HomeMy WebLinkAbout1978-0198.McCourt.81-01-30Re?ween:
Before:
For the Griever:
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
IMS. Mildred McCourt
And
Ministry of the Attorney General
1Mrs. M. Saltman - Vice-Chairman
[Mr. E. O’Kelly - Member
Mr. 5. net-messy - Member
Mr. N. Luczay, Classification Cificer
Ontario,Public Service Employees Union
For the Employer:
Miss K. A. Grant, Assistant Director
Personnel Management Branch
Ministry of the Attorney General
Hearing:
(Gr ievor )
(Employer)
hne 24th, 1980
Suite 2100, 180 Dundas St. west
Toronto, Ontario
The Grievor in this case, Mildred McCourt , grieves that her position has
been improperly classified, contrary to Article 5.1.1 of the Collective Agreement.
Since December 1, 1967, the Grievor has been employed as a Family Court
Clerk, classified as a Clerk 3, General in the Provincial Court, Family Division for
the Judicial District of Stormont, Dundas and Glengarry in Cornwall, Ontario. On
April 4, 1977 the Crievor requested that her job be reclassified to Clerk 4, General.
Asa result of the Grievor’s request, the Ministry conducted an audit and review of
‘her job. The Griever was interviewed and a new job description was prepared. The
result of the review, however, was that the Griever’s classification remained
unchanged. Accordingly, the Grievor filed the grievance which is the subject of
this arbitration.
The Provincial Court; Family Division (“Family Court”) in Cornwall is a
combined Court with the Provincial Court, Criminal Division (“Criminal Court”).
There is one Administrator for both Divisions, Keith Jodoin, a Secretary to the
Administrator and an Assistant Court Administrator, classified as a Clerk 4. In
addition, in Family Court, there is a Family Court Clerk, the position held by the
Grievor, a Court Clerk who is hired on a casual basis, and a Court Reporter. The
Grievor reports to the Court Administrator, Mr. Jodoin. In the Administrator’s
absence, the Assistant Court Administrator has responsibility for the Grievor,
although the Grievor maintained that she in fact gets no supervision from the
Assistant Court Administrator.
At the time in question, the Griever’s duties fell into two main areas:
bookkeeping and “other clerical duties”. As part of her “bookkeeping” function, the
Crievor looked after the maintenance accounts and, to a lesser extent, restitution
accounts and fines. In essence, when the Judge ordered a defendant to pay
maintenance or, less often, to make restitution or pay a fine, the Griever’s job was
to accept these payments into Court. Generally, where such paymenrs were
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ordered by the Court, the payor (usually the husband) was required to pay money
into Court on a periodical basis. Usually, the Court accepted the payment and
issued a Court cheque to the payee (usually the wife) in the amount of the
payment, although on occasion the actual cheque paid into Court was passed on to
the payee. In either case, the payment into Court had to be recorded. The
Griever’s job was to record the payment on a ledger card which she prepared for
each account and to issue a receipt to the payor and a cheque to the payee. If a
Court cheque was sent to the payee, the Grievor had authority to co-sign the
cheque. The Grievor was required to record all transactions so that at all times
the ledger card accurately reflected the current state of the account. She was also
required to update the card to reflect any changes in the order for payment which
may subsequently have been made, as well as changes in information relating to
the payor or the payee (such as changes of name or address).
The Crievor also checked for accounts which had fallen into arrears and,
in cases where there was a request for enforcement, typed the Notice of Default to
initiate default proceedings in Court. Where Notices of Default had been issued,
the Grievor advised the payee and the social agency (if one was involved) of the
date set for the default proceedings. In addition, prior to the Court date, she
provided information on the state of the account to the Judge, as well as to the
client, social agency and lawyers.
On average, the Grievor processed about 40 payments into Court each
day. In total, she looked after 500 or 600 files, which she balanced on a daily basis,
although.it was the Assistant Court Administrator who did the month-end
reconciliation, often with the assistance of the Grievor. The Grievor prepared the
daily bank deposit, which was taken to the bank either by the Assistant Court
Administrator or by one of the Clerks. Generally, if there. was a discrepancy in the
Family Court accounts, the bank called the Crievor.
