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HomeMy WebLinkAbout1993-1041.Wiltshire.95-05-20 ,. f ~. .... ./ \1:1 ~' ONTARIO EMPLOYES DE LA COURONNE \,U u:/:: ;- CROWN EMPLOYEES DE L'ONTARIO ..Je f\ ).." : 'J- ! 1111 GRIEVANCE COMMISSION DE " r-\ 'If,\. j I J V"~ REGLEMENT 1;.,1'''' ~1)l' SETTLEMENT }'I') , \ 1'\\ 'I n' c.. ~. I? \;' BOARD DES GRIEFS E:\ J ~;""";':._--:,..:=~..:......;:........:.-:___...;:_~..o>o-__..~ TELEPHONE/TELEPHONE l~~ij if'1S0Pll!'JDAS ~TRE€l,!"ES~..~J,J.'T~ 2100, TORONTO ON M5G 1Z8 (416) 326-1388 r.'}~",r80'Lf!JI$t!JNbASDUEST, ~Uf!F4U 2100, TORONTO (ON) M5G 1Z8 FACSIM/LE/TELECOPIE ' (416) 326-1396 ,:J, ..1~ . .,....:.'1f.~ ~ rJ ~;4 ~.~., ! JUt 2 C 199~ 1~~ -~~_._~-:.~~-__w_,~_~,_~ ----...-. , \ I ! OPSEU NO 93:E270,;<! - ,~ [ i - _ 8Li.J' lr--}'.:\/l~"-'(= ! GSB NO 104~/93 '"...; .J -_.1' ,1......_ ! i.,.' DO.~ 1\ i ._, -... J\ "l"'.....-~ ~ i i ' . , IJ , i-.?''\L OU,",i''iU0 ~IN THE MATTER OF AN ARBITRATION j !I , ',I j'j . I I I Under I ! ., THE CROWN EMPLOYEES COLLECTIVE BARGAINING";ACT~-"'--""----" --., Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (wiltshire) Grievor - and - The Crown in Right of ontario (Ministry of Natural Resources) Employer BEFORE W Kaplan Vice-Ch~irperson FOR THE J Gilbert GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE S Patter.son EMPLOYER Counsel Management Board Secretariat HEARING: July 13, 1995 I 1> 2 I Introduction On March 12, 1990, Mr Jeff Wiltshire, a trained biologist, was hired by the Ministry of Natural Resources in Lindsay Since that time, Mr Wiltshire has held a series of Ministry of Natural Resources contracts, and has been employed as both a Resource Technician 1 & 2, as well as a Biologist 1 On April 27, 1993, Mr Wiltshire filed a grievance alleging, in effect, that a number of these contracts ~hould have been categorized as Group 3 (seasonal recurring work), not Group 1 (project of a non-recurring nature). The case proceeded to a hearing in Toronto on July 13, 1995 While employer counsel initially raised a timeliness objection, that objection was withdrawn following the grievor's evidence as it became clear that the grievance had been filed in a timely way Moreover, as the hearing progressed, the parties were able to narrow the focus of their dispute In brief, the parties agreed that with two exceptions, all of the grievor's contracts should have been categorized as Group 3 At the parties request, I am issuing a declaration to that effect and will remain seized to deal with any issues arising out of the implementation of this declaration should the parties prove unable to agree Given this agreement, and my declaration, it is only necessary, in these reasons for decision, to canvass the arguments and evidence with respect to two of the contracts, the first, #5, that ran between July 2, 1991 and January 3, 1992, and the second, #8, that ran between July 19, 1993 and August 8, 1993, the categorization of which remained in dispute The Union's Case Mr Wiltshire testified on his own behalf, and described the various contracts he has performed for the Ministry working out of the Lindsay I i -;-. 3 office since March 1990 In his view, and for reasons that he explained, there was considerable overlap between these various contracts Mr Wiltshire used his skills and knowledge in all of them, and also, from one contract to another, performed many of the same tasks As already indicated, the parties were, during the course of the proceedings, able to agree on the categorization of a number of the disputed contracts, with the exceptions noted above. In Mr Wiltshire's opinion these two contracts were part and parcel of the same work he had previously performed, and that he continued to perform. He testified that there was considerable overlap in the duties and, by and large, that these duties did not significantly change from one year to the next. Moreover, Mr Wiltshire worked for the same branch, the Kawartha Lakes Fisheries Assessment Unit, out of the same j' office and, for the most part, reported to the same supervisor, Lois Deacon In cross-examination, however, it became clear that contracts #5 and #8 were distinguishable from the other contracts that the grievor performed The grievor had different position specifications for these contracts, Assistant Biologist and Assistant Area Technician respec~ively, and while not entirely accurate or comprehensive, the duties listed thereon were different than those on the contracts agreed to fall within Group 3 The re I were a number of other differences In contract #5, for instance, the grievor worked for a different supervisor in a different branch, although one located in the same physical office as his previous positions His job was to assist the District Biologist in the Fish and Wildlife Division, and while Mr Wiltshire continued to use his training and knowledge, he