HomeMy WebLinkAbout1989-0475.Neubert.93-02-08 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTARIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE2100, TORONTO, ONTARfO, MSG 1Z8 TELEPHONE/TELEPHONE: (4~8) 32~-~85
?90, RUE DUNDAS OUE~T, ~UREAU 2~00, TORONTO (ONTARiO~. M5G 1Z8 FACS~M~LE/T~L~COPIE : f416~ 326~3~
475/89
Before
~E GRImaCE 8ETT~~ BO~
BE~EN
OPSEU (Ne~ert)
~rievor
The Cro~ in Right of Ontario
(Minist~ of ~bour)
Employer
BE~ J. ~rich Vice-Chai~erson
P. Ki~ Me, er
M. O'Toole Me,er
FOR THE N. Luczay
~RIEVOR Grievance officer
Ontario Public Service Employees Union
FOR THE C. Osborne
RESPONDEI~T Counsel
Fraser & Beatty
Barristers & Solicitors
HEARIN~ November 22, 23, 1990
April 25, 1991
September 7, 1991
A) INTRODUCTION
The grievor holds the position of Consultant, Ionizing Radiation with the Radiation
Protection Service Department of the Health and Safety Support Services Branch in the
Occupational Health and Safety Division of the Ministry of Labour. On April 11, i989, he filed
a grievance claiming that he is classified improperly as Scientist 4, Atypical. By way of
remedy, the grievor seeks reclassification as a Radiation Protection Physicist I or as an
Occupational Hygienist, or an order directing the Employer to find or create a proper
classification in accordance with the precedent for this authority in Ontario Public Service
Employees' Union and Berry v. The Crown in Right of Ontario (Ministry of Community and
Social Services~ (1985) 15 O.A.C. 15 at p. 20 (Div. Ct.). In addition, he requests to be made
whole in respect to any such reclassification, with interest on any such compensation.
At the outset of the heating, counsel for the Employer advised that an interim award in
respect to this grievance was issued by another panel of the Board chaired by Professor Fraser
(the Fraser panel) on August 28, 1990. Counsel for the Employer argued that the terms of this
decision are binding upon the parties and set the framework for the issues to be litigated before
this panel. The interim award disposed of an objection raised by Ms. Osborne before the Fraser
panel. The preliminary objection was that the grievor and the Union had entered into a
settlement dated March 17, 1989, which constitutes a bar to the revival or resubmission of the
same grievance based on the same facts. Ms. Osborne contended before us that at p. 12 of the
interim award, the Fraser panel made a ruling that the Union is estopped from grieving his
classification on grounds based on material facts arising prior to the date of settlement and in
the knowledge of the parties at the time the settlement was signed. Thus, Ms. Osborne urged
us to define the issue before us as "What are the changes to the grievor's position from March
17, 1989, to April 11, 1989, which would impact on the grievor's classification?" In support
of her position, Ms..Osborne referred us to GSB 346/89, 347/89, 1308/88 Re OPSEL!
(Anderson) and Ministry of Revenue (Keller).
It was common ground between the parties that pursuant to the March 17th, 1989,
settlement, the grievor's grievance dated April 21, 1986, was withdrawn and he was reclassified
from Scientist 3 to Scientist 4 retroactive to April 1, 1986. The grievor contended before us that
on April 25, 1989, he received, for the first time, a revised position description effective
December 1, 1988, that showed his class allocation to be Scientist 4 (Atypical). The grievor
was aware at the time that he filed this grievance that his position specification had been revised
in July, 1988, but'the extent and implications of the December, 1988 revision and reallocation
to the Scientist 4 atypical class were not known to him at the time he signed the settlement on
March 17, 1989. Thus, Mr. Luczay argued on behalf of the grievor that it was open to this
panel to compare the grievor's job as it was being performed at the time the grievance was fried
to the class standards for Scientist 4, Radiation Pr°tection Physicist I, and Occupational
Hygienist. Indeed, Mr. Luczay argued that the March 1989 settlement determined only the fact
situation Of the grievor's duties at the time of filing the earlier grievance. Finally, Mr. Luczay
argued that the Employer had classified positions with less responsibility at the Sdenfist 4 level.
