HomeMy WebLinkAbout1990-1689.LaFrance.92-01-23 ONTARIO EMPL OY~'S OE /..A COURONNE
CROWN EMPLOYEES 'DE L 'ONTA RIO
GRIEVANCE C,OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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Z689/90
IN THE I~TTER OF HN ~BITR~TION
Under
THE CRO~rl~ EMPLOYEES COLLECTIVE B~RGHINZNG HCT
Before
THE GR~EV~CE SETTLEHENT BO[~RD
BET~I~EN
OPSEU (LaFrance)
Grievor
- and -
The Crown in Right of Ontario
· (Ministry of Natural Resources)
Employer
BEFORE: R.'Verity Vice-Chairperson
E. Seymour Member
D. Montrose Member
FOR THE C. Dassios
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE D. Jarvis
EMPLOYER Counsel
Winkler, Filion & Wakely
.Barristers & Solicitors
HEARING March 13, 1991
July 5, 1991
2
DECISION
Wayne LaFrance works as a Fish and Wildlife Technician in the
Huronia District of the Ministry's Central Region. In a grievance
dated August 20, 1990, Mr. LaFrance allege~s that he is improperly
classified as Resource Technician 3 and requests reclassification
as Resource Technician, Senior 1 with full retroactive benefits to
March 27, 1990. In the alternative, the Union seeks
reclassification under a Berry type of order.
The hearing proceeded solely on the basis of the class
standard approach to classification matters. It was agreed that
there was no evidence to support a usage argument.
Following graduation from a .related community college course
(Sir Sanford Fleming) in 1974, the grievor i~as worked as a Fish and
Wildlife Technician in the Huronia District. In fact, he has held
his current classification for approximately 17 years. There is no
real dispute as to the nature of the grievor's duties and
responsibilities. The parties agree that h~s duties are reasonably
accurately set forth in a Position Specification Form dated August
1, 1990. That document was prepared, in material parts, by the
grievor and his immediate supervisor District Fish and Wildlife
Management Co-ordinator, Richard Toth.
The relevant Position Specification Form is reproduced in
3
material parts:
2. Purpose of position
Under the general supervision of the Fish and Wildlife Co-
ordinator, to assist the District Biologists in the planning
and implementation of fisheries and wildlife management
projects.
3. Duties and related tasks
1. Assists the District Biologists in the planning and
implementation of the Huronia District fisheries and
wildlife management programs by:
- recommends the purchase organizes and maintains
equipment including boats, nets, outboard motors,
thermistors, depth sounders, marking and tagging
equipment, radio tracking transmitters and
receivers, snow machines, electroshockers .and
laboratory equipment;
~ responsible for keeping the district up-to-date
with new fisheries technology and for experimenting
with new techniques i.e. radio telemetry, aging
techniques;
~ participating in training seasonal staff in correct
and-safe equipment operation and field collection
of data (including creel census, netting procedures
and Wildlife surveys; such as, wild turkey trap and
transfer);
- maintaining quality control over field records by
auditing data obtained from field surveys;
~ auditing field and laboratory programs to ensure
'conformity to proper procedures, identifying
problem areas and recommending solutions through
changes' in methods or materials;
- organizes and carries out lake.and stream surveys,
egg collections, fishway operations, contaminant
sample collections and other management projects
by:
75%
. - conducting field studies of fisheries resources
including habitat inventory, fish' population
stUdies and resource user assessments;·
- analyzing biological or chemical samples including
fish stomachs, routine a~eing of fish through
interpretation of calcified tissues, spines, bones,
scales, etc;
- liaising with other environmental agencies
including Parks Canada, Fisheries and Oceans,
Ontario Ministry of Environment, Conservation
Authorities, Ducks Unlimited, Ontario Hydro and
private Environmental Consulting Agencies;
- compiling and analyzing data, preparing written
reports on field methods, equipment and results of
projects;
2. Assists in implementing the fish and wildlife management
programs in Huronia District by:
- investigating and reporting on fish kills,
pollution, fish diseases and parasites, nuisance
animals;
- assists in enforcement of the Canada Fisheries ~ct,
Game and Fish Act and other legislation and
Regulations as required;
- organizing and supervising the district's deer and
moose hide/jaw program;
15%
- organizing and supervising the district wild turkey
programs.