testified that there was a learning curve, and significant parts of the job were different. From time to time during the tenure of this contract, however, Mr Wiltshire was called upon to return to his old position and to -e 4 I I provide assistance to his old unit. With respect to contract #8, Mr [ Wiltshire was called upon to prepare stream ,surveys for the District office, and also did some work on the creek and watershed maps. The fact that these two contracts were different in duties and general orientation from all of the other contracts the grievor was called upon to perform was further suggested by the various performance appraisals which the grievor received While summary in nature, these appraisals set out the core duties of the different positions that he held, and the appraisals for contracts #5 I and #8 are, insofar as the description of core duties is concerned, consistent with the position specifications and generally inconsistent with the other types of contracts and positions which the grievor held. The Employer's Case Ms. Deacon, the Kawartha Lakes Fisheries Assessment Unit Biologist, testified She has worked out of the Lindsay office since. 1989, and is fully familiar with the different jobs the grievor has performed A member of the bargaining unit, Ms. Deacon testified under subpoena According to Ms Deacon, the position that the grievor held during contract #5 had not been previously filled, and has not been filed since Ms. Deacon was not involved in preparing that position specification, but was aware of some of the background to its preparation Drafted prior to reorganization, the position was intended to assist the District Biologist, and there was an expectation that it would become a seasonal position. While the position specification may have been sent to Human Resources for the assignment of a class standard, that task was never completed and the bottom part of the form remains blank. With respect to the position that the grievor held during contract #8, it was Ms Deacon's recollection that that the specific ~ 5 position had never been staffed before, and as far as she knows, it has not been staffed since In cross-examination, Ms. Deacon agreed that during the tenure of contract #5, the grievor would assist her and her unit as requested There was a certain informality in the Lindsay office that allowed managers to deploy staff resources across formal units on an "as needed" basis In the same way, that the grievor was made available to assist Ms Deacon's unit, he might also have been made available to assist the District Biologist when he was working under a contract that required him to report directly to her Ms. Deacon agreed that the "position identifier" on the Assistant Biologist position specification indicated that the position was intended to fall within Group 3 The grievor's contract for that position, however, assigned it to Group 1 Ms. Deacon could not provide any explanation for management's actions in this respect, but reiterated her 'earlier evidence that she believed that the position was originally intended to become a seasonal one. Other events intervened, and not only did the position not become seasonal, it was only filled once Ms. Deacon agreed with the suggestion that the skills required to fulfill the various contracts held by the grievor were the same In her opinion, the grievor was an excellent employee Union Argument In the union's submission, the evidence established that the grievor, when performing contracts #5 and #8, was performing the same sort of work that he performed during other periods of employment, that this work was of a seasonal and recurring nature, and that these two contracts should, therefore, be assigned to Group 3 Further bolstering the union's case was --- -~- ~ 6 the uncontradicted evidence that the grievor, when performing these contracts, could be called upon to assist Ms. Deacon in her unit. In the union's view, contract #5, for instance, could just as easily have been given for work in Ms. Deacon's unit, with the grievor's services made available to the Biologist on "as needed" basis. The fact of the matter was that there was a great deal of personnel interchange, and this was a further reason for finding that the two contracts in issue should be categorized in Group 3 Also significant, in the union's view, was the fact that on the position specification for Assistant Biologist, which is the position that the grievor held in contract #5, a "position identifier" of "4" is assigned. According to the "Instructions for coding Position Identifier," a "4" required a Group 3 categorization, while the grievor only received a Group 1 Given that the Ministry's own document indicated that the grievor should have been categorized as Group 3 for the duration of this contract, Mr Gilbert argued that that was the category to which he should