HomeMy WebLinkAbout1988-0551.Cooper.89-04-28 ONTARIO EM~ OYeS DE LA COURONNE
GRIEVANCE COMMISSION DE
SE~LEMENT REGL~ENT
BOARD DES GRIEFS
I80 O~O4S ~TREET WE~T, ~NTO. ~TA~O USG 1Z8 . SUITE 21~ rELEPHONE/TgL~PHONE
~ ~UE DUNDAS OUES~ ~R~TO. (ONTARIO) ML~
IN THE MATTER OF AN ARBITRATION
Under
TH~ CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE ~RIEVANCE SETTLEMENT ~OARD
Between: OLBEU {CooDer)
- and - Grlevor
The crown in Right of Ontario
{Llquor Control Board of Ontario)
F~nployer
~efore: N.R. Gorsky Vice-Chairperson
F, Tay~o~ Me~ber
I. Cowan Member
APPEARING FOR Elizabeth Mitchell
THE~ GRIEVOR: Counsel
Koskle and Mtnsk¥
Barristers & Solicitors
APPEARING FOR Lynn Thomson
~ P24PLOYER: Counsel
Hicks Morley Hamilton
Stewart
Barristers & Solicitors
Hea~nq: March 6, 1989
DRAFT AWARD
There is no significant dispute between the parties as to the
facts of this classification grievance, It was agreed that the grievor,
Anne Cooper, was, at ali material times, a Clerk Grade z/("Clerk
#") with the L.C.B.O. ("Employer"), Her Position Title, at ail material
times, was that of Advising Clerk, in the Distribution Division, Traffic
and Customer Department, Traffic Operations Section.
In order to arrive at the precise issue presented by the parties,
it is necessary to refer to some of the specific facts, many. of which
m'e not in issue, and the positions of the parties based on those facts.
Hertz/, Rott, is also employed tn the Traffic Operations Section, ·
a~d was, at the date of grievance (May 2zi, 19t!8), performing the
same duties and'carrying out the same responsibilities as Ms. Cooper
and they continued to perform the same duties and carry out the
same responsibilities at all materiel times. She also had the same
Position Title and was also an Advising Clerk in the Distribution
Division, Traffic and Custom Department.
At the time of the grievance, Ms, Rott was classified as a
Clerk Grade 5 ("Clerk $"). Miss Rott's position was reclassified
by the Employer to that of Clerk ~ in December of 1988, and her
Position was then red-circled.
The position taken off behalf of Ms, Cooper is that she Is entitled
to the same classification as Ms. Rott [Clerk 5) as they performed
the same duties ar~ had the same responsibilities as at the date.'
of the grievance and that it was, for the purpose of this arbitration,
Irrelevant that Ms. Rott's position was reclassified to Clerk ~
subsequent to the filing of the grievance.
Ms. Mitchell, Counsel for the Union, relied on the case of
Ontario Public Service Eml~lo,(ees Union v. The Queen In ric[ht of
.Ontario et al. (1982), qO O.Ro (2d) Iq2° There, the Ontario Divisional
Court stated, referring to S.18 (2:)(al of the Cro_wn Employees Collective
_B ar~atnincL Act, R.S.O. ! 980, C. 108 ["the ^ct"L st ated (at p. ! aS):
"On a classification grievance the 8oard is generally
mandated to consider two matters, namely, whether
or not the grlevor's job measured against the relevant
class standard comes within a higher classification which
he seeks, and even if he fails to fit within the higher
class stanclards, whether there are employees performing
the same duties in a higher, more senior classification."L
There was no issue with respect to the first test, sometimes
referred to as the rlbest fit" test: it did not apply in this case as
it was not being urged by the Union that the job being performed
by Ms. Cooper at the date of the grievance came within the higher
class standard. Rather, the Union argued that the second (usage)
test (referred toby Ms. Thomson, Counsel for the Employer, as
the "me too" test) applied, because, at the date of the grievance,
MS. Rott, who was performing the same job as MS. Cooper, who was
classified as a Clerk $.
Ms. MJtcheU relied on Re McCourt 198/78, which is consistent
with the O.P.S.E.U. case, where the second rule.was enunciated
[at p. 8):
"...[l]f the Grievor's work was identical (or virtually identical)
to the work of another employee who was class|fled
at a higher level, notwithstanding that the Grievor's
work did riot come within the higher documented classification
standard, the grievance wilt also succeed. In' the latter
case, the Grievor's Job is measured against the actual
classification practices of the Employer, which may
differ from the documented standard."