3. Other duties:
- performing public relations duties by answering
public inquiries
10%
- acting as a group leader to staff assigned to
projects (i.e. seasonal, Junior Rangers etc.)
4. Skills and knowledge required to perform job at full
working level
Technical skills and knowledge at the level usually
associated with the successful con~letion and graduation
from a reiated three year course of study at a community
college. Skill in the usage ,Df highly specialized
laboratory equipment, i.e. trichinoscope, isomer saw,
compound microscopes.
Significant field experience in fisheries and wildlife
management. Thorough knowledge in the application of
fisheries sampling gear use, maintenance and repair.
Extensive experience with boats (outboards/sterndrives)
and snowmachines. Demonstrated ability to write
technical reports (i.e. prepare maps, graphs, etc.,
undertake literature searches). Physical ability to work
in bush and on lakes under adverse weather conditions;
ability to maintain good public relations with interest
groups; enforcement training at Police College, extensive
experience as D.C.O. in enforcing the Game and Fish Act,
Fisheries Act, Migratory Birds Convention Act. Valid MTC
"D" class driver's license. Ensure Employment Equity
initiatives and objectives are instituted and carried out
in support of Employment Equity work program planning
targets. Knowledge of the Occupational Health and Safety
Act and those regulations made under the act that aPply
to the work supervised or controlled.
The Class Standards placed before us with accompanying
preambles read as follows:
PREAMBLE
RESOURCE TEChNICIAN.SERIES
This series covers the positions of employees engaged in
the performance of operational duties in any one or more of
the specialized services, e.g. Forest Protection, Timber, Fish
and Wildlife, Lands, Parks, Research, etc.
Employees in positions allocated to this series may
perform a variety of duties ranging from those of a manual
nature requiring only a relatively elementary understanding of
natural resource management to those of a technical nature
requiring independent judgment.
Entry into this series for candidates who are graduates
of an approved Technical School in Resource Management o~r an
approved related discipline is at the Resource Technician 2
level. At this level such employees receive training in
practical aspects of theories studied and, as experience is
gained, daily supervision is reduced to instructions covering
specialized technical problems.
6
Positions involving full time performance of Fish and
Wildlife management and/or enforcement duties are restricted
to employees who are graduates of an approved Technical School
in Resource Management.
Research Branch positions allocated to the third level in
this series will normally be underfilled by one grade for a
period not longer than one year, to allow for the necessary
"on the job" training in specific research aspects of the
duties involved.
Positions will be allocated to a specific level in this
class series only when all the requirements of that level have
~been fulfilled.
DEFINITIONS FOR USE WITH THIS SERIES
Service:
Functional field equivalent of a Ministry Division, e.g.
Forests, Mines, Fish and Wildlife, Parks, Conservation
Authorities, Field Services, Lands.
CRITERIA FOR RANKING FISH HATCHERIES
Type A - year round trout culture.
Type B - seasonal pond culture.
Type C - trough or jar culture.
CRITERIA FOR RANKING PARKS
1. Camper days
2. User Days
3. Large natural environment.
4. Complexity because of special situations.
RESOURCE TECHNICIAN
This class covers positions of employees performing more
complex, demanding and responsible technical duties containing
considerable latitude for decision making e.g. check scaling;
compiling lake development data; training fire crew; operating
type "C" parks or type "C" hatcheries; carrying out Fish and
Wildlife management and/or enforcement work; gathering,
assembling an~ compiling technical or scientific data,
preparing technical reports and/or.plans; assessing technical
needs of management or scientific projects and submitting
technical recommendations, etc. in any assigned area of
responsibility.
7
They may supervise and/or train regular employees or take
charge of groups of casual employees and, in this context,
organize and schedule activities within the general framework
of laid down plans or instructions and assume responsibility
for the quality and quantity of production and for the work
performance of assigned staff.
