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HomeMy WebLinkAbout1989-1589.Avsec.90-10-09 ONTARIO EMPLOYES DE LA COURONNE CROWN EMP£ 0 YEE$ DE L 'ONTAR)O GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS :150 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTAR.,~. MSG ~Z8 TELEPHOrqE/T~_LEP~O~qE: (4161 326~388 180, RUE DUNDAS OUEST, BUREAU 2)00, TORONTO {ONTARIOJ. MSG IZ8 FACSiMILE/T~£~COPIE :' (416) 326-1396 1589/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEEB COLLECTIVE B~RGAINING ACT 'Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Avsec) Grievor ~ - and - The Crown in Right of Ontario (Ministry of Housing) Employer BEFORe: W. Low Vice-Chairperson J. Carruthers Member. R. Scott Member FOR THE C. Dassios GRIEVOR Counsel Gowling, strathy & Henderson Barristers & Solicitors ' FOR THR D. Costen EMPLOYER Counsel Human Resources Secretariat Management Board of Cabinet HE/%RING July 30, 31 1989 DECISION This is a classification grievance. The Grievor, Joseph Avsec, is a mechanical/electrical technologist employed by the Ministry of Housing in Hamilton. Mr. Avsec was first hired in 1975 and is presently classified as Services Supervisor 2, the class standard of which provides as follows: CATEGORY: Maintenance Services GROUP: MS-02A Trades and Crafts SERIES: Services Supervisor CASS CODE: 93142 CLASS STANDARD: This class covers positions of employees who .are responsible for ensuring the technical implementation and execution of projects concerned with the installation, maintenance and improvement of either electrical or mechanical systems and equipment in Government-owned buildings in an assigned region of the Ministry of Government Services. These employees operate either as regional co-ordinators of minor capital, maintenance, and improvement projects in all but the largest regional of the Ministry, or as regional inspectors of major capital projects. This class also covers the positions of the senior electrical or mechanical inspectors in districts in the Central Region where the Manager position is classified at the Buildings Manager 5 level. As regional co-ordinators, they provide technical advice ko district electrical or mechanical ~upervisors and staff. They personally prepare instructions, estimates and contract documents on the larger more complex Projects. When necessary, they conduct inspections of large complex contracts and carry out investigations of the more difficult problems, providing advice and guidance to district staff. They. are responsible for the ~ implementation, operation, updating and co-ordination of the Preventive Maintenance Program covering electrical or mechanical equipment in Government buildings, arranging contract maintenance where required. They work closely with district electrical or mechanical supervisors in the preparation of annual budget estimates. As regional inspectors, they are responsible for ensuring that electrical or mechanical systems and equipment for major capital projects are installed in accordance with designs and specifications. They inspect work in progress, reporting 0n any deficiencies, interference, site problems and other conditions. They instruct contractors on 'Government procedures and co-operate with them in resolving problems. They estimate labour and material costs to ensure the validity of progress billings and change orders. They conduct final, inspection of completed work to ensure the proper functioning of the installation. SKILLS AND KNOWLEDGE: Skill in an appropriate electrical or mechanical trade; supervisory, instructional and administrative ability; ability to 'estimate costs and prepare work assignments from plans and specifications; thoreugh knowledge of statutes, regulations and by-laws governing electrical or mechanical installations. There is no dispute ~hat Mr. Avsec's position specification which is part of Exhibit 3 in this grievance is an accurate description of the functions performed by the Grievor in his position as mechanical/electrical technologist. Mr. Avsec has fore, al training in both the mechanical and electrical disciplines and is required to have skill and knowledge and to ap~ly expertise in both disciplines in the course of performing his duties. Mr. Avsec spends approximately 35%' of his time providing ponsultative services, to non-profit groups, housing 3 agencies and housing authorities in both the electrical and mechanical disciplines. This function requires him to be involved with residential projects carried out by such entities from the conceptual stage through construction and after. The bulk of the balance of Mr. Awsec's duties include designing, inspecting, administering contracts, making recommendations for selection of professional consultants, estimating, co-ordinating consultants' activities, site supervision, review of shop drawings and monitoring for compliance with Ministry standards, all in respect of both major and minor capital projects of the Ministry and covering both mechanical and electrical disciplines. In addition, Mrl Avsec is required to provide technical expertise to aid the Manager, Technical Services, in planning and organizing long range major upgrading and improvement projects and to optimize maintenance and energy conservation measures. The. residue of Mr. Avsec's time is spent liaising %;ith other organizations and the public in matters pertaining to both the mechanical and electrical disciplines, which includes a teaching component. It is urged by the Ministry that the functions which Mr. Avsec performs are clearly and wholly within the ambit of the class standard for Services Supervisor ..2, and that Mr. Avsec's actually functions fall short of the range of duties or responsibilities contemplated in the standard in that it is Mr. 4 Avsec's supervisor who actually has the final power of decision over matters in which Mr. Avsec is required to make recommendation and over areas where differences may arise as between Mr. Avsec's recommendations and the preferences of the non-profit groups for whom he provides consultation services. I am unable to accede to this argument; one can equally say that it is the Minister of Housing who is responsible for all of the activities and fuDctions carried on in the Ministry but this does not diminish the functional responsibilities of those reporting to him or her. The fact that Mr. Avsec's supervisor is "responsible" in the'same sense for those activities carried on by those below him in' the chain of responsibility does ~not diminish the functions and activities carried out by Mr. Avsec, and on the evidence before us it is apparent that the functions' and activities, so carried out and the knowledge, skills and