The Griever’s “other clerical” duties involved the preparation of documents
for Court. In particular, where a deserted wife swore an information under the
Deserted Wives and Children’s Maintenance Act, R.S.O. 1970, c.128, the Griever
was required to assign a number to the information and to type the Court docket
(which is a list or calendar of the cases coming before the Court) from the inform-
ations. The completed do.%et listed the name of the complainant and of the person
charged, the number of the information, the section of the Act alleged to have
been violated, and the date the matter was to be heard, which the Griever set,
depending on the availability of the Judge.
The Griever maintained a file of pending cases by Court date and advised
clients and welfare agencies of the upcoming Court dates. In addition, she prepared
and typed warrants and summonses to ensure the attendance in Court of the person
charged and of witnesses, and also prepared and typed requests for reports, such as
psychological reports or pre-sentence reports, and other Court documents for the
use of the Judge at the hearing. She was also required to type personal histories
for inclusion in the file and to ensure that all files were up to date. The Crievor
had the assistance of one summer student whom she trained and assigned work,
which was usually typing and filing. Once the case was disposed of, the Crievor
copied the Judge’s endorsement on the information on to the docket and then typed
any orders of the Court, including recognizance orders, probation orders, remands
and commital forms, which she checked for accuracy and completeness.
The Griever’s duties with respect to juvenile cases were similar. In
general terms, she typed the juvenile informations and prepared the Juvenile Court
docket (which she also prepared for Children’s Aid cases). As with Family Court
matters, she maintained a file pending juvenile cases and sent notices of the Court
date to juveniles and to parents of juveniles. As well, she prepared and sent out
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summonses for juveniles to the appropriate police department for service. Prior to
trial, she ensured that the necessary information and reports were available to the
Judge. Once the case was heard, she completed the Court docket with the disposition
of the case.
Further, the Griever abstracted data which were used to compile juveniie
statistics, and completed the statistical report for submission to Statistics Canada
and to the Chief Judge. In addition, she prepared correspondence and reports under
the direction of the Court Administrator and answered questions about the procedures
and functions of the Family Court.
The Griever also provided vacation and lunchtime relief for the Criminai
Court Clerk who was also classified as a Clerk 3. The relief work accounted for
about 10% of the Griever’s time.
The Union sought to compare the Griever’s duties with those of Barbara
Turner, who is the Bookkeeper for the Provincial Court, Family Division in the
Judidal District of Peel, which is operated as a separate Court from the Provincial
Court, Criminal Division. When Mrs. Turner started as Bookkeeper in June, 1975,
her job was daasified as a Clerk 3, General. In October, 1978, her job was reclassi-
fied to Clerk 4, General, retroactive to June, 1978. At the reIevant.time, Mrs.
Turner reported to a Mrs. Weiler, the Assistant Court Administrator for the Family
Division, who was classified as a Clerk 5.
Prior to November, 1978, Mrs. Turner provided group leadership to a part-
time staff of four, including one person regularly employed for 24 hours a week,
who was classified as a relief Clerk 3, one summer student employed for 13 weeks
and two OCAP (Ontario Career Action Programmel students, each employed for 16
weeks. In particular, Mrs. Turner trained and supervised the employees in
processing maintenance and support payments paid into Court pursuant to the order
of a Judge. Specifically, when a payment was received in Court, the payor was
issued a receipt by the part-rime employee, who recorded the payment on a ledger
card, maintained and kept up to date for each account, and distributed a
maintenance cheque, which was co-signed and checked by Mrs. Turner, to the
payee (who was usually the wife). IMrs. Turner supervised the collection and
disbursement of about 100 maintenance payments a day. Although, when the
workload was particularly heavy, Mrs. Turner became involved in the actual
processing of payments, ordinarily, she supervised her staff in the performance of
this work. In total, Mrs. Turner was responsible for about 1,350 maintenance
accounts, which were processed primarily by the regular part-time employee with
the assistance of one of the students, when available.