Ms. Mltchell also relied on Re McTamney 1553/8S. in that
case the same Pule was enunciated in relation to the usage test.
Ms. Mitchell, while arguing that Ms. Cooper should be reclassified
as a Clerk 5 as of the date the grievance was filed (May 2q, 1988),
merely sought equality with Ms. Rott. This, she submitted, could
be achieved by awarding Ms. Cooper her reclassification to clerk 5, from
May 2~, 1988 to the date in December of 1988 when Ms. Rott was
red-circled. Jn this way, the requirements of the.O.P.S.E.U, case
(above) could be followed, at the same time achieving the necessary
equality that i~ required by that case, which would be achieved by
the red-circling of Ms. Cooper.
Ms. Thomson took the position that the Union could not succeed
Oll its usage argument by relying only on a single case for comparison
{Ms. Rott)o She referred to Re Montaque 110/78 [Swinton) at pp.
"The task of this Board in cla~slfication grievances is
to assess whether the position has been improperly classified
according to the class standards established by the govern-
ment's classification system. In deciding such grievances,
the Board considers not only whether the grievor's job
comes in within the words of the higher class standard
which he or she seeks, but also whether the grievor's
duties ace the same as those of an employee within the
more senior classification sought (Re L_~ ~43/77; Re
Roundin~ I8/75; Re Wheeler, 166/78).
A recent a~vard by another panel of this Board elaborated
on this Second line of enquiry in McCourt and-M_inistry
of the Attorney General, 198178. If another employee
doing work identical to the grievor is classified at a
higher grade, it may.indicate that the employer's actual
classification practices differ from the written classi-
fication standards. It should be noted, however, that
the concern is with the proper application of the employer's
classification .system. Therefore, it may not be conclusive
for a grievor to show that ~on~. employee in a higher classi-
fication performs the same tasks, for It may be that
such an employee has been improperly classified."
I do not disagree with this statement that the result "may
iv
not be conclus e. Other employees may also be performing the
same tasks and be classified at the same lave! as a grievor. There,
the fact that only one employee, also performing the same tasks,
was given a higher classification could not be conclusive.
This statement was made in o_bl.t_er, being unnecessary for
the award.
MS. Thomson also relied on Re CarvaJho laSZ;/8~;, where it was
said, at pp. 16-20:
"Turning to the class usage argument, this brought into
question application of the recent decision of the Divisional
Court in Re Lowman and Ministry of Transportation
and Communications. Unpublished Reasons for Judgment
(November 15, 198~). Prior to this decision, it was the
position of the Grievance Settlement Board that in order
to succeed on class usage, it was necessary for the Union
to show that in practice, the employer had varied the
written Class. Standard in such a way as to encompass
the work of the grievor. The Board took the position
that there "must be a consistent practice of varying
the Class Stanclard," Re Lowman and MTC (198a),
# ! 3/82 (Saltman). Indeed, in line with this requirement,
the Board in Lowman. supra, decided against the grievors
on the ground that the "practice" requirement was not
satisfied by showing that only one employee in a higher
classification.performed the same work.
Upon judicial review, the Divisional Court quashed the
decision of the Board in Lowman, stating,'.in pertinent
part:
Having found that there was an employee
performing substantially the same duties
as the grlevors and that such employee had
been deliberately classified by the respondent
in a higher classification, the Board acted...
without jurisdiction In failing to find that
the grievor would be properly classiflecl 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 supervision. In the circumstances
we are of the opinion that it does not assist
the respondent tu argue that the senior employee
may have been improperly classified....(Divisional
Court Decision, supra, at p. 1)
The matter was remitted to the Board for further proceedings.
Counsel for the Union submitted that the foregoing decision
ought to be interpreted as an indication that it was sufficient
to establish a prima facle case for the grlevor to show
that at least one person who performed the same work
was classified at a higher level. This, it was submitted,
would obligate the Ministry to ieee evidence showing
that it had not, In fact, departed from its classification
practices. Because no such evidence was led by the
Ministry, the argument concluded, the decision of thls
Board on class .usage must go in favour of the grievor.
While this was an Intriguing argument, It must be concluded
that it would stretch matters too far for the Board to
accept it. Reading the decision of the DiviSional Court
in Re Lowmen as a whole, we are led to conclude that
the Divisional Court did not intend to rejec! the general
rule of this Board that in order to succeed on a class
usage argument the Union must show the existence of.
a consistent practice of varying the Class Standard.
