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HomeMy WebLinkAbout1988-1376.Hilts.90-10-01 CROWN EMPLOYEES DE L 'ONTA RiO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2700, TORONTO, ONTAF~tO. MSG 1Z8 TELEP.~'iONE/T~LC~PHONE: (416) 326-7388 180, RUE OUt~DAS OLtEST, BUREAU 2]00, TORONTO (ONTARIO). MSG ;~Z8 FACStMILE/T~L~.COPlE : {416.1 326-1396 1376/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hilts) Griever ---" - and - · The Crown in Right of Ontario (Ministry of Environment) Employer - and - E. Ratushny Vice-Chairperson J. Carruthers Member A. Stapletqn Member FOR THE A. Ryder GRIEVER Counsel Ryder, Whitaker, Wright &. , Chapman Barristers & Solicitors FOR THE C. Osborne EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HEARING March 29, 1990 DECISION The Grievor occupies the position of Approvals Technician in the Approvals and Planning Unit in the Environmental Quality Section in the Central Region of the Ministry of the Environment. He is classified as an Environmental Officer 4 and claims reclassification to an Environmental Officer 5. In Ontario, persons seeking to operate equipment which emits contaminants into the air, must obtain a certificate of the Director of the Approvals Branch of the Ministry of the Environment pursuant to section 8 of the Environmental Protection Act. The equipment must be capable of operating within the requirements of Regulation 308 of the Act. An application may be made to the Approvals Branch which is located at the head office of the Ministry where-it will be processed by 'an Approvals E~gineer. In'view of the large number of applications in the Toronto area, an applicant may, alternatively, apply to the regional office in that area. In that event, the application is received by the Grievor. Two other Approval Technicians worked with the Grievor in processing applications but both had left the Ministry by-the time this grievance was filed. Their departure led to a dramatic increase in the Grievor's' workload. He deals with this simply by referring any excess to the Approvals Branch. His guideline is to have no more than 40 applications before him at one time. When this number is reached, any subsequent applications are referred. If the application is considered to be "non-complex", the certificate may be signed by the Regional Director rather than the Director.of the Approvals Branch. However, the Grievor finds it more efficient simply to send all of his recommendations to the Approvals Branch. The Grievor does consult with the engineers in the Approvals Branch in relation to serious matters. These consultations are in the nature of requests for a reaction to his preliminary. views. More recently, thew Grievor claims that he seldom consults these engineers and that the less experienced ones tend to call him for his comments. However, where the Grievor recommends the denial of a certificate, he usually discusses the matter with the Approvals Branch. Approximately' 10% of applications are denied. While the Grievor acknowledged that all of his recommendations are reviewed by that Branch~ he testified that .he could not recall his recommendations ever being reversed. He also acknowledged that the Approvals Branch did have the authority to reject his recommendations. There is no dispute that the Grievor .is a very senior, highly competent'and valued employee who does his job well. It is also accepted that he has extensive technical experience and knowledge. The professional engineers in the Approvals Branch are covered by a class series which is excluded from the bargaining unit. They have professional degrees and professional qualifications. The Grievor is not a professional engineer. The class standard for an Environmental Officer accurately describes the position occupied by the Grievor. The issue is 'whether that position has a dimension which transcends the EO4 standard. The class standard for an Environmental Officer 5 includes employees who: ... act as designated specialists for branches Or regions...[and]...function in a speciality area within municipal or industrial solid waste/liquid waste/emission control/complex assessment surveys... The Grievor claims that he acts as a designated' specialist in his region who functions in the speciality of industrial emission control. ' After the filing of this grievance, the Ministry developed guidelines for .the designation of a position as an Environmental Officer 5 Technical Specialist. Quite apart from these guidelines, we read the above passage from the class standard as contemplating the actual designation by the Employer of a position as being "specialist". Clearly, the Grievor's position has not been so designated. Nevertheless, we must go further to inquiTe whether the Grievor functions in his position in the same manner as a "specialist" as described in the E05 class standard. If so, we would be obliged to order that the Grievor's position be reclassified ~to an appropriate higher level and the .option could be given to Employer formally to designate the position as being "specialist" under the existing class standard. It was argued on behalf of the Grievor that the distinguishing feature between the EO4 and the EO5 standards is that: The E05 standard applies ~to those who are the'technical specialists in a particular field for the Region. They are at the top of their field in the Region and, accordingly must work without supervision because there are no others in the Region with sufficient expertise to supervise their workl The EO4 standard on the other hand applies to employees with a high level of expertise which they share with others at the same level in the Region. And, further, their work is not of such a specialized nature that it is done without supervision. We cannot accept this contention. To do so would mean that the Grievor was not a designated specialist While he shared the identical work with two and then one colleague but that he became a designated specialist when he continued to do the same work on his own. The relevant "knowledge" requirement in the EO4 standard is: ... the technical expertise, flexibility and depth of background to deal independently with a wide variety of unpredictable environmental problems, where the individuals knowledge may be the only immediate guide to action... The corresponding requirement in the EO5 standard is: ...~ proven technical knowledge such. that the employee is recognized as an expert in a specific field... While technical expertise clearly is required to process the certificate applications.in question, the ~Grievor has failed to demonstrate how "recognition" as an expert is a requirement of his position. The knowledge of environmental law and policy required to process these applications is relatively narrow. The E04 standard describes the work as being performed under "minimal supervision" whereas the EO5 standard refers to "general direction". The evidence before us 'indicates that the phrase "under general direction" is defined as follows: The degree of control~exercised over the work at this level is very broad and takes the form of consultation and discussion with the senior officers on general management matters. The officer normally contributes to policy formulation and long-term management planning, and is expected to make.decisions in respect to expenditures of substantial amounts and to. approve budgets for designated activities within the organization. Any review of the officer's work takes the form of an assessment of written reports, proposals and the efficiency of the operation the officer controls. there are inconsistencies in this respect in the position specifications, the evidence presented established that the Grievor works under "minimal supervision". His recommendations in relation to specific applications are reviewed. A dialogue occurs with those who review his work, particularly where a denial is recommended. The inevitable acceptance of his recommendations may be a function of the ongoing consultation which occurs or is available, the lengthy experience of the Grievor and his expertise and good judgment. However, the reality is that a mechanism for review and the authority to reject his recommendations do exist. Performing as a specialist, a very high level of judgment is necessary since the person may be the prime ministry representative dealing with industry, municipalities or consultants and may develop options independently and present them to a client group. The Griev~r'does have contact with outside bodies. However,.this is in relation t6 specific applications which involve the application of existing criteria. In contrast, this aspect of the EO5 standard appears to contemplate a role in the formation of policy alternatives and the presentation of them to the public. In sum, the E04 class standard 'accurately describes the Grievor's position and he has failed to demonstrate that his position meets the higher requirements of a "designated specialist" ~nder the EO5 class standard. 'The grievance is dismissed. DATED at Ottawa this lst~ day of October 1990. A. STAP~N, M~er