Mr. Luczay asked us to conclude from this that the class standard for Scientist 4 (Atypical) was
misapplied in respect to the grievor.
The issue before the Fraser panel was to determine the reach and effect of the settlement
dated March 17, 1989, upon the subsequent grievance dated April 11, 1989, alleging improper
classification. At p. 3 of the interim award, the terms of the settlement were reproduced:
MINUTES OF SETTLEMENT
The parties agree to the full and complete settlement of the
grievance of Wolfhardt Neubert dated April 21, 1986, without
prejudice and without precedent to any other matter on the following
basis:
1. The grievor will be reclassified as a
Scientist 4 retroactive to April 1, 1986.
2. The Ministry agrees to pay to the grievor
the sum of $12,311.78 consisting of
$10,572.97 retroactive pay plus $1,738.81
interest less withholdings as required by
law.
3. Subject to the fulfilment of the terms of
this Memorandum of Settlement the
grievance is hereby withdrawn.
Dated this 17th day of March, 1989.
"signature"
For the Ministry
"signature"
For the Union
"signature"
For the Grievor
The arguments made by the Union before the Fraser panel are outlined at p. ~, of the
award, and are to the same effect as the arguments made before us. At pp. 5 and 6 of the
interim award, the Fraser panel outlines thc chronology of events leading up to the settlement
and filing of the grievance on April 11, 1989:
A chronology of events involved in these submissions is as
follows. On April 21st, 1986, Mr. Neubert grieved that he was
improperly classified as a Scientist 3. In 1987, his duties are
alleged by the union to have Changed. After 1987, the union
concedes that the grievor's duties remained the same to the present.
The specifics of the alleged changes in 1987 are not before this
board. On July 1st, 1988, a new position specification became
effective for the grievor's position with the class allocation of
Scientist 4. The union agrees that the 1987 changes in duties,
which it alleges were "substantial additious to his responsibilifes",
"are reflected" in that new position specification.
At the same time that it produced the July, 1988 position
specification, the employer unilaterally and voluntarily agreed to
pay the grievor at the Scientist 4 rate, commencing July-Ist, 1988.
The grievor was notified of this change in August, 1988.
A further position specification effective December 1st,
1988, was prepared by the employer, which allocated the grievor's
position to Scientist 4 (Atypical). The grievor was not made aware
of that reallocation at that time. Furthermore, under the headings
"Purpose of position", 'Duties and related tasks", and "Skills and
knowledge required", there is a series of differences between the
former Scientist 4 position specification, and the latter Scientist 4
(Atypical) position specification. Those differences have not been
explored at this time before this board.
On March 17, 1989, the grievor entered into the settlement
of his grievance of April 21st, 1986, in the terms noted earlier. As
indicated above, the grievor has been paid at the Scientist 4 rate
commencing July 1st, 1988, and the parties have indicated that the
retroactive pa..y found in paragraph 2 of that settlement, is to bring
the grievor to the Scientist 4 level of pay, up to that date.
Around the time the current grievance was filed (April 1 lth,
1989), the union alleges that the usage of the Scientist 4 and
Scientist 4 (Atypical) classifications were changed, in that (to quote
from the union's written submissions) "positions with lesser
responsibilities have been classified by the employer at the same
level as the grievor's position...". Then, approximately two weeks
after the current grievance was fried, the grievor was advised for the
first time of the further reclassification of his position to Scientist
4 (Atypical), effective December 1st, 1988.
