HomeMy WebLinkAbout1988-1456.Donkers et al.90-05-08
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r ONTARIO EMPLOYES DE LA COURONNE
-- CROWN EMPLOYEES DE L'ONTARIO
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1111 GRIEVA~CE COMMISSION DE
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SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST TORONTO. ONTARIO. M5G 1Z8 SUITE 2100 TELEPHONE/TELEPHONE
180. RUE DUNDAS OUEST TORONTO, (ONTARIO) M5G lZ8 BUREAU 2100 (416) 598-0688
1456/88, 1457/88
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN:
OPSEU (Donkers et al)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of correctional Services)
Employer
- and -
BEFORE: M R Gorsky Vice-Chairperson
E Seymour Member
D Montrose Member
FOR THE I. Roland
GRIEVOR Counsel
Gowling, Strathy & Henderson
I Barristers & Solicitors
FOR THE L Szorady
EMPLOYER: Senior Personnel Administrator
Human Resources Management
Ministry of Correctional Services
HEARINGS: November 20, 1989
February 28, 1990
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AWARD
The two grievances before us are as follows
1- Simon Donkers has the classification class title of
Agricultural Worker 4 and holds the position title of Farm
Manager at the Burtch Correctional Centre Mr Donkers filed a
grievance on November 17, 1988 in which he alleged that he was
improperly classified and requested reclassification to the
position of Industrial Officer 3
2 Jim Scheffel holds the classification class title of
Agricultural Worker 3 and the position title of Groundskeeper at
the Burtch Correctional Centre. Mr Scheffel filed a grievance
on December 6, 1988, claiming that he was improperly classified
and requested reclassification for the position of Industrial
Officer 2.
By agreement, both grievances were heard together
There was a good deal of evidence presented concerning the
duties and responsibilities of the Grievors and twenty exhibits
were filed. After having heard all of the evidence, we conclude
that there was no significant difference between the parties as
to the nature of the duties and responsibilities carried out by
the Grievors
Mr. Donkers
Mr. Donkers' duties and responsibilities were agreed to be
those of the person responsible for the day-to-day management of
the farm complex that surrounds the institution The complex is
comprised of approximately 392 acres 295 acres is considered
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farm land Approximately 70 acres is devoted to pasture and
approximately 205 acres is devoted to the growing of various
grains including corn and to the growing of hay The farm
complex would be considered as falling within the designation of
a medium sized farm, which the parties agreed was a farm of
between 100 and 400 acres.
As noted, it was the position of the Employer that
Mr Donkers was properly classified as an Agricultural Worker 4
The Agricultural Worker 4 class standard is as follows
"AGRICULTURAL WORKER 4
CLASS DEFINITION.
This class covers positions of employees who, as senior
supervisors are responsible for implementing extensive work
programmes, at either institutional or experimental stations
or farms or provincial government buildings They either
assist the manager of a medium-sized farm: OR direct a large
scale subordinate agricultural unit requiring four or more
subordinate agricultural staff; or manage a satellite farm
physically separated from the main establishment General
direction is provided by a professional, administrative or
agricultural supervisor.
