HomeMy WebLinkAbout1981-0146.Clarke.82-04-07Between: ---
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IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE SARGAINING ACT
Bef,ore
For the Griever: -_
THE GRIEVANCE SETTLEMENT BOARD
MS. Eulalee E. Clarke Grirvor
- And -
The Crown in Right of 0ntar.o
(Ministry of G0vernmer.t
Services) EIliplOyeX
Mr. E. 3. Jolliffe, Q.C. vice cilairnan
MT. R. Russell i:en;lber
MS. M. Gibb :I e pi: b e r
Mr. A. Ryder, Q.C., Counsel
Cameron, Brt?win & Scott
October 9, 1981
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CECISION
The grievance of Ms. Eulalee' Clarke was referred to
arbitration in February, 1981. A hearing scheduled for July 7,
1981, was adjourned on consent at the request of the Employer.
A second adjournment of a hearing scheduled for September 17 was
applied for by both parties;~ after hearing their representations,
the Board granted the application in an interim decision dated
October 2, adjourning the matter until October 9.
; For the employer, Mr. Moses raised a preliminary
objection related,to timeliness. Be pointed out. that under
Article 2714 of the applicable agreement; arbitration ought, to
have been.applied forwithin 15 days of the employer's ,reply at
the second step of the grievance procedure. According to Mr.
Moses, the second-step reply is dated January 20 and the Union's
letter to the Soard requesting'arbitration is dated February 18.
Strictly speaking, neither the former nor the latter was adduced
in evidence before this .Board, and.neither is an exhibit in
evidence, although both form part of a record apparently given
the Registrar. There is thus no proof that the second-step
reply was actually sent or received in January and consequently
no evidence whatever, that a period of more than 15 days elapsed
between the date of receipt and the date of the application to
the Board. Moreover, it was decided in Keeling 45178 and Woods
224179 that the right to arbitration is paramount.
The rights of an employee to resort to arbitration under
the Crown Employees Collective Bargaining Act cannot be set asideor
barred in the absence of strict proof,that such rights have been
forfeited.by reason of failure to comply with the requirements
of the Act or the'applicable agreement or the ordinary rules of
evidence. The date appearing on a letter does not constitute
proof that it was sent on.that date or received.shortly thereafter.
(TJ The party relying on a technical objection must itself meet all
commensurate technical requirements, which has not been done in
this case. The employer's preliminary objection therefore fails.
This is a classification grievance. Ms. Clarke com-
plained on December 2, 1980, tha't her position was "improperly
classified as Cle-rk Typist 3:'; She sought to be classified "Clerk
Typist 4 effective Sept. 1, 1980,"~ Exhibit 2.
(-_ On December 12 Ms. Lorna Sidney, Supervisor Public
Tenders Office, Ministry of Government Services, replied that
after asking the Personnel Branch to review the class allocation,
she had been assured the position "meets the allocation factors
of the standards for a Clerical Typist 3 classification," Exhibit 3.
Although not in evidence, the second-step reply obviously
rejected the grievance. The employer continues to maintain that
the position is correctly classified.
From 1975 to 1980, Ms. Clarke's position was
Clerk Typist 4. On September 1, 1980, it was re-classified
downward to Clerk Typist 3. Not surprisingly, a grievance
resulted.
According.to the grievor's evidence, her duties and
responsibilities were'much the same after September, 1980, as ~~ '- :
@ they,had been before the reclassification. In Exhibit 5 (a
resum: of her history' prepared by her fdr the information of
management) she summarized as follows her work between 1975 and
1980:
Ministry of Cbvernment Services, hublic 'lenders Cffice as
.Clerk Typist 4. Performed clerical a16 typing duties in processing advertised ard invitational tenders. Performed
administrativeduties and handled inquiries in person and by telephone. In charge of Tenders' Cfficeduring frequent
absences of Supervisor with approwiate signing authority.
Trained new typing ard clerical staff in the processing of
advertised ard invitational tenders and handling inquiries
from the general public.~
The work after September,. 1981, .was summarized in the
same words except for the omission of the last sen‘tence. The
omission seems due to the fact that she had no new staff to train
in 1981, when she prepared the resume/.
