HomeMy WebLinkAbout1980-0608.Fitzsimmons.81-06-17Between:
Before:
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAIXI~G ACT
Before
THE GRIEVAXCE SETTLEXEST BOARD
?iIr. Roger Fitzsimmons Grievor,
- And -
The Crown in Right of Ontario (MinisTry of the Attorney General) Employer.
Prof. R. J. Delisle Vice Chairman Ms. H. J. Laing Member
Mr. S. Schachter Xember
For the Grievor: Mrs. L. Stevens, Grievance Officer Ontario Public Service Employees Union
For the Employer: Kr. J. Solymos Uinistry of the Attorney General
Hearing: !ifay 7; 198i
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The grievor mintaiffi that tie Zmployer is LQ violation cf
of Article 6 of the Collective Aqreement in that the Zployer has
hot ,oaid acting pay to the grievor for the duties of a higher
classification whiti were assigned to him between the dates February
21 and August 29, 1980. The grievor then claims qnsation L-I C:e
fom of monies representing the difference irk tie salary levels
'between the cd0 witions.
Article 6 smvides:
6.1 hXe.re an employee is assigned tepxarily to perform the duties of a -sition in a
classification with a higher salary mxLmm for a period in excess of eight (8) consecutive mrking days, he shall be paid
acting pay fran the day he comenced to perform the duties of the higher classificaticm in accordabce with the hext
highest rate in tie higher classification provided that such actirq pay shall not 'be less than three ,cercent (3%) above his
current rate.
6.2 Pihen an employee is temporarily assigned to
the duties and re~nsibilities of a --ition in a classification with a lmer salary maximum where there is rot work reasonably
available for him in the pcsiticn franwhich he was assigned, he shall be paid the lower applioable classification rate to whiti he
was assigned, after the e@ration of ten (10) consecutive working days in such lower classification.
6.3 When an employee is mrarily assigned to
the duties and reqcmsibilities of a pition in a Classification with a lmer maximum salarywkre there iswo~reasonably available for him in the position &mwhich he was assigned, he shall continue to be oaid at the rate applicable to the classificat'ron franwtC.5 he was assigned.
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6.4 This Article shall rot apply to tmpcraq
assignments where an employee is te~raril~ assigned to parfom the duties ard
reqxmsibilities of anotier employs wko is on vacation.
6.5 Where an employee is temporarily assigned to perfoxn the duties and responsibilities of a &position Mt aver4 by this Collective Agreement, he shall retain his rights and obligations under the Collective Agreement.
;LTcicle 6 has previously been considered by pels of tks %arc.in
?e Bisaillon ard Eeauchamr, and Ministry of the Environrent, 130/77
(Adam) and Z.e Wilson and Xinisw of Correctional Serkces, 170/X
(Swan) but those decisions have :ot been of azsistsnce sixe 'b&ore
us we have essentially a factual dispute.
The griever's position ti the office of the Defaulted Fines
Control Centre is that of Defaulted Fines Clerk which is classified
as a level Clerk 3, General. The griever maintains that in the
pericd mentioned above he performed the duties of a Defaulted Fihes
Control Officer which is of the classification Clerk S, General.
The Position Spacificaticm and Class Allocation Form for eacfi of
the tasks were filed as exhibits. The pqm5.e of the former
msition, Defaulted Fines Clerk, is therein described as
"to provide information to suqerded drivers ard to maintsin various files and records".
The me of the latter -ition, @faulted Fines Control Officer
is:
"to mnitorand aontmldata input fran62 Court Offices on defaulted fines . . . ard to instmct the ?kbitry of Tmnsmrtation and Ccemnications tD suspend and/or remktate a defaulter's driving licence as appropriate".
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T5e SW of duties and respcnsiailities for the fcmer pcsiticn
are described as:
Provides information to drivers ,Aose licenses have Seen suspended by performing such duties as:
100% Answering telephom inquiries; answering over the counter irxTkries; pulling ard refiling suspension cards related to tie aime; datestarrpiag ticming suspension orders ard reinstatement orders; filing
inccminq suspersion orders after they have Seen checked for accurac. and ffixpleteness; referencing cards witi suspension nurbars, cn receipt of copies of NTC suspewim notices; pulling cards on inccming reiiW2ateam.t orders (after sacs have 'been checked); other
duties as assigned.
