HomeMy WebLinkAboutMarshall 18-10-30IN THE MATTER OF AN EXPEDITED CLASSIFICATION ARBITRATION
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, Local 418
(FOR SUPPORT STAFF)
(hereinafter called the "Union")
-and-
COLLEGE EMPLOYERS COUNCIL
(FOR COLLEGES OF APPLIED ARTS and TECHNOLOGY)
In the form of ST. LAWRENCE COLLEGE
(hereinafter called the "College")
-and-
GRIEVANCE OF TREVOR MARSHALL
OPSEU File No. 2017-0418-0004
(hereinafter called the "Grievor" or the "Incumbent")
ARBITRATOR:
REPRESENTING THE COLLEGE
REPRESENTING THE UNION:
Richard H. McLaren, C.Arb.
Trish Appleyard, Associate Director,
Workplace Relations
Andree LeBlancq, Human Resources &
Organizational Development
Gillian Gunn, Associate Director,
Counselling and AccessAbility Services
and Campus Health Centre
Kelly Morey, Chief Steward, Local 418
Trevor Marshall, Grievor
A HEARING WAS HELD AT KINGSTON, ONTARIO ON 26 OCTOBER 2018.
AWARD
Introduction
Students at the College have access to Counselling and AcessAbility Services ("CAAS")
if they require it. The CAAS provides accommodation to those with disabilities while
supporting their academic success.
Trevor Marshal, the Grievor, works in the CAAS as an Adaptive Technologist. He
recommends and implements technology solutions to individuals who require academic
accommodation. The Position Description Form ("PDF") dated 26 June 2016 for this
position is agreed between the College and the Union.
The College evaluated the Adaptive Technologist position using the "Support Staff Job
Evaluation Manual" ("the Manual"). In accordance with the Manual the position was
rated at 564 points. That point score places the position within Payband H.
The Grievor and the Union submitted on the 10th of October 2018 that the position ought
to be evaluated at 648 points, placing it at the higher -rated Payband J. The brief of the
Union, which was late and not filed until the Tuesday before the Friday set for the
arbitration, changed the Union's submission to a point level of 608, which would place
the position within Payband I. It is this later position of the Union which is analyzed in
this Award. The College agreed with the Arbitrator proceeding to hear the matter
despite the late filing by the Union.
The Duties of the Position
The "Position Summary" in the PDF provides a concise description of the overall
purpose of the position as being:
"Reporting to the Associate Director, Counselling & AccessAbility Services and
Campus Health Centre, the Adaptive Technologist is responsible for
recommending and implementing technology solutions and providing training to
students with disabilities who, as referred by the AccessAbility
Advisor/Counsellor, require this nature of accommodation to access the College
learning environment. The incumbent conducts one-on-one intake assessments,
makes recommendations and assists with the acquisition of appropriate
hardware and software, provides training on use, and any on-going modifications
as required. The incumbent must be proficient in the use of adaptive technology
and assistive devices. "
2
Factors in Dispute
It is the application of three factors in the Manual that gives rise to the dispute in this
proceeding. The factors in dispute are: Factor #6 — Independence of Action; Factor #7
— Service Delivery; and Factor #10 — AudioNisual Effort. Each of these factors will be
dealt with under separate headings below.
Factor #6 Independence of Action: Ratings: College Level 3 +40 / Union Level 4
The Manual describes the Factor as measuring the level of independence or autonomy
of the position and prescribes that:
The following elements should be considered:
- the types of decisions that the position makes;
- what aspects of the tasks are decided by the position on its own or
what is decided by, or in consultation with, someone else, such as the
supervisor;
- the rules, procedures, past practice and guidelines that are available
to provide guidance and direction.
These considerations, when taken as a whole, will define the parameters and
constraints of the position within which the incumbent is free to act.
The College rates the position at Level 3 with an Occasional Level 4. The Union
submits the proper evaluation of the factor should be at Level 4. The Union bears the
responsibility of establishing its case that this factor ought to be higher rated.
This factor is directed at determining the boundaries of the position within which the
Incumbent is carrying out the duties of the position. There is a gradation of the levels
intended to determine the degree of autonomy within which the Incumbent acts. In
today's work place most employees work independently with only minimal supervisory
oversight. Thus, looking to the degree of independence is not in these circumstances of
great assistance in determining the appropriate Level.
