HomeMy WebLinkAbout1975-0013.Vukoje.76-11-10I
,. ,. I~
‘&t&h EMPLOYEE: 416/964 6426
GRIEVANCE SwrLmEwr
.I
BOARD r
#13/75
Suite 405,
77 Btoor sikmet West
" TOROiVTO, Ontorio.
MS lM2
.
. -,
IN ,THE'-MATTER OF AN ARBITRATION. . Under.The '! ,;
' CROWN'EMPLOYEES COLLECTIVE BARGAfNING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD _ I
I
-Mrs. R. Vukoje
-. c.
And .
(The Grievor)
:Ontario Housing Corporation
(The Employer) ~
Before: D. M. Beatty -'Chairman
-. 'Mary Gibb -2 Member ,"
t. - :. S,R. Hennessy - Member
For the Grievor
Mr. Maurice A. Green, Golden-Levinson
,Torpnto, Ontario
For the Employer
Mr. A. 3. Tarasuk,.Central. Ontario Industrial
Relations Institute, Toronto, Ontario
Hearinos
'Westbury Hotel,"Toronto, February 27i.1976
Westbury Hotel,Toronto, June-J, 1976
Suite 405, 77 Bloor St. W., Toronto, October 18, 1976 .'
In the grievance that has been brought before this Board,
Mrs. R. Vukoje claims that as a Clerk Typist 3 in the Corporation's
Hamilton Housing Authority, she has been improperly classified.
It is her contention that she should more properly be classified
in the position of Clerk 3. At the initial hearing into her
grievance Mr. Tarasuk, for the employer, argued by way of
preliminary objection, that Mrs. Vukoje and the union were now
estopped from raising such a complaint before this Board in that
her classification of Clerk Typist 3 had been the subject of
direct negotiations between the parties on the occasion of the
settling of the first collective agreement between them. Indeed,
this initial objection to our hearing the merits of Mrs. Vukoje's
grievance consumed the enttre duration of the first day of our
hearings into this matter and after receiving evidence and hearing
argument with respect to it, this Board ruled that the employer's
objection was without foundation and agreed upon the release
of our final award to incorporate our reasons for so holding
in that award.
Essentially the bases upon which this Board ruled against
the Corporation's objection as to the arbitrability of Mrs.
Vukoje's grievance were two fold in nature. In the first place,
it is our opinion, for the reasons that we have set out more
fully in our Re Joyce 21/76 award, that even if the union
and the employer did agree in direct negotiations that Mrs.
Vukoje was properly classified as a Clerk Typist 3 and would
remain so classified until such time as her duties changed or a
-3-
new agreement was signed, such an agreement between the parties
could simply~not,raise an estoppel against Mrs. Vukoje. That ! '-~~ I
MrsYVukoje herself at no time made any representations to
:her employer'as to the propriety of her classification is, from -_. .(,.
record, manifest;‘ Moreover, and even'if the union did in fact
r
make such a representation to the Corporation with respect to i i. -.
her classification we'simply are unable, in light of the
legislative framework under which this-grievance arises, to . :I , ,,,,:
conceive how such a representation could bind Mrs. Vukoje. That .
is to say, it is our~reading of ss. 6 and 17 of the Crown Employees
_, Y .‘.
Collective,iargalnlngAct that in matters pertaining to an employee's
~.'classification the union and the emoloyer.are simply nOi Competent
to bargain over, agree to or in any way affect an.employee's . .
right to grieve as to the propriety~ of her classification, Sect!ons
I
6 and 17 of the Act provide:
6.~Upon being granted representation rights, the employee
organization is autimrized to bargain with the employer on
terms and conditions of employment except as to matters that
are exclusively the function of the employer under subsection
1 of section 17, and, without limiting the generality of the
foregoing, including rates of remuneration, hours of work,
OVertinie and Other.preUtium allowance for work performed, the
mileage rate payable to an employee for mfles'travelled when
he.is reguired. to use his ownautOmobile on the employer's
business, benefits pertaining to time net worked by employees
including paid~holidays, paid vacations, group life insurancer
health insurance and long-term income protection insurance,
.promotions, demotions, transfers, lay-offs, or reappointments
of employees, the procedures applicable to the processing of
grievances, the classification and job evaluation system, and
the conditions applicable to leaves of absence for other than
any elective public office.pr plii$caJ actiyities or training
and development.
17.-(l) Every collective agreement shall be deemed to provide
that it is the exclusive function of the ei?plojer to manage,
which function, without limiting the generality of the foregbn9,
includes the right to determine,
-4-
(a) employment, appointment, complement, organization,
assignment, discipline, dismissal, suspension,
work methods and procedures, kinds and locations
of equipment and classification of positions; and
(b) merit system, training and development, appraisal
and superannuation, the governing principles of
which are subject to review by the employer with
the bargaining agent,
and such matters will not be the subject of collective bargaining
nor come within the jurisdiction of a board.
