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HomeMy WebLinkAboutCreighton et al 19-05-23IN THE MATTER OF AN EXPEDITED CLASSIFICATION ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL561 (FOR SUPPORT STAFF) (hereinafter called the "Union") And COLLEGE EMPLOYER COUNCIL (FOR COLLEGES OF APPLIED ARTS and TECHNOLOGY) In the form of SENECA COLLEGE (hereinafter called the "College") And GRIEVANCE OF OPSEU File No. 2018-0561-0005 - 2018-0561-0014 inclusive (Kathy Creighton, Carol Ann David, Keri Graham, Melanie Graham, Janice Griffith, Alison James Carol Pope, Tong Xu, Abdi Farah, Tara Roebuck -Piedra) (hereinafter the "Grievors", "the Incumbents" or "the Employment Consultants") ARBITRATOR: REPRESENTING THE UNION REPRESENTING THE COLLEGE: Richard H. McLaren, C.Arb. Janice Hagan, OPSEU Steward Kathy Creighton, Grievor Carol Ann David, Grievor Tara Roebuck -Piedra, Grievor Nadine S. Zacks, Barrister and Solicitor Hicks Morley Hamilton Stewart Storie LLP Martin Tame, Former Manager, Employment Services Karen Mendler, Director, Compensation, Benefits, HRIS Marie Mach, Senior Compensation Specialist Ted Bridge, Director, Employee and Labour Relations Cecilia Mak, HR Manager A HEARING IN RELATION TO THIS MATTER WAS HELD AT MARKHAM, ONTARIO ON 14 MAY 2019. The Grievances were filed on various days in April 2018 between the 18" and the 25t". The Grievors are: Kathy Creighton, Carol Ann David, Keri Graham, Melanie Graham, Janice Griffith, Alison James, Carol Pope, Tong Xu, Abdi Farah and Tara Roebuck -Piedra. The Grievors were employed by the College as Employment Consultants ("EC's") working at one of three off -campus Employment Services offices run by the College's Employment Services Department operating sites in Scarborough, Newmarket or Vaughan. The College provides employment services to unemployed or underemployed members of our community to assist them in finding employment or becoming re- employed. Members of the public were able to come to any of the College Employment Services offices to obtain a variety of services, including access to resources (computers, printers, internet, phone), workshops, referrals to training programs and employment consulting. Employment Services is funded through the Ministry of Training, Colleges and Universities "Employment Ontario" program. The Ministry funds "assisted services" and links the funding to a target of clients or "service units" to be serviced through the office. The target varied for the 3 different offices from 500 to 900 service units. This case load is divided amongst the EC's at each location such that each full-time EC serviced approximately 175 to 200 clients. The EC's primary service is, as the title implies, employment consulting. They meet with clients individually and develop a plan for each person to get them back into the workforce or refer them to additional training so as to become employment ready. The EC's make internal and /or external referrals depending on the needs of 2 the client and provide action items and then document their actions by inputting data into the Ministry of Training, Colleges and Universities "Employment Ontario" database. Subsequent to the filing of the grievances two of the three Employment Offices have closed (Scarborough and Newmarket). All of the Grievors who were employed in the two closed office locations have moved into other positions within the College. The Vaughan office is scheduled to close on March 31, 2020. The College evaluated the position and rated it at 560 points, placing the position within Payband H. The Grievors and the Union submit that the position ought to be evaluated at 712 points and reclassified, thereby placing it in the higher rated Payband K. Factors in Dispute The five factors in dispute include Experience, Analysis and Problem Solving, Guiding and Advising, Independence of Action and Working Environment. Each factor is discussed and dealt with below under separate headings. FACTOR ANALYSIS BY POINT 2. EXPERIENCE: Rating. College 4 / Union 6 This factor measures the typical number of years of experience, in addition to the necessary education level, required to perform the responsibilities of the position. Experience refers to the time required to understand how to apply the knowledge described under Education" to the duties of the position. It refers to the minimum time required in prior positions to learn the techniques, methods and practices necessary to perform this job. This experience may be less than the experience possessed by the incumbent, as it refs only to the time needed to gain the necessary skills. 3 Union: The Union submitted that eight years of experience should be required to perform the responsibilities of the position. It was stated that the lengthy period is because the experience needs to be progressive College: The College submitted that posting for the last three vacancies in the position each required a minimum of three years of experience in a related area to establish a pool of qualified applicants. Furthermore, the College has hired in the past an EC whose job experience was less than three years. It was submitted that the College's Level 4 rating in the Manual is validated by these postings. Findings: The Union submissions appear to have been based on the idea of the total number of years required to become an EC. However, as proscribed in the quote above concerning the description of the Factor: "experience refers to the time required to understand how to apply the knowledge described under Education". Therefore, this factor does not include the time spent to acquire the stipulated Education and which could also include some experience in the programs where there is co- operative practical placements. The evidence submitted and the testimony provided emphasized the rapid rate of change that has occurred in the area of employment services. Experience in that environment becomes obsolete as different knowledge and activities requires the Incumbents to work to their highest abilities. The former Federal system was rendered obsolete when the province stepped in to have individuals perform the duties. The Union has not established the evidence to set the experience at the 4 highest level in the Manual of eight years. The Union has not satisfied me that eight years of experience is required in the job. Therefore, the rating proposed by the Union is denied for all of the foregoing reasons. 