expertise that .his position requires him to possess and to apply both exceed and. are different from those set forth in the class standard. First, the skills and knowledge required by the class standard call only for skill .in an electrical or mechanical trade. The uncontradicted evidence before us is that the existence of training and skill in one discipline does not entail any skill or expertise in the other discipline and that skill in each requires both formal and experiential training. Mr. Avsec is required to have skill in both disciplines to perform his job. Second, a substantial portion of Mr. Avsec's position, namely that part of his work dealing with projects of non-profit organisations and the like, is not contemplated in the class standard at all. Mr. Avsec is required to deal not. only with government-owned buildings, which is contemplated in the class standard, but also with a panoply of projects which are not government-owned but in which the government has some financial involvement. Thirdly, the class standard contemplates, that a peFson holding the position of Regional Co-Ordinator will deal with minor capital projects and will, ~ alia, personally prepare instructions, contract documents and estimates. It contemplates that a person holding the position of Regional Inspector will deal with major capital' projects but does not appear to contemplate that he or she will be required to personally prepare instructions, estimates and contracts. On the evidence before the Board, Mr. Avsec deals with both major and minor capital projects and carries out inspections, monitoring, consultative, design, contract, and estimating work for both the mechanical and electrical disciplines. 6 The Grievor seeks a ~ order. To satisfy the test to be met before such an order will be made, the Grievor must satisfy this Board that there is a substantial difference between the duties performed and those referred to in the classification standard. It. may also be expressed as a requirement that the standards do not fit the nature of the job, but I do not take it that this requires that the job be 'totally. different from that expressed in the standard. It is sufficient that there be a substantial variation either in the nature of the duties or. in the scope of.the duties that the employee is required to perform (v. Dunnin~ (1574/88, Arbitrator Gorsky); ~ (675/85, ArbitratOr Brandt); Beach (816/86, Arbitrator Fisher). On the uncontradicted evidence before this Board, I find that as Mr. Avse6 spends a third of his time concerned with projects not contemplated by the standard, and as he is required to have' and to apply skill and expertise substantially in excess of that required in the class standard, there is present a substantial difference between his functions and the class standard. I would therefore make an order directing that Mr. Avsec be re-classified. There is a second issue before the Board, and that is whether the application of the 20 day rule should apply. 7 It appears on the evidence that shortly prior to June 2, 1988, the Grievor had a conversation with his supervisor, Mr. Vimal Sarin, the Manager, Technical Services, complaining of his classification. On June 2, 1988, Mr. Avsec formalized his complaint, in a'memorandum which is Exhibit 6. The un~ontradicted evidence is that Mr. Satin indicated to Mr. Avsec that he would do his best in Mr. Avsec's cause, and indeed, in a memorandum dated January 19, 1989, Mr. Sarin wrote to Mr. Roy Holmes, the Regional Manager, supporting Mr. Avsec's request for re- classification at a higher level. The Ministry neither acceded to the request nor denied it for a period of many months, and 'it was in November of 1989, after still having received no response at all from the Ministry that Mr. Avsec filed his grievance. - In the circumstances, I am of the view that the 20 day rule ought not to apply. Mr. Sarin acknowledged that as of June 2, 1988, when the memorandum was delivered to him by Mr. Avsec, he knew that the complaint contained in the memorandum could be the subject of a grievance. Second, Mr. Sarin was the front line management in respect of the Grievor, and in light of the fact that he fully supported Mr. Avsec's complaint and indeed took up his cause, and with no refusal of the request for re- classification by the Ministry, it would not be appropriate to encourage an employee to initiate a grievance in such circumstances where he is given the indication that his request is supported by his immediate manager, and is being considered by 8 the Ministry. The Ministry is in any case in no way prejudiced by the 20 day rule as Mr. Sarin, the witness called by the Ministry, would have been the witness 'had this grievance been launched in 1988 rather than in 1989. I adopt the reasoning in Boyle (supra) where Arbitrator Brant states: "...we do not believe it appropriate to apply the 20 day rule where informal efforts have been made to achieve a settlement of a dispute short of recourse to arbitration. Those efforts should be encouraged and, in the event that they are not successful in achieving settlement and it becomes necessary to grieve, such relief as might be awarded by the Grievance Settlement Board should be retroactive to .the point where steps were first taken to settle the.grievance informally..' The employer raises ~as a further objection the statement in the Grievor's position statement that the claim is for re-classification retroactive to 20 days prior to the filing of a grievance, whereas it was not until shortly prior to the hearing that counsel for the Grievor indicated that the claim was for re-classification retroactive to June 2, 1988. Counsel are unable to direct the Board to any jurisprudence as to the force and effect ~f position papers exchanged between' Grievor and employer, and it is acknowledged that there has been no real prejudice in the change of Position. If one were to'analogize the position papers exchanged between Grievor and employer to pleadings in a civil action, .one is mindful that with respect to pleadings, amendments are generally allowed 'unless there is Prejudice to a party incompensible in costs or an adjournment. Here, there is clearly no prejudice. For the foregoing reasons, I would not apply the 20 day rule and would therefore make an order directing the employer to re-classify Mr. Avsec's position, retroactive to June 2, 1988, that the re-classification be made within 120 days of this Award and that interest be paid on the retroactive payment. This Board will remain seized as to any matters arising out of the implementation of this Award. DATED at Toronto this 9th day of October, 1990. Wa LAN LOW J. C,~UTHERS R. SCOTT