The sumnary cf duties ard respmsjibilities for tie latter msition L
are described as:
1.
2.
3.
4.
5.
Examines Search Bequests (approximtely 60 per day) for mxapleteness of infomation and returnii-q unacceptable ones to Court Offices
or contacting Court Pdministrators for clarificatim as required.
Examines Suspension Orders (approximately 410
per day) for ampleteness of information and correctness of execution; checks files to ensure that rm SuspensionOrder franother Ccurts is cn file.
Examines Beinstatemnt Orders (375 per day1
for azpletness of infonration ard correctness of execution; checks filg tc ensure thatm otherSuspansionOrder is outstanding.
Batches all accepted documents, i.e. Sear&
Requests, SuspensionOrders, P&nstatenent Orders ard prepares transmittal form for transfer to the ?+inistry of Transportation and bmmications.
PecordsaUdccmen ts received, returned, pnxessed, transmitted to X.T.C. ard au@uter
output returns from M.T.C.
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6.
7.
8.
3.
10.
Answers plblic inquiries by ielechohe ard *nor& visits (approximately SbO -per day) fmn debtors, tiei: solicitors, %P.?.'s, etc.; inform them of detaiis of suspension, where and bow payments of fines should be mde in order to have licences reinstated.
~Xaintaihs files of police force copies of suspension notice issued by Y.T.C. ard fsmards cozy to police force concerned 30 days after issue if ~d3 rainstatement order is
received.
.Xaintaihs liaiscn ,dith M.T.C. Driver Control
Section and administrators of the Courts to resolve operating problems by telephone and prsonal visits.
Confers with sqemisor an3 recmmsra?s pAicy ad procedural inpovements as necessary.
A3 assigned.
It is rotemrthy sod regrettable that this latter job
descripticn carries wit!! it ~percentage values to indicate il what
proportion tie Defaulted Fines Control Officer's tasks are divided.
This fact and the absence fran the hearing of the personwho
regularly cccupied the position of Defaulted Fines Control Officer
made the task of tbe,Ecard more difficult in deteminkq ,ðer or
not the grievor actually perfomed duties normally perfomed by the
kfauked Fines Control Officer. It is obvious that sme of the
duties enumerated in the Position Specification for Defaulted Pines
Control Officer axe activities which overlap with, if not being
identical with, duties described in the Position Specification for
theDefaultedFines Clerk. TheCefaulted FiresControlCent?zhas
approximately 12 employees, 6 to 7 of tian are
classed at the Clerk 3, Csmeral level viti one Cler!< 4, General a&
one Clerk S, Gmeral. T%e testiiny before the Card indicated tiat
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all people within tie Cefaulted Fines Control Centre performed
various tasks of a similar nature interchangeably. The grievor
testified that the duties descri!ced in he Pcsition Specification
for *faulted ?ines Ccntrol Officer that he parsonaliy performd
during the abovenoted period were those descriti L. paragraphs 1,
2, 3 and 4. Se testified that ne did not perfom any duties under
paragraphs 5, 6 or 7, but tiat he did perform under raaqraph a, '3
sore extent, and also under paragraph 9. The duties perfomed ur.der
this last paragraph were described by LQ as supervision of
tmrary errployees who were brouqht in to assist in cleari,zq up a
bacUcq of defaulted fines.
Ore position taken by the grievor at tie hearing cculd be
best disposed of at this staqe. The griever relied on a decision by
. a panel of this Board, of Pe Vukoje and Ontario Hous~nq Ccrpcration,
U/75 (Beatty). The award in that case noted that in detemining
whether a certain classification is warranted, it is sufficient that
the perscn maintaining that pcsition perform "only one or tJ0 of tne
duties described therein". This &card accepts that pmpositicn but
notes that in applying the same tc the grievance here under review,
cam lrmstte taken m analyze whi& duties were specific to the
Defaulted Fines Control Officer's position ard which were of a
dative nature identical with the duties performd ty the
Cefaulted Fines Clerk.