3. ANALYSIS & PROBLEM SOLVING: Rating: College 3 + 04 / Union 4 This factor measures the level of complexity involved in analyzing situations, information or problems of varying levels of difficulty; and in developing options, solutions or other actions. Union: It was submitted that each client's employment issues or problems are different and unique to the individual and frequently the client does not trust the EC and it takes several interviews before the problem, usually in the form of barriers to employment, is identified. It is submitted that this means the EC's are often required to do further investigation and research. The forms used in the interviews are not that helpful in identifying the problems but do help to organize the interview. Therefore, once again there is investigation and research. College: The College submitted that according to the Manual Level 3 problems are identifiable and Level 4 problems are not. Then, because of not being identifiable, further investigation and research is required. It is submitted that the typical barriers are, for the most part, readily identifiable after several interviews and trust by the client in the EC has been achieved. It was further submitted that the information required to analyze the problem may from time to time require access to resources which are not normally used in the position. It was submitted that is what the EC's do and they do not have to examine a range of information to do the analysis from a wide range of area or 5 resource not normally used by the position. That activity would be a Level 4 and that does occur on some occasions which is why the rating is an Occasional Level 4. Finally, it was submitted that the scope of judgment or depth of analysis at Level 4 requires something more than the straightforward problem solving of Level 3. For all of these reasons the position is appropriately rated at Level 3 with an Occasional 4. Findings: The Union in its submission is using the concept of investigation and research as arising because of more than one interview being an investigation. Level 3 in the Manual contemplates problems being identifiable but may require further inquiry. What appears to be going on is not further investigation as that word is used in Level 4 of the Manual. What is going on are further inquiries to build trust and understanding in order that the client will reveal barriers they have to entry or re- entry to the job market or to just to be job ready. The evidence does suggest that there are times when some investigation other than further inquiry with the client is required and that may involve research to obtain job or market information which is available but requires study to be applicable to the particular client. I find that the rating of Level 3 with an Occasional Level 4 is a perfect fit for the Incumbents work efforts in Analysis and Problem Solving. For all of the foregoing reasons, the Union has not established that the regular and recurring work in Analysis and Problem solving is at Level 4. Therefore, the submission of the Union is denied. 5. GUIDING/ADVISING: Rating: College 4 / Union 5 This factor refers to any assigned responsibility to guide or advise others (e.g. other employees, students, clients) in the area of the position's expertise. This is s over and above communicating with others in that the position's actions directly help others in the performance of their work or skill development. Union: It is submitted that the EC allocates tasks to the client such as completing intake or registration forms, financial and personal assessments, and drafting of resumes or how to search out businesses and employment opportunities in the locale where they live. Therefore, it is submitted that the EC is ensuring completion of tasks and that is a Level 5 activity. Furthermore, this process is important to the College for completion of tasks or the failure to do so affect the evaluation of the Employment Services centre and possibly it's funding. College: It is submitted that what the EC does is an exact fit with the Level 4 Factor. Guiding and advising the client with ongoing involvement with their progress is the essence of the service provided by the EC. An EC follows up with a client to determine status and outcomes thereby co-ordinating the service plan implementation with the client. This requires monitoring progress throughout the service plan particularly at fixed progress points of 3, 6 and 12 month intervals. It is submitted that the Grievors are not responsible for ensuring their recommendations are taken up and implemented. Therefore, the Guiding and Advising that takes place is not at Level 5 which requires that the position ensures completion of the tasks. Findings: I find that the submissions of the College are compelling and the Level 4 is a strong fit for this position. The Union has not established that the EC is responsible to ensure the completion of the task. Therefore, the work being performed must be at Level 4 and not 5. The submissions of the Union that the position is not properly rated are rejected and it is found that the College rating is correct and the Union has not established a basis for the Level 5 rating they suggest. 6. INDEPENDENCE OF ACTION• Ratin • College 3 / Union 4 This factor measures the level of independence or autonomy in the position. 