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HomeMy WebLinkAbout1980-0365.O'Connell et al.81-06-22 i ONTARIO GROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 DUNDAS STREET WEST. TORONTO. ONTARIO. 415G IZ8-SUITE 2100 TELEPHONE, 4161598-0688 365/80 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT . Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (John O'Connell et al ) Grievors And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: R. L. Kennedy Vice-Chairman L. Robinson Member H. J. Laing Member For the Grievor: Raj Anand, Counsel Cameron, Brewin & Scott For the Employer: J. Benedict, Manager Human Resources Manaaement Ministry of Correctional Services Hearing: October 28, 1981 2 - A W A R D Each of the grievors commenced his employment in November of 1968, at which time they assumed the Class Title of Cook 3 at the Metropolitan Toronto ,Tail located in the City of Toronto. They continued in that Class Title until November of 1979, when they were advised that the positions had been re-assessed and that, effective September 1st, 1979, they had each been reclassified to Cook 2. They each proceeded to grieve that reclassification. The Class Standards for the Cook positions were filed on the hearing. The Preamble to those Standards is dated June 1st, 1970, and the description for Cook 2 is dated February 1966. The remaining descriptions are not dated, but all are apparently of comparable vintage and it, -therefore, may be considered that the information contained in the Class Standards has applied, unchanged, throughout the grievor' s employment. A comparison of the language describing the Cook 2 and Cook 3 positions does indicate a significant overlap in certain aspects of the two jobs, but , the particular differences, particularly when reference is made to the Preamble , would appear to lie in the degree of supervisory responsibility attached to the jobs. The Preamble provides as follows: The regular direction of junior cooks, kitchen helpers and such patients or inmate help as is assigned, is an inherent responsibility of a journeyman level, or Cook 2 , position. i 3 - All employees in positions classified as Cook 2 or higher in the series may be required to train and instruct junior cooks, kitchen helpers, patients, inmates or wards- in cooking, baking, meatcutting, kitchen operation, sanitation, food preparation and serving etc. Except for the substitution of patients or inmates for some numbers of kitchen help, this responsibility has parallels in large volume, non-institutional settings and does not warrant the Cook '3 allocation, which covers the positions of group leaders of several cooks. on a full time basis each day. . . Supervisory levels in this series are distinguished, not by the number of subordinates supervised, but by the size of the food services operation i.e. the number of persons served per day. The number of patent or inmate helpers assigned to the kitchen tends to be dictated by a number of factors often completely divorced from the actual needs of the food service operation. Thus the number of patient or inmate helpers or the number of junior kitchen help is not a factor in allocating positions in this series. An exception is the "group leader" or Cook 3 level, where more than one subordinate cook, plus such other kitchen help as is required, must be supervised to establish a "group. " The position specification and the position allocation for the grievors expressed to be effective July lst, 1969 and giving them the Class Title Cook 3 indicates that the position allocation was Atypical. The Employer' s Administration Manual defines "Atypical Allocation" as follows: The allocation to a class of a position which in general fits this class better than any other, but is significantly different from other positions in the class with respect to the function(s) carried out or the skills and knowledge required. That Atypical position allocation for the grievors contained the following explanation: i 4 - Position revised and updated due to recent position audit. Although the original reasons for applying the class of Cook 3 are fallacious, confirmation of the present class is justified due to 1) the large quantity of meals provided 2) the large turnover of inmates in the kitchen thereby increases the training and supervision that must be provided 3) factors pertaining to the nature of the institution. On behalf of the Union, evidence was provided in detail as to the nature of the day-to-day functions of the grievors and the working relationships between the various staff employed in the kitchen and inmate helpers who worked in the kitchen. A particular emphasis was placed in that evidence on the nature of the supervisory aspects of the job, both in relationship to other cooks and in relation to inmate helpers. It is a matter of record that, in December of 1977, a large portion of the old Metropolitan Toronto Jail was- closed due to the opening of two additional detention centres at other locations in Metropolitan Toronto and that, upon the closing, the inmate population served by the grievors was reduced by between 60% and 700 . This, in turn, resulted in a reduction of the total staff in the Jail by about one-third. On behalf of the Employer, the Regional Personnel Administrator testified that the reclassification was in response to that change and that she had been involved in a review of the positions for the purpose of making recommendations on appropriate classifications. In her view, because the number of inmates had been greatly reduced, she dial not see that Cook 3 was a proper classification. She indicated that - 5 - Atypical Allocations were extremely rare. In cross-examination, she indicated that she had visited the kitchen at the Jail, but that she had not observed the grievors, in their work, in the course of her re-evaluation. When asked by counsel for the Union to state the reason for the change, she responded that the extraordinary circumstances were not there any more because the population had been reduced. Classification grievances have often been considered by