When a maintenance account was in arrears, requests from a payee for
enforcement came to Mrs. Turner for review. iMrs. Turner ensured that the request
form was properly completed and ,signed. In some circumstances Mrs. Turner had
the discretion to decide whether a Notice of Default would be issued to the
defaulting payor (which means that he would be brought into Court) or whether a
reminder notice only would be sent, thereby giving the payor another chance to
make payment before default proceedings were instituted. If a Notice of Default
was issued, Mrs. Turner supervised preparation of the Notice, including the correct
computation of the arrears, and referred it to the Court Administrator or the
Assistant Court Administrator for signature. However, if the payor was given a
second chance and only a reminder notice was sent, Mrs. Turner signed the notice
herself. In these circumstances, it was LMrs. Turner’s job to take follow-up action,
i.e. to issue the Notice of Default if the payot subsequently failed to make
payment. (If, however, the arrears were unusually large or the defaulter
persistently refused to make payment, Mrs. Turner referred the matter to the
Assistant Court Administrator.)
Where default proceedings were instituted, &Mrs. Turner corresponded with
the payee, her lawyer and/or social service agency on the state of the account
which was in arrears and prepared a statement of account, if requested by one of
the parties or by counsel. Mrs. Turner’s job was also to testify in Court, using the
ledger card, as to the amount of the arrears and the regularity of payments. In
fact, under the law as it was then, Mrs. Turner was requited to be in Court one day
a week when default hearings were held since, at that time, she swore the
information against the defaulter and was in fact the complainant in the matter.
(This procedure changed with the passage of new legislation and Mrs. Turner no
longer has duties in Court.)
IMrs. Turner also had responsibility for checking the documentation and
dealing with enquiries on accounts transferred to Peel from other jurisdictions.
She would also remit, under her own signature, and ensure the accuracy of the
documentation sent when accounts were transferred from Peel to another
jurisdiction. Further, on occasion, she would be called on to explain the
enforcement procedures to persons registering an order of the Supreme, County or
Surrogate Courts and to sign and remit requests to the Local Registrar’s office for
certified copies of interim divorce decrees.
In addition to maintenance payments, Mrs. Turner was responsible for
ensuring that fines, restitution or costs, which were paid pursuant to an order of
the Court, were recorded and disbursed and that payments to witnesses and
interpreters were made out of the Advance Account. In particular, Mrs. Turner’s
prime responsibility was to reconcile all of the Trust Accounts (which include
maintenance payments, restitution and fines) on a daily, monthly and yearly basis
and for balancing the Advance Account on a monthly basis.
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iMrs. Turner performed various other clerical duties, relating to incoming
mail, storage of. dormant files, preparation of data for monthly reports to the Ministry
and senior Judges, and issuance of income tax receipts in respect of maintenance
payments.
The issue to be determined is whether the Grievor was improperly classified.
This requires the Board to answer two questions: (I) was the Grievor classified in
accordance with the class standards, i.e. was she performing duties which fell within
the definition of a higher level in the class standards, and (2) even if the Grievor
was properly classified in accordance with the class standards, was she performing
virtually the identical duties to another employee who was classified at a higher
level (e.g. Re Rounding et al. 18/75; Re Thompson 7/76; Re Lynch 43/77; Re Pretty
64177; Re Edwards ‘& Maloney 11/78)?
The essence of the Board’s enquiry is to determine whether the Employer
conformed to its own classification standard. Obviously, if the Grievor was doing
work which came within a higher level of the class standards, the grievance will
succeed, since the Employer failed to follow its documented classification standards.
However, if the Crievor’s work was identical (or virtually identical) to the work of
another employee who was classified at a higher level, notwithstanding that the
Griever’s work did not come within the higher documented classification standard,
the grievance will also succeed. In the latter case, the Crievor’s job is measured
against the actual classification practices of the Employer, which may differ from
the documented standard. If the Crievor’s job conformed either to the documented
standard or to the practice of the Employer in classifying positions, her case is
proven. Of course, the Board may not interfere with the system used by the Employer
in classifying positions. The Board is limited to determining whether the Employer
is conforming to its own standards (e.g. Re Rounding et al. 15/75).
