HomeMy WebLinkAbout1988-0684.Butans & Easson.90-08-28 ~. ONTARIO EMPLOY~-S DE LA COURONNE
. CROWN EMPLOYEES DE L'OM TARIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. M~G 1Z8- SUITE 2100 TELEPHONE/T£L~'PHONE
180, RUE DUNDAS OUEST. TORONTO, (ONTARIO) M5G 1Z8- BUREAU 2100 (416) 598-0688
0684/88
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Butans/Easson)
Grlevor
- and -
The Crown in Right of Ontario (Ministry of Labour)
'Employer
- and'-
T. Wilson Vice-Chairperson
I. Thomson Member
A. Stapleton Member -
FOR THE R. Blair
GRIEVOR Counsel
Cavalluzzo, Hayes & Lennon
Barristers & Solicitors
FOR THE S. Sapin
EMPLOYER Staff Relations Officer
Ministry of Labour
HEARING: May 15, 1989
June 5, 1989
August 24, 1989
DECISION
The grievors are classified as Employment Standards Auditors
and seek a Carol Berry order that they be given a proper
classification. They do however accept that they do not fit the
Employment Standards Auditor 2 level.
There are two grfevors, Donna Butans who is in the St.
Catharine's office and Jody Easson who is in the Hamilton office.
Ms. 8utans has been an Auditor 1 since July 23, 1984 and Ms. Easson
has been an Auditor 1 since November, 1983.
It is useful first of all to reproduce relevant provisions of
the Class Standards. It is interesting to note that these were
issued as recently as October 1, 1986. The Union did not challenge
the appropriateness of the series.
Category Group PREAMBLE
ADMINISTRATIVE SERVICE AD 05D INVESTIGATION
Series Class Code
EMPLOYMENT STANDARDS AUDITOR 05520 to 05522
EMPLOYMENT STANDARDS AUDITOR
This series covers positions of employees in which the primary
duties and responsibilities are directed to the administration and
enforcement of legislation in the area of employment standards, and
as such, includes a range of the following tasks:
- dealing with the initial complaint from members of the
public and providing advice and information with respect to
the meaning of legislation/regulations, as well as to the
information which must be included with the claim;
- initiating and/or conducting investigations of alleged
violations;
- auditing case files which require further action and/or have
been closed;
- Preparing reports on cases and following up individual case
resolution, e.g. establishing amounts owed, collection
procedures,· ensuring terms of settlement are observed;
- developing specialized investigative methods, conducting
specialized investigations;
- addressing public groups on aspects~or administration and/or
rendering interpretations on request.
Positions in which the primary duties and responsibilities, are
included in the definition of another class series should .be
allocated to that series.
Allocation Factors:
The allocation of a particular position to one of the two levels
within the series is based on an evaluation using the compensable
factors "Skills and Knowledge" and "Judgement and Accountability".
The following criteria are used to differentiate levels of the
factors:
Skills and Knowledge:
- the·extent of knowledge of legislation required;
- the extent of knowledge of branch policy, procedure, court
requirements, hearing decisions· required;
- the amount of other knowledge required, such as of business
practices, record-keeping systems;
- the level of communication skills required, and the level
and nature of contacts;
- the depth of analytical skill·required;
- the extent of negotiating skills required.·
ud e-ent Accountabilit~
- the number and complexity of variables to be considered in
selecting a course of action and the relative compexity of
work responsibilities;
- the relative impact of decisions and recommendations made;
- the extent of supervision received;
- the extent of guidance available from staff; policy
directives or guidelines, manuals;
- the expectations of quality of completed work and extent or
degree of completion towards which work is taken;
- the degrees of thoroughness and accuracy required;
- the relative likelihood of errors being detected and
corrected with/without serious consequences.
Levels:
There are two levels of work within the series, as follows:
Level 1
Employees in positions at this level are generally responsible
for claim intake and public information work. Although they
conduct certain preliminary or straightforward investigations,
usually by telephone, they do not handle more complicated
claims and/or those requiring personal investigation on
employers' premises.
