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HomeMy WebLinkAbout1988-0295.McColl.92-04-13 ONTARIO ' EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTA RiO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ;80 DU,'V, OAS STREET WEST, SUITE 2;00, TORONTO, ONTARIO, MSG ~Z8 TELEPHONE/T~LEPHONE: 180, RUE ~ND~S OUEST, BUREAU 2}00, ~ORONTO (ONTaRiO). M5G IZ8 -' FACS~M~LE/T~L~COPiE ; (416) 326-~3~6 ·. 295/88 Z~ ~ ~BR O~ ~ ~ZT~TZO~ Undo= ~ C~ ~P~B8 ~L~~ B~ZNZNG~ ACT ~ GRZ~CB 8B~~ OPS~ (McColl) Gr'ievor - ~ - The Cro~ in Right of Ontario (Minist~ of the EnviFo~ent) ~ploEer, BE~: A. Barrett Vice-Chai~erson J. C. ~niel Me. er D. Montrose Me. er POR THE N. Wilson GRIgV'OR Counsel Gowling, Strathy & Henderson Barristers & Solicitors POR THE D. Costen EMPLOYER Counsel Legal Services Branch Management Board of Cabinet November 5~ 1991 March 9, 10, 1992 DECISION Mr. McColl, who is an abatement officer with th% Sault Ste. Marie district office of the Ministry, filed three classification grievances in the wake of Grievance Settlement Board decisions in Baldwin and nvn~, GSB #539/84, and Pin~ue .and Wolaniuk, GSB %540/84. When Mr. McColl filed his first grievance'in May, 1988, he'was classified as an environmental technician 3. As a result of numerous classification grievances from environmental technicians throughout the province and recognition by the Ministry that environmental technician class standards were obsolete, a new class standard for environmental officers was produced .in 1987. At about the same time, the Baldwin and Lyn~ decision was released' which" · required the Ministry to create a new classification. ~or the grievors; The sub'sequent Pin~ue and Wolanidk award was issued'in June, 1987 and, before its release, the parties agreed that' '"without prejudice to or concession to the claims and grievances of other environmental officers who allege that they are improperly classified that the grievors would be reclassified to the same classification as Baldwin and Lyng when that classification was finally determined". In September, 1987, the employer issued the environmental officer series'With six classification levels~ and reclassified all of the environmental technicians into this series. Generally speaking, environmental technician 3's became environmental officer 3's, and environmental technician 4's became environmental officer 4's. In this process, Mr. McColl was classified an environmental officer 3. Many more. classification grievancgs arose out of this reclassification process because in the reassessment of all of the individual abatement officers on their job duties, some were reclassified as EO3 but some were "promoted" to EO4. Mr.. McColl's first and subsequent grievances relate, to his' contention that in the reclassification PrOcess, he should have been made an environmental officer 4. In June, 1990, a panel of this Board chaired by Mr. Samuels issued an award in Zakrewski et al, GSB #90/88, wherein the panel grappled with interpreting' the new environmental officer standards and laid down guidelines for distinguishing between a proper EO3 and EO~ classification of an individual. The Samuels Board cited with approval the distinctions made in Pin~ue and Wolaniuk between the duties and responsibilities of an EO3 .and an EO4. As was said in Pin~ue and Wolaniuk and re-enforced in Zakrewski: . "...This is a job which will necessarily grow with the incumbent...There is so much scope for individual initiative, and there may be an enormous variance in the way in which the job is performed by different officers...Necessarily, the level at which the officer does his job will depend on his abilities and expertise. This does make the job of classification ver~ 6i~icult. Generally, this Board has made it clear that it is the job which is classified, not the incumbent. An inc,~mBent may be over-qualified for the job, but this does not make any difference to the classification. It is what you are required to do which matters, not what you are capable of doing. But in this case, the general rule does not work. This is a job with a very flexible tod end." Vice-Chairperson Samuels also went on to say: ! "...The critical differ.ence between the 3 and 4 is the generalist nature of the 3's job and the 'technically complex and specialized' nature of the 4's work. The ET 4s 'el%her function as recognized experts in specialized work...O__R they exercise .advanced responsibilities across a range of several areas in the environmental and pollution control field." In su~, the zakrewski Board found that the EO4 classification is appropriate for an abatement officer who is filling all of the expectations of the position. A less