now be assigned, and this position was bolstered, in the union's view, by a document that was attached to that position specification indicating that the position was intended to be seasonal and recurring, not temporary The fact that Human Resources never assigned a class standard to the position was, in the union's view, irrelevant. What mattered was management's intention, as evidenced by the signatures of several members of management on the position specification, and the clear indication that the position, and those who held it, should be assigned to Group 3 Mr Gilbert emphasized that wage rate had nothing to do with it, since the grievor would have received exactly the same pay whether he was Group 1 or Group 3 Accordingly, there was no inference to be drawn from the ~ 7 failure of Human Resources to assign the position to a class standard It was also the union's submission that the fact that the position was only I filled once was irrelevant in terms of determining whether it was temporary or seasonal What was important, Mr Gilbert emphasized, was the intention of management, and the intention was clear' a seasonal position was being created. And that being the case, the employer erroneously, in the union's view, designated the position as Group 1 The fact that the position remains on file, unchanged, at the Lindsay office, was I just one more reason, MrGilbertsuggested, to find that .it continues to be thought of as seasonal work. With respect to contract #8, Mr Gilbert argued that there was evidence indicating that the grievor was available, during the tenure of that contract, to assist in Ms. Deacon's unit as required There was also evidence indicating that his contract had been delayed for reasons related to the filing of his grievance, and that there was a signifficant amount of seasonal work available to be performed, but that management, for questionable reasons, took steps to ensure that the grievor's contracts were of a more limited term, notwithstanding the .presence of seasonal work that needed to be done. This evidence, plus the grievor's own testimony that he continued' to perform the same type of work that he had performed in the past, work that the parties had agreed was of a seasonal and recurring nature, should, in the union's view, lead to the conclusion that the work was substantially the same - recurring work of a seasonal nature In conclusion, Mr Gilbert argued that the union had established, during the tenure of contracts #5 and #8, that the grievor was workmg in an annually ~- - ~ 8 recurring full-time position He was, therefore, a seasona'l employee and his contracts should have been identified as Group 3 Mr Gilbert asked me to issue a declaration to that effect and to remain seized with respect to the implementation of my award Employer Argument In employer counsel's submission, the union had failed to discharge its evidentiary onus by proving that contracts #5 and #8 were seasonal in I nature Indeed, in the employer's view, there was absolutely no evidence establishing that these contracts provided for at least eight weeks of an annually recurring work. The evidence was, in management's view, to the exact opposite effect. In both cases, the evidence indicated that no one ever performed either of these jobs in the past. Without a doubt, one of these jobs had never 'been performed again, and what evidence there was suggested that the the same could be said with respect to the second position in dispute In these circumstances, there was simply no basis for finding that either contract provided for Group 3 work. The fact that there were notations on one of these position specifications indicating an initial managerial intention to create a seasonal job was, employer counsel argued, hardly determinative Referring to a long line of cases on point, counsel observed that it did not matter what the "position identifier" said What mattered was the nature of the position, and when the Assistant Biologist position was examined, it was perfectly clear that whatever the initial intention, the reality of the job was that it was filled once Following reorganization, the position became redundant. A redundant position that was not filled could hardly be described as seasonal Certainly, it did not meet the requirements in either the regulations or the ~ 9 Collective Agreement. Counsel also referred to the substance of the jobs performed during the two contracts at issue, and argued that the evidence established that the work performed was distinguishable from the work performed during the remainder of the grievor's contracts. The fact that the grievor may, from time to time, have been called upon to assist Ms. Deacon in her unit, did not change the reality that he was hired to do a different job and, for the most part, did a different job In the employer's view, the evidence established