(2) In addition to any other rights of griebance under a
collective agreement, an employee claiming,
(a) that his position bs been improperly classified;
(b) that he has been appraised contrary to the governing
principles and standards; or
Cc) that he has been disciplined or dismissed or suspended
from his employment witbut just cause, may process such
matter in accordance with the grievance procedure provided
in the collective agreement, and failing final determination
under such procedure, the matter may be processed in ac-
cerdance with the procedure for final determination ap-
plicable under section 18.
From those sections it appears to this Board,and indeed from the
evidence it would appear that the employer'concurred in this view
throughout the negotiations, that while the "classification and
,joh evaluation s),stem" (emphasis added) is properly a matter for
negotiation between the parties and is within the competence of
a board of arbitratlon,nevertheless by virtue of s. 17(l) the
actual "classification of positions" is within the exclusive
prerogative of the employer and such a matter can "not be the
subject of collective bargaining nor come within the jurisdiction
of a board". Indeed, if the legislation had concluded at that
point, it could be argued that the employer's right to classify
<’
.’ -5-
.'.. positions would be absolute,:unfettered and beyond challenge in
-any forum. ,However and precisely because the legislature
recognized.that in an organization, as vast and pervasive as the
public service.the employer could innocently and in good faith
improperly classify: a person on'the basis of the operative
system, it provided the employees with the right, independent of
/ collective bargaining.and collective agreements, to challenge .'
such a classification: -Indeed it js..preci’seiy becake the .~ ~,
classification of.position is,: by virtue of s. 17(l) of the Act ‘7
beyond‘the competence-.of colle&ve.bargaining~ and boards of
:1
arbitration, that the right to challenge the classification of
one's position must.necessarily have, been given to the employee. .,
In-the result, and-against such a legislative framework, it is I , a.: '. ;
wee believe, simply notiwithin the competence or authority of
the union to make representations about a-matter which,except 1:
for the employee's 'personal right'of. grievance,falls within the - ..I . .
employer's exclusive"pr&og*ative, Necessarily then, and even
if the union had:made a representation on the propriety of
Mrs.,~Vukoj~‘S present.,classification th&'representation would, '.
in light of s. 17(l) simply have no force or effect and could not
have induced the employer to act to its detriment nor, in light
:. ofs. 1?(2),.could it‘have~ deFiedthe grievor any rights which the , _- I .~ legislature had be&wed upon her $ersonally. Re Joyce 21176. .z
However, and even if we are wrong in our analyses of the
,legislative framework with respect to the matter of classification,
there is, to this Board a second and equally fundamental flaw in
the employer's argument as to the arbitrability of the grievance.
Specifically. and onthe evidence adduced before this Board we are
-6-
requisite elements of an estoppel have been made out agatnst the
union. The doctrine of promissory or equitable estoppel has
been consistently applied by boards ,of arbitration 4n the
private sector and has recently been the subject of a thorough
review by one board of arbitration which observed:
The doctrine of promissory estoppel, or rare
properly on the facts of the case before us, estoppel
by conduct, has as it mdern source the judgmsnt of
Denning, J., in Central London
Property Trust Ltd.
v. Rfgh Trees Rouse Ltd. 0947jX. B. 130. This
doctrine AS subsequently developed and elaborated
by Denning, L.J. in the case of Combe v. Con&e 0953
1 All E.R. 767, 770, .'olds that:
"The principle, as I understand it, is
that where one party has, by h&s words or
conduct,made to the other a promiseor
assurance which was intended to affect the
legal relations between them and to be
acted on acmrdingly, thea, once the other
perty Jns taken Nmat Ns uzrdandected
on it, the one who gave the promise or
Assurance cdaaot afterwards be allowed
torevert to the previous legal relations
AS if no such promise or assurance had been
made by him, but he must accept thefr
legal relations subject to the qualifications
,which he himself has so introduced, even
though it is not supported in point of lAW
by any consideration, but only by his vord."
More specifically as elaborated fn an extrajudicia.2 exposition,
Dennfng, L. J. explained that the doctrine is only applicable
in those circumstances (i) where the parties have already entered
into a definite and legal contractual !or analagous relationship
(but see Watson v. Canada Pernnnent Trust Co. (19721, 27 D.L.R.
-’ 7-
(3d&i3S1 (B.C.'s.C.) and generally Jackson; d. "Estoppel
as a Snvrd" (X35), %3x L.,Q'. Rev. 84); (ii) that there must
be scmt~~nduct or promfse ,!'which. induces t+e other party
to &dfeye.that the.strict legal rights under the contract
!.will not be enforced,or will be kept in suspsnse"'i and
~, (iii). th+ "having.r&ard to the dealfngs.which,bave
taken place between the. parties" it.would be inequitable
to.allow-that party to enforce their strict legal rights.
With respect to this last condition Dennfng, LA7. has
written:;
i '. ..'