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. Union: It was submitted that the EC is involved in front-line service to clients off site of the campus. The College has very specific goals or objectives for the program and the performance of the position requires the Incumbents to make industry practise part of their action plan. Therefore, the independence of action is at Level 4. College: It was submitted that Employment Services has developed numerous protocols and guidelines that limit the position's autonomy. While supervision may be indirect there are other forms of control through the College's policies and procedures and the customary practises of the work routines. The EC's work within a highly structured environment. Therefore, the position is within Level 3. Findings: The work of the EC involves a human dynamic not reflected in the position of the College and is established by the evidence from the Grievors and the Union. s While autonomy may well be limited by the procedures, protocols and guidelines there is a dynamic aspect to the work of the EC which is characteristic of the work. The position requires focusing on helping clients to assess their own needs and develop their own resume writing skills or job interviewing techniques. The EC is in effect a personal coach for the client. The essence of the position is to give feedback, advice and react to the interview and meeting information obtained in a fashion that enables the client to achieve their personal goals and objectives. Therefore, I find that the Union has established that the rating for this Factor ought to be at Level 4. I find that the better fit for the Factor of Independence of Action is at Level 4. It is ordered that the evaluation of the position be adjusted to reflect my findings on this Factor. 11. WORKING ENVIRONMENT: Rating: College 1 + 03 / Union 3 This factor looks at the environment in which work is performed and the extent to which there exists undesirable or hazardous elements. Union: The submission is that the nature of the work poses risk to an EC's mental safety. It is submitted that mental stressors fit within a general description of undesirable elements that are part of the work environment. It is submitted that constantly working with distraught clients is akin to regular verbal abuse. The EC's empathize with the client's circumstance and wish they could do more to help for many of them have that orientation having been social workers or have such training. It is submitted that being unemployed is related to family discord and breakdown, financial ruin, loss of home and social status. Sometimes desperate people lash out abusively. However, it's not verbal abuse or threatening behaviour that is at issue for the EC under this Factor. It is the unreining exposure to those coping with ruin and despair. EC's frequently take significant time to "wind down" each day and that 9 compassion fatigue is a real working content making it appropriate to rate the position at Level 3. College: The submission is that the work is performed in an office and does not require exposure to difficult working conditions of weather or unsatisfactory working conditions. There is, however, some exposure to verbal abuse on limited occasions which justify the Occasional rating. Findings: The submissions of the Union on mental stress are not within the material found in the Manual. Therefore, the evaluation by the Union is not established. I confirm the rating of the College at Level 1 with an Occasional 3. CONCLUSION The Union has only established one Factor as being incorrectly rated. It is found that the Independence of Action Factor ought to be rated at Level 4. That conclusion means that the total points for the position to be classified will rise by 32 points for a total of 592. That point score places the position in Payband I on the schedule in the Manual. As a consequence the Grievors are to have their pay adjusted from the varying dates of their grievances up until the present. The retroactive payment under this Award is to be paid by the College no later than two pay periods 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 10 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 Grievors are 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 23rd day of May, 2019. Richard H. McLaren, C.Arb. Arbitrator if Arbitration Data Sheet - Support Staff Classification College: Seneca College Incumbent: Kathy Creighton, Keri Graham, Melanie Graham, Janice Griffith, Alison James, Carol Pope, Tong Xu, Abdi Farah, Tara Roebuck -Piedra, Carol Ann David Supervisor: Martin Tame, Manager, Employment Services Current Payband: H Payband Requested by Grievor: K 1. Concerning the attached Position Description Form: XThe parties agreed on the contents ❑The Union disagrees with the contents and the specific details are attached. 2. The attached Written Submission is from: ❑ The Union ❑ The College Factor Management Union Arbitrator Regular/ Recurring Occasional Regular/ Recurring Occasional Regular/ Recurring Occasional Level Points Level Points Level Points Level Points Level Points Level Points 1A. Education 1B. Education 2. Experience 3 1 4 35 3 54 4 9 3 1 6 35 3 86 J 1 11. �7 3s' 3 3. Analysis and Problem Solving 3 78 4 110 0 0 3� r 4. Planning/Coordinating 2 32 3 7 .3� 0 0 3 73�- 5. Guiding/Advising Others 4 41 0 0 5 53 0 0 6. Independence of Action 3 78 0 0 4 110 0 0 7. Service Delivery 3 51 4 6 3 51 4 6 8. Communication 4 110 0 0 4 110 0 0 9. Physical Effort 1 E35 0 0 1 5 0 0 Cy 10. Audio/visual Effort 3M 3M 35 3%'� 35 11. Working Environment 1 7 3 9 3 69 0 0 i Subtotals (a) 529 (b) 31 (a) 723 (b) 6 (a) J (b) Total Points (a) + (b) 560 -712— `�w Resulting Payband H K Signatures: (Grievor ( Date) (College Rep sentative) a� oy /9 ( Date) 2-3 (Date of Award)