that the bulk of his duties under these two contracts were completely different than the bulk of his duties under the other contracts now acknowledged to fall within Group 3 In conclusion, counsel asked me to find that the two contracts at issue in this case were two non-recurring positions and had been properly categorized as such Decision Having carefully considered the evidence and arguments of the parties, I have concluded that this grievance must be dismissed. The evidence is absolutely clear that the grievor is a highly-regarded employee, one who has in the past, and one who will, no doubt, in the future, render valuable service to the people of Ontario This was established in Ms. Deacon's evidence, and was made perfectly clear by the numerous performance appraisals introduced into evidence While one can easily understand why the grievor filed a grievance, and his reasons for seeking relief, the fact of the matter is that the evidence establishes that the two " I ~ 10 contracts in question were properly categorized And having reached that conclusion, I am left with no choice but to dismiss the grievance I reach this conclusion for a number of/ reasons First, when one compares the grievor's evidence about his job duties during these two contracts with his evidence about his duties during the other contracts it is clear that there were many significant differences in duties and responsibilities The focus of these two jobs was different, and while there was undoubtedly some overlap, there is no basis on the evidence before me to find that the jobs in question were the same. By and large, and stated somewhat as a generalization, the grievor's Group 3 contracts involved duties relating to the compilation and/or analysis of data related to the fishery The two contracts in dispute, again stated somewhat as a generalization, involved quite different duties such as assisting the District Biologist in matters relating to the review of development and work proposal~, conducting stream surveys, and working on watershed and creek maps While there was definitely some overlap in functions, from one contract to the next, the core duties and purposes of the two disputed positions were different. This conclusion, and my finding that the two disputed contracts are properly characterized as Group 1 is bolstered by an examination of the different position specifications, by a review of the performance appraisals introduced into evidence, and by the fact that neither of these jobs were ever previously performed and, as the evidence indicates, were not subsequently performed In all of these circumstances, notwithstanding my considerable respect for the grievor and his contribution to the Ministry, I cannot find that there was anything wrong in the categorization of his contracts for these positions. ~ 1 1 Obviously, what complicates this case is the fact that management initially intended that one of these jobs, Assistant Biologist, Should become a seasonal position. The assignment of a "position identifier" or "4" to that position proves the point, which is confirmed, in any event, by Ms Deacon The fact of the matter, however, is that intentions aside, the position never became a seasonal one. It was filled once, and became effectively redundant after reorganization The position may have remained on file, but the reality of the situation is that it never became a seasonal position One can, however, clearly understand why the grievor would, in the circumstances of this case, conclude that he had been, for the duration of contract #5, improperly categorized, and why he would then file a grievance Nevertheless, when all of the evidence is examined, and the job itself is considered, there is no basis to find that it meets the requirements of a seasonal position, There was some evidence about steps Ms. Deacon and the employer took after the grievance was filed with respect to contract #8 To make a long story short, management, while desirous of obtaining the grievor's services, did not wish to bolster his case by assigning him to a Group 3 position or by giving him a contract beyond a certain length Accordingly, the employer delayed his hiring and assigned him to what it believed was a Group 1 position Having heard this evidence, and the union's arguments with respect to it, I cannot find that it is determinative of any of the issues in dispute for I find that contract #8 was properly categorized as belonging in Group 1 Certainly, there is no evidence in this case that the employer did anything improper in its management of this workplace .' .' 12 Accordingly, and for the foregoing reasons, I find that the two contracts in issue were properly categorized as Group 1 The grievance is, therefore, dismissed DATED at Toronto this 20th day of July 1995 -~~~-~---------~ William Kaplan Vice-Chairperson '\ ---- -- - ---- -- --