As assistant managers of a medium-sized farm, they
contribute to the administration of the entire farm
programme. They recommend work schedules, assignment of
staff, sequence of operations and a programme of equipment
maintenance. They review the work of subordinate
supervisors, note the conditions of crops and health of
animals and advise on appropriate action in problem areas
In addition, these employees are usually responsible for an
assigned unit of the farm work where they plan and implement
the activities of subordinate staff and requisition the
required supplies Employees in these positions are
expected to assume full responsibility for the complete farm
programme in the absence of the Manager
As supervisor of a large scale agricultural unit, they
plan, co-ordinate and assign the work of four or more
subordinates, give technical direction, evaluate work
performance and maintain discipline In some positions,
they are supervisors of an extensive landscaping and
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gardening operation In other positions, they manage a
large dairy operation involving the breeding, testing,
feeding and general care of a dairy herd of more than 100
cattle In all positions, they estimate and requisition
supplies and are responsible for the discipline of staff and
maintenance of equipment in their assigned unit
At an experimental station or farm, these employees
co-ordinate the agricultural activities of the assigned
area. They train, supervise and discipline subordinate
staff, determine priorities and estimate and requisition
supplies for the unit. They direct their staff in the soil
preparation, planting, propagating, fertilization and
spraying of vegetable, grain and fruit crops for
experimental purposes In the management of experimental
livestock and poultry they direct their subordinates in the
preparation of special diets, and the maintenance of
feeding, breeding and birth records In all these
positions, they ensure that the directions of the scientific
staff are followed accurately in such areas as temperature
control, application of fertilizers and insecticides,
pruning, cultivating and harvesting
QUALIFICATIONS
Basic:- Refer to Preamble
CLASS LEVEL REQUIREMENTS:
Several years' experience in work at the Agricultural
worker 2 or 3 level or the equivalent in education and
experience. Supervisory ability, willingness to accept
responsibility
The Grievor could not fall into any of the categories set
out in the class definition The class definition deals with
employees work who on a medium-sized farm, a large scale
agricultural unit, an institutional satellite farms and at
experimental stations or farms In the case of medium sized
farms, the class definition covers Assistant Managers For the
reasons to be given, I do not find that Mr Donkers was an
Assistant Manager and hence could not fit within the paragraph
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devoted to the class definition covering Assistant Managers of a
medium sized farm.
Mr Donkers was not a Supervisor of a large scale
agricultural unit The definition of terms section in the
preamble to the class standard defines a medium sized
institutional farm as one from 100 to 400 acres. A large
institutional farm is one of more than 400 cultivated acres It
is for this reason that Mr Donkers would not fall under the
class definition covering Supervisors of a large scale
agricultural unit.
Although Mr. Donkers is a Manager of a farm, he is not a
Manager of an institutional satellite farm as a satellite farm is
defined as one that is tlphysically separated from the main
institution tl
Nor is the farm managed by Mr. Donkers an experimental
station or farm.
There are key features in the class definition which clearly
exclude Mr. Donkers and, hence, he does not fit within the
Agricultural Worker 4 class definition either comfortably or
uncomfortably It was acknowledged that if Mr Donkers did not
fit under the Agricultural Worker 4 class standard, then he did
not fit under any of the other designations in the Agricultural
Worker Class series For example, the Agricultural Worker 3
class definition deals with employees "who are held fully
responsible for the complete operation of an assigned section of
agricultural work in a provincial institutional farm IT
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Mr Donkers responsibilities relate to the complete operation of
day to day operations of the institutional farm
The only way that I could find Mr Donkers to fit within the
Agricultural Worker 4 class standard is if I found him to be an
Assistant Manager of the farm.
Jim Butler, the senior Assistant Superintendent at the
Burtch Correctional Centre, to whom the Grievor reports,
acknowledged that the Grievor manages the day-to-day operations
of the entire farm programme He acknowledged that the Grievor
did more than recommend work schedules, assignment of staff,
sequence of operations and a programme of equipment maintenance
Mr Butler acknowledged that he knows very little about the
operation of the farm, or any farm for that matter, and what may
appear to be recommendations made by Mr Donkers are frequently
formalities Mr Donkers must make decisions with respect to
work schedules, assignment of staff, sequence of operations, and
any programme of equipment maintenance, pretty much on his own
If Mr Donkers is an Assistant Manager, then it is difficult to
consider Mr Butler as the Manager. Even a Manager reports to
superior authority. There was open acknowledgment by Mr Butler
that it is Mr Donkers who is responsible for the day-to-day
operation of the farm
It is also significant that Mr Donkers has no subordinate
Supervisors and no subordinate staff Nor can it be said that
Mr. Donkers assumes the "full responsibility for the complete
farm programme in the absence of the Managerll, treating
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Mr Butler as the Manager While Mr Butler has to approve a
number of budget related items which are proposed by Mr Donkers,
in no way can Mr. Butler be considered to be the "Manager", as
envisaged in the class definition
The fact that Mr. Donkers does not fit within the
Agricultural Worker class definition does not end the matter It
is necessary to consider whether he fits within the Industrial
Officer class series and, in particular, the Industrial Officer 3
class standard as claimed by him
Counsel for the Grievor placed great reliance on the case of
Townsend et al 4/85 etc In that case there were a number of
classification grievances dealing with employees at the Guelph
Correctional Centre. The Board, there, heard evidence concerning
the grievance of Mr. Townsend alone. It was there alleged that
the grievor (Mr Townsend) was improperly classified as an
Agricultural Worker 2 and the remedy sought was reclassification
as an Industrial Officer.
