HomeMy WebLinkAbout1991-2392.Thomas.92-12-17 '~' ONTARIO EMPI. OY~-5; DE LA COURONNE
CROWN EMP~. OYEE$ DE L'ONTARIO
GRIEVANCE C~OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
t$O DUNOA$ STREET WEST. SUITE 2100, TORONTO, OhITARIO. MSG 1Z8 TELEPHoN~/TELEP~ONE: [4~6] 326-~388
~80, RUE DUNDAS OUEST, BUREAL{ 2~00, TORONTO [ONTARIO}. MSc~ IZE FACSIMiLE/TELC-iCOP~E : f416l 325-~396
2392/91
1:N THE MATTEE DE AN ARBZTRATZON
Under
THE CROWN EMPLOYEE8 COLLECTIVE BARGJ[INING ~CT
Befoz'e
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Thomas)
~rievor
- and -
The Crown in Right of Ontario
(Ministry of Education)
. Emil Dyer
BEFORE: H. Wai~glass Vice-Chairperson
I. Thomson Member
R. Scott Member
FOR THB G. Richards
~ Senior Grievance Officer ·
Ontario Public Service Employees Union
FOR ~ E. Johnson
EMPDOYER Staff Relations Officer
Management Board of Cabinet
October 26, 1992
2
DECISION
lames Thomos's grievance is dated November 22, 1991 and claims that his
"position is improperly classified os an Audiological Services Technician". He
asks ~that my position be property classified" .and "that I be compensated with
Futt retroactivity plus interest~. The Union submits that there is no other
existing classification that might be appropriate, because of the unique
character of the job. Consequently, it asks the Board to issue o Berry-type
order requiring the Employer to create o new classification for the purpose of
classifying the grievor properly.
The Union's counsel submits that certain core functions have been added to the
position over the past ten years which were not ,contemplated at the time the
Class Standard was established; and further, that the most 'significant
changes, taken separately or together, are substantial enough to justify the
conclusion that those new duties or requirements do not fait squarely ~ithin
the Class Standard, Therefore, the classification is no longer appropriate.'
Mr. Richards identified the Following as the most significant new core duties
and requirements nhich have been added to the grievor's position and ~hich
were not contemplated to be included in the Class Standard at the time it
originally established:
[1] the grievor's nevw duties and responsibilities for making eormold
impressions, for preparing instructions to the manufacturer, and for
inspecting and Fitting the earmotd, to assure o satisfactory custom-made
product to serve the individual requirements of teachers and students, os well
os children from under five years of age;
[2] the grievor h~s satisfied the ne~ requirement, introduced about two years
ago, by obtaining the hearing aid dispenser certificate issued by the Ministry
of Health, ~htch qualifies him to serve os the sole licensed dispenser to meet
the needs of oil students and teachers at the school;
[~] the grievor hos satisfied o new requirement ~hich is no~ i~ his ne~
position description and ~hich is not one of the requirements of the Class
Standard: "demonstrated ability to use the manual con~unicotion method {sign
language) at the leve! indicated in the provincial policy"; and
3
[4] he now performs his duties with o high degree of autonomy, with o minimum
of general supervision {from the Program Director, Resource}, and without the
s~gni.ftcontly higher level of supervision and training which he received
previously from 'o professional audiologist to whom he reported in the first
several years in this job. ~
Counsel for the Employer submits that the current class standard encompasses
all of the core duties of the grievor's position and therefore o Berry-type
order is inappropriate. Mr. 3ohhson or§ues that the core duties ore not
changed, or they hove not changed significantly. Me acknowledges there hove
been changes in the knowledge and skills required in order to carry out the
core duties, brought about by the technological innovations which hove
produced'much more effective and efficient hearing aids, but that the core
duties themselves have remained unchanged. He submits also that such changes
os may have occurred in the grievor's duties ore of such o nature that they do
not in any way affect the core duties, that they do not change the essence 6F
the ]ob, and that they do not change the pith and substance of his position os
on Audiology Services Technician.