experienced, less qualified, abatement officer would be properly classified at the E03 level. Neither counsel at our hearing took issue with the propriety of the Zakrewski decision. Both counsel agreed that we should make our determination of Mr. McColl's proper classification based on the guiding principles set out in Zakrewski. At the opening day of our hearing, counsel for the employer advised that in accordance with the guidelines set out in Zakrewski, it had decided that it would be appropriate to reclassify Mr. McColl as an E04 effective January 1, 1990, and to pay him retroactive pay without interest to that' date. The Ministry's position was that prior to that time Mr. McColl was properly classified as an EO3. The Union says that Mr. McColl should have been reclassified' to the environmental technician 4 position as far back as November, 1984, and to the' EO4 position effective October, 1986, in accordance with the retroactivity dates granted to other grievors and non-grievors who were elevated to EO4 status after a combination of Grievance Settlement Board decisions and Ministry reviewS. First, let us say that there are no factors in this case which' would take it out of the general rule that retroactivity only goes back to 20 days before the date the grievance was filed, in this case, May, 1988. No representations were made by management to Mr. McColl that he could expect to be reclassified informally if he abstained from grieving .earlier, nor were there any other special circumstances which would lead us to diverge from the general rule. Thus, we are left 'to determine whether or not Mr. McColl .was improperly classified as an EO3 between May, 1'988~ add January, 1990. We add at this point that we see no reason to diverge from the other general rule of thi~ Board that interest should run on any retroactive award back to the date when it is determined that the grievor's classification was improper. Thus, at the outset, we can say that Mr. McColt shall have retroactive pay with interest back to January 1, 1990, when the employer concedes that he was improperly classified as an EO3 and should become an EO4. In this decision, we will not elaborate'on the day-to-day duties and responsibilities of an abatement officer in the environmental officer series. They are fully set out in the Zakrewski decision, and the evidence we heard in this regard was confirmatory of the findings, in that case. 5 We will focus on the essential distinctions which, according to the class standards and the Grievance Settlement Board jurisprudence, mark the difference between an E03 and an EO4. As noted previously, we will focus on the time period between May, 1988, and January 1, 1990. We quote from the relevant portions of the environmental officer 4 class standard. "This class covers positions of emploYeeS who, in addition to the responsibilities described in the Environmental Officer 3 standard, exercise advanced responsibilities, across a range of several areas in the environmental and pollution control field. They may function as group leaders'..OR they' may be recoqn'ized senior environmental officers who have the ability and wide variety of experience to function independently'and to assume significant responsibility. They will exercise judgement and initiative to identify and resolve complex and contentious problems... " Work is performed 'under minimal suDervisioq. Judgement is employed to co-ordinate the necessary human, material' and/or information resources and to organize studies, surveys, investigations of complaints or inspections independently, referrina to supervisors only in event of very unusual circumstances, and to advise on-progress." Because the E04 class standard subsumes all of the responsibilities described in the environmental officer 3 standard, it is necessary to highlight some of those responsibilities. One compensable factor is "a working knowledge of the principles and' practi~es of industrial and municipal environmental control...Work is performed under general supervision with some independence...". We heard substantial evidence about Mr. McColl's evolving job duties since his hire in 1974 up to.the present time. In 1974, the abatement section was organized in two groups. One group of abatement officers looked after industrial pollutio~ under the supervision of Mr. La Haye, the district officer. Another group of abatement officers looked after municipal and private pollution problems under the supervision of another district officer. In about 1982, the two sections amalgamated and Mr. La Haye was put in charge' of both sets of abatement officers. The abatement officers were ~rged to ~'cross over" and