At page 30 of the Townsend award, the majority of the Board
stated that
" However, in view of the fact that there is no
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class definition within the class series [Agricultural
Worker] which adequately fits the grievor's job, and in view
of the fact that the Industrial Officer class series is
available to the Employer for classifying employees engaged
in work on industrial farms, it may be most appropriate for
the grievor to be reclassified as an Industrial Officer II
In order to do this, the majority of the Board first had to
find that the Industrial Officer classification was available to
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the Grievor At pp 27-28, of the Townsend case, the majority of
the Board stated
II In our view, the strongest argument against the
suitability of the Industrial Officer class series for a job
such as the one before us is that the class series was
intended to describe solely non-agricultural jobs or light
industrial situations. The problem with such a position is
that the class definitions with which we were supplied refer
to 'various industries at industrial farms' (Ex 6
Industrial Officer 2 class standard) The board was
informed that industrial farms no longer exist; however, we
were led to believe that they were working farms where such
things as dairy operations were undertaken. In any event,
the Industrial Officer 3 class definition refers to 'the
Tailor Shop at Rideau Industrial Farm' (Ex 6) , and the
Industrial Officer 1 class definition refers to 'the
processing in volume of food ... at reformatories and
industrial farms' (Ex. 6) so it may be that the industrial
farms were not totally agricultural, or that the jobs which
were non-agricultural at the industrial farms fell within
the Industrial Officer class series, or that agricultural
and non-agricultural jobs at industrial farms fell within
the Industrial Officer class series.
We were given dictionary definitions for 'industrial' and
'industry' Although not from the same source as those read
to us, we believe that the following definitions from Gaqe
Canadian Dictionary (1983) are essentially the same as those
read to us
'industrial . . 1 of or resulting from industry or
productive labour: industrial products 2 having to
do with or connected with an industry or industries
an industrial exhibition. industrial workers. 3 for
use in industry. 4 of or having to do with the
workers in industries industrial insurance I
'industry 1 any branch of business, trade or
manufacture: the steel industry. the automobile
industry 2 all such enterprises taken collectively
Canadian industry is expanding 3 systematic work or
labour 4 steady effort; close attention to work
industry and thrift favour success ,
Counsel for the grievor also pointed out to us that one
speaks of the 'agricultural industry' and that the
operations with which we are concerned are in essence those
of a commercial greenhouse operation. We were also referred
to the fact that the bush gang which operated at Guelph at
the time of the grievance did not engage in manufacturing or
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processing of any kind, and yet was uJder the direction of
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Industr1al Off1cers. Reference was also made to the fact
that both Industrial Officers and Correctional Officers are
in charge of work gangs doing basic landscaping work
Were it not that the Industrial Officer class series on
its face does appear to contemplate work done in
non-manufacturing enterprises, and that in fact Industrial
Officers work in non-manufacturing enterprises, such as bush
gangs, then the argument of the Employer that the Industrial
Officer class series is limited to non-agricultural
enterprises would be appealing. The argument would be
especially appealing since the Agricultural Worker Class
series does seem to fit so well to those who are employed in
landscaping, and greenhouse operations II (emphasis in the
original )
The Board cannot easily overlook the appropriateness of the
Agricultural Worker class series where employees are engaged
in agricultural work However, when that class series does not
fit in the case of a particular employee, as was pointed out in
the Townsend case, the Industrial Officer class series may be
appropriate.
The Industrial Officer classification, which was sought by
the Grievor, is as follows:
IIINDUSTRIAL OFFICER 3
CLASS DEFINITION.
__Employees in positions allocated to this class manage a
small to medium or relatively complex production operation
such as the Tailor Shop at Redeau Industrial Farm, the
Tailor Shop at Millbrook, or the Upholstery Shop at Guelph,
or the Tailor Shop at Burwash OR They assist in
management of the larger or more complex production
operations such as the Brick and Tile Mill at Mimico, the
Machine Shop, or the Tailor Shop at Guelph
As managers, they are responsible for estimating and
procurement of materials, for discussing costs with
superiors and for making recommendations on new products to
be processed. They make recommendations to a superior on
staff personnel matters.