,;
"But where the &ty has made %J promise,
,C erRress~or-implied; and all that~canbe &aid ., ,. ..,_, again~t,h.h~is that he by Ns conducthas-
- -induced the*:other-to believe that the btrfct
. . rights ,under the contract will not be enforced
.or~ kept fn suspen&e; then the positioh,'fs
?- : different because~,there.fs no qixestion of
good faith--no queStion of a man keeping his
.woqd.-.& those~ cfkumstances it may be
necessary -for the other party to show mt
only that he acted, butalso that'he acted
to Ns detAment,'inthe belief that the
* strict rights would not be enforced. This
is what is necessary fn the case of an
!,:':, estoppel and there is no good reason why
it shuld not be'necessary here." 1
mMing, A. J., "Recent LWmlopments in the Doctrine of,Consideration",
(1952)~ 15 Mod. L. Rev. 1, 5.
.! .' ",;.; ,i
&m.the~aLvve and as has been recognized in earlier erbitral
awards (Re Westroc Industries Ltd. and United Cement, Lime's
apsum workers, Local'366 119?3), 3 L.A.C. (2d) 102, 110 (Reatty))
it i.s mnifest then that even when all of the conditions stipulated
by Lmning, L. J. have been met, the doctrine of promissory estoppel
merely suspends rather than extinguishes legal rights unless the
promise is absolute and irrevocable by its terms or unless the
-a-
party to whom the respresentation was nmde cannot resume
their original positfon. That is to say, perceived as
an aberration to or derogation of the doctrine of
consideration, courts have generally recognized that
such promises or conduct which is cOnstrued as tant-
amount to a promise, unsupported by consideration
generally could not be enforced in the same manner or
in the same fashion as d promise which was supported by
consideration. Rather, as the case law has.developed,
courts have expressed the view that where the prty to
whom the representation, whether by words or conduct,
was made can revert to its original position, the
party against whom the estoppel is asserted may bring
it to an end either on reasonable notice or when the
conditions which supported the estoppel have come to
an end. Tool Metal~kkfacturlng Co: Ltd. and Tungsten
Electric Co. Ltd. (1955) 1 W.L.R. 761 (H. L.); Central
London Property Trust Ltd; v. High Trees Rouse Ltd.
(SuDral . Indeed it has been held that the notice which
may-be given to bring the promise or representation to
an end need not be formal notice so long as the party
to whom the representation was made had a reasonable
opportunity of reverting to its original position;
Ajayi v. R. T. Briscoe (Nigeria) Ltd. (1964) 1 W.L.R.
1326 (J.C.P.C.). And see 9'enerally J. F. Wilson “A
Reappraisal of Quasi-Estippel" (1965) Camb. L.J. 93.
Re Genera? Concrete of Canada Ltd. (1976) 11 L.A.C. (Zd) 187,
ZOO-201 @catty)
Applying those principles to the facts of this case it is apparent,
at the outset, that, because the alleged representations made by the
-9-
union was made, if at.all, during the course of negotiations between
the parties, at a time when the parties had not entered into "a
definite and legalcontractual or analagous relationship",that the
, first and fundamental:&iterion of the doctrine~has not and can
not be sa,tisfied. 'Itide$1to clothe's <<presentation made during
the cuurse~of~negotiations'$th the force of'-a contractual right .
would be to undo, in one.stroke, years of common law jurisprudence
which requires for such representations to'have legal effect, that.'
they be supported~ by legal consideration. Very simply, unless
such a representation,made during the context of negotiations,
' found its way into the terms of the:agreement, it would not be enforceable .
either as a cqntractual right,or asan equitable estoppel.
.
Although such an analysis effectively precludes the employer
from relying.on the d0ctrin.e of .promissory estoppel, the Corporation
directed our attention to certain passages in an award of a board
,of arbitrdtion chaired by, His.ho,nour Judge Anderson, which ultimately
.
.culminated in the signing of a collective agreement, which it claimed
embraced the reeresentation allegedly made by the union. However,
on a clo~se reading of that award and'of~ the agreement we find
no support for the employer's contention. Indeed, and in any'
event, ,before-considering those passages, it is important to
I: recognize that even'if such a representationwere included in the
<agreement, one would be enforcing it, not by way of an estoppel,
as contended by the employer, but rather as simply part cf an
agreement which had been settled by the parties. The particular
passage referred to by the employer reads as~follows:
- 10 -
The Board understands that there is a range of rate5
which covers all full tim clerical employees in the various
classifications. In most instances, ft is the Board's
understanding that in addition to th8 lowest or Starting rate,
the employee ~118~s he/she is not a satisfactory emplOyee,
mO”8S up through four ranges -
the second range being generally aldut 4% higher
than the first range.
the third range being qenarally about 4% higher
than the second range.
the fourth range being qenerally about 4% higher
than the thlrd range.
th8 fifth rang8 being generally a&Ut 4% higher
than the fourth range.
and that an employee mves through the range on an annual basis
unless J&she is not wnsldered to be a satisfactory employee.