At p. 12, we find that the Fraser panel ruled that the Union is estopped from bringing
a grievance based on material facts known to the grievor and the Union at the time the
settlement was signed. The Fraser panel went on to outline in which respects the Union alleged
that the facts had changed since execution of the settlement:
For all the reasons above, the employer's objection succeeds
to the extent that the union is estopped from grieving Mr.
Neubert's classification on grounds arising from any material
facts arising prior to the date of settlement, which were in their
knowledge at the time the settlement was signed.
Since that time, however, the union submits that the facts
have changed in two respects. First, it is alleged that the usage of
the grievor's position has changed, in that positions with lesser
responsibilities have been classified by the employer at the, same
level as the grievor's position. Second, the grievor's position was
reclassified to Scientist 4 (Atypical), prior to the settlement, but
that reclassification, eontainlng numerous-changes in the new
position specification, was not known to the grievor or the union
until after the settlement, The union submits that each of those
circumstances provides new, relevant facts, on which a new
classification grievance may be brought.
In respect to the first point, the Fraser panel at p. 13 and p. 14 rejected the Union's
argument that the inclusion of positions with less responsibility within the Scientist 4
classification constitutes new, material facts upon which the subsequent grievance could proceed.
At p. 13, the Fraser panel makes the following ruling:
Given that the union does not propose a new type of usage
test, the facts alleged simply do not fit the issue as proposed by the
union, and we conclude that they do not have the character of new,
material facts since the date of settlement...
At p. 14, the conclusion is restated as follows:
We accordingly conclude that as the new facts respecting
usage alleged by the union are not material to the very issue they
rely on, and in the absence of a claim for a new type of usage
argument, the union's position on this matter must fail.
Of equal importance to the matter before us is the ruling on pp. 14-15 outlining those
matters which may proceed and for which the settlement would not constitute a bar:
That leaves the reclassification of Mr. Neubert's position
to Scientist 4 (Atypical), for our consideration. The new
position specification appears on its face to have material
changes from the one known to the union and the grievor at the
time of settlement. We have no evidence of how either it or the
earlier one relate to the Class Standard. However, there is a
specific allegation that Mr. Neubert's duties and responsibilities,
and the new Scientist 4 (Atypical) position specification do not
fit together very well at all. There is a further allegation that
his duties and responsibilities have a better fit to some other
positions.
We f'md that these allegations involve facts material to
the grie. vor's classification, which are new to the extent they
were unknown to the grievor and union on March 17, 1989, the
date of settlement. Therefore, as classification grievances are of
a continuing nature, we conclude that the settlement herein is not a
bar to a grievance based on the reclassification of Mr. Neubert's
position to Scientist 4 (Atypical), including the material
circumstances relating to that reclassification and its effect.
The employer's objection fails on this ground only, and Mr.
Neubert is therefore entitled to proceed'with his grievance in respect
to that last reclassification, and to prove the allegations in respect
to its unsuitability.
At the outset of the hearing, having received argument from the parties concerning the
effect of the interim award and having reviewed the interim award, the Board directed the parties
to limit evidence and .argument to the issue identified at pp. 6, 14 and 15 of the Fraser panel's
interim award: namely, the propriety of the application of the Scientist 4 (Atypical) class
standard to the grievor's job functions. The issue was to be determined based on evidence as
to how the grievor performed the job at the time of the grievance in April 1989, with the focus
to be on new, material facts since the date of the settlement. Finally, the panel ruled that it
would reject evidence and argument directed to a usage test based on the inclusion of positions
with less responsibility within the Scientist 4 (Atypical) classification in accordance with the
ruling of the Fraser panel at p. 13.