Mr. Johnson submits that the Class Standard contemplates.changes in
technology, in the knowledge and skills required for the performance of the
core duties, and in the way in which the core duties ore performed. He argues
thot~those changes identified by Mr. Richards do not involve significant
changes in the core.duties, nor do they introduce new or different core
duties. The Employer cloim$ that the Class'Standard endures and encoptures o
w~de range of variances that could occur in a position specification from time
to time, and from one location to another; and that those variances'which are
identified in this instant case ore such that fall within that contemplated
and acceptable range of variances.
I agree with the Employer's submission that the Class Standard anticipates
technological changes affecting the knowledge and skill requirements for
carrying out the core duties, which in themselves may rem~in constant and
unchanged. However, we are mindful of the enormous scientific and
technologtcot odvonces of the post few decodes which hove creoted numerous
new lobs thot did not prevtousty exist, ond which hove substontt~tty
tronsformed numerous other ]obs. The impoct of such chonges on the essenttol
n~ture or chorocter of o ]ob coutd vory from sttuotton to sttuotion. In other
words, we do not exctude the posstbttities thor chonges tn the technotogy ~nd
in the store of the or~' for moking ond servicing heortng olds, For serving the
needs of the heQrtng-impoired chiIdren ot the Drury Schoot, could hove,
hypotheticotty, o profound or substontiol tmpoct upon the core duties of the
Audtotog'~cot Services Technician. For our burposes, however, the octuot noture
ond extent of the impoct upon the grievor's job, if any, is determined by the
evidence submitted by the porttes.
~e must took to the evidence to determine whether or not ony signtFicQnt new
core duties hove been odded to the position, such thor ore not tnctuded in the
estobttshed Cross Stondord.
We heord one witness, the grtevor, who testified on his own behotf.
The grtevor has been employed For i6 ye~rs os on Audtotogicol Services
Techntcton ot the E.C Drury Schoot tn Mklton. There ore onty three such
techntcions tn the Ontorio PubItc Service, one ot eoch o¢ three provinctot
schooIs for the deof. Before entering this position the gr~evor wos o TV
techntcton for 19 yeors.
It is ogre.ed Foct thot the description of his duties ond responsibilities os
stored tn the Position Speciftcotton doted October 28, 1991 [Exhibit 1] ts
reosonobty occurote. It is ogreed Foci oIso thor there hove been considerobIe
chonges tn the technology of heoring oids used tn thmDrury SchooI since the
present closs Standord was estobttshed tn June, 1964, and porticulorty s~nce
the grievor contnenced his empIoyment there.
It ts otso ogreed foci thor the Position Speciftcotton includes oft the duties
set forth in the Cross Definition except one: the grievor does not ~osstst"
his "professtonot supervisor in the oudtometrtc evotuotion of preschool
children". He has not had a professional supervisor for the post several
years. He now 'provides for himself the supervision previously provided by the
audiologist who had also trained him. His position description stilt
specifies, consistent with the Class Standard, that he ~when required, assists
the ouOtotogists with'team testing of young children"; and also he has ~to
assist a professtonallaudiotogist where requested in .the.testing of hard of
hearing or deaf children".
It is agreed fact that now, as before, his ~a)or core dutles, to ~nstatt,
repatr, replace and m6i~tain group hearing aid systems for at1 teach[ag
oreos", are not significantly different from the requirements of.the Class
Standard. This ts'so in spite of the fact that the technology for making such
group hearing aids has changed profoundly, and the gr~evor had to acquire ne~
knowledge and skills ~or these duties..
It is fact also that ~he present position ~ncludes th~s ne~ duty that ts not
~n the Class Standard: ~'Conducts and motntotns On ongoing physical inventory
of att hearing aids, ?mplification and testing equipment..." Union counsel
agreed~ however, that this'duty; by itself, ts not a sufficient departure fr~m
the core duties to j~stiFy o declaration that he ts tmproperly classified.