Absent special circumstances, it does not satisfy this
"practice" requirement to show that only one employee
in a higher classification performed the same work as
the grievor.
The Lowman case, ~ was an example of special
circumstances which brought the case outside the ambit
of the general rule. As the Divisional Court noted in
its decision, It would have been impossible for the grievors
to show that more"Chart one other employee who performed.
essentially the same work was classified at the claimed
higher level. In the entire Civil Service, there were
only five persons performing similar work--the four grievors
and the higher classlfed employee with whom they sought
to compare themselves. It seems to us that the Divisional
Court recognized that to apply the "practice" requirement
of the Board in these circumstances would be tantamount
to denying the grievors their right to grieve.
in the present case, there were not any special circum-
stances to render inapplicable the general "practice"
requirement. Moreover, it remained the burden of the
Union to produce a prima facie case on this aspect of
the matter, in line with this, it seems, the Union produced
the testimony of Ms. D. McGriskln from the Sherlft~s
Office in Whltby and Ms. Barbour from the Sheriflas
Office in Newmarket. There also was entered into evidence
the job specification for the accounting and jury clerk
tn Milton,
Considering' the totaUty of the evidence, howe~er, and
in particular the evidence of Ms. Grant regarding the
foregoing positions, it must be concluded that the requisite
divergence In practice was not shown. As we already
have found, bookkeeping duties do fail close to the borderline
between Clerk 3 and Clerk 4 General, And we accept
the evidence of Ms. Grant that the.additional duties
beyond bookkeeping which comprised from 20--3096 of
the jobs In Newmarket and Milton, were sufficient to
bring them to the level of C lark zi General. The only
higher classified job which was shown to be substantially
to that of the grlevor was that at Whltby. But, as has
been indicated, In the absence of special circumstances
the existence of one substantially similar job in a higher
classification does not show that in.practice, the Ministry
varied the written Class Standar(t so as to encompass
the work of the 9flavor. As a result, the class usage
argument must be resolved In favour of the Ministry."
In the Carvalho case, no special circumstances were found
to permit a departure from the general side. ("the general ~practice'
requirement")
The Union relied on the case of only one other employee (Ms.
fort), classified at the higher leve~, who performed the same job
~s Ms. Cooper° Failure to depart fr~m t~ praGti~e "would ~ tantamount
to Uenyl~ the gHevors ~eir right to ~rieve~' (Ca~val~o, pp. 18-
t9) The~e was no sug~stion that the~ were other e~plo~ees,
the ~ase ~fore us, ~rforming simil~ work so as to bring in the
~aJ rule. Thee w~e oth~ Cl~k ~s em~oyed by the Employer,
~d I am certain that tf there were any others performing similar
work to Ms. Rott, it w~ld have brought ~em to our attention.
if the matter had enid here, ! would allow the grievance.
However, it d~s not end here, as Ms. Thomson argued that if
Rott*s classification was wrong, and that her ~st fit was that of
a Clerk ~, then we must ecknowle~e this by denying the grievance.
it was argued that while Ms. Rott may have ~en correctly classified
~ a ~ lerk 5 around 1~77, she has ~en inc~ectly classified slnce
a~ut 198q, w~n, as she acknowle~ed?er duties and res~nsibilities
~anged In certain im~rtant respects. Around 198q her significant
~cislon making ms~mibilities had ~n assumed by her supervisor,
Mr. lan Brand (pla~i~ and ~ganJzation). Ms. Rott t~tJfled that
from~pproxlmately 1987, she and Ms. C~er ~rformed the same duties
and had the same res~nsibiltties. We were asked to find that Ms. Rott
was, at the date of the grievance, functioning at a Clerk a level, even
thigh she was still classified,at that ~ime, as a Clerk 5.
Ms. Mitchell argued that Ms. Rott"s proper classification on
a ~st fit test was ir~levent and that we were only c~cerned with
her Insofar as she must ~ ~med to have ~en pro~rly classified
as a Clerk 5 on the date of the grievance. We were asked to uphold
Ms. MltchelPs objection to the adducing of any evidence of the Employerts
actions subsequent to the filing of the grievance, where it red-circled
Ms. Rot-t's position, et~fectiveiy re-classifying her to a Clerk ~ in'
December of 1988, some seven months after the grievance was filed.
We heard the evidence, reserving our ruling on our being able to
act upon it,
Ms, Thomson argued that the correct classification of Ms.