B) REVIEW OF EVIDENCE CONCERNING ALLEGATIONS OF CHANGE TO
GRIEVOR'S JOB FUNCTIONS
Dr. McFadden, the grievor's supervisor, test/fled that in 1988, there was a
reorganization in the Radiation Protect/on Service Section. Certain inspect/on work described
in Section 3(2) of the grievor's position specification, filed as Exhibit #7, was also carried out
by X-Ray Safety Inspectors classified at that time as Radiation Technicians 4. In 1988, there
was a reporting relationship to the Senior Radiation Technician, but supervision of the work
done by the Radiation Tech 4 personnel was carried out by Dr. McFadden. Dr. McFadden
became Supervisor, Ionizing Radiation in the spring of 1988 in an acting capacity and was
confirmed in that position in August or September 1988. Dr. McFadden expected the grievor
to train a new Consultant, Ionizing Radiation, Mr. Voja Milosavljevic, when the latter won this
position pursuant to a posting and competition in November 1988. Two other employees, as
well as Mr. Milosavljevic, had been Radiation Technicians 4, but were reclassified as Scientist
4 pursuant to a successful grievance in 1988. Dr. McFadden stated that he expected the grievor
to participate in training these colleagues as well. In cross-examination and upon questioning
by the Union member of the panel, Dr. McFadden responded repeatedly that the ir/spection and
enforcement functions described in Section 3(1) of the October 1988 position specification for
a new position at the Scientist 4 level are the same as those functions which are more elaborately
described in Section 3(2) of the December, 1988 position specification for the position of
Consultant, Ionizing Radiation classified as Scientist 4 (Atypical). Indeed, Dr. McFadden
explained that since the inspection and enforcement functions of Radiation Technicians 4
overlapped those of the Consultant, Ionizing Radiation classified as Scientist 4, they were able
to grieve successfully. Indeed, the Union filed the case GSB 0909/86, 0910/86, 0897/87 R~e
OPSEU (Cabeza et al) and Ministry of Labour, February 15, 1989 (Epstein) which upheld the
group grievance. Thus, in the latter part of 1988 and early 1989, new personnel became
included in the Scientist 4 classification and the job description for this position underwent
revision from July 1988 through December 1988 to capture the changes effected by the
reorganization and successful grievance by Radiation Technicians 4.
Indeed, the evidence before us suggests, as do the arguments of the Union made before
us, as before the Fraser panel, that the APril 11, 1989, grievance was triggered by the inclusion
of the Radiation Technicians 4 (formerly holding the position of X-Ray Safety Inspector) in the
same classification as Scientist 4. The reasoning of the panel in the Cabeza case tamed upon
the finding that the core functions of the position of X-Ray Inspectors were conducting
inspections of workplaces and ensuring compliance with x-ray safety regulations. At p. 4, the
panel in Cabeza summarizes its findings on the evidence in that case:
The evidence of the gfievor establishes that the grievors
inspect all facilities where x-ray machines are in use other than in
use for human exposure. That includes the industrial use of x-ray
machines, veterinarian facilities and educational institutions for
training programs. About 50% of the grievor's time is spent on
inspection and the balance of the grievor's time is spent on
preparation for inspection by reviewing files on the last inspection,
reviewing corrective actions taken, reviewing previously issued
orders, checking compliance and then preparing instruments for
proper testing at the job site.
Part of the job of the grievor is to be "on top of" new x-my
units being introduced to industry and checking their hazard
potential. This involves reading iitemture on the new equipment
and talking to suppliers. The gfievor also spends time participating
in scientific experiments which are designed to confirm data already
published in scientific papers about radiation protection.
All of the grievors are issued with a card which constitutes
a certificate of appointment under the Ontario Ministry of Labour
as an inspector under the Occupational Health and Safety Act and
the card and the statute authorize the inspector to exercise all of the
powers conferred upon an inspector under that Act.
At p. 5-6, the Cabeza panel notes the remedy sought by the grievors:
In this case, the grievors originally took the position that
they should be classified as Scientists (4) Atypical, but in the course
of argument conceded that there was not sufficient evidence for the
Board of justify that finding and accordingly the grievors seek to
have the Board simply order that the Ministry re-classify same.
