HomeMy WebLinkAbout1979-0039.Beals and Cain.81-05-20I3 THE MATTER 3F APi AR.BITRATl2N
Under The
CROWN EMPLOYEES COLLECT!VE BARC,\lNINC ACT a-
Before
THE GRIEYANCE SETTLEHF.hT WARD
8etween: iMessrs. R. Beak and 54. Cain
And
Vinistry of Community Jr Social Servics
before:
For the Griever: -----
Mr. ?. Draper
Mr. V. Harris
Mr. F. Ccllom
Ms. J. Mike, Classificstion/Grievance Qificer
Ontario Public Service E;n$oyces knion
Mr. D. .Abramowitz, .\tanager
E:r@oyee ilelatlons
:li,nistry of c3ornmunity Jc Sociai 5er::i~:e.5
Febwary !9t!1, ; 9Yi
Febr,ary 21 st, 1% I
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The grievors, Roger Beak and Merlin Cain, grieve that rheir
positions have been improperly classified.
At the outset of the hearing, the parties filed the following
Statement of Fact with the Board:
I) The grievances of Beak and Cain are properly before the
Grievance Settlement Board and that this Board has juris-
diction to hear this matter.
2) Both grievors are employed by the Capital and
Administrative Services Branch, General Services Section,
(Toronto) of the Ministry of Community and Skial Se&es
in the position of Driver, currently classified as “Driver I”
(class code 17226) (position number 17-1450-94).
3) The classification sought by the grievors for this Driver
position is “Motor Vehicle Operator” (class code 17200).
4) As the issue was first raised with Management in July, 1978.
any retrozactive salary, would be retroactive to July 1, 1978.
. .
5) The grievance of R. Beaks is representative of M. Cain’s
grievance and any decision resulting from the hearing before
the Grievance Settlement Board will apply to both.
Roger Beak has been a driver and his position has been classified
as Driver 1 for seven years. Depending on requirements, he drives a van, a
station wagon or a passenger car, regularly transporting light cargo such as
mail, stationery, files and audio-visual equipment, and occasionally
transporting passengers, usually Ministry personnel, on the written order of
the dispatcher. His runs are normally within Metropolitan Toronto and are
generally between .Ministry locations. He makes reports and keeps records
which include mileage driven, gasoline and oil requisitioned and repairs
carried out by the government service garage. He carries a pager
(“beeper”). His immediate superior is the hfandger, General Services.
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The Driver 1 Class Definition, Characteristic Duties .and
Qualifications are as follows:
CLASS DEFINITION:
Employees in positions allocated to this class operate
truck and other vehicles, transporting supplies, refuse,
materials, equipment, produce, mail and work parties. These
employees are often required to oversee the work of a small
number of labourers or inmate helpers, and usually undertake
minor maintemmce on the vehicles which they operate,
including washing, greasing. oil and tire checks and keeping
records of vehicle performance. On occasion they may be
required to operate equipment such as passenger vehicles, small
tractors, front-end loaders , snow ploughs, etc., but in all these
Positions the driving of a truck is the major function.
CHARACTERfSTlC DUTIES:
Pick’ up and deliver mail, parcels, freight, express, supplies
materials, medical specimens, laundry, garbage and a variety
of other cargo.
Carry out minor and preventive maintenance on the vehicles
operated, and may be required to assist others in major
overhauls and repairs.
May supervise the work of inmates, patients*or staff assigned to
the vehides operated.
. Maintain a record of vehicle operation including gas .
consumption, oil changes, greasing, etc.
Assist in the loading and unloading of the vehicle as required.
Operate passenger vehicles for the transportation of patients,
inmates or staff as required.
Perform other duties as assigned.
QUAL1RCATIONS:
1. Elementary school education and possession of a valid
chauffeur’s licence for the Province of Ontario.
2. An adequate knowledge of vehicle maintenance and several
years’ experience in the operation of a motor vehicle.
3. Mechanical ability; good physical condition, good sight and
hearing; personal suitability.
March. 1963
..?
Testifying with respect to the above description, the grievor
stated that he does not operate a truck, tractor, front-end loader or
snowplow. ’ He does not transport produce, work parties, freight, express,
medical specimens, Ia’undry & garbage. The only refuse he transports are
files destined for the incinerator. He does not make general mail
deliveries but regularly transports mail on what might be termed a special
delivery basis. He does not perform or assist in the maintenance, overhaul
or repair of the vehicles he operates. He does not supervise anyone.
The Motor Vehicle Operator- Class Definition, Characteristic
Duties and Qualifications are as follows:
Class Definition:
Underdirection, employ& ii this cl= provide driver-
attemlant service to officials traveling by motor transportation.