Tbut, a cl8ricN employee buu.Zd arrive at the highest step Fn
the ranqe aft8r fOut years Of 8mp~OyIWnt Wh8r8 there dr8 fOIU
steps in the range in addition t&the starting rate. Where
there are Only three steps in the ranqe in addition to the
Startli?q tat8 the 8SIp1Oyw vould likewise woe through th8
range of rates and up to the highest step in the range after
tht88 years Of 8IDp~O~t~ It shell be part ofthd award thdt
employees be placed in the range of rates in th8ir pmper
classification and progress through the range of rates in
dCWrdwC8 With the fOr8gOing.
According to Mr. F. Harrison, who.at the time was employed as a
Senior Advisor, Staff Relations and who participated in both the
direct negotiations and in the sessions conducted by His Honour
-‘ll - 5
Judge Anderson, that passage inthe award, ultimately reflected itself .,
in Article 14 of the agreement. 'Article 14, begtns by providing:
: %., ARTICLE 14 - WAGE RATES
' ,
14.01 The wages df'all ekplo$ees cvminq wf& the barg&inq
'I. unft, SbalJ be a,? fc+lows: (full time,employeesl
GROUP 1 - ADMINISTRATIVE ENPLOYEES,,~ whose wdqes,.are
8XpreSS8d On a y8ariy basis
CLASSIFICATION .Y ., 2nd 3rd 4th 5th
and continues by listing, by classification,,;the range of wage rates
that are appended to.each of them, ,_ ,."i
On their face,.and standing alone this Board is simply unable
-~to acceptthe'employer's contention that the passage cited above
and Article.14 in any way kh-ess themselves to the issue of where
each of the BOO~to 1,000 employees &$loyed'by the Corporation
are to be placed in the classification scheme.
In the first place,
as we noted earlier, such an hssuinption:by the Board, would have
directly,offended s.' 17(I) of the Act': Moreover, on its plain
terms, and as'it is reflected in Article 14~, the passage in "
Judge Anderson's~award, on our reading, sim$y purports to confirm,
in general or global terms, that employees are to be placed in
their proper classification"at ttie'prope'r rate in accordance with
the procedure described in that passage';. That is, and very simply,
the award itself purports to do no more;thanestablish the principles
of the range of rates that are to'be appended to'each classification
and the,timthod'by which employees dare to tie allocated to and
progress through.those ranges:~ Succinctly, the award and the
agreement direct-themselves only to the issue of how-employees
generally are to be classified,and not kh6 is to be positioned in each clas.
sification. Indeed if that were not the case, there would have been no
-12-
need for the board to have added in the concluding sentence of the quoted
passage that employees were to be placed in their "proper" classification.
Infact, by including that word in his award, we believe that His Honour
Judge Anderson clearly understood the limits of his authori,
pressly preserving an employee's rfghts as expressed in 5.1
Act to grieve an improper placement.
ty and was ex-
7(Z) of the
Ue belleve that both the award and the agreement are clear on
their face and do not admit of any ambiguity or interpretation that
the board was ordering the actual placement of some BOO employees in aP-
proximately thirty classifications. In the result we'd0 not believe
it necessary or proper for this Board to admit extrinsic evidence to
explain what we perceive to be the plain meaning of those documents.
However and to the extent extrinsic evidence was adduced at the hearing,
even if it were admissible, we believe that it confirms our reading of
the award and the agreement. In the first place, as Mr. Harrison himself
admitted, at no time did the union or any of its agents actually raise the
name of this grievor and confirm that her proper classification was that
of a Clerk Typist 3. Moreover, and although the classification of certain _'
employees in other parts of the province was raised by the union as being
described incorrectly on certain documents submitted to the board of
arbitration, that fact standing alone simply does not reflect the kind of
clear representation that is required to support an alleged estoppel.
Thus, according to the union's evidence, their queries with respect to the
classification shown by the employer for certain employees employed elsewhere
in the province were intended to do no more than demonstrate the inaccuracy
of,the material the employer had filed with the board and did not represent,
nor were intended to represent an agreement as to the classification shown
;
- 13 -
,’
by the employer for all oftheother, 800 employees in the unit. ..Mo,reover
.~and ~if, as the empl,oyer,argued, boththe passage in the award noted above .
'and Article 14, had as.thpir source a question posed by the board to the
parties, again we are s!mply~unabl,e to comprehend how one can argue that ~1..
:the questioning of the~classfffcation of one ortwo employees,whfch was in-
dicated'on documenfs,~:pre,pared by the employer can ;be,,said.to be a<re-
,presentatfon by ,the unjon that all of the other. employees,were properly
classified. That question, as posed by the board and as primarily directed
'to the employer askech . *, -_
.;-; ',, t.