In his testimony before us, the grievor pointed out that one of the major changes to his
job functions which occurred before and after the March 1989 settlement was that prior to the
settlement he performed only special investigations, whereas later he was required to do more
general inspections and investigations. He explained that the latter sort of inspections had been
carried out by X-ray Safety Inspectors and his role had been to check the accuracy and
consistency of their work, including inspection reports and methods of enforcing compliance.
The grievor indicated that he had been responsible for special investigations and inspections.
These special investigations and inspections were of two general sorts: plan review and
- 10-
inspections of new permanent x-ray installations prior to operation and investigations of
accidental over-exposure incidents. We find that the grievor's responsibilities in respect to plan
reviews of new permanent x-ray installation are captured in the December, 1988 position
specification filed as Exhibit #7 at Section 3(1):
providing technical advice and consultation to employers in
the planning of new permanent x-ray installations to ensure
safety and compliance with the regulation;
reviewing plans for permanent x-ray installations submitted
by employers or owners for accep~ce, assessing
workplace controls on completion of new permanent x-ray
installations to confirm compliance with the x-ray
regulations.
We find that the grievor's responsibilities in respect to the investigation of overexposure
incidents is contained in the December, 1988 position specification in s. 3(2):
- investigating over exposure incidents and determining the
radiation dose which might have been received by exposed
persons.
The grievor testified that he did not receive his December, 1988 position specification
until April 25, 1989. Dr. McFadden testified that his usual management practice would have
been to give a copy of the position specification to the position incumbent shortly after he signed
it. He could not state with any more precision when he gave the grievor a copy. However, Dr.
McFadden was able to recall that at the grievor's request, he gave the grievor a copy of his
position specification on April 25, 1989. Dr. McFadden explained in cross-examination that Mr.
Neubert had been refusing to train the new employees (former Radiation Technicians 4) in the
Consultant, Ionizing Radiation position. Thus in April 1989, Dr. McFadden pointed out that
it was the grievor's responsibility by reference to the position specification. Dr. McFadden
-il-
confirmed the direction in a written memorandum to the grievor. Dr. McFadden maintained
steadfastly, in the face of repeated questioning, that it always had been part of the grievor's
duties and responsibilities to assist in training new employees in the same position, in a collegial
fashion. When Dr. McFadden was pressed again to explain when the grievor assumed the
inspection and enforcement duties set out in s. 3(2) of his position specification, Dr. McFadden
explained that those duties were always part of his job and were contained in section 3(1) of the
October 1988 position specification fried as Exhibit 11. From the spring of 1988 through to
early 1989, the grievor had been assisting Dr. McFadden as a member of a four person
committee struck to develop x-ray safety regulations. Dr. McFadden explained that during the
initial months in his posit/on as Supervisor Ionizing Radiation, on an acting basis, then on a
confirmed basis, he was content to allow the grievor considerable flexibility and latitude in
carrying out the functions of his position. It was not until April, 1989 that Dr. McFadden felt
obliged to take steps to insist that Mr. Neubert undertake the training responsibilities of his
position. In re-examination, Dr. McFadden was clear that there was no change to the grievor's
duties in respect to inspection and enforcement duties, in training responsibilities .or in any other
duties in the time period between the time the minutes of settlement were signed on March 17,
1989, and the date the grievance was filed. Indeed, the grievor was not called to give reply
evidence and during the grievor's cross-examination, Mr. Luczay stipulated on behalf of the
grievor that there was no change in the grievor's job functions between March 17, 1989, and
April 11, 1989. The only change upon which the grievor relies is that his position specification
filed as Exhibit #7, was made retroactive in effect to December 1, 1988, although he first
received a copy of it on April 25, 1989.
Copies of the position specification filed as Exhibit #11 effective from October 1, 1988,
and the position specifimtion filed as Exhibit #7 and #10 effective December 1, 1988, are
appended to this award as Appendix I. Upon review of these position specifications and the
testimony, we find that there is no substantial or significant alteration in the sections entitled
"purpose of the position", duties and related tasks" or' *skills and knowledge" required. We
agree with the testimony of Dr. McFadden that the changes effected between the October and
December versions are simply to amplify in greater detail functions that are expressed in both.
