,
or t~ work in other workshop or laboratory areas,
or in exhibit areas in the fabricating, finishing,
or the assembly of exhibits.
OUALIFICATIONS:
1. Elementary School education plus journeyman
standing in an acceptable museum trade or craft
or an acceptable equivalent of education,
training and experience.
2. At least two years' acceptable experience in
the trade, preferably in a museum.
3. The ability to organize work and supervise,
mechanical aptitude and ability and the
ability to work effectively in a variety of
trades; good physical condition and personal
suitability.'
September 1966
4
In Re Beals & Cain, 30/79 (Draper) at p. 11, the Board
set out the rationale for its approach in classification
grievances as follows:
It may be assumed that among the objectives of
the employer's classification system are the
achievement of uniformity in policy and consistency
in practice throughout the public service, and
equitable treatment of individual employees. It
follows that it is an abuse of the system and unfair
to employees where the positions of employees who
are performing substantially similar work are placed
in different classifications. By intervening where
that condition is found to exist the Board, rather
than frustrating the intent or undermining the
operation of the classification system, is
preserving the legitimacy and the credibility of
that system.
The employer is clearly entitled to create
whatever classifications it deems necessary to the
effective organization and direction of its
employees. But the employer must accept to.be held
to the~consequences of departures, in particular
cases, from settled policy or practice. It is not
open to the employer, for example, to fix the duties
'or to direct the work of incumbents of positions
placed in one classification so as to require or
permit them, in effect, to perform the duties of
positions placed in another classification.
At p. 12 the Board went on to describe its approach to
class standards and usage arguments:
It is well 'established that in position
classification cases, the Board must direct its
inquiry to the questions, first, whether'or not the
work actually performed by the employee is'that set
out in an appropriate class standard and, second,
whether or no~ he is performing work substantially
similar to that being performed byan employee whose
position has been placed in another classification.
In the first instance the employee's work is
measured against class standards and in the second
it is measured against that of an employee in a
position that has been differently classified. The
purpose is to establish either that the employer is
conforming to its classification standards or that
the emp loyer has, in effect, modified those
standards.
The grievor held journeyman papers as a'foundryman and
had extensive foundry experience both in the UK and Canada at
the time he joined the OSC in December 1984 as a member of the
unclassified service of the Ontario Public Service. He was
employed .on a contract basis and was paid the wages of the
equivalent civil service classification identified at the time
to'be that Of Preparator 2. (See, Article 3.22.1)
The purpose of hiring the grievor at the time was to set
up and operate a foundry at the OSC. He prepared the area,
acquired the necessary equipment, and determined the methods
'to be used in operating the foundry. In June 1985 the foundry
opened and the grievor operated the foundry using-the sand
casting method, to produce bells to be used in a robot exhibit
at the OSC. While the operation of the foundry was open to
be viewed by ·the public, .the employer's intention ·was to
polish the bells produced by the grievor as part of a robotic
demonstration. However, the robotic exhibit ran into trouble
and was abandoned.
Ms. Luigia Dedivitiis, who at that time was Manager of
Instruction and Research at the OSC, testified that around the
6
same time in 1986, the main hall of the OSC went from a
developmental to an operational phase. The employer decided
to retain the foundry as an exhibit within the main hall. The
responsibility for the foundry was removed from the
Design/Production Department and brought under the
Instructions and Research Department managed by Ms. Dedivitiis
and approval was given to employ a permanent foundryman in the
classified service. Ms. Dedivitiis, in consultation with
others, developed a position specification and concluded that
the appropriate classification for the newly created permanent
position would be as MA 3.
The MA 3 wage rate is lower than that of a Preparator 2.
When the grievor saw the job posted as a MA 3 position, he
complained. Ms. Dedivi~iis explained to him that the posted
job as foundryman was solely to instruct and demonstrate the
operation of a foundry to the public and that all instructors ·
of the 0SC are classified as MA 3. She explained that the
initial idea of producing bells for the robotic exhibit had
been'abandoned; that the Preparator series is for positions
involved in production, and that the new foundryman job did
'not fit within that class. The grievor was not pleased, but
he applied and was appointed to the posted foundryman position
effective September 1986.
In this job the grievor presented two "shows" each day
at scheduled times. Each show demonstrated how a foundry
functioned and climaxed with the pouring of the molten metal.