SKILLS AND KNOWLEDGE REOUIRED:
Ability to organize projects and supervise
implementation; initiative and ability to assimilate new
techniques to be applied in a variety of situations; good
understanding of resource management principles.
PREAMBLE
RESOURCE TECHNICIAN, SENIOR SERIES
This series covers the positions of Senior Technicians in
the field of natural resources management. Some positions are
.those of specialists concerned with planning, the provision of
functional advice, policy and standards control, other
positions are those of supervisors involved in the
implementation of varied and complex resource management
programmes. The basic requirement for both groups is a
thorough knowledge of the principles of resource management
and technical expertise.
The working level of non-professional district staff
specialist positions is at the Resource Technician, Senior 3
level. However, positions may be allocated above or below
this level, if, in the assessment of senior management, the
priority given to the management objectives of the service (s)
places greater or lesser demands on the position than is
typically found on a province-wide basis. The reasons for
such an assessment must be meaningfully documented by senior
management in each instance. In any such allocation,, the
following two conditions must be met:
(a) The number of positions at the Resource Technician,
Senior 3 level in any individual service must be greater
than the number of positions'above this level.
(b) The number of positions a__t the Resource Technician,
Senior 3 level in any individual service must be greater
than the number of positions below this level.
Research Branch positions allocated to the first and
second level in this series will normally be .underfilled by
one grade for a period not longer than one year, to allow for
necessary "on the job" training in specific research aspects
of the duties involved.
Positions of Senior Technicians assigned to the Head
Office or Regional Offices are allocated to specific levels in
this class series on a comparatiYe basis with district
positions in relation to such factors as planning, standards
control, policy interpretation and implementation, policy
recommendations, etc.
Positions will be allocated to a specific level in this
class series only when all the requirements of that level have
been fulfilled.
DEFINITIONS FOR USE WITH THIS SERIES
Service:
Functional field equivalent of a Ministry Division, e.g.
Forests, Mines, Fish and Wildlife, Parks, Conservation
Authorities, Field Services, Lan.ds.
Sub-Service:
Functional field equivalent of a Ministry Branch, e.g.
Forest Management, Mineral Resources Management, Wildlife
Management, Parks Management, Fire Control, Lands
Administration.
Work Planninq:
Planning over a relatively short period where the major
factors are provided, e.g. objectives, specific targets,
expenditure allotment, time limitations, areas, etc.
Lon~-ran~e 0Derational Planning:
Planning involving participating of field offices and the
Head Office in the setting of Regional and/or District
objectives; developing and establishing alternatives for
meeting these objectives; analyzing these alternatives;
recommending the course to follow; etc.
Research Station:
A formal unit or organization with permanently assigned
regular and/or probationary staff of Research Scientists
and non-professional research assistants, conducting, on
a year-round basis, scientific work assigned by the
Research Branch.
9
CRITERIA FOR RANKING FISH HATCHERIES
Type A - year round trout culture.
T_ype B - seasonal pond culture.
Type C - trough or jar culture.
CRITERIA FOR RANKING PARKS
1. Camper days
2. User days
3. Large natural environment
4. Complexity because of special situations.
CRITERIA FOR RANKING TREE NURSERIES:
Type A - Annual production target of at' least 10
million seedlings or an annual production of
at least 6 million seedlings plus production
of special stocks plus minimum of 10 species
produced.
Type B - does not meet the above requirement.
RESOURCE TECHNICIAN SENIOR 1
This class covers positions of employees responsible on
a district-wide basis for technical control of a sub-service;
OR who act as senior assistants to district technical or
professional specialists in determining methods and
techniques, implementing.policy and controlling standards in
'one or more services on a district-wide basis.
Also included are positions of employees who 'assist
professional staff e.g. Foresters, Biologists, etc., in the
management of Forest Units, Lake Units, Private Lands, etc.
They participate in the development of management plans,
prepare initial agreements with private land owners, prepare
work plans and annual budget estimates, organize and schedule
units work and exercise budget controls.