Rott was a matter which we were obliged to rule upon and that
if she was incorrectly classified as a Clerk 5, and should have been
a Clerk ~ on May 24, ~988, according to a best fit test employing
the class standards, then we c~uld not ignore this merely because the ·
Employer had done nothing more than commence on examination of her
classification by May 2Ztth. Ms. Thomson further submitted that we could
receive evidence of post-grievance events touching on the proper
classification of Ms. Rott at the date of the grievance, in this case,
the fact of her reclassification in December of 1988.
The O,P,S.E, Uo case did not depart from the jurisprudence
developed by the Board under the Act..__.. it merely dectded that that
jurisprudence was unaffected by the then recently decided case
of Re Metropolitan To~onto Board of Commissioners of' Police and
Metropolitan Toronto Police Ass_ociation et al. (1981), 33 O.R.
(2dj 476 lC.A), This was, according to Caliaghan J, [at p, 1~5) because:
"The issue before the Board was whether or not the grievors
has been properly classified. We are of the view that
the Metro[~olltan Board of Police Com~missioners case
has no application to the case at bar. That decision
was premised on a fine, lng of the arbitrator that there
was no provision in the collective agreement governing
the matters In Issue therein (per Houlden J.A. at p. q79
O.R,). In the instant case not or~ly did the collective
agreeement provide a right to grieve (art. S.I.lJ the
Act itself provided a clear right to grieve classification
under so l'812J[a). The right so given is not restricted
to allowing only grievances within a particular series
or within a particular facility. To so restrict the right
to grieve as the Board did would render such a right
largely illusory.
Where a right to grieve a particuiar matter is specifically
recognized by legislation it ought not to be restricted
absent a clear intention on the part of the legislature
to do so. The effect of the Board's decision herein Is
to restrict the right to grieve classification to levels
within a particular series. It denies a grievance for cross-
group classification or Cross-series classification. We
see nothing in the Act Justifying the limitation Imposed
upon the right given by so lll(2j(aJ by the Board herein."
The Court, In referring to the usage test, referred to the need
t° examine, "whether there are employees performing the same
duties in a higher, more senior classification."
Ms. Thomson submitted that Ms. Rott, although she was classified
as a Clerk 5 at the date 'of the grievance, ought to be considered
to have been a Clerk q at that date, because of certain facts, some
of which did not transpire until after the grievance was filed. As
I also understood Ms. Thomson, the Employer ought not to be bound
by the classification of Ms. Rott on May 2q, 1988, if there was an
error in that classification. So, if Ms. Rott was, on the basis of
the best fit test, not within the Clerk 5 Standard on May 2Z~th, 1988,
Ms. Cooper could not claim to be improperly classified as Ms. Rott,
notwithstanding appearances on May 2qth, must be considered to ~
have been a Clerk 4 on that date. Ms. ThOmson submitted that the
red-circling of Ms. Rott in December of 1988, supported this conclusion
and that she had not grieved this action. Ms. Thomson also relied
off Ms. Rott's evidence that her job duties and responsibilities had
changed some time prior to May 2;4th and argued that her reduced
duties and responsibilities correctly placed her within the Clerk
4 classification. As I understood Ms. Thomas, she is relying on two
arguments in suport of her submission that Ms. Rott, and hence
Ms. Cooper, must be treated as properly being Clerks Grade 4 on
May 2;4, ] 988. One, is the fact of Ms. Rott's red-circling in December
of 1988, effectively placed her in the Clerk ;4 position. Because
Ms. Rott's duties and responsibUities had not varteci between May
and December of 1988, she must have been performing at the Clerk
q classification at the earlier date, The second submission is that,
by her own admission, Ms. Rott had diminished duties and responsibilities
in 1988, when compared to those she had in 1976 and 1977, where,
it was admitted her increased planning, organizing and supervising
responsibilities supported her claim to being then properly classified
as a Clerk 5. In fact, Ms. Rott, while acknowledging diminished
responsibilities in one area, stated that the introduction of computers
had substantially increased her responsibilities in other areas.
There were a number of cases rellecl on by Ms. Thomson in
support of her submission that it Is not enough for the employee
in the junior classification tO show that "there are employees performing
the same duties In a higher, more senior classification." That is,
that the employee said to be in a higher, more senior classification,
must have been properly classified. If that employee was improperly
in a higher classification, and should have occupiecl a 'lower .one
on an objective analysis employing the class standards, then, even
though another lower classified employee was performing the same
duties, she could not satisfy the second test.