In 1975, about the time the grievor started work, the students at the Drur~
Schoo! used tndividu61 hearing aids based on a ~hard wire" system~ They ore no
longer in use. They were gradually replaced, starting tn Z978, by the FN
w~reless system.
The grievor has been;required to adopt his knowledge and sk~lts to the
significant technological changes. It may be argued that the 1964 Class
Standard contemplmtes that incumbents tn positions covered by it ~ilt be
advancing their knowledge and skit,s with advances tn the technology a'nd the
state of the art forI audiological equipment. Insomuch as those changes in
sktl~s and knowledge relate to core duties which tn themselves remain
relatively constant 'the employee's classificotion is unaffected.
6
The core duties which are defined by the Class StandQrd for the grtevor's
position ~re essentially the tasks or ~ctivt~es of evotuottn§, testing,
r6poirtng and maintaining audiological and electronic equipment. Zt does not
include the task of making o hearing old or making o part for o hearing aid.
So long os the requirements for improved skills and knowledge ore limited to
such activities or core duties which are specified tn the Class Standard,
there may be no significant change tn, or addition to, the core duties.
We find, however, that ~here ts on important distinction to be made between
his work on ~thi.ngs" and his work on and with ~peo~te", particularly the deaf
students and the the deaf teachers. The activit~es or tasks oF repairing and
motntoining which ore specified in the Class Stondard relate only to work on
the hearing aids and other electronic equipment [things], but the activities
of testing and evaluating relate to children as well as to hearing aids and
other electronic equipment. The Class Standard, however, mokes o significant
distinction for such activities ~tth children, which clearly does not apply to
the testine and evaluatino of hearing oids. Testing'end evaluatkna of children
are not done independently'by employees in this class, but only as oss~stonts
to ~ professional audiologist or professiona! supervisor. Zn the wordSof the
Closs Standard: ~assist a professional audiologist in the testing oF
handicapped children" and ~assist their professkono! supervisor in the
audtometr~c evaluation of preschool children". '
In other words, there ts nothing ~n the Class Standard that calls for
incumbents to provide direct services to children tn any manner other than as
on asststont to Q professionot. Also, there is nothing in the Standard that
requires incumbents to produce or make eQrmolds for hearing aids. The
evidence, as ~it! be sho~n below, indicates that new core duties evolved for
the grievor ove~ the past five years which required him to ~ork directly and
independently with students, wtthout supervision, in making earmold
impressions and tn fitting earmolds to meet the exact and precise needs for
each individual student tn the school.
When he was first hired the grievor satisfied the requirements for the
~quottFicotions' of the Cross Standard. He hod prior training and experience.
in electron(cs, os wet[ os '~potience~ond understanding in dealing with
handicapped children..." He did not hove prior ~experience in oudtometrlc
testing and in communi~'ot~on with the deaf". The Class Standard expresse~ o
preference for ~some experience." ~n these areas, but such qualifications were
clearly not required,
The grtevor'.s current Pos~tton Specification now contains the farrowing two
important requirements ~htch ore not in the Cross Standard, and which ore
cteorty retoted to the'new core duties which hove evotved for the gr~evor tn
recent years:
[1] ~demonstroted obitity to use the monuot communication method (sign
tonguoge) at the tevet ~ndtcated tn the provinciot poticy"; and
Ez] ~heoring aid d~spenser certification issued by the Ministry of Hearth of
Ontario after oppropriote accreditation".
