HomeMy WebLinkAbout1990-1822.Dumond.91-07-22 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTARIO '
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 O[JNDA$ STREET' ~VEST, SUITE 2TO~, TORONTO, ONTARIO. MSG ~,~B TE~.EPHONE/T~L6PHONiE: {a ~6,[ 326- ~ 388
T,~O, RUE OUNOA$ OUEST, BUREAU 2100, 'TORONTO (ONTARIOI. MSG IZB FACSIMtLE/TF~:i..~COPtE .' (,4t6) $26- I396
1822/90
FORT HE L. Rothstein
QRIBVOR Counsel
Gowling, Strathy & Henderson
Barrister & Solicitors
FOR THE A. Rae
EMPLOYER Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
KEARING= March 20, 1991
May 29, 1991 · -'
2
Introduction
By a grievance dated August 27, 1990, James A. Dumond, a Party
Chief Aggregates with the Ministry of Transportation in North Bay
grieves that he is improperly classified. Mr. Dumond is classified
as a Technician 4, Field. The remedy sought is. proper
classification. A hearing was convened in Toronto at which time
Mr. Dumond gave evidence on his own behalf. Following this
evidence, the employer elected not to call any witnesses and the
matter proceeded directly to argument. In brief,~it was the union
position that by virtue of changing circumstances, the accumulation
of additional responsibilities and the passage of time, the
grievor's duties and responsibilities are no longer covered by his
ClaEs Standard and he should, accordingly, be reclassified. The
employer argued that while the grievor may have assumed some
additional duties and responsibilities, they were nevertheless
encompassed by both his position specification and Class Standard.
It is useful to set out the disputed classification:
Technician 4, Field, Class Definition
This class covers supervisory level positions for
employees directing the work of a party engaged in soils,
aggregates, experimental or research surveys, for design,
construction or maintenance purposes.
They plan and schedule surveys, obtain necessary samples
and test results and prepare summa~ reports. They
select appropriate methods and procedures within the
.limits of established practiCe, and make decisions that
affect quality, accuracy or utility of results. They
receive general instructions and proceed on their own
initiative on most projects.
[remainder omitted]
T~e Evidence
As previously noted, the grievor's position title is Party Chief
Aggregates. Aggregates refers to granular materials such as
gravel, sand, earth, etc. The purpose of the Party Chief
Aggregates position, as set'out on.the position specification, is
"to organize and 'supervise the activities of the.aggregates field
party engaged in aggregate field investigation to obtain
information on aggregate resources for design, construction and
maintenance purposes..,, At the time of the grievance, the grievor
had almost 33 years of seniority with the Ministry in progressively
more senior positions?
In his early years'in the position of Party Chief Aggregates, which
he assumed in 1977, the grievor was responsible for organizing and
supervising a field party. This field party travelled from site
to site. Using a backhoe it digs holes, conducts a field analysis
of the contents, records that analysis in its log, obtains samples,
prepares surveys, and so on. From this on-site activity the field
party can make an assessment of the quality and quantity of the
material available in a particular, location. This is a "goOd
weather" activity, and it took place between April and November.
The job involves substantial overtime which the grievor would bank.
In some years he took the winters off, in other years he was
involved in winter projects involving planning and design, and
sometimes was assigned tasks such as filing. Around 1988 that
4
began to change.
In the summer of 1988 and again in the summer of 1990, the grievor
did not work in his Party Chief Aggreagtes position. Instead he
served on an acting basis in his super~isor's position. Merv
Gibbons, whose position was Mineral Aggre.gate Assessment Officer,
has supervised the grievor since 1977. More importantly, however,
in the winter of 1987-88, the grievor assumed some new
responsibilities - responsibilities previously performed by Mr.
Gibbons. The grievor assumed these duties, but remained in his
Party Chief Aggregates position.
This new work was, the grievor testified, described on Mr. Gibbon's
position specification: "evaluating and detailing aggregate
resources by means of field surveys, geological reports, soil maps,
air photo interpretation, geophysical Surveys, granular inventory
information and other related methodology." Also indicated on Mr.