The December 1988 .position specification has a reorganized format which highlights the
investigation, inspection and enforcement functions expressed in Section 3(1) of the October,
1988 version. Not only axe the special investigations and inspections mentioned in both the
October and December 1988 versions, but so are duties which are characteristic of general
investigation, inspection and enforcement functions. In the october, 1988 version these
functions, as well as training responsibilities are outlined in s. 3(1):
- providing advice or consultation regarding the interpretation of
x-ray regulations to professional groups, senior industry
officials, colleagues and inspectors;
- initiating procedures for prosecution for non-compliance with the
regulations;
- registering new employers using x-ray sources, and maintaining
current lists of employers to whom the x-ray regulations apply,
including the status of compliance with the regulations, for
reference;
- resolving special difficulties or contentious issues in complying
with relevant legislation through discussion with employers,
owners and employees;
- assisting with the preparation of operational and administrative
policies and procedures regarding the enforcement of the x-ray
regulations;
identifying contraventions of the legislation and issuing written
orders, imposing a time-limited compliance or work stoppage;
- preparing and presenting an inspection report to be posted in the
workplace, confirming orders and advice;
~ participating in training programs for line branch inspectors,
employers and others on x-ray regulations.
In the December, 1988 version the advisory and consultation functions are set forth in
s. 3(1) and the investigative and enforcement functions are set out in s. 3(2)
1. In an assigned region of the province, under the general
direction of Supervisor, Ionizing Radiation, provides expert
professional advice and consultation on ionizing radiation
hazards to professional groups, health and safety committees,
management, provincial and federal agencies, colleagues and
associates by performing such tasks as:
- explaining requirements of the Occupational Health and
Safety Act, the X-ray Safety Regulations, and the measures
to ensure maximum worker protection;
- contributing to the development, preparation and
revision of legislation and standards as Ministry
representative on committees;
- participating in training programs for tine branch
inspectors, employer and others on the X-ray
regulation, and the hazards of ionizing radiatio.n;
- contributing to university and community college
teaching programs;
- registering new employers using X-ray Sources,
maintaining current lists of employers to whom the X-
ray regulation applies, including the status of
compliance with the regulation, for reference;
-providing technical advice and consultation to
employers in the planning of new permanent x-ray
installations to ensure safety and compliance with the
regulation;
reviewing plans for permanent x-ray installations
submitted by employers or owners for acceptance,
assessing workplace controls on completion of new
permanent x-ray installations to confirm compliance
with the x-ray regulations;
providing advice or consultation regarding the
interpretation of the x-ray regulations to professional
groups, senior industry officials, colleagues and
inspectors;
assisting with the preparation of operational and
administrative policies and procedures regarding the
enforcement of the x-ray regulations;
2. Carries out investigations of all workplaces by performing such
tasks as:
- collecting scientific data with rest)ect to ionizin§
radiation, ie. direct beam and scatter radiation, beam
quality, half value layers; spectrum analysis, kVp
analysis; analyzing results, interpretin§ and rqx)rting
findings;
- determining extent of hazards, ordering control
measures to reduce or eliminate ionizing radiation
hazards, by imposing a time-limited compliance or
work stoppage order;
-initiating procedures for prosecution for non-
compliance with the regulation;
- acting as expert wimess on ionizing radiation on behalf
of the Ministry;
- resolving special difficulties or contentious issues in
complying with the relevant legislation through
-discUssions with employers, joint Health & Safety
Committees, workers and owners;
- investigating over exposure incidents and determining
the radiation does which might have been received by
exposed persons;
- preparing and presenting an inspection report to be
posted in the workplace confirming orders and advice;
completing consultant field visit reports for the Branch
and as required for other agencies, ie. WCB, AECB
and Health & Welfare Canada.