They are responsible for taking care and safety precautions in the
operation of the vehicle. They may be required to provide
messenger service and to make deliveries. They are responsible
far keeping the vehicle clean and in good operating condition
on the road and for making minor repairs. The work is subject to
continuous review by the garage superintendent and by senior
officials, and is measured in terms of prompt and courteous
service, observance of safety precautions and traffic reguia-
tions and the general appearance and operating conditions of the
vehicle.
CHARACTERISTIC DUTIES:
Drive officials to the location of investigations, meetings,
committee hearings, interviews, etc., observing safety rules and
acceptable standards of careful driving, and maintaining the
vehicle in good operating condition while absent from the garage.
Transport inmates, patients, prisoners and students to and from
institutions, usually accompanied by a custodial officer or
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provincial bailiff.
Collect and deliver mail, packaged goods, laundry, equipment,
messages, etc.
Clean, lubricate and make minor’repairs or adjustments to
assigned vehicles; record mileage, gasoline consumption and
operating expenses; act as relief truck driver, garage
attendant cr mechanic’s helper as required; and perform
other related duties as a&@.
QUALIRCATIONS:
1. Elementary school education; thorough knowledge of the
Highway Traffic Act and Regulations thereunder.
2. Possession of a Chauffeur’s Licence for the Proimce of
Ontario; several years’ of acceptable experience in
driving and servicing motor vehicles.
3. SkU in the operation, maintenance and minor repair of
automobiles; good addrea, vision and hearing; integrity
and disaetion; tact and good judgment; good physical
condition.
August 1961. vi
Testifying with respect to the above description, the griever
stated that he has, on infrequent occasions, driven the Deputy Minister and
directors of sections of the Ministry. He has, also on infrequent occasions,
made runs outside Metropolitan Toronto. He is responsible for the care and
safe operation of the vehicles to which he is assigned. It is his
understanding that he is measured in perfamance by the criteria of prompt
and courteous service, observance of safety precautions and traffic
regulations, and the general appearance and operating conditicn of the
vehicles he drives.
Karl Kivikangas, a wirness called on behalf of the griever, is
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employed as a driver in the Administrative Operations Branch of the
Ministry of Labour. His posltion is classified as Motor Vehicle Operator
and he has held it for five years. He operates passenger cars and station
wagons normally and passenger vans rarely. He has a daily assignment
loading, sorting and delivering mail between the Post Office and the
Ministry and another’ ‘making deliveries between Queen’s Park and the
Ministry. He delivers stationery regularly and payroll cheques twice
monthly to ~Ministry locations. He makes daily Ministry bank deposits. He
drives at least one senior Ministry official per month. He does not wear a
unifwm. His job involves “mostly” transporting light cargo and “off and
on” transporting passengers. A stock room employee who has a driving
licence replaces him when he is on vacation.
John Cabrysz, a witness called on behalf of the griever, is
employed as a driver in the Administrative Services ,Section of the Ministry
of the ‘Attorney General. His position is classified as ,Motor Vehicle
Operator and he has held it for 13 years. He drives’s station wagon. He
has a daily assignment collecting and delivering mail. He makes daily
Ministry bank deposits. He generally makes deliveries of mail, messages,
documents and office suppplies within the Ministry and between the
‘Ministry and other government locations. He transports .Ministry personnel
about once per month. He does not travel outside ,Metropolitan Toronto.
He carries a pager. He prepares reports of mileage driven and gasoline and
oil requisitioned for the vehicle he operates. He performs no maintenance
duties. He transports light freight and express items but not work crews,
laundry cr garbage. Heavy deliveries are made by the .\linisrry of
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Government Services. A printing room employee &ho has a driving licence
substitutes for him when necessary.
Robert Vaudette, a witness called on behalf of the griever, is
employed as driver in the Office Services Section of the iMinistry of
Industry and Tourism. His position is classified as Motor Vehicle Operator
and he has held it for 10 years. He regularly drives a van but might drive a
station wagon or, on rare.occasions, a passenger car. On arriving at work
and at intervals during the day the is provided with *a-form listing his
‘assignments. He transports Ministry promotional literature, light
furniture, screens, projectors, films, tape recorders and equipment
operators for meetings about twice per month. He delivers stationery .-
supplies and payroll cheques “once or twice per week”. He drives the
. Deputy :Minister about twice per month and transports surplus files to the
incinerator -twice per year. He drives “mostly” in .Metropolitan Toronto.
He reports trips made, mileage driven and cargo carried daily. He keeps
his vehicle supplied with gasoline and oil and changes tires as necessary but
does no repairs.
