HomeMy WebLinkAbout1976-0007.Thompson.76-05-13---.-
CRoWN EMPLOYEES
GRIEVAN& SETTLEMENT
BOARU
416/%5/1410
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7/76
Owen’s Pafk
Toronto. 0ntarlo
WA 125
IN THE MATTER OF AN ARBITRATION
'Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: -Mrs. S. Thompson
,And
(The Grievor)
The Ministry of Natural Resources (The Employer)
Before: D. M. Beatty - Chairman
E. J. Orsini - Member
H. E. Weisbach - Member
For the Grievor
Mr. G. M. Yemec - dntario Public Service Employees Union
For the Employer
Mr. A. J. Temple - Ministry of Natural Resources
'. -' Hearinp
WestbutyHotel, Toronto, Ontario, May 7th, 1976
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Mrs. S. Thompson grieves that, as a Clerical Typist 2,
in the Ministry's Engineering Services Section at the Chapleau Field
Office, she has been improperly classified. More specifically it
was the griever's contention that by virtue of the duties she is
presently performing she should more properly be classjfied in the
General Clerical Series at the level of Class 2 or 3.
At the outset of the hearing Mr. Temple, for the employer,
challenged the jurisdiction of this Board to hear Mrs. Thompson's.grievance
on the basis that the grievance had been filed heyond the.time limits
set out in s.63 of the Regulations promulgated under s.29 of The Public
Service Act and beyond the extension of those time limits that he had
granted to the griever's representative. Indeed, although Mr. Yemec,
for the grievor, offered several explanations for the delay in filing
Mrs. Thompson"s grievance, he candidly conceded that her grievance had
in fact been filed beyond periods described by Mr. Temple. However,
because of the interpretation that we would place on s.63.of the
Regulations we do not believe that the grievor's failure to comply with
its provisions is fatal to her grievance nor, necessarily, to the juris-
diction of this Board. Rather, it is our view, for much the same
reasons that we articulated in the Re Eriksen 12/75 decision with
respect to the applicability to this Grievance Settlement Board of
s:49 of those same Regulations, that s.63 and the procedures outlined
therein can have no application to the proceedings filed with this
Board. That-is, and very simply s.63 by its plain terms purports to
apply to "The Classification Rating Committee" which prior to the
enactment of S.O. 1974 c.135, being an Act to amend The Crown Employees I
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Collective Bargaining Act,'was the Tribunal whose jurisdiction it was to
resolve grievances with respect to classifications. Suhseauent to the
amendment of The Crown Employees Collective Bargaining Act however, for
employees, such as this grievor who remain in the bargaining unit, that
Tribunal was, by virtue of s.l7(2)(a) superseded by this Grievance
Settlement Board. Because it was under thatsection of the Act, rather
than under s.63 of the Regulations that Mrs. Thompson must, by
definition, come before this Board, demonstrably the time limits
described in s.63 of the Regulations which by their express terms have
reference only to the Classification Rating Committee, can have no ap-
plication to this Board nor to any grievances filed with it. Moreover, i ;
and because, to date, this Board has been unable to promulgate
Regulations of its own, there are presently no time limits of which
this Board is aware which would he applicable to Mrs. Thompson's
grievance. Accordingly and having determined that s.63 is,hy its plain
terms,simply inapplicable to the grievance before us, we must conclude
that we are properly seized of it.
With respect to the merits of the grievance, then parties
are in substantial agreement as to all of the relevant and material
facts on which Mrs. Thompson's complaint is premised. Although there
were some differences in the evidence of Mrs. Thompson and her
supervisors with respect to particular details of her job we do not,
for.the reasons that follow, feel-these are in any way material to the '.
resoTution of the issue before us. Rather we are of the view that.as
manifested in the Position Specification (Exhibit 2) the Class
Standards (Exhibit 3) and the Audit Report (Exhibit 7) which pertain to
the grievor's job, the.parties are in substantial agreement on all of the
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material duties performed by Mrs. Thompson and the duration of time
that she expends on each of them.
From those documents, and in particular Exhibits 2 and 7,
it is apparent that Mrs. Thompson's job duties fall into three general
areas: clerical work, general office duties and typing. With respect
to duties, the parties are agreed that 50% of Mrs. Thompson's time
would be spent on various clerical and associated duties essenti.alTy
involving the preparation of various monthly reports, the maintenance
of certain ledgers and the issuance of various cheques; 30% of her
time would,entail general filing, office and miscellaneous duties,
while the remaining 20% of her job related to typing functions that
she performed for various officials of the Engineering Field Service
staff who worked out of the Chapleau field office.