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The job description for the CefauL, "ed Fihes Contzoi Officer
lists ho supervision responsibility save ard except for ,-graph
9. The-evidence of tie Senior Cefaulted Sines Control Officer,
however, indicated that the Defaulted Pines Control Officer assisted
her in her cverall supervision of the office. The evidence of
Victor Calninsh, P.&oral Personnel &Mnistrator, was accepted,
mre or less as the evidence of an expert co the position evaluation
process arm3 classificaticn of such positicns. Mr. Calnirsh extixd
the Position Specification for Cefaulted Fines Control Officer and
recognized in its descripticn a resynsibility that demands a
judgment, discretion and accountability, that was corsistent with
such position being classified at a level of Clerk 5, General. For
iA!. Calnineh t!!e specific item within the Position Specification
which led him to this conclusion were those described in ~paragraphs
6, 7, 8 ard 9. There is a conflict in the testimony before the
%azd regarding the griever's performace of duties described in
paragraph 8 of that Position Specification. 'Ihe griever mintaim
that he did perform duties within that paragraph but his supervisor,
I.A. Timrons, qualified that by rkoting that the griewr did not
enter into liaison with these other offices cc any regular basis,
although she was prepared to admit that he might give infomation to
tile% With regard ti the duties under peraqraph 9, the grievor
maintains that his principal activity urder this head was the
tra~andsupervisicnoftemporaryemploy~~had~tothe
Centre to assist in clearing a backlog. His supanrisor denies that
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the qrievor was instrxted to train or super&e these teqoraq
employees buterather mintaihs tiat her instructions to tie griever
were to si@y pass along to t!!en his basic :khcwledge of how to
perform the routine tasks assigned. This view of the grievor's
limited responsibility for the teqzorary errployees is m7fimed
somewhat ty tie evidence given 'by 'Me griever i? re-examihation ;ihen
he testified that at tires tie teqmrary employees muld rot do as
he advised them because he was sirply a Cier!< 3, General, that he
corqlained about the sam to his sqervisor, TLmms, but &at
r.otCng was dcne about the same. Siotiy after.m&s Clerk 2,
Ga-ieral level aqloyees were hired as teqorazy employees and tie
duties were carried out satisfactorily. This confirm the aoarr! in
the view that the grievor 'was rot regakkd within the Centze as
havirq supervisory capacity over any one other &an the nocnal
reqzmsibilities of a Clerk 3, General to pass co to newccmars any
!mowledge of hew the rakihe tasks were to be performed.
Although the witnesses geherally had a difficulty
in describing the difference between the tasks performad by the
Defaulted Fines Control Officer arrd the Defaulted Fines
Clerk, a difficulty inherent in the way in which the descriptions
were drafted, the amsehsus appeared tote that the difference
resided in the concept of respmsibilitly rather than in the hature
of the Mysical tasks perfokaed. It was also seeh thatkhile the
Defaulted Fines Control Officer might perform many of the duties
regularly performd by the Defaulted Fines Clerk, the difficult
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cases, the cut-of-L%-ordinaq problem, tie oamunicaticrs k-,i
individuals other than rrmbers of the public 'were most commnly dote
by the Defaulted Fines Control Officer. There iras ho evidence led
by the griever that he perfozmad any duties differently than
performed 'by other Cler!! at his level within the Centre. there xas
no evidence led by tie grievor that he 'was any mxe responsible or
accountable than the others within the Centre &TO had a sitilar
classification of Clerk 3, General.
This Eoard accepts the ,proposition advanced by 5e
griever that Article 6.1 of the collective agreement is hot there
only to cover the case of filling a teqoraq vac3i-q but also
covers the situaticn such as alleged here, where an mployee is
called on during an inordinately heavy workload to prfom the
duties of a pitim in a.classification with a higher salary
level. On the facts of this case, however, +be Beard has mt been
persuaded by the grievor that he did perfom at that higher salary
level. 'Ihe Eca.rd reccgnizes a rather narrow bard tetween the Clerk
3, General and Clerk 6, General in the duties perfomed ahd that the
distinction beWeen the levels is to be found in the ~hsibility
assigned. Many of the tasks performed ih the Cehtze are physically
done by all classifications but it is the reqohsibility for
decisioh-mking that belongs to the higher class of position and
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DATFJI at Toronto this 17th day of June, i981.
there is s&ply m3 evidence '&fore 1u.3 *at the qrievor exercisd
tiat typ of discretion or judqent. In tie result then,',?e
grievance is dismissed.
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Professor R.J. &lisle Vice Chainan
"I concur"
k&s. H. J'. Laing %mber
'!I 'concur"
,Mr. S. Schachter