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As assistants to managers, they share the responsibility
for quantity and quality of production and for security of
inmates They personally perform work requiring technical
skill, experience and knowledge comparable to journeyman
standing in a trade.
These employees train groups of inmates in good work
habits and technical skills, control the quality of
production assign inmates to various tasks in accordance
with their capabilities They prepare daily reports on
inmates' industry and conduct. They may take over any
position in the production routine in order to investigate
and correct complaints or to demonstrate proper work
procedures.
QUALIFICATIONS:
1 Preferably Grade 10 education; satisfactory completion
of apprenticeship in the trade required by the duties
to be performed * or an acceptable equivalent
combination or training and experience
2. About five years of acceptable experience at the
journeyman level in the related trade or industry
3 Supervisory and instructional ability, ability to
sketch or explain in such a way as to be understood by
unskilled workmen; ability to assess standards of
inmates' industry and conduct; ability to deal
effectively with inmates; ability to estimate supplies,
to establish production methods and to control waste
and quality; ability to recommend and evaluate new
products for processing
* Where the equivalent applies, the person will be
required to successfully complete a civil Service
Trades Test where one exists
Auqust. 1963"
Mr Donkers, treating the institutional farm as a production
operation, manages a medium sized production operation As a
Manager, he is "responsible for estimating and procurement of
materials 11 Although he must obtain a signature from
either Mr Butler or the Office Manager, he is the effective
person in charge of the estimating and procurement of materials
function Treating the crops and meat produced on the farm as
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products, Mr. Donkers is responsible " for discussing costs
with Superiors and for making recommendations on new products to
be processed."
I find that Mr Donkers is involved in training "groups of
inmates in good work habits and technical skills . . . II and he
controls II the quality of production and [assigns] inmates
. to various tasks in accordance with their capabilities "
Mr Donkers also maintains " . . . daily reports on inmates'
industry II He also " may take over any position in the
production routine in order to investigate and correct complaints
or to demonstrate proper work procedures "
Even if I did not agree with the reasoning of the majority
of the Board in the Townsend case that the Industrial Officer
class series could apply to agricultural workers, at least where
the Agricultural Worker series would not apply, I feel bound by
the Blake case to follow the findings of the majority, where
those findings were an essential part of the decision
Accordingly, we order the Ministry to reclassify the Mr
Donkers as an Industrial Officer 3 with appropriate compensation
retroactive to a day 20 days before the filing of the grievance
We will remain seized of the matter for the purpose of assessing
compensation should the parties be unable to agree on that
matter.
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Mr. Scheffel
Mr Scheffel agreed that his duties and responsibilities are
fairly accurately reflected in his position specification and
class allocation form (Exhibit 6) The purpose of his position,
as set out in Exhibit 6, is "To plan and implement the
landscaping and gardening operation of the institution and
general maintenance as required II
The summary of his duties and responsibilities, as set out
in Exhibit 6 is as follows
"1 (80% Plans and implements the landscaping and qardeninq
operation of the institution by.
Selecting suitable varieties of plants, trees, shrubs and
vegetables in consultation with the Superintendent,
maintaining upkeep of the grounds' vegetable garden and
greenhouses; performing such tasks as mowing grass,
fertilizing, cultivating, pruning, planting, weeding, ete ,
requisitioning materials, supplies, equipment as required,
keeping records of agricultural operations, i e projects
completed, supplies used, etc.; maintaining all maChinery
and equipment used on grounds such as lawn mowers, tractors,
etc. in efficient operating condition and requisitioning
repairs or replacement when necessary, supervising inmate
helpers assigned to these areas and instructing when
necessary.
2 (20% Performing general maintenance by.
Installing and repairing fences: assisting in the repair of
roadways when necessary, maintaining roads and walkway free
of snow during winter and instructing and assisting inmate
helpers in salting, snow removal, etc , maintaining
institutional garbage dump by ensuring that garbage is
dumped and burned and dump filled properly, and other
maintenance projects as assigned
N B The incumbent supervises 2-3 inmates for majority of
working time and is responsible for the safety and
discipline of these inmates.