..~
Apart from the quantum of time that Mrs. Thompson
expended oneach of these duties two additional facts were clearly
.:- established before this Board. In the first place, it is apparent
that most, if not all, of Mrs. Thompson's clerical duties have been
in the past, and indeed are at present being performed at other field
i offices or at the District Office in Chapleau by persons who have been
or are presently classified in the Generals Clerical series at the level
of Class~2 or 3. Secondly, it should be noted, and again there is no+
serious difference between the parties on this issue, that althouqh.the .-
typing duties that Mrs. Thompson performs in her job represent, at most,
20% of her overall job fu,nction, because of the administrative and
geographic structure of the Ministry's operations in.,Chapleau, those
duties can ~only be characterized as a necessary and integral part Of
her job. Indeed it was her own evidence, which was confirm&by
Mr. G. Black, her immediate Supervisor, that she would do virtually
all of.the typing of letters, reports, and various forms that emanated I
from the supervisory staff in the Engineering Services who were located
in~~that office.
Against that evidence it appears to this Board that two
conclusions inexorably follow. In the first place we can readily
comprehend and indeed share Mrs. Thompson's sense of inequity and
frustration inthe situation in which she presently finds herself.
On the one hand, as described, all of the cleri~cal duties which she
presently performs and which represent 50% of her total job duties,
have.been and continue to be assigned to persons in other offices
of this Ministry who are classified in the General Clerical series,
at either level 2 or 3 and who, accordingly, receive a higher rate
of pay. Indeed from the class standard of the Clerk 2, General it'
would appear that persons classified in that position perform no
~. other duties of~a higher or more complex skill than those which are
similar to the clerical duties performed by Mrs. Thompson. Very
simply those persons perform on a full time basis a function and
skill which consumes 50% of Mrs. Thompson's time. Mrs. Thompson
on the other hand, as well as performing the singular job function
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of the Clerk 2, General, possesses the additional skill.and performs
the extra function of typing, That such duties require unique and
additional talents is manifested by the Class Standard for her position
which requires that she successfully complete the Civil Service Commission
typing test. However and notwithstanding that in addition to performing
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the unitary task required of the Clerk 2, General under virtually
identical work conditions, she is able to perform an additional and
specialized skill of touch typing, Mrs. Thompson finds herself compensated
at a lower rate of pay. 'That such a situation offends and is manifestly
inconsistent with any logical, rational and fair system of employee
compensation is obvious. That such an inequity would undermine an
employee's confidence and would spawn this grievance is understandable.
Very simply it seems to this Board to be so patent as to be trite
that if, as the evidence suggests, Mrs. Thompson is capable of and in
fact performs all of the duties of a Clerk 2, General for 50% of her
time and as well is capable of rendering an additional and valuable-
typing service to the benefit of her employer, it isshe, rather than
the Clerk 2, General who demonstrably deserves to be paid at the higher
rate. In short the evidence adduced before: this Board clearly confirms
Mrs. Thompson's complaint that she is ins fact underpaid.
However and our empathy for Mrs. Thompson's plight
notwithstanding, it is equally apparent, that on the evidence presented,
I her grievance before this Board must of necessity fail. That is to
say, and to anticipate our ultimate conclusion, although we
'i
believe Mrs. Thompson is quite properly aggrieved and frustrated with
it is in another forum or before another .*;a~. her present circumstances,
Tribunal and not this Board that her case should properly be argued.
Put somewhat differently, it is, we believe, her rate of pay relative
to that of the General Clerical series, certainly at level 2, and
possibly at level 3, which is properly the gravamen of her complaint
and not her present classification. However it is as only the latter,
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and not the former with which this Board may properly concern itself
and on the evidence adduced, it simply can not be said that Mrs.
Thompson is improperly classified.