Positions of supervisors who on a year-round basis have
administrative responsibility for a formal unit of
organization (functional or territorial) and who, in this
context, prepare work plans and. annual budget estimates,
organize and schedule the unit's work and exercise budget
controls, are .also allocated to this level. Positions of
employees in charge of type "B "parks or type "B" hatcheries
or second-in-charge of type "B" tree nurseries, are included
at this level.
i0
In this Research Branch., this class covers positions of
non-professional, fully trained and experienced research
assistants in various disciplines of scientific research who
under _direction of a Research Scientist, carry out assigned
technological phases of research and have full responsibility
for the validity of obtained or processed data and the
preparation of reports involving preliminary analysis of such
data.
SKILLS AND KNOWLEDGE REOUIRED:
1. Supervisory ability; some administrative ability; ability
to co-ordinate several projects and to prepare work
plans; personal suitability.
2. Extensive knowledge and thorough understanding of
objectives, methods and techniques applicable to the
assigned work area; good working knowledge of relevant
legislation.
The grievor gave detailed testimonY regarding his duties.and
responsibilities and the fact that he is now required to supervise
one employee classified as Resource Technician 2 as well as two
seasonal staff. The thrust of his claim for reclassification is
his perception of working at the level of Resource Technician,
Senior 1 in assisting professional staff, namely two biologists, in
the management of forest units, development of management plans,
the preparation of initial agreements with private land owners, the
preparation of work plans and annual budget estimates and the
exercise of budget controls - all as specified in the second
paragraph of the classification sought. In particular, the grievor
maintains that there were significant ,additional duties acquired
beginning in 1986. such as hiring staff, certain purchasing
responsibilities, scheduling of duties of subordinate staff,
budgetary responsibilities and the occasional negotiation of
11
contracts.
The grievor's supervisor Richard Toth testified on behalf of
the Employer. Mr. Toth acknowledged that the grievor received his
instructions primarily from the two district biologists and that he
was fully responsible for field work in fishery and wildlife
projects which comprise some 75% to 80% of his allotted work. Mr.
Toth agreed that since 1987 or 1988 the grievor planned the work of
his subordinate but had no responsibility for the development of
management plaqs or long range planning, no real purchasing
authority and no effective budgetary control. He did agree,-
however, that there had been both qualitative and quantitative
changes in the grievor's tasks, since 1986.
The Union's first position is that the grievor is entitled to
the classification sought due to the fact that his duties fall
squarely within the second paragraph of the Resource Technician,
Senior 1 class standard. Mr. Dassios contends that the current
class standard fails to encompass the grievor's administrative and
planning role. In the alternative, the Union seeks a Berry type of
Order. In support, the Union referred to the following
authorities: OPSEU (Beach) and Ministry of the Environment, 816/86
(Fisher); OPSEU (Cardno et al) and Ministry of the Environment,
530/88, 2761/86, 2~62/86, 2763/86, 2764/86 (Stewart); and OPSEU
(Peter Fenske) and Ministry of Government Services, 494/85
'(Verity).
12
The Employer argues that the grievor is properly classified as
Resource Technician 3 and that there is no justification for the
classification sought. Mr. Jarvis referred to the following
authorities: OPSEU (Boileau} and Ministry of Natural Resources,
724/88 (Kirkwood); OPSEU (Maloney et al).and Ministry of Natural
Resources, 1761/87 (Devlin); OPSEU (Wales) and Ministry of Natural
Resources, 2417/87 (Dissanayake); OPSEU (C'Neill) and Ministry of
Natural Resources, 1526/87 (Dissanayake); and OPSEU
(Avery/Broderick) and Ministry of Natural Resources, 1233/88
(Verity).
On the evidence adduced, there can be no doubt that -the
grievor is a competent and experienced employee who has been
assigned additional tasks in recent years. We are satisfied,
however, that he performs a variety of operational field duties as
a fish and wildlife technician as contemplated by the current class
standard. We do not agree that the additional duties acquired or
the planning aspects of his job place him beyond the current class
standard. The additional duties acquired as, for example, the
purchase of equipment, the hiring of staff, the supervision of
subordinates, the negotiation arrangements are all incidental
aspects of performing core operational duties. The essence of the
grievor's job is to perform and oversee the operational aspect of
all fish and wildlife projects in the district. In our view, the
evidence does not indicate that the grievor participates in the
development of management plans, or prepares annual budget
estimates or exercises budget controls. Simply stated, the
evidence of the grievor's actual duties and responsibilities falls
far short ~f the management planning function contemplated in
paragraph 2 of the Resource Technician, Senior i class standard.