The College in its evaluation does rate the position as being on occasion a Level 4. The
Union has to establish that it is a much more frequent occurrence that the autonomy of
the position's actions necessitates a Level 4 rating.
3
In the Manual the "Notes to Raters" for this factor clarifies the differences between
Levels 2 and 3 and Levels 4 and 5. There is no helpful note to raters for the differences
between Levels 3 and 4 which might assist in evaluating this situation. It might be
advisable in future versions of the Manual to endeavor to provide guidance to the
difference in the 3 and 4 Levels.
As I understand the evidence provided by the parties the Incumbent has the ability to
select the processes to be used to assist the student in coping with their learning
disabilities to achieve improved academic performance. The issue to be decided is the
degree of autonomy required to accomplish the objectives that the student and the
Incumbent have determined. It appears that it is really determining these objectives
driven by the complexity of the student's disabilities which could elevate the position to
Level 4. The Incumbent does have 'industry practices' to guide his decision making in
terms of the tools selected to achieve the agreed upon objective. However, a student
with a range of disabilities and one affecting another disability can present a complex
problem that then requires defining objectives. It is really a question of the frequency
with which this situation occurs. The College evaluation does reflect, that at least at
times, but only occasionally Level 4 activities occur. The issue I must answer is the
autonomy of the position more frequent than the College rating has allowed for?
I do not have a lot of evidence on this issue. The College did provide the CAAS manual
and notes that the CAAS manual shows the linear path that provides the boundaries
and constraints and thus the degree of autonomy afforded to the Incumbent. They
submit that the gatekeeper defines the input and the student constrains output because
they have decision making authority by agreeing to the objectives. Therefore, it is
submitted that the Independence of Action is constrained and the autonomy is restricted
justifying the Level 3 primary rating. While I accept those submissions it does not
answer the question of frequency which is the issue before me.
The selection and recommendation for assistive technology is most often at the
discretion of the technologist. The discretionary decision is framed through the use of
policies external and internal which relate to students with disabilities polices of
accommodation. The discretionary decision is then made in accordance with the CAAS
manual but does reference industry standards and industry practices which is a defined
term in the Manual. I find that there is an element of autonomous decision making in
dealing with virtually every student requiring assistance. Then the decision making can
be more complex depending on the severity and multiplicity of the student's disabilities.
Therefore, the Grievor and the Union have established that the position requires an
0
individual to take action within the language set out in Level 4 and in particular the
definition in the Manual.
For all of the foregoing reasons the Union has satisfied me that the rating is established
at Level 4 as regular and recurring and not just Occasional as the College rated it.
Therefore, it is ordered that the Independence of Action Factor be set at Level 4.
Factor #7 — Service Delivery: Ratings: College Level 3 / Union Level 3 + 40
This factor looks at the service relationship that is an assigned requirement
of the position. It considers the required manner in which the position
delivers service to customers and not the incumbent's interpersonal
relationship with those customers.
The level of service looks at more than ... what customers want and
supplying it efficiently. It considers how the request for service is received
... It then looks at the degree to which the position is required to design and
fulfill the service requirement.
The Union submits that on occasion Level 4 delivery of service occurs because the
Incumbent has to anticipate future requirements of the student and pro -actively deliver
services on the basis of that anticipation.
In my discussions with the parties and the evidence presented it became clear to me
that there was very rarely an anticipation of future needs. The Union did not establish to
a satisfactory degree that there was anticipation of future needs. Indeed, the Incumbent
is not anticipating what is going to occur going forward but is acting on information
provided by others and what has been the disabilities in the past as confirmed by others
and discussions with the student. I do not find that the Union has established that the
Service Delivery Factor is at Level 4. Therefore, the College evaluation at Level 3 is
established and there is no Occasional Level 4 to be taken account of in the evaluation.