Gibbon's position specification and also assumed bythe grievor was
the related task of "initiating and preparing a strategic plan
detailing known aggregate resources versus projected utilization
in all planned major construction areas of the Region."
Moreover, the grievor testified that he performed the following
jobs (some alone and some in conjunction with his supervisor)
during the winter periods which were indicated on his supervisor's
job specification:
-reviewing proposed construction program and preparing
an annual investigation schedule and recommends the
hiring of consultants to meet the work load as required
-planning, scheduling and supervising activities of the
Aggregate Unit field staff and consultants undertaking
investigations on behalf of the Ministry
-initiating and conducting a detailed aggregate survey
of the project area
-detailing and obtaining the necessary approvals for the
investigation of Sources by power equipment
-identifying key sources and recommending action to
protect them for Ministry use so as to minimize material
costs for present and future ~ontracts
The grievor described his activities with ~espect to the above.
Very simply, the grievor was involved in evaluating and detailing
aggregate resources ~n the context of documentary analysis for the
purpose of narrowing down sites_for potential projects. (This is
the work that the grievor would later perform ih the summer in his
capacity of Party Chief Aggregates, except in the summers of 1988
and 1990 when he was in the acting position.)
The grievor also testified that in the winters since 1988 he has
been involved, with his supervisor, in "reviewing received
comments," recommending purchase, option of key sources in order
to control aggregate prices or to ensure proper utilization of
resource and rehabilitation in environmental sensitive areas." The
grievor pointed to some tasks on his supervisor's position
specification which were also~ part of his job as Party Chief
Aggregates.
With respect to the changing nature of his duties and
responsibilities, the grievor gave considerable.evidence as to
different changes in survey techniques which have taken place
largely as a result of legislative reform, and which he said
impacted on his Party Chief Agqgregates duties and
responsibilities. The Board heard considerable evidence with
respect to these changes, and viewed, for example, a survey
prepared prior to the changes an~ one prepared after. It is fair
to say that the major change that has taken place is that while
surveying, the grievor is now required to flag the boundaries and
show setbacks, contours and spot elevations. Some other
requirements which were previously discretionary have now become
mandatory, but the same tools and techniques are applied in the
process. The only material change is that the surveys have become
more accurate. Having heard the evidence, we find that what few
changes have taken place, and they are ve~ few, do not impinge on
the issue before this Board: that is, whether or not the grievor
is properly classified.
The grievor was cross-examined with respect to the functions he
assumed during the winter. The grievor agreed that he had been
analyzing air photos since 1977 and used them in the field as
necessary. He also testified that he performed the duties
indicated on his supervisor's position specification when he was
acting in that position, but that the different duties outlined
above were performed when he was in his own position during the
winter months. The grievor estimated that he. spent approximately
50% of his time in the winter of 1987-88 performing these
7
functions, 50% of his time in the winter of 1988-89, and 70% of his
time in the winter of 1989-90. The grievor agreed that some of the
duties on his own position specification were similar to some of
the duties he described performing which were .on his supervisor's
position specification.
For example, the grievor testified in-chief, and under cross-
examination, that one of the duties he performed was contacting
private and governmental sources with respect to visits by a
ministry backhoe to test the land. This was' described on the
grievor's supervisor's position specification as "detailing and
ob%aining-the necessary approvals for the investigation of sources
by power equipment." It was described on his own position
specification as "discussions with MNR, pit owners, contractors,
construction staff and others." The grievor testified, however,
that the process referred to on his supervisor'~s position
'specification Was one generally involving advance work in the form.
of telephone calls and letters. The process on his own
Specification referred to discussions that would take place on the
site prior to the work being conducted. Indeed, the grievor
testified that his winter work of writing these letters and gaining
the requisite approvals took 10-15% of his time.
The grievor was also carefully questioned about the o'ther
"supervisors'" work that he had testified to performing, and by and
large, his evidence was consistent on cross-examination with what
8
he had said in-chief. The grievor did not clai~ that he performed
all of the work alone, and he candidly admitted that he did some
of the work with his supervisor. He also agreed that his
supervisor was the person responsible for the work. But he was
adamant that during the winter months, ~en he was in the Party
Chief Aggregates position, he spent 50% of the time in the winter
of 1987-88,- 50% of time in the winter of 1988-89 and 70% of the
time in the winter of 1989-90 performing %;ork that his supervisor
had previously performed and that was indicated on his supervisor's
position specification, and that work was preparing the ministry
for the following year's field work.