Such demonstrated knowledge and skirls ~s ore indicated by these two new
requirements {which ore not mentioned at dtt in the Cross Standard} ore
essentioI-to the new core duties. These new duties ore not contained in or
contemptated by the CIoss Standard and they Were not among the grtevor's
duties during the first Few years he was in his present position. In those
First few years he did not need to conm~unicote directIy with the deaf stuOents
or deaf teachers kn order to carry out hts' duties os a technician. In those
years, there were no deaf teachers. His communicotkons with the students, ~,~hen
required, were through the teachers, the professiono~ audiologists, and his
supervisor. Later, some time in the 1980's, when "signing" became o
requirement at the schoot for communicating with students, he relied on the
teachers who were obte to "sign" for his communications with 'students. The
grlevor did not experience the need to fearn "signing" un~.il he hod to
cc~r~nuntcote with the deaf teachers, when they started to be hired about five
years ago. Furthermore, the need to be proficient in ~signing" grew more
~mportont over the post five years when his new core duties evotved in
d~spenstng hearing aids and ln'worktng dlrectty w~th the children in producing
for them custom-mode earmolds, prepared to meet the specific and speczal needs
o~ each individuaL. In more recent years, when these new dispensing and
earmotd-moktng duties were extended to serve children tn kindergarten and pre-
schoolchildren, the need to learn "signing" and to improve h~s skills in
communicating effectively with such students became more compelling. The
grievor has learned to sign by taking special courses and by study on his own.
Zt was not contemplated by the Class Standor~ that such personalized direct
services to students and preschool children, porttcularty the production of
custom mode eormotds for them, would evolve in such a way as to become a new,
different, or substantially changed core duty.
In order to satisfy the recent new requirement for dispenser certification the
grievor had to get at least 7~% on a written 200-question exam based on the
intensive study of two text books, one on ~Audiology" and the other on
~Hearing Instrument Science and Fitting Practices". He obtained a 76% grade.
He was required also to pass the practical exams on making earmotd impressions
and on modifying earmolds, as well os on diagnosing faults in hearing aids.
He obtained the certificate over a year ago. According to the grievor's
testimony, ~It means I will be the dispenser for the school." There are two
audiologists at the School who do the diagnostic work and refer deaf students
and preschool children to btm to dzspense their prescriptions for hearing
aids.
Apparently the dispensing function ~ncludes particularly the making of
eermold$ to f~t the special end ind~v~J~ needs of the particular student or
~hild. The grievor testified that ~e ~ not work on earmotds in the first
two years on the job. Later, at t~mes, he nod to adjust or repair the type of
earmold used with ~hord wire" hearing a~s. The work he had to do on those
earlier earmolds was very simple and much !ess demanding. Zf he couldn't
repair or adjust them easily, they woutd Oe repaired or replaced by the
manufacturer. They didn't require the making of specialized individual
impressions of the ear which he is now required to make for the wireless aids.
9
The eormolds used with the hard-wire olds d~d not require exact and precise
fittings because th~s earlier type of ~d used body packs ~vben~ the equipment,
~nc~uC~ng the m~ke, was stropped to the body, for removed from t~e ear.
Consequently they dzd not present difficult problems in sound feed-back if the
ptugs did not fit e~oc'tly and prec~sety within the ear conot. What goes Into
the ear with the new. wtretess equipment ts rodicotty different.
it is only within ~he post f~ve years that the highIy compact FM wlretess
equipment started to replace the heavy-wire aids and that is ~hen the grtevor
started to learn how to make the spectoltzed eoFmold impressions which was
required by the new techn6logy. The new eormotds ~re completely different and
much more compIex to make ond to fit, re~u~ring o h{gh degree of exactness and
precision. His new duties now require him to moge precise and exact
~mpress~ons of the student's ear, ~nvotving h~m in o mo]or role ~n the
monufocture of tndivlduol~sed eormolds. Previously, he did not have any
duties and responsibil{ties for making eormolds. His duties did not go beyond
evaluating, testing, repairing, ond mointolning hearing o~ds, and replacing
those ports that could not be repoired. He did no~ previously make eormotds or
eormotd impressions, nor ~s ~here anything in the ClOss Standard to suggest
that this ts or' could become'a core duty. :
The new and different type of eormolds which he is now required to make for
t~e wiretess aids ore precise audio se~ls produced to Fit exactly within the
s~ze and shape of the child's ear canal ~n o m~nner ~hich prevents ~ound from
leaking out of the ear ond feeding bock into it through the tiny microphone
and the compact ompl~fie~ [now located close to the ear] and back to.the
transducer [miniature loudspeaker within the eor]. This is completely
different from the hard-wire aids. it has now become his duty and
responsibility to produce for each student o precise and exact ~it for the
eormold, which ts essential in order to prevent o very distressing and
disturbing squeal within the ear.