C R.A. (Salary Note K1) is applicable"
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Mr Scheffel stated that the greenhouse he is responsible
for contains 800 square feet and that he is responsible for
growing approximately 15 acres of potatoes and five acres of
vegetable crops The potato crop is rotated through more than
one field and the vegetable crop is grown in the same five to six
acre area. He has no support staff and is assisted by inmates
(anywhere from two to thirteen) He stated that the usual number
of inmates assisting him is between four and eight.
Mr Scheffel is responsible for growing all of the bedding
plants used at the Centre and he also furnishes some bedding
plants to another institution.
He furnishes vegetable plants to the Burtch Correctional
Centre and to the Brantford Institution He also furnishes
Easter lilies and poinsettias to the Burtch Correctional centre,
and to the Brantford and Sprucedale Institutions
He is responsible for growing a variety of vegetables, in
addition to potatoes. Some vegetables are grown from seed and
others are transplanted from the greenhouse He is responsible
for ordering seeds and determines what vegetables will be grown
He completes and signs purchase orders which are then sent to the
Office Manager for signature He meets with Mr. Butler once or
twice a week.
It is fair to say that Mr Butler relies heavily on Mr
Scheffel's expertise, as Mr Butler has no knowledge or
experience in the operation of a greenhouse or gardens As in
the case of Mr Donkers, Mr Butler could overrule Mr Scheffel,
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but in the day-t6-day management of the garden and greenhouse
operation, it is Mr Scheffel who is responsible.
In carrying out his duties, Mr. Scheffel oversees planting,
cultivation, hoeing, spraying and harvesting There are a number
of mechanized vehicles used by him, such as three tractors, a
potato planter, transplanter (from the greenhouse to the field),
a number 2 row seeders, potato digger, cultivators and a potato
tiller, as well as a number of hand tools
The vegetable harvest takes place between July and December
and fresh vegetables are supplied to the Burtch Correctional
Centre as well as to institutions at Sprucedale, Brantford,
Hamilton and Brampton Such vegetables as potatoes, turnips,
carrots and cabbages are stored at the Burtch Correctional
Centre, either in a root cellar or in cold storage Vegetables
must be cleaned, and sorted before storage
The growing of plants and vegetables is part of the
Ministry's self-sUfficiency programme and there is an ongoing
concern for efficiency and the operation is conducted with a
view, not only to self-sufficiency within the institutions, but
to operating at a profit
Mr Scheffel indicated that his decisions with respect to
the operation of the greenhouse and garden are made with little
or no consultation, although, as was noted, his decisions could
be overruled by Mr Butler, and in the case of certain purchase
requisitions submitted by him, by the Office Manager
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The inmates under Mr. Scheffel's direction come to him, in
most cases, without any previous experience As he stated
"There are few persons in jail who are farmers tI Therefore, he
must teach them the most basic tasks in accordance with their
ability and experience and, based on their ability, and his
confidence in them, the instruction that he furnishes involves
increasing degrees of complexity He is most concerned about
instructing the inmates in the safe operation of machinery and
tools as they carry out their responsibilities.