Union Argument
The union took the position that it was the uncontested evidence
that the grievor spent 50% of his time ~ring the winter months
performing work allocated to his super;isor. This work was
indicated in the supervisor's position specification and referred
to above. Counsel pointed out that the supervisor's position was
classified atypically, and that the classification noted: "subject
position considered higher than other Ministry positions classified
as Technician 5, Field in terms of complexity of duties, technical
knowledge and skill and in accountability." It was, in short,
classified at a higher level than the griev0r's position.
In counsel's view the evidence was clear that the grievor took on
his supervisor's duties and that these duties were classified at
9
a higher level. The question, therefore~ for the Board to
determine was whether the grievor took on. enough of these duties
to move him out of his classification and to persuade the Board
that this was an appropriate case for. a Berry Order, there being
not other suitable classification. Counsel submitted that it was.
By counsel's calculation, the grievor assumed these duties for 50%
of the time for 3.5 months of the year. On an annual basis the
grievor could be said to be working in his supervisor's position
approximately 15% of the time. In short, for 15¥of the time the
grievor was performing the duties and responsibilities of'a higher-
rated classification, and counsel submitted that this fact took him
out of his.own classification. ~
Counsel referred the Board to someauthorities on point. In Cardno
et al 530/88 (Stewart), the Board was called to consider the
classification grievances of four Electrical Maintenance
Electricians working at a Water Pollution Control.Plant. In this
case, the Board heard considerable evidence about the grievors'
duties and responsibilities. Counsel in Cardno et al pointed out
that class Standards are, by nature, very general descriptions of
duties as they are intended to have application to a number of
positions. The Board stated, however, that "if...the position
involves substantive duties which are not contemplated by the Class
Standard it must be concluded that the position is not properly
classified" (at 8). The issue in Cardno et'al was whether certain
modification and design activities performed by the grievors were
10
encompassed by the class standard which referred to: "skilled
manual work at the journeyman tradesman level, in the installation,
maintenance, repair and general up-keep of electrical equipment
wiring and fixtures." The Board in this case found that while
other persons were involved, the grievors initiatedTand performed
this work. In Cardno et al, as in the instant case, the question
then became to what effect. The Board in Cardno et al said:
We are compelled to agree with Mr. Coleman's submission
that the facts of this case are similar to those in Beach
816/86, where the evidence established that the grievor,
an instrument technician, spent five to ten per cent of
his time in the design and modification of existing
equipment. In that case, the Class Standard referred to
"installation, adjustment, repair and maintenance of
electronic devices". At p. 1 of that decision the Board
stated that this description:
...implies a more basic application of skills
[than] to design and modify a piece of
equipment. In essence, the Class Standard
duties are typical of ~skilled journeyman
duties, while the added creative 'elements of
design and modification put the grievor more
into a designer or technologist type of
category.'
It is our view that the same reasoning is applicable in
the case at hand. There was some confusion in the
evidence as to the total amount of time spent by the
grievors on work entailing design and modification
however the evidence is clear that the grievors spend at
least 10% of their time engaged 'in ~is kind 'of work.
This work is clearly a significant element of the duties
of the grievor and is one which is not recognized in
their current classification (at 9).
On this basis, the Board in Cardno et al concluded that the
grievors were not properly classified and granted a Berry Order.
11
Union counsel also'referred the Board to the Beach 816/86 (Fisher)
decision, which is quoted in part above. In this classification
case, the Board found that the grieuor clearly performed the sort
of duties contemplated by the.Class Standard, but that he also
performed other significant duties not covered in the Class
Standard. The Board observed that "the mere fact that the duties
as contemplated by the Class Standard are in fact performed by the
,g~ievor does not in itself mean that the Class Standard is
appropriate when the evidence reveals that there are further core
duties also performed by the grievor which are not covered by the
Class Standard" (at 2).