Accordingly, we must conclude that the grievor is properly
classified as Resource Technician 3. For these reasons, this
grievance is dismissed.
DATED at Brantford, Ontario, this 23rd day of Ja_nuary, 1992.
R. L. VERITY, Q.C. - VICE-CHAIRPERSON
"I Dissent" (dissent attached)
E. SEYMOUR - ·MEMBER .
D. MONTROSE - MEMBER
File 1689/90 OPSEU (LaFrance)
and
the Crown in Right of Ontario
(Hlnlstry of Natural Reso~:ces)
DISSENT - EDWARD E. SEYHOUR, Employee Nominee
! have read the majority award and find that I must with respect
dissen~ from it's findings. While I do concur with the majority to
the extent that Mr. LaFrance's duties are no~ su£fi¢ien% to take
him from Resource Technician $ (RT$) to Reso%~rce Technician Senior
! (RTS1), I do believe they are sufficient to warrant the award of
a reclassification under a Berry t~e of order.
The grievor's duties, i.e. assisting 'the Blologists~ his
participation in assisting in the development of Management plans,
his preparation and negotiation of agreements with private
landowners~ as wel~ as his supervisory duties, exceed the
responsibilities outlined in the RT$ class ~tandard.
The grievor's responsibilities are greater than those of an
individual who simply takes directions from others. His
responsibilities regarding the preparation of program plans are
more than simple technical duties. He assists ~he Biologists in
planning and implementing different programs. Once a program is
drawn up the grievor is responsible fo~ all o~anizational aspect~,
including hiring of staff, making recomm~ndations as to what
equipment to purchas6, purchasing ~hat equipment, and ensuring the
equipment is kept in a proper state of repair. Non~ of his
recommendations with respect to these responsibilities have ever
been rejected.
as. for any summer help. It is %he grievor who decides who will go
on the short list for such positions and he participates as an
equal membe~ of the hiring committee. His recommendation on who to
hire has always been accepted.. The grievor supervises the RT2
staff in both th~ field and office, It is he who draws up their
daily work schedules, authorizes changes, and signs overtime.
The grlevor selects the lakes' to be surveyed, determines what
program to carry out and, spends time do~n~ land development
proposals.
It is he'who is the Ministry's liaison with other Ministries,.i.e.
the Hin~stry of the Environment (water sampling), as well as with
private organizations (Ducks Unlimited). He also ~eals with
private consulting firms to tender out projects (Angler Surveys).
The budget is monitored by the grievor for the projects which are
his responsibility and i% is he who ensures that monies are
available to pay~for the contractors hired, to carry out the various
Ministry 9rojects.
Management witness Toth concurred %hat the grievor had a role to
play with respect to hiring outside contractors on the Moose and
Deer Mide an4 Jaw program, as well as drafting contrac%~ for
private landowners for the Stream Survey. He admitted that prior %o
1986 the grtevor had no role to play in these responsibilities at
all. He further admitted that the RT2 position ~id not exist prior
tO 1987.
The grievor's responsibilities as outlined above, take him out of
the RT3 standard. Prior to 1986 the grievor ha~ no hiring
responsibilities, f~w purchasing responsibilities and practically
nothing to do with budgets. He did not write contracts and had no
authority ~ver RT~'s. In addition he did no~ have the
r~sponsihilities he currently doe~5 with respect to c&rr¥in~ out
projects assigned to him by 3iologists. Many of these duties are
assigned to the ~rievor following direct consultation Detween %he
grievor and ~he ~iologis~s.
As stated a% the outset, I agree these dutie~s are not sufficient to
place the grievor in the RTSl classification. TheF are however
significant enough to permit.this panel to .~irect the Ministry to
reclassify the grievor through a Berry type of award and I would
have so ordered,
E. Seymour, Member