LeVel 2
Employees in positions at this level perform employment
standards legislation administration and enforcement work,
primarily through claim investigation, they are required to
bring claims to resolution.
This level also includes positions which provide certain
advisory and administrative services related to legislation
enforcement.
Series Class C°de~
EMPLOYMENT STANDARDS AUDITOR 05520
EMPLOYMENT STANDARDS AUDITOR 1
This class covers the positions of employees whose primary duties
and responsibilities involve provision of claims intake services
and the provision of standard information and limited investigation
services in support of the employment standards program.
Characteristic Duties:
These employees respond to telephone, letter and in-person
enquiries and complaints from the public concerning Employment
Standards, related legislation, redirecting matters more
properly addressed byother agencies. They review claim forms
to determine need for assignment to a more senior
administrative level, referring upwards cases which a~pear to
require interpretation or on-site investigation which relate
to equal pay or which involve a number of claiments or
violations. In more straightforward or routine cases, they
explain the~leglslative provisions which relate to the claimed
violations and contact employers, by telephone,' in order to
obtain and/Or verify information and, where possible, settle
the claim and arrange for the payment of wage arrears.. They
examine file documentation for completeness and-process
required forms.
Skills and Knowledge:
The performance of this work requires a good working knowledge
of employment standards - related legislation and regulations,
the ability to apply rules and regulations .derived from
statutes to relatively straightforward cases, developed
telephone, personal and written communiciation skills, a basic
understanding of work place operations and business practices,
and a general knowledge of other employer/employee regulatory
agencies to which referrals should be made.
Judcr~ent and Rccountability:
Working under general supervision, employees are accountable
for exercising 3udgement in the application of standard
procedures related to the initiation of claims, deciding
whether additional information must be obtained, case must be
referred and, if so, to which agency or official. Employees
also are accountable for initiating and conducting telephone
investigations on straightforward or routine claims and for
the exercise of Judgement in deciding how to conduct these
investigations. In addition, employees are accountable for
responding appropriately to telephone, letter and walk-in
enquiries, and for the exercise of Judgment in explaining the
applicability of legislation or the reasons for referral to
either higher investigative levels or other agencies.
Errors or delays in documentating and/or redirecting
enquiries, inappropriate initiation of a telephone
investigation or. fa/lure to provide sufficient, appropriate
and/or correct information, could'result in delays or future
difficulties in investigation, ..or could ~esult in employees
not receiving their legal entitlement.
Following is the Position Specification & Class Allocation for
Ms. Butans:
Purpose of position (why does this positions exist?),
To ,handle all telephone, written and in-person complaints and
general inquiries to the Regional Office.
Duties and related tasks (what is employee required to do, who and
why? Indicate percentage of times spend on each duty).
1. -Handles telephone inquiries from a.variety of sources i.e.
employees, employers, union representatives, MP's, MPP's, lawyers,
accountants, receivers, .and .general public, using extensive
knowledge of the Employment Standards Act, Regulations and other
material, by performing such tasks as:
- providing immediate authora~ive decisions on the
applicability of the Act and Regulations to specific
inquiries/situations by interpreting the Act and providing
detailed information in order to prevent the filing of
complaints, consulting with manager for unusual matters;
- receiving incoming calls, some of which may be hostile,
concerning a wide variety of Employment Standards issued,
determining 'the nature of inquiry and providing information
e.g. vacation pay, maternity leave, statutory holiday, minimum
· wage, overtime pe~,~its, etc., maintaining a log on the number
of enquiries to keep track of workflow;
- providing assistance and advice to callers, informing
employees of protection provided by legislation e.g. maximum
number of hours which may be worked before overtime is
payable, advising employer of penalties which may be imposed
for contravention to assist the disputing parties in resolving
matters themselves;
- attempting to resolve problems or enquiries over the
telephone by contacting the appropriate or affected parties
and advising as to obligations under the Act;
- discussing with new employers their requirements under the
Act and Regulations, e.g..necessity of providing employees
with statement of earnings, detailing period of time, rate of
pay, gross amount, details of deductions, net amount payable,
guiding employers on how to calculate benefits required by the
Act, forwarding letters advising as to penalties for non-
compliance;
- receiving inquiries concerning matters not covered by
Employment Standards legislation, and re-directing to
appropriate personnel, branch or agency, e.g. Human 'Rights,
W.C.B., C.P.P., Income Tax, Consumer Protection Bureau, etc.,
or providing basic information, and assistance in completing
forms;
- dealing with inquiries regarding filed claims, by reviewing
files and advising on status, conferring with Supervisor on
difficult problems, i.e. hostile individuals, questions for
officer;
- receiving requests from complainants regarding lost or
delayed cheques, making inquiries with appropriate branch as
to status;
- assisting employers either by phone or in person in relation
to the writing or revision~of company policies by providing
advice and information to ensure compliance with Employment
Standards legislation;.