The grievor had .two assistants ("Pourers"). The griev0r had
responsibility for the training and instructing of the two
pourers as well as some 10 to 12 hosts, who made presentations
about the foundry exhibit to the public.
Sometime late in 1986 or early 1987, the grievor came up
with a proposal to do an additional demonstration using the
investment or precision casting technique. As we understood,
this essentially involved the pouring of molten metal to
create items of jewellery. The grievor researched and
developed the idea and received the approval of the employer~
in 1987 to implement this demonstration.
The class definition argument
Under section 18(1)(a) of the Crown Employees·Collective
Bargaininq Act,."classification of positions" is an exclusive
function of the employer. Once this management right is
exercised, the 'Act in section 18(2) allows an employee to~
grieve "that his position has been improperly classified".
The Board, in determining a classification grievance must
therefore first inquire whether the classification assigned
by the employer is improper. Only if it is improper is there
a violation, which warrants.the intervention of the Board.
8
If the Board finds that the assigned classification is
improper, it must go on to decide whether there is any other
proper classification which fits the position in question.
If so, .the Board directs that the position be reclassified to
that. If the Board finds that the assigned classification is
wrong but, cannot find a proper classification, it will make
what is commonly known as "a Berry order", which obliges the
employer to either find a proper existing classification for
the position or to create one.
In considering a class definition argument, the Board
must first measure the grievor's work against the class
definition assigned to his position. The gist of the union's
class definition argument here is that the MA class series is
intended for academically qualified persons whose work
involves mental skills, while the Preparator class series is
intended for skilled tradesmen who use more physical effort
than mental skills. This distinction between "academic or
mental skills" vs. "trade or physical skills" is not expressed
on the face of the two class definitions in issue, that is the
MA 3 and Preparator 2. Mr. Richards urges the Board to infer
that distinction from the fact that the Preparator 2 class
definition refers to "journeyman standing in an acceptable
museum trade or craft", as a required qualification, while the
MA 2 class definition talks of "Graduation from a university'
of recognized standing". If these were the only
9
qualifications set out in the respective class definitions
the union's argument may have had merit. However, that is not
the case. The MA 2 classification is not restricted to
university graduates'or "academics" because of the words "or
an acceptable~ equivalent of education and experience". The
responsibility of a MA 3 is to develop,, operate and maintain
one or more exhibits. Ms. Dedivitiis testified that in
recruiting employees in her department, the employer looks for
whatever education and training it takes to operate a
particular exhibit. Thus there are MA 2s with a wide range
of qualifications, includ%ng Phds on one extreme and the
grievor with~a.trade certificate on the other. While the
grievor is the only MA 3 with a journeyman trade certificate,
given the open-ended description of the qualifications
required in the MA 3 class' definition, there is nothing, in
our view, to preclude the employment of a journeyman in that
classification. The fact that the grievor is the only MA 3
with journeyman trade papers only reflects the unique nature
of the foundry exhibit, the operation of which requires trade
skills as opposed to academic skills. Similarly we note that
the Preparator 2 classification is not restricted to
journeyman trades because that also recognizes alternatively,
"an acceptable equivalent of education, training and
experience".
The union called another MA 3, Ms. Judy Janzen who
testified that almost 70% of her time is devoted to exhibit
research. In contrast, the grievor's research activity is
substantially less.~ Again this difference is attributable to
the different nature of exhibits operated by Ms. Jansen and
the grievor respectively. The. grievor does constant research
to upgrade and maintain his foundry exhibit, and he did
research in order to develop and operate his precision casting
exhibit. However, his research volume is significantly less
simply because of the nature of his exhibits. The
demonstration of a foundry operation involves significant
preparation and clean-up duties. That necessarily reduced the
amount of time available for research. We are of the view
that these distinctions between the grievor's job and Ms.
Janzen's position do not indicate that the grievor's position
is wrongly classified as MA 3.
The MA 3 definition is said to cover employees"who are
responsible for Ja project" and those employees are said to
"plan, develop and operate a specific program or project in
the museum". The grlevor s job fits comfortably within that
class definition. Since, as we have noted, his joUrneyman
qualification is not an impediment to inclusion in this
classification, we do not see any basis to find that his
position'is improperly classified when measured against the
MA 3 class definition. Accordingly, .the grievance cannot
succeed on the basis of the class definition approach.