20. Row sre the various employees piaced~ in the different da&-ifications? :
However, and as manifested in the,letter.sent by the board, it fs Llear
,that in asking that question the,,board was not attempting to piace each
employee in the unit in a partjcu;.& classification, but rather v& simply ,, L
attempting to work out some fair and equitable system of wage apportion-
ment between the classificatfons ,and.perhaps as well to ascertain, the ap- ,.
proximate cost of its ultimate awarp. Thus, !n addition to Question 20,
the board also asked: ' : - I I..
~.Re: CLERICAL EHPLOYEES~
18. What are the actual hours of work of clerical employees who work:
35 hrs. per week; 36% hrs. per week: 37% hrs. per week; 40 hours
per week? : - ._ IL>
19.. In the cage where the hours differ, islthe rate~of pay,determined
by the hourly rate or by the yearly rate?
21. Are the& overlapping responsidilities in the different cl&sifications?
. .-.
22. DO employees, exc&pt in'exceptiod circumstanties, only perform work
within their own-job descriptions? .
Thus and as Mr. Harrison himself confirmed amongst the primary purposes lying
behind the board's posing of Question 20 was its attempt 'to strike some
- 14 -
equitable system of wage rates for comparable classifications, and to
determine whether the differential in the job duties of the classifications
was sufficiently clear. In short then, and in that context, it was we
bel~ieve not reasonable for the employer to conclude that in challenging
the classification ascribed by the employer to one or two employees in one
part of the province. it was tacitly confirming the classifications ascribed
by the employer to all other employees in the unit. To the contrary, and
more reasonably we believe, the union's marginal discussion of particular
classifications was intended, and reasonably should have been perceived,
as fan attempt by it to challenge the accuracy and worth of the
employer's data that was submitted to the Board. Very simply, and in the
context of what we believe, and the parties basically confirmed, was es-
sentially an assessment and determination of appropriate rates for comparable
classifications, we do not perceive the union's actions and. representations
to be so clear and unequivocal or so singular in purpose that they could
give rise to an estoppel. Indeed in the complete absence' of any detailed
discussion between the parties or by the board as to the particular clas-
sification of the employees, we would conclude that it was unreasonable and
umrarranted for the employer to have assumed that the union or fndeed the
board was making any representations as to the propriety of the clas-
sification of some 800 employees in the unit. In short, and in the context
descr'ibed we'would find as a fact that the union did not make any re-
presentation which was so clear unequivocal and singular in purpose
that the employer should have relied upon it as revealing a conman intention
of the parties as to the individual classification of all of the employees
in the unit.
I
/
I
*
(
i
- 15 -
.~ ‘. . .
In the result and having determined that thi' embloyer had failed
to prove the requisite elements of an estoppel agai~hst the griever', the board
:: '.
reconvened the hearing on Juno 3, 1976 and again'on 'Cctober.l8,'1976 to
receive evidence and argument with respect to the merits of Mrs.' Vukoje's ,..
complaint. tiohever and prior to the introductionof any evidence,
the employer challenged.the,presence at the hearing of
Mrs. C. A. ,Cox, another employee.of the Hamilton Housing Authoritylwhose
grievance was filed,together with Mrs. Vukoje's and had, on the,agreement
of the parties, beenset down to be heard by the same panel of.-this board
immediately fo!lowing the conclusion of Mrs. ,Vukoje's case. After enter-
tafningsubmfssionsfrom both counsel, this Board, having been offered no
legal basfs on whfch.Mrs, Cox,could be ,excluded, denied thelemployer's
request. Very simply, and although this Board was apprised that the employer
had denied.Mrs. Cox the permission to attend~at the Board, we expressed the
view that regardless of whether Mrs..Cox could properly be
disciplined for attending at.the hearing on June 3,,1976,that was,in the first
instance, a matter for the employer,to decide and ultimately,should Mrs. Cox
grieve ..any_su~ch dfscfpline, for another panel of this Board to
pass on. Until.those eventualities transpired howev&'such a determination
would obviously be premature and beyond the competence of this ,Board.
however, and in advising the employer that it was not within the competence -
or inclination of-this Board to order Mrs~;.Cox to return to work, it was
noted that it.was our understanding that Mrs. Cox's grievance was scheduled
to-be heard by this same panel of the Board inmediately following the con-
clusfon of the hearf~ng into Mrs. Vukoje's grievance, and,that if we con-'
eluded her grievance at a reasonable hour, it was the Board's expectation .~
to proceed forthwith with Mrs. Cox's case. It wds, moreover~, the Board's
i
- 16 -
opfnfon that the employer and indeed ultimately this Board might well
consider the manner in which these two grievances were scheduled by the
Board in determining whether it was proper for the employer to prohibit
her from attending at this hearing and for threatening her with disciplinary
sanctions for her failure to conform to their instructions.