In addition to the above responsibilities, Mr SCheffel
maintains approximately 20 acres of grounds at the Centre This
requires him to cut grass, weed, fertilize, spray for weeds and
insect pests ( He holds a Land Class 3 Pesticide Licence issued
by the Ministry of the Environment ) He is also responsible for
planting and maintaining flower beds He instructs the inmates
assigned to him in the layout, preparation of soil and planting
of the flowers in beds. He is responsible for trimming and
pruning trees, shrubs and hedges and he instructs inmates in
pruning methods and in the operation of machinery associated with
this operation, such as:
1 Riding lawnmower;
2 One tractor that pulls a flailmower,
3. 20 handmowers;
4 4 "weedeatersU;
5 A variety of tools including rakes, shovels, shears,
loppers, handsaws and chainsaws
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The above duties and responsibilities, which are found in
paragraph number one of Exhibit 6, take up approximately 80% of
Mr Scheffel's time
Mr. Scheffel stated that included in the items found at
paragraph 2 of Exhibit 6 is the duty of garbage collection. The
garbage is collected twice a day from the kitchen and from the
Centre1s shops Garbage is either taken to a bin or to the dump
This responsibility requires an inmate crew of two, which also
assists in moving furniture and equipment, which latter
responsibility averages one call a day
On a daily basis, Mr Scheffel prepares production reports
as well as reports as to the use of inmates on the various tasks
assigned. He also maintains a variety of statistics for the
Self-sufficiency Clerk
He also is responsible for the repair and supply of snow
fences in winter and for the placement of salt and sand on
roadways during the winter, as well as for snow clearance For
this purpose two tractors are employed with mounted snowblowers
as well as a conventional snowblower. There are approximately
five miles of road associated with the Centre that Mr Scheffel
is responsible for AS in the case of the other equipment
described, Mr Scheffel instructs inmates in the use of the snow
clearing equipment
Exhibit 5 represents estimates as to requirements for his
operation prepared by Mr. Scheffel These are prepared prior to
the beginning of the year without any input from Mr Butler
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He then meets with Mr Butler, the Office Manager, Mr Donkers,
an Office Clerk and the Deputy Superintendent to discuss his
operation, including the items that will be grown and he
indicates anticipated problems as well as the expected yield
The equipment used in Mr Scheffel's operation is repaired
by himself with the assistance of inmates. The more complex
jobs, such as motor repairs, are performed by a mechanic
Mr. Scheffel sometimes works with a person who was referred
to as a utility Officer, who is usually a Correctional Officer 2
He stated that the C02 assigned is almost always the same person
and it is the C02 who has the responsibility for cutting the
grass with inmate assistance while Mr Scheffel is responsible
for fertilizing and spraying The C02 will assist Mr Scheffel
by pointing out areas where inmates have missed fertilizing or
spraying and Mr Scheffel will point out to the C02 areas where
grass has not been cut.
Mr. Scheffel stated that the C02 also assists him during the
potato harvest and that while Mr Scheffel supervises the salting
and sanding of roads, the C02 looks after the supervision of the
salting and sanding of sidewalks
Mr Scheffel indicated that his priority responsibility is
with respect to the care, custody and control of inmates and that
he was so instructed during the first few weeks of his employment
by the then Security Officer, Jim Dignam As soon as inmates
report to him in the morning, he reports to the unit He has
total responsibility with respect to the inmates until they are
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sent back to the unit for lunch or supper If there are any
problems he may discipline them or lay charges where necessary
When inmates are required to leave a task, for example, when they
are required to see a social worker, Mr. Scheffel is responsible
for seeing that they go to the appointed meeting place , and he
informs the person requesting the presence of the inmate when the
inmate is on the way to the meeting place In turn, he is
notified when the inmate is on the way back to a work site
He is required to conduct a count of inmates every 20
minutes, to insure that all inmates are present and accounted
for, although he indicated that this is sometimes stretched to 30
minutes
Mr. Scheffel has WIMS training which is a training programme
~ inVOlving the safe use of products such as soap, gasoline, diesel
fuel, and toxic material found in the workplace
When he is absent from a worksite he is replaced by a CO2
In the Townsend case, at p 24, the majority of the Board
noted that the grievor did not fit the Agricultural Worker 2
class definition to which he was assigned because he was not a
"group leader of two or more employees performing agricultural
work at a provincial government building or institutional farm
" In addition, there were no other employees who worked as
. . his subordinates
Further, at p 24 of the Townsend case, the majority noted
"The class standards clearly indicate that inmates at
institutions do not meet the definition of subordinates " I
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Further at pp. 24-25 of the Townsend case, the majority
stated:
II To argue that the grievor is more than a Agricultural