It ts on agreed fact that the grievor is required to produce approximately S00
eormold impressions per year. The grlevor testified that it tokes about 20'
minutes of work with the student to prepare on eormotd impression, a further
twenty minutes to prepare the tmpresszon and the detoL!ed specifications for
ship,rent to a specialized manufacturer zn Kitchener, and twenty more minutes
checking the cost~ng [about one half inch b'y one eighth inch in size] after it
ts received from the manufacturer, and then fitting the earmold exactly into
the student's ear, making whatever od]ustme'nts may be necessary.
It is not necessary to review here the details of the gr~evor's evidence
regarding the procedures he follows ~n checking the ear to assure safety, in
the preparations for and in the making of the impression, in preparing the
impression for shipment, in checking and testing the casting, and finally tn
fkttkng the student with the eormold. It ts sufficient to say that the
grievor's new duties regarding the making of eormolds ore substantially
different from anything contemplated by the.ClOss Standard, requiring the
acquisition and application of new skklls and knowledge which were not
previously required or contemplated for employees allocated to this class.
The production of 5Q0 emrmolds per year, at about an hour of his working t~me
for each one, means that this new duty requires about 500 hours of his time
per year. Of this, about 200 to 250 work hours per year are required For
direct contact with deaf students and children in making the impressions and
fitting the finat castings. It is obvious that this new core duty requires him
to co~rnunicate effectivety with the ~eaf children, and therefore requires a
level of competency in ~s~gning" which was not required, untit about five
years ago, before he was required to make eormold impressions for all deaf
students in the schoot. H<s new core duties regarding the making of earmotds,
acqutred tn the past five years, require not only "demonstrated ability to use
the manual co~nunicotton method", but they require otso certification os ~
~heortng aid dispenser" by the Ontario Ministry of Health.
I find that the grievor's new duties in making earmotd impressions for
individuo[ deaf students, together with the associated new. duties and the
requirements for certification and ~stgning"~ are substantial and significant
departures from the crass standard. These changes have evo[ved over the past
five years to become new core duties. These new duties are not marginal or
tncidentat to those duties which ~re spec(fred tn the crass standard. RatheF,
they are different duties which ore tmportmnt additions to the established
duttes~ a:~d they occur frequently, on a regutor or dotty basts, requtqtng a
significant portign of the grievor's regular working hours. He have exmmtned
the ]ob os o whoie, as weft as tis ma]or components, and we are brought to the
conctuston that the core duties viewed ~s a whore are sufetcientty different
to succeed tn taking the ]ob out of the crass standard. There.have been ats~
some other changes tn the grtevor's duties. But even tf there were no other
changes, these new core duties atone, as they rotate to the making of
earmolds, ore sufficient to bring us to the conctusion that the grievor ts not
ct~sstfied correctty.
For the reasons stated herein the grievance succeeds. ~e dectare that the
ghievor ts incorrectly classified. ~e hereby order the Employer to prepare
crass standard appropriate for the grievor and that this be done ~tthin a
reasonable time. Once the new standard has been estabttshed and the sotary
rate for the pos~t~on ~s establ~she~ th accordance w~'th the procedures
provided for in the Corrective Agreement, we order that the grtevor short
receive compensation so that he wttt have been paid tn accordance ~tth the
estobttshed sotary revers fr~ twenty days before the date of the grievance.
The grtevor short receive interest on any sum Which ought to hove been paid at
a rote of 8% c~pounded onnuotly fr~ the date on which the sum ought to hove
been paid to the dote on whLch tt ts paid.
~e shall remain seized to dear with any matters arising out of our orders.
DATED AT HAMILTON, ONTARIO, THIS I~Cb DAY OF DECEMBER, 1992 ..~
HARR~AIS~LASS, CHAIR-