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HomeMy WebLinkAboutCote Group 04-05-13 IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION' (the "Ur]ion") - ~ - ONTARIO TEACHERS' PENSION PLAN BOARD (the "Employer") AND IN THE MATTER OF THE CLASSIFICATI~ GRIEVANCES OF JOANNE COTE AND DAVE TMOMAS (OPSEU FILE NO. 02-598-66) ARBITRATOR Robert D. Howe APPEARANCES For the Union John Brewin, Counsel Joanne Cote Dave Thomas Charlotte Marchildon Jimmy Carbonneau For the Employer Glenn P. Christie, Counsel Scott Perkin Colleen Craigen Mary Murphy A hearing in the above matter was held in Toronto, Ontario, on January 31, 2003, and on March 29, April 2, April 5, and ADril 2g. 20o~. 'May-U-2004 10:28 From-RWBD 416~409250 T-86T P.006/014 F-660 AWARD The grievors Joanne Cote and Dave Thomas are Rules Analysts in the Plan Policy Department (the "Department") of the Ontario Teachers' Pension Plan Board (also referred to in this Award as the "0TPPB" and the "Employer", for ease of exposition). Through their grievances they are each seeking to have the Rules ~alyst position reclassified from "Clerk 5, Atypical" ~o "Clerk 6, General", with full r~troactivity plus interest. The basis upon which that reclassification ~s sough~ is the contention ~hat the duties and responsibilities of the Rules Analyst position are equivalent to those of the Sanior Policy Analyst position, which has that higher classifica.zion. Job Evaluation S~andards dating back to the early 1990's were entered as exhibits in these proceedings. However, they are not of assistance in deciding uhis case, as the class definitions which they contain are expressed in such general terms that bo~h the position'of Rules Analyst and the position of Senior Policy Analyst could as easily be found to be encompassed by one as by the o~her. What is of assistance in deciding this case is a comparison between the duties and responsibilities of the Rules Analys~s, and ~he duties and responsibilities of the Senior Policy Analyst. The Department is divided into a "Rules side" and "Policy side". Although there is some overlap of function, 1 'Ma¥~ZT-2O04 10:~8 From-R~BD 4169409Z50 T-86T P.00~/014 F-660 the Rules side of the Department deals primarily with Plan interpretation issues on a case-by-case basis. Rules Analysts answe~ internally generated inquiries concerning how the Plan should be applied in specific instances. They also create and maintain rule sets which are used internally ko assist in Plan interpretation and application. With she passage of ~ime, Rules Analysts have developed particular areas of expertise re~arding Plan interpretation issues. Mr. Thomas has developed particular expertise ~egardin9 death benefits. Ms. Core's primary area of expertise is the purchase product. Her secondary area of expertise is pensions, disabilities, and death benefits. The Policy side of the Department deals directly with dispute resolution, external contacts, reciprocal transfer arrangements, draf~in~ Plan amendments, and policy matters which are typically more general in their application than the issues deals with by the Rules side. Employees on the Policy side have also developed particular areas of expertise with the passage.of time. The current Senior Policy Analyst,s area of expertise is reciprocal transfer agreements. ~is duties and responsibilities regardin~ those a~reements began when he was a Policy Analyst, and carried over into his duties and responsibilities as a Senior Policy Analyst after he was promoted to that position. Rules Analysts and the Senior Policy .Analyst have a number of similar duties and responsibilities. Employees in both positions assist in the timely resolution of Plan 2 Ma¥-ZT-ZO04 10:Z8 From-RWBD 4163409Z50 T-867 P.008/014 F-660 interpretation or policy issues. They engage in research and analysis of Plan interpretation and other issues that arise with respect to Plan provisions and other relevant documents or iegis!azion, develop options and recommendations in support of issue resolution or policy development, prepare various documents such as policy recommendations and business decisions, and maintain a system of documenting and managing the info~L, Lation and decisions involved. ~owever, the Senior Policy Analyst performs a number of tasks which are not performed by Rules Analysts, including: (1) serving as a team leader and mentor; (2) dispute resolution, including representing th~ OTPPB on appeals to the