Louise Braybon, a witness called on behalf of the employer, has
been a Classification Officer for over 24 years and for over ten years has
been Senior Classification Officer and Category Officer. There are 10
Categuies and 50 occupational groups in the classification system. The
griever is in the Maintenance Services Category, and in the Vehicle
Operation Group. In that group there are two classes, each with a class
standard describing a particular level of work. The classification of
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positions in bargaining units represented by a bargaining agent is delegated
to the various Ministries. Each hlinistry has a classification officer who
would refer problems to her a&Category Officer. The classification work
of the Ministries is reviewed periodically. When a position is established a
job description is prepared and then allocated to a category, occupational
group and class. The job description (position specification) is compared
first with the lowest level class standard and if it is not. a “match” it is
compared with the.next higher class standard and so on until a match is
made. The major function of the Driver 1 class is to transp&t supplies and
equipment and, as subsidiary functions, to carry passengers, sort mail and
perform work in a mail, stock or supply room. The major function of the
IMotor Vehicle Operator class is to carry passengers including government
officials and, as subsidiary functions, to carry supplies and to assist mail, ._
stock or supply room employees. The function that forms the major part of
the job (over 50% of the time) determines in which class the position wig
be placed. There has been no particular problem with the two classes
under .discussion.
Penny Keel, a witness called on behalf of the employer, was for
several years Classification Officer in the *Ministry of Community and
Social Services. She is now Manager, Planning and Standards in the
Personnel Section of that Ministry. Forty people in the Ministry have
authority to classify its more than 10,000 employees. She is the senior
person so authorized and becomes involved in significant classification
problems. She considers the position specification for the griever’s position
that became effective in 1977 and the class m which the griever’s position
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was then allocated to be proper. In allocating a position to a class,
classification officers lmk for the “best fit” between the position
specification at-d the possible class standards. Position audits such as that
conducted following the griever’s complaint may or may not lead to
changes in the position specificaticn and the class allocation.
Sandra Bourolais, a witness called on behalf of the employer, has
been Classification Analyst in the Ministry of Labour for 2K years. Until
recently employees of the Ministry employed as Driver (Stockroom) were
classified as Motor Vehicle Operator. According to the position
specification that became effective in 1975 the purpose of the position was
“To drive Ministry vehicles between 400 Ur$versity Ave., Queen’s Park and
other locations, making pick-ups and deliveries when required”. The
.
qualifications required included “preferably” a Grade 10 education or an
equivalent combination of education and experience. In the position
specification that was drawn 4 on February 18, 1981, and as a result of
which one of the Driver (Stockroom) positions was re-classified downward
to Driver I, the purpose of the positim is unchanged but the educational
qualification does not appear. The earlier specification included ~driving
the Deputy IMinister and other Ministry officials but there is no such duty
in the new one. She was not in the Ministry when the earlier specification
was written and did not prepare the recent one. In her opinion, because of
the amount of time spent by one incumbent in driving passengers, the
classification of the position as Motor Vehicle Operator is still proper. The
duties of the other incumbent, the witness Karl Kivikangas, having
changed, the downward re-classification of that position to Driver 1 is also
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proper in her view.
Victor Kalninsh, a witness called on behalf of ‘the employer, has
held various personnel positions in government since 1967 including Senior
Classification Officer. He is now Regional Personnel Administrator in the
Ministry of the Attorney General. In his opinion the positim in which two
employees, including the witness John Gabrysz, have been employed was
properly classified as Motor Vehicle Operator in 1975 when the purpose of
the position was to provide “chauffeur and vehicle delivery services” and
when the driving of Ministry personnel was the principal duty. The duties
of the position having changed, a new position specification was drawn up
on February 20, 1951 as a result of which it has been re-classified
downward to Driver 1. The purpose of the position is now stated to be to ._
provide “vehicle delivery services”. The qualifications formerly included
an elementary school education and now includes a “basic” education. Th.e
incumbents did, and still do, operate station wagons. The.classification
‘process eliminates those classes ‘that do not”fit” and determines the “best
fit”.
Jennifer Inderwick, a witness called oh behalf of the employer,
has been employed in the Personnel Administration Section of the Uinisny
of Industry and Tourism since 1975 and has been writing position
specifications for about five years. In her opinion the position of whiCL, the
witness Robert Vaudette is an incumbent, was properly classified as Xlotor
Vehicle Operator in 1975. The position was classified downward as the
result of a position specification draun up on February 19, 1051. She is not
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entirely certain as to whether the reason for the downgrading was because
the earlier cIassUication was improper, or because although the earlier
classification was proper, the duties of the position had changed in the
meantime: The stated’purpose of the position is identical in the 1975 and
I981 specifications. The reference to the transporting of Ministry
executive personnel remains.
It may be assumed that among the objectives ot the employer’s
classification system are the achievement of uniformity in policy and
consistency in practice ,throughout the public service, and equitable
treatment of individual employees. It follows that it is an abuse of the
system and unfair to employees where the’positions of employees who are
performing substantially similar work are placed in different
classifications. By intervening where that condition is found to exist the
Board, rather than frustrating the intent or undermining the operation of
the classification system, is preserving the legitimacy and the credibility
of that system.