In making this finding, the Board cited DunnSng 1~74/88 (Gorsky),
where the Board said:
I'cannot conclude that because the bulk+of the grievor's
duties and responsibilities'fall within the Class
Standard means that he is properly classified. -What is
important is that he "could be called upon at any time
by (the) employer to perform (the) functions" beyond ~
those covered by the Class Standard.
Accordingly, the Board in Beach found that the grievor, was
improperly classified and a Berry Order was given.
Union counsel argued that these authorities equally applied in the
instant case, for Mr. Dumond had established in his evidence that
part of his work was work that belonged to a higher classification.
Union counsel did not contest the appropriateness of the Class.
Standard when applied to the grievor's spring, summer and fall
functions as the Party Chief Aggregates, although she did submit
that the changes in survey requirements should also be taken into
account. What counsel objected to was the applicability of the
Class Standard during the winter months when the grievor was d6ing
work previously performed by his supervisor. In counsel's view,
nothing in the Technician 4, Field Class Standard contemplates the
grievor spending 50% of his time doing the work described above.
The overall figure, on an annUal basis of 15% non-Class Standard
work was enough, in counsel's submission based on previously
decided case law, to warrant, a Berry Order in the instant case.
Employer Argument
It is not necessary to address the employer"s argument with respect
to changes in surveys and site plans, for we do not find those few
changes which have taken place material to the matter before us.
With respect to the duties the grievor assumed during the winter
months, employer counsel did not dispute the grievor's evidence
that he spent 50% of his time on those duties. Nor did counsel
disagree with the calculation that on an annual basis this amounted
to approximately 15% of the grievor's time. Where counsel took
issue was with the submission that these additional duties were not
. encompassed by the Class Standard.
In counsel's submission, these additional duties were encompassed
by the grievor's Position Specification and by the Technician 4,
Field Class Standard. Counsel pointed out that the grievor
testified that the duties he performed in the winter months
involved planning and reviewing future aggregate needs and
resources. Counsel pointed out that this duty was included on the
grievor's own position specification, and she noted that the
specification referred to the duties of the grievor including:
"~ids in planning and reviewing aggregate needs and resources."
Counsel pointed out. that on the position specification, this
particular duty was indicated as occupying 10% of the incumbent's
time~ Although this was, on the evidence, no longer the case,
counsel argued that 'the percentages allocated to different duties
on a position specification will naturally Change over time.
With respect to the position specification, counsel argued that the
grievor had agreed in evidence that there was a certain degree of
overlap between his position specification, and hi~ supervisor's.
Moreover, the supe~rvisor remained responsible for the jobs that the
grie¥or did, and some of those jobs were Performed with the
supervisor. Counsel also pointed out' that.the grievor does not
perform anything close to all 'the duties and responsibilities
indicated on his supervisor's position specification, and this was'
another reason arguing against reclassification.
Turning to the Class Standard, counsel argued that this Class
Standard applied to the grievor, and the winter-time work that the
grievor described was encompassed by that Standard, particularly
by the second paragraph of that Standard. The first sentence of
X4
that paragraph refers to planning and scheduling work, and this,
counsel argued, is what the grievor did. Counsel distinguished the
cases referred to by the union, arguing that they involved work
that clearly fell outside of the Standard. The additional work
the grievor assumed clearly, in counsel's view, f~ll within the
Standard. On that basis the union authorities did not apply.
Counsel argued that the reason why th'e supervisor's position
merited a higher classification was because of the responsibility
that went with it - responsibility the grievor testified that he
did not have.
Counsel drew the Board's attention to some cases. In Aird et al
1349/87 (Slone) the Board considered the classification grievances
of a number of Senior Inspectors with the Fuel Safety Branch of the
Ministry of Consumer and Commercial Relations. The class standards
at issue in that case, being of relatively recent origin, fairly
accurately described the grievors' duties and r~sponsibilities.