7
- providing detailed information to callers on plant closures,
mass layoffs and severance pay, or, in the case of large
layoffs, redirecting to appropriate branch;
~ reviewing Collective Agreements with employees or union
representatives and advising as to the protection provided by
the Act.
2. Process all inquiries' received by mail based on knowledge.of
the Employment Standards Act by performing such tasks as:
35% - responding directly, by letter, to a variety of inquiries
received from employees, employers, unions, MP's, MPP's,
lawyers, etc.;
- receiving claims and obtaining further information or
clarification of claim data either in person, by telephone or
in writing;
- examining all claims received and attempting to resolve by
telephone or in writing, by either arranging settlement or
recommending field investigation, following up to ensure that
the employer has complied with the settlement;
- directing employers to pay employees when there is an
obvious violation of the Act either by having cheques sent
directly to the employee or by receiving cheques payable to
employees and issuing receipt to employer, sending money
transmittal to Finance;
- preparing.necessary correspondence, both routine and non-
routine, to close file, and forwarding cheque, providing
explanations of what has been done, etc.;
3. Conducts personal interviews with employees in Person, using
knowledge of the EmploYment Standards Act, Regulations and other
material, by performing such tasks as:
10% - interviewing all walk-in employees.or former employees to
determine the validity and applicability of complaints,
obtaining information and either referring to appropriate
branch, or agency, or providing assistance in completing
forms; maintaining a log of number of claimants interviewed;
- questioning complainant concerning possible violation,
examining wage statements, employment contracts, separation
certificates and other pertinent documents to determine
validity and accuracy of 'complaint, obtaining and recording
all necessary information;
- receiving all complaints and determining -best possible
method of settling by discussing complaint with employer,
explaining requirements of legislation, attempting to resolve
matter quickly and amicably, by'telephone if possible, or
recommending field investigation;
- meeting with employer representatives and reviewing payroll
records to determine/calculate entitlements, benefits,
overtime, etc., required under the Act;
-issuing an Order to Pay to employers for clear violations of
the Act, when necessary;
- completing reports for file, e.g. investigation report,
narrative report, correspondence, receipts, etc., ensuring all
required information is enclosed.
4. Performs other related duties such as:
5% - compiling information on "Red File" cases (for the
Minister's attention) for the regional manager;
- compiling month-end statistics on the number of telephon~
enquiries made to the office;
- conducting public speaking engagements on the Act;I
- as assigned.
Skills and knowledge required to perform job at full working level.
(Indicate mandatory credentials or licences, if applicable).
Excellent knowledge of the Employment Standards Act and
Regulations, as well as knowledge of current changes to the Act,
legal opinions, interpretive circulars and referees decisions to
answer a variety of questions from employers, employees, unions,
etc., to make a determination as to the validity of a complaint,
and what action should be taken. General knowledge of other
Branches of the Ministry, their activities and functions (i.e.