Benefits Adjudication Committee; and (3) external contacts, including responding directly to external inquiries from members or their representatives. What must be determined in this Award is whether those differences in the duties and responsibilities of the two positions warrant the pay differential which exists between the two positions as a result of the Senior Policy Analyst posision having been placed in a higher classification than the Rules Analyst position. Team Leaderand Mentor When the Plan Policy Department position of Senior Policy Analyst was created in the Fall of 2001, Craig Thompson, who had been a Policy Analyst in that Departmen5 since November of 1999, was promoted to that position. Durin~ his first three months in that newly-created position, he did 3 ~ay-Z?-2004 10:2~ From-RWBD 41~4082~0 T-88T P.OOg/014 F-880 not do any mentorinN or team leadership because Tania Sendel, who was the sole Policy Analyst during that period, had been in that position since 2000 and was fully familiar with the job. ~owever, when Julie Savoie commenced work in January- of 2002 as a new Poiicy Analyst, Mr. Thompson took on the primary role of providing her with orientation, on-the-job trainin9, and guidance in the performance of her job. This mentorin9, and team leadership role took up about ten percent of his working time in the period prior to the filin~ of the grievances (which were both filed on March 11, 2002), and was continuin~ to occupy approximately that amount of his time in April of 2002 when he met with Lynn Burkart, an experienced external job evaluator retained by the Employer to review and compare the Rules Analyst and Senior Policy Analyst positions in order to determine their comparative value for job evaluation purposes. Although Mr. Thompson is not generally responsible for assigning or directing the work of the Policy Analyst, he does reassign work to the Policy Analyst from time to time when workload pressures preclude him from performing or completing it himself. He also reviews the Policy Analyst,s work for the purpose of suggesting changes, corrections, and improvements. While the amount of mentoring or leadership required has varied with the abilities and experience of individual Policy Analysts, the Senior Policy Analyst is expected to provide the requisite leadership and mentoring in fulfilling 4 ' ~a~-Z?-ZOO4 10:Z9 Fro$-R~D 416~4092~0 T-86~ P.010/014 F-$60 the formal responsibilities of his position. Moreover, it is clear from the evidence that mentoring and team leadership activities constituted a significant part of Mr. Thompson's job at the time the grievances were filed. Dispute Resolution Dispute resolution includes claims, appeals, and litigation. A claim exists when a member of the Plan or a member's representative alleges that the 0TPPB has erred, acted negligently, or made a misrepresentation. Claims enter the Department from the Client Services Department. AN appeal exists when a member formally disputes the OTPPB staff,s interpretation of the Plan or the staff's application of the Plan to the member's particular circumstances. The Department becomes involved in litigation when it is asked to assist the Legal Department with respect to legal proceedings which have been commenced against the 0TPPB. Dispute resolution matters are typically complex, time-consuming, and extremely sensitive. They expose the 0TPPB to potential financial liability and damage to reputation, and can set a precedent for how the Plan is to be administered in general. If appeals and claims are not resolved internally, they can lead to hearings before administrative tribunals such as the Financial Services Tribunal and Human Rights Boards of Inquiry, and can also lead to judicial review or civil litigation. The Senior Policy Analyst represents the 0TPPB in appeals to the Benefits Adjudication Committee (the "BAC"). 5 Ma¥-g?