The class usage argument
The .union advanced this argument primarily on the basis
of a comparison between the. grievor's position with'that of
two other employees classified as Preparator 2. Mr. John
Brands is a journeyman printer, and Mr. Ben Verburgh a
journeyman model-maker. The gist of the argument is that
these two employees used their journeyman skills in their
respective trades just like the gri~vor used the skills of his
trade. Since the employer had seen fit to classify the
printer and model maker positions as Preparator 2, it is
argued that the' grievor is entitled to the same
classification.
As a general matter, it is beyond dispute that Brands,
Verburgh and'the grievor use their respective trade skills to
a 'greater or lesser degree in carrying out their~ duties.
However, the similarity ends there. The evidence is that the
two preparators practice their trade skills to the fullest
extent on a day to day basis. Although both 'witnesses
testified that the primary purpose of their j~b was to
demonstrate their trade skills to the public, their position
specifications (which everyone agreed were accurate), and the
evidence clearly establish that this is not so.. Their primary
function is to produce items required by the OSC as per work
orders assigned to them by their supervisors. Mr. Brand's
position specification assigns 70% of his time to "providing
printing services for the centre's internal printing
requirements" and 20% to "demonstration while producing the
'centre's printing requirements". The evidence is that the OSC
has a separate print shop exhibit. Mr. Verberg's position
specification does not include a percentage breakdown of his
time, but the bulk of his duties are also production'oriented.
The evidence is that ali of the centre's preparators
produce items needed by the OSC. The only preparators who
work in public view are the printer and the model-maker. They
produce items as required by work orders. What they~produce
is used by the OSC. They do not put on a staged show. What
the public sees is what is being produced on a given day as
determined by the centre's needs. What is produced day-to-
day can be a variety of things. At least as far as the
printer is concerned, the evidence is that from time to time
he operates the printing shop on overtime,' when the centre is
not open to the public. What the evidence indicates as a
whole is that the printer and the model-maker are essentially
involved in the production of items for Use by the OSC. The
printer produces a variety of printed material for use by the
centre. Th~ model-maker produces a variety of models, from
ship models to farming models, for use in the many exhibits
13
within the centre. The difference between ·these two
preparators and the other preparators, is that, because their
trade is of interest to the public, they work in public view
and they are expected to explain and answer any questions
members of the·public may have. Neither the printer nor the
model maker have any responsibility for training or.monitoring
of any hosts. In fact there are no hosts involved in the
demonstration of their trades.
In contrast, the grievor's job is solely one of
demonstrating an exhibit.~ It has no production component to
it. He puts up a staged show at a scheduled time for the·
benefit of the viewing.public. The grievor testified that.
from time to timer he has produced some items which have been
incorporated into exhibits. However, he agreed under cross-
examination that these were produced not pursuant to any work
orders. Nor was that work assigned by his supervisors. The
evidence is that people, in the OSC from time to time made
informal· requests from the grievor to make certain items to
be used in their areas and that the grievor obliged.. The
griev0r agreed that it was not part of his job to produce
those items. Ms. Dedivitiis testified that the grievo~ was
quite interested in making these items upon request, and that
as long as this was agreeable to'the grievor, she had no
Objection and would even encourage the grievor to oblige. In
the circumstances, this evidence does not suggest that the
griev°r has production responsibilities like the printer or
the model-maker. It is clear that' the latter jobs exist
because of the need for the production of the printed material
and the models, and that the demonstration aspect is an
incidental benefit the OSC has seen fit to derive. As Ms.
Dedivitiis testified if the employer decides at some point not
to have a foundry exhibit (for example due to lack of an
interest on the part of the public), there is no need for the
operation of a foundry at the OSC. In contrast, regardless
of the level of appeal to the public, the printed m~terial and
models must be produced. That in our view clearly
demonstrates the difference between the role of the printer
and the model-maker on the one hand and the foundryman on the
other.
In our view, the distinction is not merely one of focus.
Due to the difference in focus, there are material differences
in the actual work. The evidence is that the two preparators
use all th~ aspects of their trade skills on a day-to-day
basis. They produce whatever is required by the work orders,
and must use whatever skills are required to produce those.
In contrast, since the grievor's exhibit is for demonstration
purposes only, the trade skills he uses are selective and
mostly repetitive. In operating the foundry exhibit the
grievor does 'not utilize all of the skills of a .journeyman.