Therefore, we find that although the mix of the grievor's duties may have changed, he
was always responsible for carrying out special and general investigations, inspections and
enforcement.
The only other changes to which the grievor referred in his testimony concerned duties
which he characterized as additional to those outlined in the December, 1988 job specification.
The grievor explained that he was assigned to do Matching by Result Reports (MBR)
and he was required to assign priorities and schedule inspectors' visits. However, in cross-
examination, the grievor admitted that the last time he did an MBR report was prior to March
17, 1989, and that he ceased to schedule inspectors' visits sometime in i988. Mr. Neubert
agreed as well that since early 1989, he has not been required to review data from inspectors'
reports, he has been involved less in training inspectors, and was involved in more general
inspections and routine investigations than he had been in 1988.
We find that these changes are ones about which he knew, or ought to have been aware
at the time he entered into the Minutes of Settlement on March 17, 1989, whereby he accepted
classification at the Scientist 4 level.
We find further, based on the testimony of the wimesses and the Union's stipulation
concerning the lack of any changes to the grievor's duties and responsibilities between March
17, 1989, and April 1, 1989, that there were no new material facts in the form of different job
functions, skills, knowledge or responsibilities required of the grievor in that time frame.
We find further support in the uncontroverted testimony of Ms. Brurolias, a senior
classification manager, that the designation "Atypical", which is contained and attached to the
classification of "Scientist 4" in the December 1988 position specification, but not in the October
1988 version, has no impact upon the salary, benefits or categorization of the grievor in respect
to class series, class level, category or occupational group. Indeed, the notation "Atypical" was
added to denote that although the position entailed speciali?ed scientific work carried out with
considerable authority and under general supervision, the duties and responsibilities performed
were not confined to a laboratory setting. Ms. Brurolias stressed that the notation "Atypical"
does not signify a change in classification from Scientist 4. Ms. Bturolias admitted she had no
personal knowledge concerning why the notation had been added to the December, 1988 position
specification. In her view, the "atypical" designation would have been warranted for both the
October and December 1988, versions, since the inspection, investigation and enforcement
functions, which are not performed in a laboratory setting, are contained in both. On the
evidence, we must conclude that the change in notation from Scientist 4 to Scientist 4 "Atypical"
'did not constitute a change to the material, underlying facts of'which duties and responsibilities
the grievor was being required to perform or to the compensable factors embodied in the
performance of such functions. On the whole of the evidence, and after review of the case
authorities cited to us, we are driven to the conclusion that there are no new material or relevant
changes to the grievor's job functions which occurred between the time of the settlement and the
filing of the grievance. We further find there are no new material facts which occurred prior
to the settlement which were unknown to the grievor at the time the settlement was signed. The
allegations that there were such new material facts and that such facts were unknown to the
gfievor until he received his revised position specification on April 25, 1989, have not been
made out upon the evidence.
Accordingly, we conclude that the grievor is estopped from grieving his classification
as Scientist 4 (Atypical) by reason of the settlement and the ruling of the Fraser panel at p. 12:
... the union is estopped from grieving Mr. Neubert's classification
on grounds arising from any material facts arising prior to the date
of settlement, which were in their knowledge at the time settlement
was signed.
At p. 14, the Fraser panel alludes to the allegations advanced by the Union before him
and before us to the effect that the December, 1988, position specification contains changes to
the grievor's duties and responsibilities that did not make the Scientist 4 class standard a "best
fit", whether on an "atypical' basis or not. However, at the time of the settlement, the grievor
and the Union ought to have known whether the Scientist 4 classification was appropriate given
the duties and responsibilities carried out by the grievor up to mid-March 1989. Up until
March, 1989 the grievor had been performing special and some general investigations and
inspections and carrying out enforcement and training functions. By mid-March, the grievor was
training Mr. Milosavljevic in the same position. By that time, Mr. Milosavljevic had won a
posting for that position and by February, 1989 he had won his classification grievance brought
with others classified as Radiation Techs 4 claiming reclassification, initially as a Scientist 4
(Atypical): see GSB 0909/86, 0910/96 AND 0897/87 Re OPSEU (Cabeza et. al) and Ministry
of Labour, February 15, 1989 (Epstein).