-ZOO4 lO:Zg From-RWBD 418540ggSD T-887 P.Qll/014 F-880 Ne also assists in appeal preparation. BAC hearing panels are comprised of two OTPPB members and four lay persons. In representing the 0TPPB before the BAC, the Senior Policy A~alyst defends the staff's int~rpretaltion and adminiscration. of the Plan, and responds to questions from the hearing panel and the appellant (or the appellant's representative). This requires a comprehensive understandin~ of the le~a! and policy issues underlying the matter, and experience with the appeals process. It also requires that the Senior Policy Ana!yst be able to respond accurately, immediately, and confidently in a professional manner to unexpected questions or comments in a context in which inappropriate or erroneous responses cannot easily be rectified. Although Mr. Thompson did not attend any BAC appeals durin~ the period from October of 200~ to March of 2002, based on previous years he expected to be involved in two or three BAC appeals a year, representin~ about 2.5% of kis working time on an annual basis. The evidence of Scott Perkin, who has been the Director of the Plan Policy Department since February of 199~, indicates that in 2002 the Senior Policy Analyst resolved ten claims and twelve appeals. He also defended the staff's interpretation and drafting of same-sex survivor benefits at a BkC appeal hearing. Mr. Perkin's evidence further indicates that in 2003, the Senior Policy Analyst resolved six claims and eleven appeals. He also represented the OTPPB at two BAC appeal hearings, at which he defended the staff's interpretation of commuted value 'May-27-2004 10:2§ From-RWBD 4163409250 T-867 P.OIZ/Oi4 F-660 eligibility and tame-sex survivor elisibility' Although the Senior Policy Analyst's BAC work is not quantitatively large, its qualitative significance is clearly indicated by the followin9 testimony which Mr. Thompson 9ave during cross-examination by Employer counsel: An appeal to the BAC is my key priority. It would never be assigned to the Policy Analyst. It takes precedence over any other work I do .... It's my clear understanding from previous discussions with my Manaser that my number one task in terms of priority is to present appeals to the BAC when this comes about. External ContacTs The Senior Policy Analyst has a considerable amount of direct contact with members and their representatives (including lawyers, federation representatives, and financial advisors) through letters, phone calls, and face to face interviews. Over twenty percent of ~he inquiries that he deals with involve such contact. He responds directly to external inquiries from members or their representatives concernin9 dispute-related matters. These are often difficult clients to deal with, due to the nature of the dispute or the member's disability. The Senior Policy Analyst authors letters to external client contacts and sends out many of them under his own signature, with the remainder being drafted by the Senior Policy Analyst for the sisnature of the Director or the Vice-President of Member Services. ~e is also required to make external presentations on policy-related and dispute resolution issues from time to time, includin9 presentations at BAC 9eneral meetinss. 7 , May-Z?-ZO04 10:30 From-R~D 4165409250 T-857 P.013/014 F-660 ! Decision In his submissions in support of the 9rievances, counsel for the Union referred to a number of awards in which it has been held that for reclassification 9rievances to succeed, i~ must be established that the 9rievors are carrying out the functions that make up the "central core" of the higher classification. See, for example, Re Dominion Stores Ltd. and Retail, Wholesale & Depar~me~.~ Store Union (1976), 13 L.A.C. (2d) 433 (Rayner); Rs Richardson Terminals Ltd~ and BrotherhoQd of Railway, Airline & Steamship Clerkm (1973), 2 L.A.C. 371 (A~arwal); Re City of Winnipeg_~.d Lo~. 500 (1991), 20 L.A.Co (4th) 394 (McGregor); IKO (Manitoba) L~d. and United Food and Commercial Worker,s, [1993] M.G.A.D. No. 56, 31 C.L.A.S. 381 (McKenzie); and Vancouver (City) v. Canadian Union of ~hlic Employees. Local 15, [2001] B.C.C.A.A.A. No. 355 (Germaine). Although Rules Analysts and the Senior Policy Analyst have a number of similar duties and responsibilities, the evidence does nou establish that the Rules Analysts perform the "central core,, functions of the "Clerk 6, General,, classification, as exemplified by the Senior Policy Analyst. In this re~ard~ I am satisfied on the totality of the evidence that the Senior Policy A~alyst,s aforementioned duties which are not performed by Rules Analysts are of sufficient signi£icance to warrant the pay differential which exists between the two positions due to the justifiable placement of the Senior Policy Analyst position in 8 ~ Ma¥-Z?-2004 10:90 From-R~D 41834092~0 T-087 P-014/014 F-860 For the foregoing reasons, the grievances are hereby dismissed. DATED at Burlington, Ontario this 13tk day of May, 2004. Robert D. ~{owe Sole Arbitrator 9