15
It follows from the above that the printer and model
maker do not perform substantially the same work as the
griever. Therefore, the griever is not entitled to the
classification held by those employees on that basis.
The union advanced two other usage arguments. Mr.
Richards pointed, out that when the griever was first hired as
an unclassified contract emploYee, he was paid as a preparator
2. It is his contention that the duties he performed then
were the same as those performed by the griever presently as
a permanent classified employee. Therefore, Mr. Richards
submits that if the employer saw fit to treat the griever as
a Preparator 2 as a temporary employee, the same
classification should be .recognized for him after he became
a permanent employee.
Similarly Mr..Richards pointed to the positions held by
the griever's two assistants, who at the time were also
members of the unclassified service. They were paid the rates
of a Preparator 1. It was. only in March 1988, well after the
.filing of the instant grievance, that the two assistants'
equivalent classifications were changed from Preparator'l to
MA trainee. Therefore the argument is that between September
1986 .when the griever became a permanent employee and March
1988, the griever and the two assistants were performing the
same work, but were differently classified. The contention
16
is that since the two assistants were in the Preparator series
for that period, the grievor is also entitled to be classified
in the same class series on the basis of class usage.
These latter arguments of the union are unique in that
a class usage argument is being advanced on the basis of a
comparison to employees in the unclassified service.
Unclassified employees are assigned a wage rate on the basis
of an equivalent classification under article 3.22.1, but have
no classification of their own [See, Re Greer et al, 877/86
(Dissanayake)]. The union relied on Re Remedios, 1703/84
(Palmer). There the grievor was hired as a temporary
stenographer in the "G.O. Temp" programme and assigned to a
clerical job with the Ministry of the A.G. and paid the
equivalent wage rate of a Clerk Steno IV. Subsequently she
became a permanent employee in the classified service. At the
time, her job was designated the classification of Typist III
which was lower rated than Clerk Steno IV. She grieved her
classification. The Board upheld the.grievance, and in so
doing stated that one of the.factors that greatly a~sisted it
in making its decision was the method of payment to the
grievor while she was a temporary employe~i The Board states,
"as She was paid the rate equivalent to that of the job here
sought, it would seem a reasonable assumption to conclude
that, as she is still doing the identical work, the
17
appropriate classification for her' now would be that of Clerk
Steno iV."
In our view Re Remedios is clearly distinguishable from
the case at hand. In that case the Board made an explicit
finding that "There was no dispute that Mrs. Remedios was
doing exactly the same job before and after her transfer to
permanent status", and no issue was raised by the~employer
that there was any mistake in the manner in which the grievor
was paid as a temporary employee. In contrast, here the
employer's evidence is that as a temporary employee, the
grievor was producing goods required by the OSC by operating
a foundry. As a permanent employee, he was presenting a
foundry demonstration or show.
As we have already pointed out, the work of operating a
foundry for production purposes, is different from the
repetitive demonstration of a foundry exhibit. It cannot
therefore be said thatthe grievor was performing~"exactly the
same job" before and after his transfer to permanent status.
Besides, here the employer is takihg the position that once
the ·initial intention of operating a foundry to produce
exhibits was abandoned, the Preparator classification was no
longer appropriate and that when posting the permanent
position the employer corrected that by classifying the
~position as MA 3. The employer takes the same position with
18
regard to the changing of ~the classifications of .the two
assistants 'from the Preparator series to the MA series. We
have addressed the issue of the employer's right to-rectify
a wrong classification below. That is an issue that the Board
in Re Remedios did not have to deal with.
In Re Lowman 13/82, the Board found that there was one
employee who performed the same job as the grievor, but had
a higher classification. However, it was held that a single
departure did not entitle the grievor to claim the higher
classification on the basis of a usage argument. The Board
in essence held that for a usage argument to succeed, there
must be evidence of a consistent practice of varying the class
standards and that a single departure did not establish such
a practice.
The Board's decision in Re Lowman was quashed on judicial
review. In a judgement dated April 22, 1985 the Court held,
In our opinion, the Board erred in failing to
apply the second test in OPSEU v. The Oueen in Right
of Ontario et al (1982), 40 O.R. (2d) 142 (Brecht's
case). Having found that there was an employee
performing substantially the same duties as the
grievors and that such employee had been
deliberately classified by the respondent in a
higher classification, the Board acted unreasonably
and without jurisdiction in failing to find that
the grievors would be properly classified in the
higher classification. "
The higher classified employee-and the four
grievors are the only persons in the Public Service
performing the function of remote sensory
19
supervision. In the circumstances we are of the
opinion that it does not assist the respondent to
argue that the senior employee may have been
improperly Classified.