The grievor impressed the panel as a dedicated scientist with impressive expertise in the
field of ionizing radiation. There is little doubt in our minds that his expertise is relied upon
as a resource for his supervisor and new incumbents in the position, amongst many others.
However, we must be guided by the framework for our review of the facts and issues set by the
Fraser panel. For the reasons outlined, we must conclude that the grievance should be
dismissed.
Dated at Kingston, this 8th day of February, 1993.
Dissent Attached
P. Klym
M. O'Toole
DISSENT
RE: 475/89 OPSEU (Neubert) and the Crown in Right of Ontario
(Ministryof Labour)
I strongly dissent from the conclusion of the majority decision
that the Union is estopped from grieving the grievor's:
classification as Scientist 4 (Atypical).
This issue was decided by the Fraser panel and we are not
permitted to sit as an appellate body to reconsider or relitigate
that Panel's decision.
The Fraser Panel clearly considered the Union position that the
new December 1988 position specification and the reclassification
to Scientist 4 (Atvoical) was not known to the grievor at the time
he entered into the terms of settlemeht of his previous grievances
on March 17, 1989.
They concluded that that settlement was not a bar to a grievance
based on 'the reclassification of the grievor's position to
Scientist 4 (Atypical) and that the grievor was entitled to
proceed to prove the allegations with respect to the unsuitability
of this classification.
By arriving at the conclusion that the grievor was estopped from
grieving this Scientist 4 (Atypical) classification the majority
is adjudicating an issue already decided. They have absolutely no
jurisdiction to do this.
The real issue before us as handed down from the Fraser Panel is
to decidewhether the grievor's duties, as described to us through
the position specification in effect at the time and by the other
evidence presented to us, are a satisfactory fit into a Scientist
4 (Atypical) allocation. To do this we need to consider whether
the core duties are sufficiently covered ~ithin the parameters of
the Scientist 4 class standard to allow the atypical
classification.
In my opinion there are two significant reasons why the Scientis~
4 standard does not sufficiently cover the grievor's duties.
First, a major part of the work in not performed in a laboratory
setting as stipulated by the class standard. Secondly, a major
core duty is inspection and enforcement. I submit that this is
not contemplated by the Scientist 4 class standard.
Therefore I would conclude that this job does not properly fit
within the Scientist 4 class standard and this standard is
improper to use on .an "atypical" basis for this job.
The Union submitted that this job was a better fit into a
classification of either Radiation Physicist I of Occupational
Hygienist. On the evidence before us I would not conclude that
either of these jobs is the proper classification.
I would 'find that a Berry order should result and that the
employer find or develop a proper classification for the grievor. ~
Finally, this case can't be left without a comment about the
lengthy delays in issuing GSB decisions related to this matter.
This grievance was originally filed on April 11, 1989. It came on
for hearing at the GSB before the Fraser Panel on October 29,
1989. The decision of that Panel regarding the preliminary
objection to arbitrability was issued on August 28, 1990 - 10
months after the hearing date. That panel did not remain seized.
The matter was then submitted to our Panel and hearings were held
on November 22, 1990, November 23, 1990, August 25, 1991 and
finally on September 27, 1991. The first draft decision from the
Vice-Chairperson was received on January 26, 1993 - 16 months
after the final hearing date.
No valid explanations have been advanced regarding such a lengthy
delay.
Parties coming before an arbitration board have a right to a
decision within a reasonable time frame.
We do not serve the parties or the arbitration process well by not
issuing timely decisions.
February 1, 1993