this Board, and the prior decisions would indicate that, in a matter of this nature, the onus is on the grievor to establish his right to a particular classification on either one of two -bases: namely that his duties fall squarely within the description of the class definition or, in the alternative, that the duties are the same as someone in the higher classification. There was some evidence given to the Board on behalf of the Union that there were Cook 3s employed in other correctional institutions; but, in addition to being pure hearsay, there was no evidence as to the staff structure or the nature of the duties .in those other institutions such that a comparison would be possible. Accordingly, the matter falls to be determined on whether or not the duties of these grievors fall within the Class definition of Cook 3. It is true that there is a significant overlap in the nature of duties as defined for Cook 2 and Cook 3 and, as previously stated, the differential would appear to rest on the supervisory aspects of the job. In the context of a Jail, those supervisory aspects would include 6 not only the supervision of other employees, but also the supervision and training of inmate helpers in the kitchen. On the evidence, it would appear that latter aspect of supervision can constitute a greater component of the- job of a cook in a correctional institute than does the traditional concept of the supervision of fellow employees. After considering the evidence offered by the Union as to the nature of the work performed by the grievors we would, absent anything else in the materials and evidence before us, find it difficult to conclude that the grievors had squarely put themselves within the Class definition of Cook 3. The Preamble and the job descriptions, however, indicate that the analysis of the particular jobs in the context of each particular institution is not a precise and mechanical exercise, but does involve a considerable degree of judgment. It is further established on the materials filed that, based on these same Class Standards and definitions, a decision was made in July of 1969 that the work performed by these particular grievors did not fit squarely in either classification, but fit better into Class 3: That allocation indicates that it is Atypical and cites the three particular considerations leading to that conclusion. The Employer now seeks to change that classification substantively on the basis of an argument that, because of changes in the Insitution, the Atypical Allocation is no longer appropriate. No evidence was riven as to the basis of the allocation in 1969 apart from the recorded position allocation which se-L- out the three reasons 7 - for the allocation; and, on the evidence given by the Employer, the specific reliance was placed on the change in the number of inmates in the Jail as the justification for' a reclassification. It would appear that that change, per se, was relied upon without any particular consideration as to the relationship between that change in numbers and the considerations relied upon in the original allocation. With respect to the quantity of meals provided, the change in numbers did, obviously, result in a very great reduction in both the meals provided and in the staff available to provide them. The statistics filed, however, establish that the Toronto Jail is still, by a significant margin, the largest such institution in the Province. it was the evidence of one of the Employer' s witnesses that the absolute number of people to be fed is not that relevant to the extent of the work and responsibility involved in the jobs, and he expressed the view that the crievors were, in fact, T,aorking harder now than prior to the reduction in the inmate nopulation. The second factor referred to in the July 1969 allocation was the large turnover of inmates in the kitchen thereby increasing the training and supervision that must be provided. It was the uncontradicted evidence of the grievors that, in addition to the reduction in the Jail population, there had, due to changes in the general practices and methods in correctional services, been also a change in the type of inmate. Apparently, in the earlier days, there were a number of inmates who were regular periodic residents of the Institution and many of them had very significant kitchen skills which were relied upon in running the kitchen. The grievors indicated the present inmates were far less knowledgeable with respect to g _ the tasks to be performed and required much more extensive training and supervision than had their predecessors. On the third consideration, namely, the factors pertaining to the nature of the Institution, we received no evidence as to what had been considered there and whether those factors had changed since the July 1969 allocation. It is the Employer' s evidence that Atypical Allocations are unusual and, for that reason, we think that that must be considered a significant aspect of the grievances before us. It is clear that in July of 1969, the issue was considered by the Employer, and an Atypical allocation was determined for the reasons set out in the Departmental Record. It is our view that where such an Atypical Allocation has been made and, as in this case, a subsequent consideration of the particular job in relation to the Class definitions indicates an area of uncertainty as to which classification is correct, there is then an evidentiary onus upon the Employer to provide the Board with particulars of the reasons behind the Atypical Allocation and the reasons why those considerations are no longer relevant. Those factors are peculiarly within the knowledge of the Employer and, for that reason, the Union cannot be expected to have the information available. We are not satisfied on the evidence that the Employer has explained the original allocation nor has it established that the effect of the changes in the Institution relied upon were, indeed, material and relevant to the original reasons given in the July 9 1969 document. Indeed, the Union evidence would indicate that those factors are still present in this Institution. In the result, it is therefore our conclusion that the grievance must be allowed. We will remain seized to deal with the aspect of compensation or any other matter relating to the implementation of this Award should the parties not be able to agree upon same. DATED at Toronto this 26th daZKennedy - Ross L. azr'm nana I con cur L. Robinson _ Member I concur H. J. Laing - Member a. ��. 