Human Rights, Industrial ~ealtb and Safety, Workers' Compensation,
etc.) as well as other Ministries and agencies within the federal
government, and in the community, (U.I.C., Labour Canada, training
programs, etc.') to make referrals. Should also have knowledge of
the client group and their activities to understand some of the
problems encountered by employees. Ability to understand and
interpret le~islation, work with minimal supervision and deal with
pressure from a constant heavy workflow. Basic knowledge of
accountin~ and math to examine payroll records. Excellent
oral/written communioation' skills, co6pled with interpersonal
skills, to respond to enquiries, to obtain information and' to
effectively handle a variety of people, (occasionally in hostile
situations). Ability to think quickly and possess negotiating and
mediating skills to solve problems between employers and employees
relating to employment standards. Knowledge of, and ability to use
mini computers and Branch software.
Ms. Butans testified that she often explains to persons making
inquiries that the office tries first to resolve disputes by
telephone or letter and if not successful, then by on-site
investigations. Two areas not. handled in the office are mass-lay-
off which is referred to the Toronto Head Office, and pay equity
which is covered by separate legislation and administered by a
separate administration. There is no screening of cases prior to
the grievor's contact with the inquirY. Only those requiring'on-
site inspection are referred to the Auditor 2. /
Jody Easson, the grievor who works in the Hamilton office,
testified that there is no mechanism to insure that more
complicated inquiries are passed on to an ES Officer 2. She deals
at the ~first stage with everything that comes in. She is not in
fact required to refer cases upwards requiring further
interpretations. As she testified, "we are in a position at all
times to interpret the Act on inquiries" That also applies to
claims. She also testified that it is not complexity that results
in the need for referring claims, but a refusal by an employer to
co-operate resulting in the need for an on=site visit by an ES
Officer 2. But documentation is usually obtained by facsimile or
post from the employer so that she is able to deal with a claim
right through to conclusion. She testified that she is able to
settle about 2'5-30% of the claims directly herself. She negotiates
and mediates settlements and her correspondence and her decisions
are not vetted by her supervisor.
Beverly Rosser is the Regional Manager for the Hamilton Region
(t~e area .from Fort Erie to Hamilton). Her office is located in
Hamilton and She visits the St. Catharlnes office 'at least one day
a week. She estimated that the St. Catharines office would receive
about 100-150 calls a day and about 300 a day in Hamilton. About
65% of~the calls are from employees with difficulties and the rear
would be from new employers or unions. Closing files is important
with respect to the duties of ES Officer 2's and figures in their
evaluations, but in the case of ES Officer l',s, it is not as
important, and indeed of course, they do not close the files that
they pass on to ES Officer 2's. Mrs. Rosser testified that in her
view, severance pay would be the more complex type of issue that
an ESO would have to deal with. Another would be pregnancy leave:
this requires a field officer to invest%gate but an ESO 1 might
decide initially that there was no claim and so close the file.
Termination pay would be another complex matter (s 40 a) which'is
a new provision.
Mrs. Rosser went through a number of files that Ms. Butans
had handled in preparation for. the hearing and produced a selection
of investigation reports. Most of these were handled with phone
calls to the employer and were closed in a short period of time.
A number of the examples, were complex involving term/nation Day for
t-~o claimers involving an issue of continuity of employment.
ARGUMENT
The un,on arques that the demarcation levels on the Standards
and the actual practice or reality are different from each other.
The, Standard premises that the demarcation between the two levels
~is that' '~e complex files are referred upward to the higher
classification but that is not in fact the case. The grtevors are
the front-line ,officers for inquiries. . When a visit to an
employer's premises or an audit is required then the file is given
to an ESO Officer 2'who has authority to issue orders. But the
Standard assuages a hierarchy based on interpretation, multiplicity
of claimants, multiplicity of violations, as well as issues of
legal complexity. But the grievors testified that they do not
refer these upwards. The union also relies on the fact that the
level of knowledge set out in the Position Specification is
different from that in the Stsndards. This is reflected in the
.documentary evidence which shows some cases at the complex level.