The decision of the Board is quashed and set
aside and the matter remitted back to the Board,.
costs to the applicant.
The scope and meaning of this Court decision was
considered in Re Taylor et al 478/85 (Brent).. The Board held
that the Court does not state that an employer can never
.successfully argue error when it held that the employer in
that case could not argue error in the circumstances of that
particular case. The Board then went on to give its view of
the law following the court decision in Re Lowman:
Following the L0wman decision, it is our view
that the Employer is precluded from pleading error.
or anomaly where there is a deliberate decision to
classify substantially similar jobs differently.
It would appear that the overriding consideration,
in view of that decision, is that the classification
system be applied uniformly and consistently so that
positions which are alike in all relevant respects
are classified alike. The Court did not consider
a situation where the Employer recognized an error
and then did something to restore consistency and
uniformity to its classification system by applying
the class standard as written.
.It is our view that for a classification system
to. work properly and to ensure that'the same work
attracts the same pay there must be a mechanism for
correcting the errors which will inevitably arise
in the application of the system~ No classification
system, can hope to achieve even a semblance of
equity and fairness, if errors must be frozen for
evermore. If .the Employer recognizes an error and
then does nothing to correct it, it would appear
that since Lowman it can no longer refuse 'to
acknowledge that the "error" has in effect become
a relevant standard of comparison. Where the
Employer recognizes ~that a mistake has been made
and acts to correct it, then surely it has restored
consistency and uniformity to the system and can
once again rely on the class standard as written as
being the applicable standard against which to
measure the job which is the subject of the
classification grievance. In our view, it is
irrelevant that the error was not corrected by the
date the grievance was filed, and in this case the
fact that the Employer was engaged in correcting
the error at the date of the grievance and
subsequently did correct it is sufficient to show
that it was applying the class standard as written
and did not intend to vary it. through application.
It would be strange result, indeed, if the
effect of this decision were. to force the Employer
to reclassify a job which is classified.correctly
according to the class standards simply because it
was substantially the same job as one which had once
been improperly classified higher than the grieved
job but which was now properly classified in the
same classification as the grieved job. If we were
to do this we would be forcing the Employer to
perpetuate a mistake it had already corrected and
leave it vulnerable to claims for reclassification
from every employee occupying jobs classified as
Operator 2 Microfilm. Such a result would not
benefit anyone interested in encouraging a
reasonable, fair and.equitable application of any
system of job classification.
In our view the foregoing reasoning has direct
application to the facts before us. We have concluded that
the foundryman job is now correctly classified according to
the MA 3 class definition. All' of the employees at the OSC
who operate exhibits and demonstrations are Classified in the
MA series. The grievor was initially classified as a
Preparator. If the initial purpose of his job, namely~the
production of exhibits had continued, that classification
21
would have been appropriate. However, since his job changed
from one of production to one of demonstration, the Preparator
series was no longer appropriate. The employer had corrected
this anomaly by the time of the hear'ing. The same thing
happened with the two assistant's jobs although the correction
of their classification took longer. As held by the Board in
Re Taylor, the fact that the employer had corrected the
improper classifications shows that it was applying the class
standard as written and did not intend to vary it through
application.
In the circumstances, to allow the grievor to now rely
on a wrong classification is to .force the employer to
perpetuate an anomaly which has already been corrected. As
the Board in Re Taylor points out such a result does not
benefit anyone interested in encouraging a reasonable, fair
and equitable application of any system of job classification.
For all of those reasons we refuse to recognize the
union's usage argument based on the equivalent classification
assigned to the positions held by the grievor and his two
assistants as temporary employees, because those
classifications became improper after the foundry became an
exhibit.~ ~.
22 ~
The parties agreed that if the proper class series for
the grievor was the MA series, the proper level for him was
MA 3. In the result we find that the grievance fails both on
the class definition and class usage approaches and that his
position is properly classified as MA 3. The grievance is
hereby dismissed.
Dated-this '~t'h -_ day of "~arc5, 1992 at Hamilton, Ontario
N. Dissanayake
Vice-Chairperson
"I Dissent" (written dissent to follow)
J. McManus
Member
¢. hinton
Member