Those protracted and at time acrimonious preliminary matters
aside, the evidence adduced at the latter two hearings, while detailed and
lengthy, was, for the most part,straightfotward and not a matter of dispute
between the parties. In the first place, and as described by the grievor,
1 Ms. West, and her supervisor Ms. fedford. Mrs. Vukoje's job duties
throughout the period from March-April 1973,when she was classified as
a Clerk Typist 2,until the date she filed her grievance. remafned
unchanged and for the mOst part consisted of certain posting, cashiering
and'typing duties. More specifically. and as reflected in a Duty Roster'
jointly prepared by the employer and Mrs. Vukoje. the latter's job which
was entitled "O.H.C. Postings and Assistant Cashier" included the,
following duties:
1. P&form Assistant Cashie.r functions as required. To use Cashier "C"
(
button on N.C.R. wchine on alternate days with C. Fazsari.
2. Post O.R.C. payments, edjusmnts and maintenance charges as required.
(Office Overload assistmce at first of month)
3. When adjustments are wde in rent, type new rent on card and file
second copy of lease amendment in Lease Amendment Completed file.
4. Assist in posting O.H.C. tent charges at 8th working day before end
of month.
5. 'Mark payments off Rental Arrears List first thing &ch morning.
6. To perform any other duties as required during the month.
Moreover. and while it is difficult, from the evidence, to ascribe exact
i - 17 -
'~, percentages to-each component of her work, it'was 'the .grievor's evidence, : ~.
which was not seriously challenged by the'employer,.that.at no time did , .' she spend 30% of her time on‘typing'duties. Put somewhat"differently.
'even when she hadthe assistance of a casual employeq,to.post the O.H.C.
.payments and tharges,,:it is clear from the evidence that.the firs&
duties described in ,the Duty-Roster were.her'primary functions and,would,
over the course of a week or.month,always account for at~least fifty
percent of her tfme. .In short and throughout thfs perfod,it would, as .:
Mr. Challoner inferred(kxhibit‘6) and as Mr..Harris~on in effectconceded
in his..evidence; be,fairto zonclude that it was the typing function and
not the cashi.er.~or‘posting"duties which assumed a secondary role in her .< :, . .
job. ‘* : .’ _, _, ‘. ;: : ~.., : .., ‘: ,. ., _
,~.~-oy.e -‘: ..,.
~ ~~ Apart, from~these~quantitative,~estimates &to the amount of time a,. L. :
spent on the various duties described.above, the parties were also in -
substantial accord-as to the'qualitat.&e'nature of each,of these functions.
Thus and with respect to her, cashiering duties,~both the grievor and
2 .!!,. .: .' _..
Ms. .ledford confirmed that'her work, although on a relief basis, conformed .' ..'..' i L'.. ./,, ,
In all respects,to that performed by‘Ms. Batchelor and'Ms. Gross who were <
the regular full time cashiers. Furthermore, and with respect to her
:,
: posting duties it was conceded by all, that these were limited in scope, ,'
were not related to the gene&i ledger, did not require her to perform a-_.' .~
, such bookkeeping,functions as reconciliations or trial balances',and in ',1 I
all respects were more simplified and routine than the bookkeeping and - I ,, .~
accounting functions performed by Ms. West. Finally,and with'respect
~. c ,. . .
~to her typing assignments,it appears.from the evidence that the vast ., :,‘ I 1 1.. , ,:'
majority of those duties were related to 'the work of the Accounting Section .T'~. ^ ')- "1 3
and would include such standardized-and routine tasks &typing new leases
and lease amendments on the tenant cards, N.S.F. letters, rent arrears
- 18 -
I conceded by both parties. In no sense could her typing duties be
characterized as working on "specialized assignments involving considerable
length, complexity and variety of subject matter".
In making a determination as to whether a particular employee
has been properly classified, this Board has expressed the view that
our inquiry will proceed essentially under two different heads.
Specifically. and as we have noted in our Re Rounding award 18/75 (p.4):
I I \
. . . . . . . . . . . . . . . . . . . . . ..when faced with a claim that a position
is improperly classified, and assuming those classifications
conform to the general law of this jurisdiction, this Board
is limited h the express provisions of legislation to deter-
mining whsther or not on the system employed and the clas-
sifications struck, the employee in question is actually
performing the duties assigned to that &wsition or evfm
assuming that to be the awe, whether that employee is
nevertheless being reguired to perform virtually the
identical duties which, the class standard notwithstandixig,
are being performed by employees whose position has been
included in soak? other xw.? senior classification.. In short,
it would, under the present statutory scheme, only be in.
those or analagous instances that an employee's grievance
under s.l7(2)(.3) would be entftled to succeed.
Applying those principles to the cfrcumstances of Mrs. Vukoje's
grievance. and notwithstanding that on the duties described it is not,
to this Board, inmediately self-evident precisely which of the various
possible classifications most closely conform to the grievor's job,
nevertheless it is, to this Board, beyond dispute that the grievor should
not have.been classified as a Clerk Typist 3. This latter conclusion we
believe can be supported on a number of different grounds. In the first
place, and most critically, on the dutfes described, it is manifest that
the grievor simply does not perform those tasks which are integral and
essential to the Clerk Typist 3 Job Standard. That Standard, which like
all the Job Standards is a global and composite one, covering a range of
., =.