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The thrust of the Union argument in this case is that the Grievor was
performing the same duties for which another employee was classified as a Clerk 4,
General. In particular, the Union submitted that the Griever’s duties were
comparable to the duties performed by ,Vrs. Turner at the Family Court in Peel. It
should be stated at the outset that we do not subscribe to the Union argument that,
in order to satisfy the second test, it is sufficient to prove that the duties of the
two jobs being compared were similar. When the Union rests its case on a
comparison with the duties of another job, it seeks to show that the Employer has
modified its written standards. Although every duty between the two jobs need not
be identical (nor could they ever be completely identical), the duties of the two
jobs must be virtually the same (e.g. Re Rounding et al. ibid; Re Lynch 43/77). -
In this case, while the Crievor and ‘Mrs. Turner both performed
bookkeeping functions for their respective Courts and prepared documentation for
Court appearances, there was a significant difference in the actual duties
performed and in their levels of responsibility. In particular, Mrs. Turner exercised
discretion with respect to the enforcement of accounts which were in arrears,
which Mrs. McCourt did not do. Whereas Mrs. Turner determined whether to
initiate default proceedings or give the defaufting party another chance to meet his
obligations, [Mrs. McCourt merely prepared the documentation on the instruction of
her superiors. At the relevant time, Mrs., Turner spent one day a week attending
Court, which LMrs. McCourt did not do. Further, Mrs. Turner provided group
leadership to other employees in the performance of many jobs which the Grievor
herself performed, such as receiving and distributing payments into Court. ‘Mrs.
Turner was responsible for about 1,350 maintenance accounts, whereas the Crievor
looked after a total of 500 to 600 maintenance accounts. Although the number of
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accounts cannot determine the classification, it does bear on the level of
responsibility of the job. In ,Mrs. Turner’s case, she required the assistance of two,
and sometimes three, part-time staff who did the actual processing of payments to
take care of the large volume. The Grievor, on the other hand, had the assistance
of only one summer student and processed most of the payments herself.
With respect to the bookkeeping function, ~Mrs. Turner did the
bookkeeping for both the Trust and Advance Accounts, whereas the Gr’ievor’s
bookkeeping duties related to the Trust Accounts only. Mrs. Turner did the
monthly as well as the daily reconciliation of the Trust Accounts, and the monthly
. reconciliation of the Advance Account, whereas the Grievor did only the daily
reconciliation of the Trust Accounts; the monthly reconciliation was done by the
Assistant Court Administrator, although often with the help of the Grievor.
Nonetheless, the Assistant Court Administrator had the responsibility for the
monthly balance. In addition, .Mrs. Turner checked the daily bank deposit which
was prepared for her by a part-time clerk; the Crievor on the other hand, prepared
the bank deposit,for which the Assistant Court Administrator assumed
responsibility.
Accordingly, in our view, the Griever’s duties were not virtually identical
(or even substantially similar) to the duties performed by Mrs. Turner who was
classified as a Clerk 4 in Brampton. Although there was a superficial similarity in
the two jobs, ther,e were significant differences in the volume and type of duties
and in the level of responsibility assumed by the two employees, which prevent this
Board from concluding, on the basis of a comparison with Mrs. Turner, that the
Griever was improperly classified.
The alternative argument of the Union is that the Griever’s job falls
within the class standard of Clerk 4. The class standard for Clerk 3, the level of
the Crievor’s job, and Clerk 4, the level which she seeks, read as follows:
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CLERK 3, GENERAL
CLASS DEFINITION: ,
Employees in positions allocated to this class, as “journeyman clerks”;
perform routine clerical work of some complexity according to established procedures
requiring a background knowledge of specific regulations, statutes or local practices.