In June, 1981, some months after the grievance had
been referred to arbitration, there was a study made of the
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position. The result became Exhibit 5 in this case, titled "Job
Audit (Eulalee Clarke) Senior Tenders Clerk Sourcing Section
Queen's Park." The grievor says she had not been consulted about
the 1980 reclassification, but she was consulted about the Job
Audit. Indeed, it is signed by herself as well as her super-
visor, Ms. Sidney.
(.;, Before considering the detailed description set out in
the Job Audit, reference must be made to the Class Standard for
the "Clerical,, Typing, Stenographic, and Secretarial Class Series,"
Exhibit 4. Within the ClericalTypist Series are four classes.
Relevant in this case are the classes designated,"Clerical Typist
3" and "Clerical Typist 4."
There is no doubt Ms. Clarke's position meets at ,. .-
least the definition of a "Clerical Typist 3," and possibly more
c
than matches the "Characteristic Duties" and "Qualifications"
specified. However, the real issue in this case is whether the
position fits the Standard for "Clerical Typist 4," as the grievor
alleges and the employer (at least since September, 1980) denies.
It is appropriate therefore to quote the full text of
"Clerical Typist 4" as it appears in Exhibit 4:
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.UASS DEFINITION:
This class covers positions containing first line supervisory duties, responsible clerical-typing mrk, or a combination of both:
all employees at this level wrk under very limited direct supar-
vision and receive only a general check on completion of assignments.
They make decisions entailing the exercise of independent judgment
based cn a good knowledge of a number of specific statutes, regulations
ad administrative p~-0~edures as well as on an urderstanding of the
relationship of their organizational unit to the department as a whole. Spcific instructions are:received cnly on unusual problems,
technical questions ad matters of plicy, while normal wrk sequences
are left to the employee's initiative. Typical of this level are
frequent contacts withothermrkunits and the public involving
the use of tact, wgment a& persuasion in explainirq ard obtainiq ,
c.. co-oparation with regulations and administrative pzccedures.
Judgment is exercised in &ministeringspecificwell4efi.ned rules
ard statutes, in channelling u@ simple reconunendations ard in
rendering line supervision to smallgroups of subordinates parfonnirq
repetitive clerical, typing ard stenographic duties. Errors can
result in discredit to the department, monetary loss and in p?ricds
or instarces of inadequate work by subordinates. ~.
. CnARAmIsnc ExJrIEs:
Supervise agroup of subordinates p+ormiq typing, stenag-
raphic and clerical duties by assigning and checking work, disciplining
staff, giving guidance on procedures and work methods.
Evaluate and assess a variety of statements, applications arrl
records for completeness, propriety ard conformance to established
practice, making frequent applications of specific statutes, rules
ard regulations, administrative orders and precedents; determine eligibility & make reconmtendations regardtig financial payment
(I~ and other appropriate action: prodEe financial statements, cost
break&wns ard reports of moderate complexity pertaining to the
work unit; follow up and clarify.discrepancies in person a& by
letter.
Independently compse reports, statements and articles, in-
cluding those for publication, usiq records and information held
by own and other units.
QUALIFICA'I!IONS:
1. Grade 10, preferably Grade 12 or an acceptable equivalent of
experience and education.
2. AGut fau years' progressively respnsible experience in the
clerical typing field or an equivalent combination of higher educational qualifications and pactical experience.
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3. Supervisory ability; proven ability to communicate clearly
both orally and tn writing; tact; personal suitability.
Most of the description above seems clearly applicable
to Ms. Clarke's position, but there are two elements which were
disputed or discounted by the employer, and there is a third
on which little evidence was given. __
g.,: The first element relates to the supervisory function.
The definition above begins by stating that "this class covers
positions containing first-line supervisory duties....." And
"Characteristic Duties" begins with these words: _08Suqer~vise a
group of subordinates performing typing, stenographic and clerical
duties by assigning and c,hecking.work,'disciplining staff, giving
guidance on procedures and work methods."
Neither quotation above specifies that the~supervisory
c: element is an essential component of.the position, but both .
quotations obviously have significance and cannot be ignored.
The rather lengthy '#Job Audit" sets out in detail the
duties normally carried out by the incumbent, step by step. It
is silent as to any supervisory or instructional function, except
for the penultimate sentence: "Act for Supervisor when Supervisor
is away or out of the office."