- 19 -
f tasks and duti,es' performed by persons so.classified .acioss the province,
calls for:"a significant partem (over ‘30%) of their time @ be] spent
on typing spdc.ialiied assi&ents involving considerable ,length, complexity
,.
and variety of-subject hatterl'.~' On the evidenceFdescribed,.it is clear >
that neither the quantity nor quality of typing duties assigned to and &
performed by the'grievor'even,remotely 'approximate such a standard. To
the contrary on the'grievor's. uncontroverted evidence.,at.no time 'did
she perform such a quantity of 'typing and what typing she did, as
~confirmed by Ms. Tedford, related to more standarized and regularized .
! headings, .forms and letters:. Moreover and on the evidence of Ms. Tedford, .!.
Ms.. West and the grievor, it.would appear 'that the persons who are and
,have been classified as Clerk Typist 3's did not perform any posting
duties and either were assigned exclusively to typing duties as in the
case of Ms.. kiacDougal1 and MS. Scottor spent a'~majority of their
working time.on such tasks as in the case of Ms. Quinlan. Thus and.even 1, .-,
allowing for the global, composite nature of the job standards, against
the duties performed by those persons whose classification of Clerk,
Typist 3 is apparently not in dispute between the parties, it is manifest
that the grievor's normal work performance bears little affinity or
c relationship to them. Indeed, when it is appreciated that the grievor
was, according to MS. Tedford,'reclassfffed to a Clerk Typist 3 from her
. ..'
Clerk Typi~st 2 position in January 1974 so as'to ensure she received an
equitable rate of pay and not to reflect any change in her duties, which t ,.
both the grievor and Ms. Tedford confirmed remained unaltered, it is T
self-evident to this Board that the 'griever could not have been properly
classified as a Clerk Typist 3. Re Toronto General Hospital L.A.N. July
1976 (Weatherill).
In fact, the employer in effect conceded the impropriety of
the grlevor's present classification when, on the duties described, Mrs.
Tedford claimed and the employer asserted that the grievor was more
properly classiffed as a~Clerk Typist 2. Indeed when the duties and
responsibilities of the Clerk Typist 2 that are set out in that job
standard are reviewed, it is apparent that the grievor's duties do more
closely conform to that classification than they do to her present clas-
sification. Thus and in addition to.requiring a quality of typing
more closely conforming to that performed by the grievor, that Job
Standard unlike the Job Standard for the Clerk Typist 3, makes explicit
reference to the performance of minor bookkeeping functions and to the
handling of cash, the Go functions, which, on the evidence described,
amounted to the primary duties of the grlevor. However, on a more
careful and closer analyses of the Clerk Typist 2 classification, it Is
manifest that on the duties she performs Mrs. Vukoje could not, Ms.
Tedford's opinion notnithstandlng, properly be classified as a Clerk
Typist 2. In the first place and most critically, the grlevor slmply
does not perform the volume of typfng, "at least 30%" , which is
anticipated by the Job Standard. As well, and although the grlevor serves
with Ms..@inlan as an Assistant Cashier, the Job Standard for the Clerk
Typist 2 assumes that such persons will handle cash and provide receipts
"usually in smaller offices where no regular cashier is employed".
Similarly and although the grievor's posting duties could properly be
described as minor bookkeeping functions, such tasks, when performed by
a Clerk Typist 2 are done, according to the Job Standard, "usually under
: I
- 21 - ., I '/
! the,supervision.of a more senior clerk or Housing &nager". .From the (_< -.
evidence of Ms. Tedford and Ms. West it is apparent that the grievor . :
~perfoned the posting duties assigned ,to her without such supervisory .~
control. / c-c
.r Having demonstrated that both‘against the Job Standards and against
the duties actually performed by,persons 'classified as Clerk Typist'3's
that she could not properly be classified either as ,a Clerk Typist 2 or 3,
it remains for this:Board to assess Mrs. Vukoje's claim that on the duties
she regularly performedfrom the spring of 1973 until the date of her
! grievance she should more properly have been classified as a Clerk 3. In
advancing this clalm'the grievor, througti 'her counsel and herown evidence
conceded that she did not and never had performed many of the functions
and duties described in the Job Standard for~thatposition. As well, she
candidly acknowledged that the posting and bookkeeping functions performed
by'her did not'coin~are in cumplexity; didnot require the application of
diverse'skills, was'not.as voluminous and did not embrace such functions
as reconciliations and trial balances that were regularly performed by
!?si Westwho,'as'noted, was also classified':& a Clerk 3, Indeed it was essential1
( on the difference in duties and responsibilities of, MS- West and Mrs.
