The URL can be used to link to this page

Home My WebLink About1978-0163.Frederiksen.81-07-29Between: Before: 163/78 IN THE MATTER OF AN $RBITRATION Under The CROWN EWLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Grievor: Mr. N. Luczay, Grievance Officer Ontario Public Service Employees Union For the Employer: - Mr. 1Y. Vance Ministry of the Environment Hearings: October 24 and November 19, 1989 Mr. Robert Frederiksen - And - Grievpr The Crown in Right of Ontario (Ministry of the Environment) Employer Mrs. M. K. Saltman Vice Chairman Mr. G. Beaulieu Member Mr. A. Reistetter Member -2- The Grievor in this case, Robert Frederfksen,~ complains that his position has been reclassified downward and requests that the position be restored to its former level as of June 1, 1978, the date of the reclassification. At the date of the grievance, the Grievor was employed as an Engineer's Assistant in the Air Quality and Meteorology Section of the Air Resources Branch of the Ministry of the Environment in Toronto. In June, 1966, the Grievor became a District Inspector with the Metropolitan Toronto Division of Air Pollution Control. Two years later, in January, 1968;he became a civil servant when this Division was taken over by the Ministry of Health. At the time of his employment with'the provincial government, the Grievor's job was classified as an Air Pollution Inspector The Grievor remained in the inspector's job in the Air Pollution Control Division (which subsequently had been transferred to the Ministry of the Environment) until February 1970 when he wasloaned to the Air Quality and Meteorology Sectfon of the.f-!inistry of the Environment as an Inspector and Engineer's Assistant, also classified as an Inspector 1, to assist in the development of a pollutant inventory. The Ministry was apparently interested in developing a method of measuring and, ultimately controlling, air pollution. To this end, in 1969, the Ministry purchased from an American company a mathematical model which was the basis for the inventory of the major sources of air pollution. When it was completed, this inventory would list emissions 1. of five major. air pollutants (i.e. sulphur dioxide, oxides of nitrogen, particulates, carbon monoxide and hydrocarbons) from hundreds of industrial . . i... + -3- and power plants [referred~ to as "point sources") throughout Ontario that contribute significant quantities of pollutants into the air, principally through combustion of fuel, manufacturing processes and waste incineration. The Grievor was to be involved in the development of this inventory with respect to industrial(ratherthan power plant) sources. In general terms, his job was to collect data such as fuel consumption, boiler capacity etc. from an official of the particular plant, usually the Plant Manager ,or the Stationary Engineer. Using this data, the Grievor was required to calculate the emissions that could be expected from each industrial plant, In order to complete these calculations, the Grievor was required to understand the production process in use in the plant. If he was unfamiliar with the process, it was his job to seek out the information in the technical literature. Once the inventory was completed and validated for point sources in Metropolitan Toronto, it was extended to other comaunities in Ontario. The Grievor worked on the inventory until August, 1970, when he was returned to the joh of Engineer's.Assistant, classified as inspector 1, with the District Inspectors, where he remained until April, 1974 when, due to a reorganization of the Air.Resources Branch, his job was eliminated. Shortly thereafter,,the Grievor was accepted as an Engineer's Assistant, classified as an Environmental Technician 3 pET3") in Sudbury. However, the transfer to Sudbury did not take place as the Grievor was asked to stay on in the Air Resources Branch in Toronto as an Engineer's Assistant, classified as-an ET3, to continue working with the pollutant inventory which by this time had been completed for most of the comaunities in Ontario. The Grievor became involved in the continual process of updating the inventory, which consisted of adding new sources, as well as resurveying old sources for which the production processes may have changed in some material respect since the sources first were included in the inventory. The process of updating the inventory was in most respects similar to establishment of the inventory, except that in updating the Grievor had very little contact with the officials at the various plants. Instead he relied on the raw data supplied by other Ministry officials. Then, as in the initial stages, he applied a formula to these data to calculate the emissions which could be expected from the industrial plant. In the simple case, he applied a standard formula to the raw data to calculate the emissions, which he did on his own. In the more complex case, he had to find the formula, which required a knowledge of the industrial production process~involved at each plant, and of various new inventory techniques (which had to be found in the technical literature]. He might also have to make derivations from the raw data before they could be fed into the formula. In either of these circumstances, he received direction from his Supervisor since.1974, Tat Wong, who had devised the Gntario Pollutant Inventory Information System. On occasion, Mr. Wang left the Grievor on his own to derive the formulae and/or the data. The actual calculations were always done by.the Grievor himself who was responsible for their accuracy. Mr. Wong only spotchecked the Grievor's work. The issue to be determined is whether the Employer was entitled -5- to reclassify the Griever's position downward from an ET3 to a ET2. The evidence establishes that the Grievor had been performing the same job, i.e. updating the computerized pollutant inventory, since at least 1974. Nevertheless, it was the Employer's position that he should be classified ,as an ET2 rather than an ET3, as he had been since 1974. This case is similar to a decision of Mr. Neatherill in the private sector: Re Toronto General Hospital and Toronto General Hospital Nurses' Assoc. 11 L.A.C:(2d)273. In that case, the Employer purported to reclassify the Grievorsfrom the class.Iffcation of assistant head nurse to the classification of registered nurse which carried a lower rate of,pay. The arbitrator found that the classiftcation of the Grievors as assistant head nurses was not a mfstake and so the reclassification could not properly be said to 6e the correction of a mistake. Moreover, since the Grievors continued to perform the same duties as before tbe reclassification, the Hospital's action was held to be improper. On this point, the learned Arbitrator states the following at pages 277 and 278: "There has been no significant change in their work. There is no proper basis in our view, for the reclassification of tile grievors in these circumstances. As long as the same work is 6eing performed, manaqement has no riaht arbitrarilv to reclassify the employees performing it: Re U.S.W. and Alsoma Steel Corp. (39691, 19 L.A.C. 236, 241, (Yeiler) and cases cited. As it said in the Windsor Public Utilities case ((19741, 7 L.A.C.[2d1380 CAdams)), if an employee cannot claim the rate of pay of a higher classifica.tion unless his, duties fall squarely within that classification, an employer should not be able to regress a worker from one classification to another without the workers' job duties undergoing a similar substantial change that unequivocally -6- either creates a new classification or falls squarely within an existing,lower-rated classification. On this latter point, it may be said that there is in any event not sufficient evidence in this case to show that the grievors, by reasons of the work they do, would fall souarelv within the lower-rated classification -5 ., of registered nurse. There has, however, been no substantial change in their duties so that even this consideration need not be relied on." (underlining added) In the case at hand, there is no basis for the claim that the.Grievor's classification as an ET3 was a mistake. In 1974, when he found that his job was eliminated, the Grievor was induced by the Employer to remain on in Toronto with the promise of a reclassification to the ET3 level. Under such circumstances, there can be no claim that the upward reclassification was a mistake. Moreover, the Grievor continues to perform the same job as he performed in 1974. Under the circumstances, there is no justification for a reduction in his classification Cm.). Accordingly, we award that the Grievor be restored to the classification ET3 forthwith and that he be compensated for any loss of pay due to the improper reclassification to the ET2 level. In the event that the parties are unable to agree on the amount of compensation owing to the Grievor, I 1 -7- we shall remain seized of the matter. DATED AT TORONTO this29th day of July, 1981. M, Saltman - Chairman A. Reistjtter - Member z- 76 G. Eeaulieu - Member