Worker 1 and less than an Agricultural Worker 3 and so must
be an Agricultural Worker 2 is to ignore what the class
definitions say in the Agricultural Worker series It would
appear that the progression within the series is based upon
greater responsibility in relation to the operation of a
particular unit and/or the supervision of employees The
Agricultural Worker 2 classification is dependent solely
upon the supervision of employees; it is impossible to read
it reasonably otherwise. The Agricultural Worker 3
classification is "fully responsible for the complete
operation of an assigned section of agricultural work at a
provincial government building or institutional farmll and
Umay" also supervise up to three subordinates Therefore,
unlike the Agricultural Worker 2, it contemplates that there
may be no supervision of employees, however, in the sample
duties when dealing with greenhouse operation it refers to
the Agricultural Worker 3 as being a "supervising gardener"
directing the operation of the greenhouse Presumably the
phrase "supervising gardener" meas that there must be
subordinate employees working there as well Assuming that
the grievor is properly within the Agricultural Worker
series, and that his responsibility in relation to the
greenhouse operation does not meet the test of being "fully
responsible" or a "supervising gardener", it is not a proper
act of classification, in our view, to place the job in a
classification where the duties do not meet the class
definition by any stretch of the imagination or of the words
used to define the class It is therefore our view that the
grievor is not properly classified as an Agricultural Worker
2 In determining this we accept, as indeed all of the
cases do, that we must take the Employer's job
classification system as it exists This means that the
Employer must abide by its own classification system and
classify properly within that system Therefore, if it
asserts that the grievor's job is properly classified and
then is found te have placed the job in a classification in
its system which on its face is clearly inappropriate to
describe the duties which the grievor performs, then it must
reclassify the job II
In Townsend, the Griever's duties and responsibilities were
much more narrowly focused on the greenhouse operation This
cannot be said with respect to Mr Scheffel's duties and
responsibilities During the first day of evidence, Mr Scheffel
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testified that the greenhouse contained approximately BOO square
feet and that he had additional responsibilities with respect to
the growing of vegetables, covering some 20 acres and had overall
responsibility with respect to the other duties such as cutting
grass and maintaining grounds.
As was noted in the Townsend case, the Agricultural Worker 3
classification does not necessarily require supervision of
subordinates. The Agricultural Worker 3 class standard is as
follows
"CLASS DEFINITION:
This class covers positions of employees who are held fully
responsible for the complete operation of an assigned
section of agricultural work at a provincial government
building or institutional farm They may supervise up to
three subordinate agricultural workers
At an experimental station or farm, employees at this level
are group leaders of two or more agricultural subordinates
The work is performed under the general direction of a
professional, administrative or agricultural supervisor
In some positions, these employees plan and direct the
landscaping and gardening operation at a provincial
government building. They select varieties of trees,
shrubs, flowers and vegetables They requisition quantities
of seeds, fertilizer, chemicals and implements They train,
supervise and discipline any assigned subordinates In most
of the positions in this work area, they direct the
operation of a greenhouse and hot and cold frames,
supervising temperature, humidity and ventilation controls
and providing flowers for institutional use
In other positions, which may be non-supervisory, these
employees are responsible for a unit of agricultural work at
an institutional farm such as the landscaping and/or
gardening operation and/or operation of a greenhouse of an
area of approximately 900 square metres or the management of
poultry and/or livestock.
As supervisors in charge of livestock or poultry, at an
institutional farm, they plan and schedule the feeding,
cleaning and tending of their herds and flocks In these
.
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positions, they conduct the breeding program, cull poor
producers, select brood stock and direct the slaughtering of
poultry and farm animals. They diagnose ailments,
administer medications or refer problems to a veterinarian
In some positions, they also direct the separating,
bottling, storage and distribution of milk. In all these
positions, they plan and estimate production requirements
and requisition supplies subject to the approval of their
supervisor They schedule the activities of their
subordinates and direct them in the care and maintenance of
the assigned area
At an experimental station or farm, these employees provide
group leader direction to two or more agricultural
subordinates They organize and direct the activities of
these employees in the cultivation of crops and care of
livestock for experimental purposes They provide technical
advice and check the completeness and accuracy of the work
They caution their staff but disciplinary problems are
normally referred to their supervisor."