Decision-ma!:ing involves some judgement in the selection of alternatives within a
comprehensive framework of guidelines. Initiative is in the form of following up
errors or omissions and in making corrections as necessary. Doubtful matters not
covered by precedent are referred to supervisors. Much of the work is reviewed
only periodically, principally for adherence to policy and procedures.
Typical tasks at this level include the preparation of factual reports, state-
mentsor memoranda requiring some judgment in the selection and presentation of
data; assessment of the accuracy of statements or eligibility of applicants, investi-
gating discrepancies and securing further proof or documentation as necessary;
overseeing, as a Group Leader, the work of a small subordinate staff by explaining
procedures, assigning and checking work.
This is a terminal class for many positions involving the competent perform-
ance of routine clerical work common to the office concerned.
QUALIFICATIONS:
1. Grade 12 or an equivalent combination of education, training and experience.
2. About three years satisfactory clerical experience.
3. Ability to understand and explain clerical procedures and requirements; ability
to organize and complete work assignments within prescribed time limits;
ability to maintain good working relationships with other employees and the
public served.
Revised, December, 1963
12
CLERK 4, GENERAL
CLASS DEFINITION:
Employees in positions allocated to this dass perform a variety of respons-
ible clerical tasks requiring a good background knowledge of specific regulations,
statutes or local practices. Decision-making involves judgement in dealing with
variations from established guidelines or standards. Normally employees receive
specific instructions only on unusual or special problems as the work is performed
under conditions that permit little opportunity for direct supervision by others.
Matters involving decisions that depart radically from established practices are
referred to supervisors.
Tasks typical at this level include the evaluation or assessment of a variety
of statements, applications, records or similar material to check for conformity
with specific regulations, statutes or administrative orders, resolving points not
dearly covered by these instructions, usually by authorizing adjustments or recom-
mending payment or acceptance; supervising a small group of “journeyman derks”
or a larger group of clerical assistants by explaining procedures, assigning and
checking work and maintaining discipline.
QUALIFICATIONS:
1. Grade 12 education or an equivalent combination of education, training and
experience.
2. About four years of progressively responsible derical experience or an equiva-
lent combination of experience and higher educational qualifications.
3. Ability to communicate clearly both orally and in writing; ability to instruct
and supervise the work of subordinates.
Revised, December, 1963
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In our view, there was nothing in the Griever’s job which would lead the
Board to conclude that it fails within the class standard of Clerk 4, rather than
Clerk 3. We recognize that these standards are difficult to apply to a particular
job, since they are worded so generally and were last revised in December, 1963.
However, on the face of it, it would seem the Griever’s job fits the definition of
Clerk 3, General. In accordance with the standards, she performed duties of some
complexity in accordance with established procedures. Although she may have
investigated discrepancies, particularly with respect to the bank deposit, she had
little discretion or authority to choose between procedures. Instead, where direct-
ions were given to her, for example, to institute proceedings for the payment of
arrears, she could handle competently the necessary documentation and advise the
parties involved.
On the other hand, the Board has some difficulty applying the class stand-
ard for Clerk 4, General to the Griever’s job. Most importantly, this standard appears
to require considerable decision-making in dealing with variations from established
guidelines or standards, a skill which was rarely exercised in the Crievor’s job, in
which the procedure for receiving payments into Court, recording and maintaining
the books, and preparing Court documents were fairly well established. Further,
the Griever had little, if any, supervisory responsibility for one summer student in
contrast with the smaJ1 group of “journeyman clerks” or larger group of derical
assistants referred to in the Clerk 4 standard.
Accordingly, in our view, the Griever has not satisfied the onus of establ-
ishing that her job came within the class standard for Clerk 4, General. Nor has
she shown that her job should be dassified the same as the Bookkeeper in
Brampton, Mrs. Turner. Since the Grievor has failed to meet either test for reclass-
ification of her position, the grievance is dismissed.
DATED at Toronto this 30th day of January, 1981.
Mrs. M. Saltman Vice Chair man
I concur
Mr. E. O’Kelly Member
I concur
Mr. S. Hennessy Member