It was argued, however, that there were a number of significant
omissions. The Board carefully reviewed ti~ese omissions, but that
discussion is not relevant to the instant case. What is of arguable
importance is the Board's finding that:
On the caselaw which, we have considered, the addition of
new duties may take a job out o'f its original
classification, but only where those duties are of such
a kind or occur in such a degree as to amount to a
different job altogether. See for example Baldwin and
L_y_D_q, GS~ 539/84 (Palmer) and Fenske, GSB 494/85.
(Verity). As these and other cases s%how, the propriety
of the classification is a factual issue to be decided
on the merits of each case. In the instant case, we
cannot find that the job as performed is something other
15
than the type of job contemplated by the class standards.
The onus is on the grievor to show that he is actually
performing a job, the essence or core_duties of which do
not fit within the class standard to which it has been
assigned by the employer (at 8-9).
Counsel argued that in applying this test to the facts of the
instant case it could not be said that the grievor was performing
a job, the essence and core duties of which did not fit within the
grievor's Class Standard.
Counsel also referred the Board to Roy 946/89 (Knoph), another
classification case. In R_9~, the Board held that to succeed in
obtaining a. Berry Order the grievor must show that his or her
"duties do not fall within the parameters of the Standards or the
'Definition" (at 10). The Board adopted the analysis in Aird et al,
set out above, and determined that on the facts of the case, the
grievance could not succeed. In making this determination, the
Board found that many of the duties the. grievor described, as
falling outside his classification could be said to fall within it.
The Board then went 'on to say:
Ail the fur sealing, Fire Safety Officer and Fire Supply
Officer responsibilities 'of the Grievor do seem to fall
outside the Clerk Supply series. However, these fall
within the third paragraph of the "Duties and Related
Tasks" which have been agreed upon in. the Position
Specification. Paragraph 3 of the Specification only
encompasses 5%. of the Grievor's work. and these three
functions are only part of that 5%. While the evidence
establishes that the fur sealing is an important part of
the Grievor's job and may take up a fair amount of time,
it cannot be said that these duties are of such a kind
or such a degree that it hakes him outside of the job of
a Clerk 3, Supply altogether. The Fire Safety Officer
and Fire Supply Officer functions are even less. Taken
altogether, they cannot be considered as the type of
import that would justify a change in the Grievor's
classification (at 11-12).
Counsel argued that this same analysis should be applied to the
instant case.
In summary, counsel argued that 'the grievor's winter duties were
included on his position specification .and were, moreover,
contemplated in the Class Standard.
In reply, union counsel argued that whether or not there was any
reference to the duties in the grievor's position specification was
not what was relevant. What was important was, were these duties
contemplated by the Class Standard, and were they performed to such
an extent as to'take the grievor out of that Class Standard. A'
position specification may or may not accurately describe what a
particular employee does; it does not however, no matter what it
says, indicate whether or not that employee has been properly
classified. If it did, all the employer would have to do.is draft
position specifications that included all of an employee's duties,
and that would then serve as a defence to any classification
grievance. This, counsel argued, would not make any sense.
In counsel's view, for the Technician 4, Field Class Standard to
apply it would have to cover the activity of planning and reviewing
aggregate needs and resources, which the grievor performs for 50%
of his time in the winter and 15% of his time on an annualized
basis. Nowhere in the Class Standard was there any mention of this
activity. Accordingly, and given the authorities on point, counsel
argued that a Berry Order should be granted. Counsel also argued
that there was a divergence in the cases as to when a Berry Order
could be granted, and that while there was a long line of cases to
the effect that the position being done and the position
contemplated in the Class Standard must be quite different, nothing
in that line of cases said that this was the onl? time that the
Board would order reclassification. The fact that the Board had
so ordered in other cases indicated that this was the case. In
counsel's submission it did not make industrial relations sense
that a job would have to be completely transformed before a Berry
Order would be granted.