Also the grievors are asked to deal with inquiries from high levels
such as. MPPs amd engage in public speaking to explain employment
standards to the public.
The employer's position was that most of the work done by the
grievors is reasonably routine and not complex. There are few
multiple claimants. The Auditors II (ESO 2) close more files'on
a regular basis. It is true that 'these particular grievors who
testified have years of experience and therefore can answer
difficult complex c~ses but they are not required to do so.
DECISION
In.dealing with the arguments of Counsel, I·wish to turn first
to the issue of the complexity of'the work of the grievors. The
employer ·drew to the Board's attention the decision Wing and
Ministry of Health GSB 484/81. In that. particular case,· Mr.
Jolliffe for the Board stated at·page 4:
"In considering a dispute about classification, it is the
requirements of the position which dictate the result, nor the
achievements, qualifications or other merits of the individual
holding the position."
But in our case, as indeed in Wing itself, the evidence does
not indicate that either of the grievors was doing.work that was
not the requirement of the position. Furthermore, the Position
13
Specifications state that they "provide authoritative opinions on
the ap9licability of the Act [etc.]" and under Skills are required
to have "Excellent knowledge of the Employment Standards Act and
Regulations". These are both factors which the Preamble of the
Standards states are "compensable factors". ~But the Standard then
provides that for Level 1 "they do not handle more complicated
claims". The evidence is incontestible that the dividing line
between Level 1 and Level 2 is not legal or technical complexity
and they certainly require more than "a good working knowledge of
employment standards".
The Union referred the Board to its previous decision in Bo~le
and Ministry of Transportation and Communications GSB 675/85. In
tha~ case,.Vlce-cha!r Brandt wrote at pages 13-14:
'"Does the fact that the grievors were performing some
level ~ functions from early Janua~7, 1984 on justify a re-
classi~ication of the position as a whole? What about the
fact that they were also performin~! functions which clearly
are level 3 functions? Is it necessary for us to examine the
degree/to which level 3 and level 4 functions were performed
and attempt a quantitative analysis?
We do not think it is. The key lies in the fact that,
while it may be the cae that some of the grievors might
actually only be performing level 3 functions, they could at
any time be called upon by their employer to perform level 4
functions.
..... [reviews evidence]
It is, in our opinion, clear that these 3 employees,
having regard to the duties which they actually performed from
January 1, 1984 to the time that the job was split, were
performing as a Clerk 4. However, we do not stop at basing
our conclusion on what the actual assignment may have been.
Indeed that would be ludicrous for employees would 'be
switching tn and out O~-different classifications depending
on which part of the rotatlon they were on. Rather, for~
purposes of dete~mining, whether or not the g~ievors should be
classified as Clerk 4, we think it is sufficient that the
employer can call upon a Clerk to perform level 4 functions
and expect the employee to measure up to the standard expected
of that higher level of classiftca~iOno"
That is of course obviously correct employment .law - a person
must be classified and compensated at the level at which the
employer expects him/her to perform. Almost every imaginable
position does involve some routine work, but it is the highest
level of work performed in the position that determines its
classification. If one is only classified to do "routine non-
complex work"', one might not to be called upon to do more, or
conversely an employee called upon to do some high level work is
entitled to the classification for that .high levell The employer
adduced records to show that most of the work is routine, but even
it shows that the grievers do handle some work which even the
management witness characterized as at the complex level.
Accordingly, even though the class standard does appear on its face
to be of recent vintage (October 1, 1986) it does not reflect the
two large issues canvassed here: 1. complexity of some of the
matters handled, and 2. extent of knowledge required. These are
specifically compensible items and fit within the core duties of
the grievers.
The grievances are allowed and the Ministry is directed to
properly classify the grievers. The reclassification is to be
~5 ,
completed expediti@usly and the panel will remain seised Dend£ng
implementation of this Decision.
Dated this 28th day of August, 1990.
I. J. Thomson Member
: -A. G. St~pletc~n Member