Vukoje that the emdloyer rejected the grievor's characterization of
her duties as those of a Clerk 3. . .,
/ However and.to refer again to our earlier Rounding award in
determining whether Mrs. Vukoje should properly be classified as a ,
Clerk 3, this Board may consider not only whether she'is performing the
duties assigned to that position but as well whether she is performing
functions which are virtually identical to those assigned to those '
employees who both the employer and employee agree are properly classified
(
I
,- 22 -
( as Clerk 3's. With respect to the first aspect, that is in comparing the
duties performed by the grievor that are described on the Duty Roster with
the typical duties delineated in the Job Standard of the Clerk 3 it is,
on the evidence noted above, readily apparent that at no time was the
grievor called upon to perform many of the duties described therein.
However and while it is true for example that Mrs. Vukoje never scheduled
i
tho:se tasks. Rather and recognizing that such standards are global and
composite in nature, reflecting the accumulated skills, responsibilities
and duties of persons classified as Clerk 3's throughout the Ontario
Housing Corporation, it is expected and recognized that a person may
perform only one or two of the duties described therein and still properly
be classified as a Clerk 3. Indeed it is only on such a premise that the
employer could have classified Ms.West. Ms. Pennance. Ms. Little, Ms.
Mulligan, Ms. Thomson, Ms. Batchelor and M~.~Gross. each of whom performs
unique and quite distinct tasks, as Clerk 3's. Thus,for example,while
Ms.~ West, as described, performs most of the more complex posting and
bookkeeping functions, .Ms.,Little apparently administers the payroll
function, MS. hlligan calculates the rents, and MS. Batchelor and
Ms.Gross act primarily as full-time cashiers. Indeed it is the latter
two employees,who were described both by Ms. West and Ms. Tedford as
being full-time cashiers, whom the grievor claims and we believe most
clearly parallel her situation. That is, and'while the grievor conceded
that her cashiering duties are quantitatively less than those performed
by Ms. Batchelor and Ms. Gross, nevertheless it is a matter of record
that qualitatively their cashiering functions were identical. Moreover
visits of Home Visitors, administered the payroll function, reconciled
various journals or calculated rents, neither Ms. West nor any of the I
other.Clerk 3's in the Hamilton Housing Authority ever performed all of
j - . :.
- 23 -
! it',is.the conclusion of the Board that as described on her Duty Roster,
Mrs. Vukoje's'posting.dutIes would in quantity and quality resemble the
cashiering and associated duties performed by Ms. Gross and Ms.~ Batchelor.
'In short,.and while it is true, as MS% Tedford claimed, thqt Mrs. Yukoje's
cashiering duties were not full ~time, nevertheless those duties.toget,her
with her posting functions closely approximated in quantity and quality
the type of work performed by Ms. Batchelor and Ms.~ Gyss.
.More specifically it is our ooinion that her primary duties of posting
' and cashiering can'be and most fairly,are equated with those duties assigned to
i and performed by; Ms. Batchelortand Ms. West and on that basis we are
constrained to hold that she must on the duties described,be classified
as a:Clerk..3. .~Very.simply we simply.can not perceive any material difference
~,ln skill, responsibility, or type,of work performed by those two persons
,Ywhom.the employer has cl.a,ssified as Cle,rk 3's and the duties performed by
the griever.' To the,cqntrary both the cashiering and posting duties
performed.by the grievor can,be characterized as minor bookkeeping functions
which would also fairly describe the duties of the full-time cashier.
Moreover, and while we share the employer's'view that a distinctjon can be
t drawn between the duties performed by tls.. West and the grievor, it must be
recognized that such a distinction has not induced the employer to alter
the classification of the two full-time cashiers whose duties we have
found, in the context of the Hamilton Housing Authority, closely parallel I
those performed &the grievor. As well, and in any event it must be
recognfzed' that as composite and global Job Standards, the position of
Clerk 3 will necessarily embrace a range of tasks and jobs of varying
complexity,,-skill and responsibility. Accordingly and simply because
. .
L
- 24 -
I the grievor. or others such as the full-time cashiers, have not been assigned,
and necessarily have not performed,a full range of the more difficult com-
plicated tasks delineated in the Job Standard for the Clerk 3 position
can not preclude the grievor from being classified~within that position. if,
as here, her primary functions closely resemble in quality and quantity
those performed by persons the employer concedes are Clerk 3's and fall
naturally wlthin the Job Standard for that position.
In the result we must hold that Mrs. Vukoje's grievance must
succeed. I Accordingly it is the conclusion of this Board that as of the
specific date in the spring of 1!23 when she conanenced to perform the
assignments described on her Duty Roster, Mrs. Vukoje must be classified
as and 'be paid the rate of a Clerk 3. In the unlikely event the parties
should have difficulty implementing this award or detenining the precise
caapensation to which the grievor is entitled as a result of this award,
we shall remain seised of this matter for thirty days following upon the
\
release of this award.
Dated at ,Toronto this 10th day November
4
1976.
D. M. batty
Chalrman
Mary Gibb
Member
I wncur
S. R. hennessy Member