g.ain experience .and knowledge in the area i~ which they had not previously worked. Up to this date, Mr. McColl had been working on the industrial side and was responsible for the two biggest industries in Sault Ste. Marie; Algoma Steel and St. Mary's Paper (formerly Abitibi), as well as some Smaller industries in the Sault and outlying areas. When the two groups amalgamated, Mr.'McColl chose not to involve himself in the municipal and private areas because there was lots of work to do with the two major industries and. he preferred it. Most 'other abatement officers took advantage of cross-over opportunities. Mr. La Haye testified that while pollution problems may be similar in industrial and. municipal and .private. settings, the handling of them from an. abatement officer's perspective is not. 7 The environmental assessment process applies only to munfcipai and private fields but not the industrial field. Similarly, in the municipal and private fields, there are provincially-funded projects and an array of different grant programs with which the abatement officer is closely involved. In a 1985 performance appraisal, Mr. MCColl was urged to broaden his municipal knowledge and' experience. In his 1987 performance appraisal it was noted that Mr. McColl had taken a water supply course in order to broaden his munlcipal training. It was further no~ed, as an .expectation, that Mr. McColl would continue to involve himself in municipal and private areas of endeavour. . . In late 1985, the Ministry came under considerable pressure from public and political sources for not being tough enough on Algoma Steel which was seen as the worst pollution offender in the area. Mr. McColl, who had a good working relationship with Alg0ma, was reluctant to take on a more strict policing role. In the spring of 1986, Mr. La Haye hired a Mr. Peterson to come in.as group leader and take over primary r~sponsibility for Algoma and St. Mary's. Mr. McColl was to assist him and report to him. After only about six weeks on the job, Mr. Peterson transferred to another jurisdiction and Mr. Jennings took his place as group leader with primary responsibility for A~goma and St. Mary's. Mr. McColl was now to report through Mr. Jennings, who was a bargaining unit member, classified~ as a resource manager 3. This reporting 8 relationship continued under December, 1988, when Mr. Jennings left the Ministry. For the next two ~onths, Mr. McColl reRorted through a Mr. Stewart who was the supervisor in the municipal and private area. Then Mr. McColl went on sick leave from. February, 1989, to September, 1989. When Mr. McCoil returned to work, he no longer had a bargaining unit group leader but reported to a newly-appointed management supervisor, Mr. Taylor. His duties were also changedat that time. He was'relieved of his former duties at Algoma and St. Mary's and was given,a new broader-based territory which included substantially more municipal and private work. In the spring of 1990, he was given, sole responsibility for ensuring secure tire storage faciliti%s, in the district. It is at about this point that management says Mr..McColl was now a fully functional environmental officer 4. He was then well experienced in municipal and private work, he was no longer working under the supervision of a group leader and he had separate and independent responsibilities. We agree with management's assessment. Until Mr. McColl had ~n-depth experience in the municipal.and private fields, he could not' be said to be assuming "all of the responsibilities described in the Environmental Officer 3 standard". While he was reporting through a group leader, he cannot be said to have been working under "minimal supervision...ref~rring to supervisors only in event of very unusual Circumstances". Also, while he was. reporting to a group leader, he could not be categorized as a "recognized senior environmental officer". It is to be noted, that Mr. McCoI1 was the only environmental officer 3 in the district reporting through a 9 group leader. The others reported directly to Mr. La Haye. Once the reporting structure wa-~ changed and his municipal experience was broadened, Mr. McColl could properly be classified as an environmental officer 4. Accordingly, the grievances are allowed to the extent that Mr. McColl shall be reclassified as an environmental officer 4 as of January 1', 1990, with retroactive back pay and interest. We will · remain seized of jurisdiction for a period of 90 days following the release of this award in the event there is any diff.iculty implementing it. Dated,at Toronto this 13th day of ~&priI,~ 1992. A. Barrett, Vice-Chairperson J.CAaniel, Member D. Montrose, Member