The employer is clearly entitled to create whatever
classifications it deems necessary to the effective organization and
direction of its employees. But the employer must accept to.be held to the
consequences of departures, in particular cases, from settled policy or
practice. It is not open to the employer, for example, to fix the duties or
to direct the work of incumbents of positions placed in one classification so
as to require or permit them, in effect, to perform the duties of pssitions
placed in another classification.
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It is ,uell established that. in position classification cases, :ne
Board must direct its inquiry to the questions, first, whemer #Jr not :?,e
work actually perforxmed by-the employee is that set out in an Appropriate
class standard and, second, whether or not he is aerforning wnr;
substantially similar to that being performed by ;n employee ~~rhose
position has been placed in another classification. In the first insiance :he
employee’s work is measured against class standards and in the second it is
measured against that of an employee in a position that has been
differently classified. The purpose is to establish either that the emplsyer
is conforming m its classification standards or that the employer has, in
effect, modified those standards.
‘There is evidence before the Board both that the griever does not
perform some of the duties found in the Driver 1 class standard ano that
he does perform some of the duties found in the Motor Vehicle Operator
class standard. More cogent and, in our opinion, crucial iO ihe
determination of the issue here is the evidence as to the work actualI)
performed by the griever and that actually performed by employees of
three different ministries whose positions were, until a date ifter the
Board was seired of the matter, classified as 4lotor Vehicle Operator.
Given the general nature of the work prescribed by the class
standards for the two classifications under scrutiny, some dezrre of
averlap is unavoidable and it would ‘be unrealistic to expect tnelr
respective ele.ments m be distinctive ix incompatible. Nevertheless ;f :i.c
,*rork being performed in one classification closely approaches in iis ;enerAi
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characteristics that being performed in another classification, at some
point, depending on the facts present, the position may be said to be
improperly classified.
We have found no key function - no specific and essential duty -
that clearly differentiates the work being performed by the griever and
that being performed by the motor vehicle operators who testiiied. If
there is one, it does not emerge from the evidence. We are satisfied that
it is not the transporting of persons by the motor veh;cfe operators as
against the transporting of things by the griever as argued cn behaff of the
employer. The transporting of persons is only marginally more prominent
in the motor vehicle operators’ work than in the griever’s work. .-
Furthermore, these respective duties are only single components amongst
. .
the many; they are not exclusive to either position; and they appear to
occurs in greater or lesser degree according to the practice or preference of
,different ministries. In fact, when the work of the incumbents of the two
positions is viewed as a whole a’common thread appears; the driving of
light motor vehicles for the basic purpose of providing a messenger and
parcel delivery service.
In our view the griever’s position is improperly classified if it is
not placed in the highest classification in the system hierarchy to ‘which his
work, measured against the work of employees whose positions are in
related classifications, entitles him.
.; ’ . ?i
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The re-classifications downward, subsequent ho iheir iopesrancz
as *witnesses at the first he&ing on February IO, 1981, si three e:nployees
theretofore classified as notor vehicle operators Are not, of course, >ef.:re
this Roard for adjudication and ue #do not pass rlpon the :neriIs SO! :hose
actions. What was placed in evidence at the second hearing .on 5eoruary 1;,
1981, was simply the fact of the re-classifications. ‘We ,:onclu.de that i:x
the purposes of the present case that evidence is 51 minimal probative
value. The stasus of the witnesses as motor vehicle operators was not ir,
question at the time they testified as to their ,uork nor ‘was that testimony
shaken in any material respect on cross-examination. Since, In our opinion,
the re-classifications are not definitive of the status of the witnesses for
present purposes, we are not prepared to view them as impairing :he
testimony given by the witnesses at the first hearing.
We wish to make clear mat we do not question the ri;!tt of the
e;nployer to conduct position audits, review position specifications and
re-classify positions. The board, however, has the duty to evalelate rie
evidence in question, together with other evidence presented, in the
interests of a proper determination of the case before us.
The Board finds, on tne evidence adduced as to the work zctuall>
performed by the grieva and that actually performed by motor vehic!e
operators, that the griever, in the course of his work xxi over a period of
trme, regularly performs work that is substantially rimilqr :o 2~:
performed by motor ,/chicle operatxs. The Roxd fur:!>rr <in,% :Gt :!w
grirvor’s pxition is improperly classifi&.
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Tile srievaxe is upneld.
The facts, consents, and ,Jndertaki;lgs .:x~tained i,> :ne 5:a:e:n?n1
of ?Ict filed by tY5r pxries dre hereby incsrprnred in :his’&cisix.
The Soard retains jurisdiction of the ~natter ;xndi;lg ~12
implementation of it5 decision.
DATED .at Twwts this 29th day of ‘,Iz/, 1981.
I cancur
‘ .v. -.. - --Karris -Xlnoer