Ms. Thoms6n also relied on Re Woodcock 56zli81, where the
Board stated, at p, !4=
"We are willing to accept the grievors~ testimony that,
in fact, there was virtually no difference between the
jobs done by Mr. C and Mrs. Woodcock. However, on
behalf, of the Employer, Ms. Baker argued that the real
point ts why the Employer classified him as Clerk
if the employer was incorrect in what he did, then he
was-improperly classified. But the classification was
correct, given the description of the job on which the
classification was based. I agree with Ms, Baker Jrt this.
Therefore, the similarity with Mr. C is not really relevant."
Mr. C, In that case, was the employee said to be in the higher
classification.' The Board, in the Woodcock_case, states that it was
open to the Employer to show the higher classification employee
was improperly classified so as to be able to prevent a grievor from
succeeding on an argument based on the the second last.
I have read the excerpI from p. ~4 of the Woodcock case, and
would not follow it if'it is interpreted to mean that the Employer
can de. monstrate that lis own classification of the comparison employee
[Ms. Rott, in the case before us) was improper. The statement is
unsupported by argument, and, in any event, was unnecessary for
the decision, as the Board decided the classification of "Mr.
the comparison employee, "was correct." The reason why the comparison
with "Mr. C [was] not re/event, was because his classification was.
!
correct," given the description of the job on which the ~lassification
was based, which included a description of significant additional
work not performed by Mrs. Woodcock in the Woodcock case.
Ms. Thomson also relied on the case of Re Dalrym~>ie 79/77,
at pp, 5-7:
'*The grlevoras principal argument before the Board lies
not with the assertion that her job comes within the
words of the higher class standard which she seeks but
rather because her duties are the same as those of employees
who do 'have the higher classification sought. Previous
decisions of this Board ire Lynch. a3/77;.Re Roundtn~o
1_8_/75: Re Wheeler, 166/78) support this as an alternative
approach but it must be remembered that evidence of
others in a higher classification doing substantially the
same work as the grtevor is only important when it is
seen to reflect the actual practice of the employer.
The actual classification practices of the employer may
not truly be evidenced in the documents describing the
classification system and if that is the case the grievor
is. of course, entitled to be measured against the actual
practices as opposed to any mythical practices which
have since been abandoned [see Re Montague, 110/78
and Re Wriq.ht. 2,~8/81). it is not enough for the grievor
to demonstrate that others are classified at a higher
level and performing the Identical duties. As noted in
Re Vukoje. 13~75;
#However and to refer again to our earlier
Roundinq award in determining whether Mrs.
Vukoje should properly be classified as a
Clerk 3. this Board may consider not only
whether she is performing the duties assigned
to that position but as well whether she is
performing functions which are virtually
identical to those assigned to those employees
who both the employer and the employee
aclree are i~roperly classified as Clerk $'s.t'
(emphasis added)
Wi.thin the grlevoF~s Department there are two employees,
Lorenz and Donofrio, who are classed at the Clerk, Grade
$ level. It seems apparent that Lorenz and Donofrio
were classified at that level at a point in time when
the actual classification system used by the employer
was modified by some managers who believed In the
elevating of employees as a reward for good performance.
It Is obvious that such a subjective approach over any
period of time could nullify any classification system I
as the objective criteria of job duties is abanrJonedo
This would lead to grea: }nequalitJes throughout the
bargaining untt as classification would be dependent
on Individual assessments without any overall COncern
for uniformity. When the committee, Including the outside
" consultants, reviewed the 3200 employees within the
barga~ning unit In its entirety we see that within their
anomalies list are Lorenz and Donofrio who they would
regard as better fittin9 the level of Clerk, Grade 3.
The employer according to the evidence has adopted
a policy that it will not recJasslfy people down and the
while they recognize both Lorenz and Donofrto as being
.classified at too high a level they prefer to deal with
this problem through attrition, This may appear as unfair
to the grievor who admittedly perf~)rms the identical
duties, and according to the employer performs them
very well, but to reclassify the grievor to Clerk, Grade
5 would be to exacerbate the lack of fairness between
employees within this Department and other employees
within the bargaining unit who are performing the same
duties and who are not similarly classified. The main
purposes of a job classification system, to promote uniformity
and equality, would be frustrated If fairness to one individual
necessitated the abandonment of the system. The tail
· would then wag the dog."