Mr Scheffel is an employee who is "held fully responsible
for the complete operation of an assigned section of agricultural
work at institutional farm "
In the Townsend case, the majority found that the
Agricultural Worker 3 classification wa$ unsuitable because (p
24-25) " when dealing with greenhouse operation it refers
.
to the Agricultural Worker 3 as being a tsupervising gardener'
directing the operation of the greenhouse Presumably the phrase
'supervising gardener' means that there must be subordinate
employees working there as well n The Agricultural Worker 3
classification was found inappropriate because Mr Townsend did
not meet the test of being Ufully responsible" or a "supervising
gardener"
In the Townsend case, the majority ordered (at p 30) , that
the employer either create a new classification within the
Agricultural Worker series which would not be dependent on
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supervision of employees or remove the grievor from the
Agricultural Worker class series and place him in the Industrial
Officer 2 classification, with the recognition that the
Industrial Officer class series is not limited to manufacturing
activities
The employer in the Townsend case reclassified the grievor
as an Agricultural Worker 3, but no new classification was
created by the Ministry and the grievor was not reclassified as
an Industrial Officer 2 The Ministry revised the Agricultural
Worker classification specification by rewriting the paragraph
that used to read:
uln other positions, these employees supervising a unit of
agricultural work at an institutional farm such as the
landscaping and/or gardening operation or the management of
poultry and/or livestock In most positions as supervising
gardeners, they direct the operation of a greenhouse and hot
and cold frames to provide floral and/or vegetable
requirements for the institution "
The new paragraph reads as follows'
uIn other positions, which may be non-supervisory, these
employees are responsible for a unit of agricultural work at
an institutional farm such as the landscaping and/or
gardening operation and/or operation of a greenhouse of an
area of approximately 900 square metres or the management of
poultry and/or livestock."
In the Townsend case, this action was found not to be in
compliance with the order directed at the Ministry The majority
concluded that (p 3) of Townsend No. 2 that
"The only way in which it could have complied with the Award
was to have reclassified the Grievor as an Industrial
Officer 2 or to have reclassified him in a classification in
the agricultural series which was comparable to and at the
same level as the Industrial Officer 2 It has done none of
these things II
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In the case before us, we must view the amended language of
the Agricultural Worker 3 series in a different way Mr
Scheffel is functioning in a non-supervisory role and he is
responsible for a unit of agricultural work at an institutional
farm which includes landscaping and a gardening operation, both
of which take up a substantial amount of his time It was
submitted to us that as the approximate number of square meters
in the greenhouse area is 74, the new paragraph would not bring
Mr Scheffel within the Agricultural Worker 3 classification
The only fact that might cause us to conclude that Mr
Scheffel is not within the Agricultural Worker 3 class series is
the specification with respect to the size of the greenhouse
operation.
While the new paragraph does not fit Mr Scheffel perfectly,
it is a reasonable fit I am affected by the fact that Mr
Scheffel has been assigned a section of agricultural work at an
institutional farm and the class definition makes it clear that
he need not supervise any subordinate agricultural workers The
new paragraph emphasizes that the positions may include non-
supervisory ones involving responsibility for a unit of
agricultural work at an institutional farm and the
responsibilities set out include a considerable portion of the
core responsibilities of Mr. Scheffel landscaping and
gardening.
In the Townsend case, the majority noted the appeal of
classifying a person employed in landscaping and greenhouse
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23
operations within the Agricultural Worker class series This was
not done there because (at p 30) Mr. Townsend was found to fit
into none of the class definitions within the agricultural worker
class series That is, none "adequately fits the grievor's job
" It was really only because of that fact that the
.
availability of the Industrial Officer class series was resorted
to.
As was acknowledged by the Employer, Mr Scheffel performs
his tasks in an admirable fashion However, to acceed to the
submissions made on his behalf, on the facts of this case, would
be to say that where employees engaged in agricultural work might
be considered to also be involved in various industries, then,
all things being equal, they are to be placed within the
Industrial Officer class series Where the same duties and
responsibilities can, without straining the language employed, be
viewed as agricultural, in a primary sense, and industrial only
as a result of fairly complex analysis, there is no basis for
preferring the industrial officer classification
In the result, the grievance of Mr. Scheffel must be denied
I would only note, in conclusion, that the result in this
case is one that demonstrates that the "logicll of classification
cases is dependent on the language employed in the class series
To the extent that the result may appear to be unfair, this is a
function of the classification system which is binding on the
Board
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24
DATED AT Toronto, ontario
this 8th day of May , 1990.
I
I
~~~- '~
M. R. Gorsky
Vice-Chairperson
--~ 7~g-~
E. seymor
Kember
~~ ~ -.).tq - ---:r--.-
D. Montrose
Kember