381/8.0 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between : Ms. Suneela Sikand Grievor - And The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Before : J. W. Samuels Vice Chairman I . Thomson Member A. G. Stapleton Member For the Grievor: I . Freedman, Counsel Ontario Public Service Employees Union For the Employer : N. H. Pettifor Staff Relations Supervisor Ministry of Transportation and Communications Hearing: June 8, 1981 - 2 - Introduction In early May 1980, the grievor was an Inquiry Specialist in the Driver Licence Information Unit. On May 15, a memorandum (Exhibit 3) was issued by the Supervisor of the Unit naming two. persons to take over as Acting Super- visors during the Supervisor' s maternity leave. Mrs. G would do the job for. the first two months, and Mrs. F would do it for the second two months. While she was Acting ' Supervisor, ' Mrs. F' s' position of Group Leader/Telephones was to be handled by Ms. A. The grievor complains that she should- have done the temporary assignment offered to Ms .. A. She has received no explanation at all from the employer, though she .argues that she is apparently- more qualified, and more senior .than Ms. A. Preliminar Ob 'ection: The Grievance Form At the outset Mr. Pettifor, on behalf of the em- ployer+ argues that the Grievance Form (Exhibit 1) itself suggests no arbitrable cause. The "Statement of Grievance" ; reads "I grieve that Article 6 has been violated, " and .Article 6 deals only with the payment while on temporary assignment. The grievor was never on such an assignment. Mx. Freedman responds that the real cause lies in Article '4 concerning the posting and filling- of vacancies, and that the employer knew this from the discussions leading - 3 - up to the Grievance Form and our hearing itself.. I accept this, and I might add that the Form went on to provide under "Settlement Required" that "I should be assigned to the temporary position. " The Form was not well drafted. But I am inclined to find that it is sufficient, though barely, to communicate the real grievance. The Temporary Assignment Mr. Freedman now argues that a. Article 4 governs this temporary assignment and means that the grievor should .have at least had an explanation of the reason for which she was denied the. assignment (and its higher pay) . Article 4 reads : 4. 1 When a vacancy occurs in the Classified Service for a bargaining unit position or a new classified position is created in the bargaining unit, it shall be advertised for at least five (5) working _ days prior to the established closing date when advertised within . a ministry, or it shall be advertised for at least ten (10) working days prior to the established closing date when advertised service-wide. All applications will be acknowledged. Where practicable , notice of vacancies shall be .posted on bulletin boards. 4.2 The notice of vacancy shall state, where applicable, the nature and title of position, salary, qualifications required, the hours-of-work schedule as set out in Article 7, Hours of Work, and the area in which the position exists. 4. 3 In filling a vacancy, the Employer shall give primary consideration to qualifications . and ability to perform the required duties. Where qualifications and ability 4 - are relatively equal, length of con- tinuous service shall be a consider- ation." b. In the alternative, that the general standard of fairness applies and she should have re- ceived the explanation desired. He cites Re Nichol'son and Haldimand-Norfolk Regional Board of Commissioners of Police (1979) , 88 D.L.R. (3d) 671 (S.C.C. ) in support of this proposition. After due consideration, I am moved to reject both v of these arguments. Article 4 governs the situation when (i) "a vacancy occurs . . . for a bargaining unit position" , or (ii) "a new classified position is created" . In my view, `nei.ther of these situations occurred. Clearly- (ii) does not apply. Similarly, I think it is stretching the contract language to apply it to the rearrangement of personnel to cover a maternity leave. . This is not a "va- cancy" . Rather, it is the "organization" of .the workplace, in the sense it is used in section 17 of The Crown Em210 Collect'ive_Bargaining Act', 1972 , which reads: at (1) Every collective agreement .shall be deemed to provide that it is the exclusive func- tion of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, or- ganization, 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 sub- ject to review by the employer with the bargaining agent, and such matters will not be the subject of col- lective bargaining nor come within the jurisdic- . tion of a board. " This rearrangement of personnel is the exclusive function of the employer. With respect to the argument concerning fairness, while I am much taken with the proposition put by Mr. Freedman, I think it must fail. The Nicholson case concerned a pro- bationary police constable -- an "office holder" who was dismissed without a hearing or reasons given. In his majority opinion, Mr. Justice Laskin makes it clear that the reason for his decision to overturn the dismissal is the serious , consequences of the disputed action on the individual (see, in particular, at page 682). There is really no similarity between dismissal and failure to offer a temporary assignment necessitated by a maternity leave. While it might have been reasonable for the employer to tell the grievor why she wasn't given the temporary assignment, ' I do not find that there is any legal obligation to do so. Conclusion In conclusion, the grievance is dismissed. Done at London, Ontario, this 22 iday of 1981. I. Thomson and .A.G. Stapleton, amuels, Chairman Members, concur '