Ms, Rott's situation is somewhat different from the cases
of the comparison employees there (Lorenz and DonofrloJ, who were
also mlsclassified as Clerk $'s. The difference was wtth respect
to the method used to initially classify Lorenz and Donofrio, which
was not the actual classification system but a substituted system
based on reward for good performance' developed by managers.
in the Dalrymple_ case, it was held, at p. 6, that such a subjective
system would n. ulltfy the classification system as the ""objective
criteria of job duties is abandoned." The Board:s concern in the
Dalryms~le case was that in tile trade-off between fairness to a grievor
who was performing the same Job as a higher classified [but improperly
so) employee and the integrity of the classification system, "the
tail [couid not] wag the dog." Here, there Is no challenge to the
classification system, there being no suggestion that it was being
subverted.
The portion from pp. 13-14 of the Re Lynch case 43/77, relied
on by Ms. Thomson, deals with the possible shift in the evidential
burden:
"Having reviewed this evidence in considerable detail,.
we have come to the conclusion that Mrs. Alexander
and the grievor perform almost identical job duties.
This evidence therefore supports the grievorfs claim
that she has been improperly classified. In our view
this evidence shiftecl the evidential onus to the ethployer
to establish affirmatively that, having regard to different
organizational structures of the two hospitals or to the
different management styles of the directors Involved,
the difference in classification between the grievor and
Mrs. Alexander is supportable,f~
Ms. Thomson relied on this statement to argue that It' is possible
for the Employer to show that Ms. Rott was improperly classified.
I interp~;et the L~nch case to have decided that there were other
job related factors which could enable the Employer to establish
a reason for maintaining the difference in classification: organizational
structures, different styles of supervisors. Here, no such analysis
is available. Ms. Cooper and Ms. Rott perform the same job with
the same duties and responsibilities in the same work environment.
No such distinction can be drawn here.
Ms. Thomson also spent some time 'dealing with the question
of onus. if she was suggesting that the evidence had not established
a prima faci.__.e case, i disagree. If she is suggesting that the Employer
has satisfied the evidential burden, I also disagree.
Unles~ we are faced wlth a Dalr,vmple situation (above), we
ought not to go behind the classification of the comparison employee
at the date of the grievance. It is not our responsibility to perform
a best fit test' in Ms, Rott's case. It was open to the Employer, as -
it did in December of $988, to re-classify Ms. Rott. We are not
here to cleat with the situation in December of 1988.
Unle~ we are wrong arid are required to perform a best fit
test in Ms. Rott's case to ascertain whether she was properly classified
as a C lark 5 on May 2Zlth, 1988, we must treat her, on the facts
of this case, to be properly classified as a Clerk 5 as at the date
of the grievance, The evidence agreed to is that the grievor's and
Ms. Rott's job duties and responsibilities were identical on May 24,
1988, We must treat this as a case where the actual classification
practices of the Employer substantially modified the documented
standards relied upon.
if we had accepted the EmployePs submission and treated '
Ms. Rott's classification as being Incorrect, we would be creating
a new rule. We would not defer to'the actual classification practices
of the employer where they modified the documented standards,
but would require, In ali_ cases, that the best fit test be applied to
the comparison employee. Events occurring subsequent to the grievance
, may ~how that the classification of the comparison emptoyee was*
wrong in the light of the standards; it does not show the objective
classification standards were abandoned.
This award does not challenge the integrity of the Employer's
classification system itself or the pay assigned to a job once cia ssifled.
-16-
The Employer can always re-classify'where an employee no longer
fits the classification based or the objective system, if the Employer's
submission was to prevail, success would often depend on when the
grievance was heard by the Board, Untl! a re-classification is effected,
there is no reason to question the actual, as opposed to the documented
standards.
What this means for Ms. Cooper is that her grievance succeeds
and she is entitled to be classified as a Clerk $ as at the date of
the grievance and to be paid at the appropriate rate from that date
to the date Ms. Rott was red-circled, from which date she, too,
will be red-circled. It was not suggested that this relief was inappropriate
should the grievance succeed. The intention behind the comparison
test is to treat like cases alike. We will retain jurisdlctio.n with
respect to compensation. Should theparties be unable to determine
the precise monies owing, will entertain a request from either party
to determine the issue.
We would like to thank both counsel for their excellent presentation
of the evidence and argument. Classification cases frequently give
rise to novel situations and we were greatly assisted by counsel
in dealing with them.
Dated at Toronto, Ontario this 2~th day of April, 1989.
N.R. Gorsky, Vice-Chairperson
I. Co.an, Hember