De~ision
For a classification case to succeed, a grievor must show that his
or her job does not fit within the relevant class standard. We
agree with the finding in Aird 9t al that "the class standard must.
necessarily contain some general language, but it must not be
phrased in such generalities as to make the description
meaningless" (at 4). We are also in agreement with the view
expressed in Fenske 494/85 (Verity) that:
'Class Standards are, of necessity, generally worded
statements which are intended to constitute .a general
outline of duties and responsibilities. These standards
are absolute in the sense that the Board has no
jurisdiction to alter or amend them. The Board is
obliged to treat the Class Standards ~in light of the
current circumstances as though drafted with the
Grievor's position in mind (at 13). ·
18
In the instant case, we find that the Class Standard satisfactorily
describes the grievor's activities during~the winter months. It
is true 'enough that the grievor has assumed some of the functions
previously exercised by his supervisor, ~is is not, in our view,
sufficient, in and of itself, to take him out of the class
standard. Rather, these additional duties must be assessed against
that Standard, and we find in the instant case that the second
paragraph of the Standard encompasses the planning and analysis
work undertaken by the grievor. The first sentence of that
paragraph states: "They plan and schedule surveys .... " This, in
our view, is not limitmd to work in the field, but can be read to
include the planning work undertaken by the grievor in the winter
months.
Our conclusion in this regard is reinforced by the second sentence
which states: "They select appropriate i~ethods and procedures
within the limits of established practice, and make decisions that
affect quality, accuracy or utility of results." This too can be
said to describe the planning and analysis work undertaken by the
grievor. Very simply, we find that the core features of the
grievor's job are satisfactorily reflected by his Class Standard.
Having determined, on the basis of the evidence and the argument
presented to us, that the grievor's new.responsibilities continue
to fall within his Class Standard, the grievance is dismissed. A
few additional observations are, however, in order.
19
We are in complete agreement with union counsel that just because
the employer allocates a particular duty to a position
specification does not m~an that that position is properly
classified. In our view, the only way to determine whether a
position is properly classified is by referring 'to the Class
Standard. A position specification may be helpful insofar as it
accurately describes an employee's duties an~ responsibilities, but
it does not, on its face, indicate whether or not the
classification is correct.
There is a long line of jurisprudence at this Board that for a
reclassification order to be given the Board must be satisfied that
there is a substantial difference between the duties performed and
the duties referred to in the Class Standard. In the authorities
cited by union counsel, the Board was apparently satisfied that
there was a substantial difference between the duties being
performed and the duties described in the Class Standard. That,.
of course, is a matter of fact to be determined in each case. It
is not, in our view, a matter that can be determined by reference
to percentages (although they may be helpful).
If such a method were exclusively followed, where would one draw
the line? Would it be sufficient to say that if a grievor was ~
performing duties not included in her Class Standard 10% of the
time that constituted a substantial difference? What about if she
was only performing duties not included in her Class Standard 9%
20
of the time? Would that fail to meet the test? What about if she
was performing duties not included in her. Class Standard only 5%
of the time, but those duties involved significant responsibility
well beyond that ever envisaged in the Class Standard? What about
if the duties were of an infintely more complex 6haracter than
those in the standard? What if the duties required a significantly
greater degree of skill and training than that required in the
Class Standard. What if the duties were unrelated in any way to
those described in the Class Standard? These questions illustrate
the difficulties inherent in attempting to resolve these questions
with percentages. The cases, at least those cited by union counsel
to the Board, depend to a great extent on their facts and appear
to have been decided on that basis.
There is no reason, in our view, to interfere with the longstanding
jurisprudence of this Board that a substantial difference between
the job being performed and the job described in the Class Standard
is a pre-requisite to a Berry Order. Whether or not there is a
"substantial difference" and what constitutes a "substantial
difference" will be a matter for the Board to determine on the
facts of each case.
In the instant case, we find that the Class Standard sufficiently
encompasses the additional duties that the grievor began to perform
in the winter of 1987-88. The fact that the grievor performs these
functions for approximately t5% of his time on the job over the
21
work year does not affect the result we have reached. Had we not
found that the additional duties were covered by the Class
Standard, we would have likely found that these duties were not of
a quality, quanti{y and character so as to constitute a
"substantial difference" requiring a Berry Order.
Accordingly, and for the foregoing reasons, the grievance is
dismissed.
Dated at Ottawa this 22ndday of July 1991.
//?
William Kaplan ~
Vice-Chairperson
M. Vorster
Member _
& ·
A. eton
Member