Factor #10 — Audio Visual Effort: Ratings: College Level 2/ Union Level 2
This factor measures the requirement for audio or visual effort. The factor
measures the following two aspects:
a) the degree of attention or focus required, in particular for:
-periods of short, repetitious tasks requiring audio/visual focus
- periods where task priorities and deadlines change and additional
focus and effort is required to achieve the modified deadline
5
b) activities over which the position has little or no control that make focus
difficult. This includes the requirement to switch attention between types
of tasks and sensory input (eg. multi -tasking where each task requires
concentration).
Both parties agree that the appropriate Level is 2. The difference between them is the
points assigned should be on the basis of "Focus Maintained" or "Focus Interrupted".
The PDF indicates that 70% of the Duties and Responsibilities involve the meetings with
the student to asses and recommend assistive technologies. Therefore, I find that the
bulk of the work of the position is a one-on-one interaction with the student. While that
is going on there should be no interruption by anyone except on an urgent or
emergency basis. Those interactions would in effect be closed door meetings.
Therefore, there is very little time when the focus of the Incumbent would be interrupted
and it would only occur in the other 30% of the Duties and Responsibilities of the
position. However, when that does occur there does not appear to be a need to refocus
on the task at hand or switch thought processes as the Definition of "Focus Interrupted"
requires when interruptions do occur. Therefore, I do not find that the Union has
established its rating. The rating of the College at Focus Maintained is consistent with
the information provided to me and remains undisturbed.
CONCLUSION
Based on all of the above adjustments, the total points assigned for the position is to be
587. That point score places the position in Payband I on the Schedule in the Manual.
As a result, the Grievor is to have his pay adjusted from the date of the grievance up
until the present. The retroactive payment under this Award is to be paid by the College
no later than two pay cycles after the date herein.
The parties are hereby directed to take the necessary steps in order to implement this
decision. If there is any dispute as to the implementation of my award, I retain
jurisdiction to resolve those disputes and issue a supplementary award. Jurisdiction is
retained to complete the process of ensuring that the remedy is complete and that the
Grievor is made whole to the extent that may be required.
I will remain seized of this matter with jurisdiction to complete the remedy in this Award
for a period of 45 days from the date herein. Either party may, on written request to the
Arbitrator, ask me to reconvene the Hearing for the purposes of determining the
remedial aspects of this Award. If no written request is received within the stipulated
time frame, I will no longer retain jurisdiction over the implementation of the remedy
arising from this Award.
DATED at London, Ontario this 30th day of October, 2018.
Richard K McLaren, C.Arb.
Arbitrator
7
Arbitration Data "Sheet - Support Staff Classification
St. Lawrence
Colleges:
Trevor Marshall
Incum bent: Supervisor_
Current Payband• H Payband Requested by Grievor:
1, Concerning the attached Position Description Form:
Gillian Gunn
IV
The parties agreed on the contents The Union disagrees with the contents and. the
specific details are. attached.
2. The attached Written Submission is from: F The Union ZThe College
Factor
1A. Education
Management ,
Union
Arbitrator -
Regular/ Recurring
occasional
Regular/ Recurring occasionar
Regular% Recurring
Occasional
Level
4
1
5
3
Points
48
3
;69
78
Level' Points
4 9
Level
4
1
5
4
Points Level Points
48'
3
69
110
Level
Points
AIS
b
' �-
Level Points
1B. Education
2. Experience
3. Analysis and Problem
Solving
4. Planning/Coordinating
2
32
3 7
2
32
3 Z
3
5. Guiding/Advising Others
3
29
4
41 5. 3
3
2
6. Independence of Action
3
78
4 9
4
110
7. Service Delivery
3
5.1
1 3
51 4 6
r
8. Communication
4
110
4
110 5
9. Physical Effort
10. Audio/Visual Effort
1
2
5
20
1
2
5
35
'Z
2 0 -
11. Working Environment
1.
7
2 9
1
7 1 2 9
!2,!
Subtotals
(a) 530
(b) 34
(a):621 (b) 27
(a) 0 r Z
(b) 0 S
Total Points (a) + (b)
5.64
( 0
0 �.
Resulting Payband I
1.0,W
H Ie
Z.
Signi<ares:
n 4z/ b(Grievor)
(Date)
p
(Colleae Re es tativ)
.��,eL,
, o&
(Date)
Oct. 30, 2018
(Date of Award)