In determining whether Mrs. Thompson has been properly
classified, the jurisdiction of this Board, is by virtue of s. 17(l),
narrowly circumscribed.By virtue of that enactment where, as here,
there is no allegation that the classification system that was established
or agreed to by the employer was applied improperly, this Board's inquiry
as to whether an ~employee has been properly 'classified is essentially
directed under two different heads. That is, and as we have noted
earlier in our Re Rounding et al 18/75, decision,-
. . . . . . . . . . . . . . . . . . . . ..when faced with a claim that a position
is improperly classified, and assuming those classifications
conform tb the general law of this jurisdiction, this Board
is limited by the express provisions of legislation to deter-
mining whether 01 not on the system employed and the clas-
sifications struck, the employee in question is actually
performing the duties assigned to that position 05 even as-
suming that to be the case, whether.that employee is never-
theless.beinq required to perform virtually the identical
duties which,the.class standard notwithstanding, are being
performed by employees whose position has been included in
some other xxe senior classification. in short, it would,
under the present statutory scheme, only be in those~-or
analaqous instances that an employee's grievance under
s.l?(2)(a) would be entitled to succeed.
In the result, and we also noted in our Rounding award, it is simply of
no relevance to a grievance filed under s. 17(2)(a) of the Act that the
grievor or indeed this Board is firmly convinced that the wages that are
.~ appended to the relevant classifications do not fairly or accurately ~..
reflect the differences in skill and job duties that are required in
each. To the contrary the only relevant-inquiries that this Board is
Permitted to,make with respect to grievances filed under s.l7(2)(a) of
the Act are those 'which we havepreviously noted in our Rounding decision.
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Accordingly and when such inquiries are made in the present case, it is
readily apparent that this grievance can not prevail. In the first place
it is, we believe, beyond dispute that the grievor does perform su.fficjent
typing skills and duties that they can not be said to be merely incidental
to her job. Such a finding of itself is fatal to a claim that the grievor's
job should more properly be classified,-in the Clerical General series
where, as the preamble to Class Standard describes typing and sten-
ographic duties are merely"incidenta1" to such positions. Moreover,
simply on the basis of percentages alone, we believe that where a person,
such as the grievor, expends 20% of her time in the performance of
typing duties, those duties can only be described as sufficiently
important that their "removal would significantly change the character Y.., -3:
of the job". That being one of the~primary standards on which the
Clerical Typist series is premised, it necessarily follows that the
grievor's present duties fall within that classification. Indeed~that
conclusion is even'more imperative, where, as here, the grievor performs
all of the typing duties in her offices for the Engineering Field Services
Section and where the removal of those duties would as Mr. Black and
Mr. Crawford testified significantly offset the need for Mrs. Thompson's
job to be performed in its present location. Ins short we believe that
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on her own evidence, as well as from Exhibits 2 and 7, that her present
duties with incidental exceptions fall squarely within the job standard
for the positionof Clerk Typist 2.
Moreover there is simply no evidence before this Board that
some other employee, lrhose job duties substantially parallel the multi-
faceted duties of the grievor, has been classified other than as a
Clerk Typist' 2. Although it is true that evidence was adduced before
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this Board that certain other persons in other field offices in the
Chapleau District who were classified in the General Clerical Series
did perform virtually the identical clerical duties as the grievor,
there is no evidence that any of them performed the typing duties
that are presently required of Mrs. Thompson. In the absence of
such evidence, this Board is simply unable to draw any conclusions
as to the propriety of the grievor's own classification other than
to surmise, as we have above, that the grievor's relative rate of
pay, rather than her classification is palpably deficient.
In conclusion, having carefully compared the grievor's
job duties as they were described by her and as they are set out in
her position specification andin the audit report, and in the absence
of any evidence that persons whose job duties substantially parallel
those of the grievor were classified in positions other than a Clerk
Typist 2, we are firmly of the view that in light of the Class Standard
for her position that she has been properly classified as a Clerk Typist
2. Moreover. and although, as:we.have stated above, we share Mrs. ~'
Thompson's sense of frustration and injustice in the rate of pay that
shoe, presently receives relative to that awarded to the employees in
the Clerical General Series at least in the Chapleau District of this
Ministry, we simply have no mandate or jurisdiction to remedy that
inequity. Rather and as the Union and the employer are well aware,
that is a matter that properly is and should be raised between them in .~
direct%egotiations. It is in that forum that Mrs. Thompson's complaint
properly lies and it is those parties who can and should remedy it.
In the result, and for the reasons given; this grievance must'be
denied
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Dated at Toronto this 13th day of May, 1976.
D. M. Beatty
Chairman
E. J. Orsini
Member
H. E. Lleisbach
Member