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MS. Sidney testified that. when she was away for nine
weeks during the summer, the grievor had been acting supervisor
from July 4 to August 20. Ms. Sidney also said, referring to
adver'tisements for tenders: "I draft the ads and she types
them --- except when I'm away." She also said: “MS. Clarke does
not supervise any one."
In cross-examination the grievor said she does not
supervise any employee dn a regular or permanent basis. However,
she is the senior clerk and in that capacity she had trained all
the others in the office since,l975, including one in October,
1980, after her own position had been "down-graded." At the time
of the grievance, the other clerks were Ms. Elizabeth Zamiara, also
a Clerk Typist 3, and Ms.. Doris Slattery, a Clerk Typist 2. The
griever normally accompanied Ms. Sidney to the afternoon openings
of tenders (which must be carefully recorded) and when,they both
were away performing that duty, Ms. Zamiara would be left in
charge of the office.
Exhibit 9 is the "Position Specification and Class
Allocation Form" (approved in February, 1976) with a CT4 class-
ification. Exhibit 7 is the corresponding form approved on
September 2, 1980, with a CT3 classification.
The earlier form includes in defining the "?urpoSe Cf
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Position" the words "to train new typing and clerical staff....."
No other reference to training or supervision appears in Exhibit 9.
In Exhibit 7, the form approved in 1980, the. "Skills
and Knowledge Required'* include "ability to supervise staff."
Among the reasons given for the allocation the following sentence
appears: "Due to the absence of the supervisor in excess of 30%
of the time a good knowledge of the administrative procedures is
required to handle.public enquiries and administrative process."
Among the "Duties and Responsibilities" is the following: "Acts
for the Supervisor as assigned by: performing the administrative ~~-
duties of the Supervisor during absence for Tender Openings
(twice daily), illness, meetings; etc:, with delegated signing
authority for requisitions and invoices up to $1,000."
It must be pointed out, however, that .Exhibit 7 relates
to two incumbents, i.e. both Ms. Clarke and Ms. Zamiara. Thus,
after almost five years as a CT4, the grievor found herself "down-
graded" and placed on an equal footing as a CT3 with~an employee
she had recently trained, a disappointing result from her point
of view. The explanation appears to be that a drastic attenuation
of the Tenders Office had occurred. According to an organization
chart of July 30, 1976, Exhibit 10, it had a Supervisor of
Yanagement rank, a Clerk General 5 as Assistant Supervisor, a CT4
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Senior Tenders Clerk (Ms. Clarke) and two CT3 Tenders Clerks.
After the re-organization of September, 1980, a leaner staff
appears.in a new chart, Exhibit 8, with a Supervisor of the
Tenders Office (Ms. Sidney) responsible directly to the "Manager.
Sourcing Services,," no assistant, a CT3 Senior Tenders Clerk and
a CT.2 Tenders Clerk. It is obvious from the charts that an effort
had been made to prune the staff in the Tenders Office and other
offices.
The evidence.is that the only real change in the work
of the Tenders Office had been the elimination of "Assets Disposal;-
a responsibility transferred elsewhere. Miss Sidney said it meant
only a "reduction in volume."
The'second significant element in the CT4 Standard appears
twice in the Standard. The second sentence in the class definition
states : "They make decisions entailing the exercise of independent
judgment based on a good knowledge of a number of specific
statutes, regulations and administrative procedures....." And
among "Characteristic Duties" it is said: "Evaluate and assess a
variety of statements, applications and records for completeness,
propriety and conformance to established practice, making frequent
applications of specific statutes, rules and regulations, admin-
istrative orders and precedents....."'
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i ‘.
Ms. Sidney did not seem to question the need for inde-
pendent judgment to be exercised (with a minimum of supervision)
by the Senior Tenders Clerk, or the need to be familiar with
practice~and procedures in the tenders process and particularly
in advertising for tenders. However, Ms. Sidney said she did not
know of "any requirement for knowledge of legislation." Further,
she denied that the work involved evaluation ~of forms.submitted 1
with tenders. On this point the grievor did not testify. It
is doubtful whether most incumbents of CT4 positions actually are
familiar with the provisions of the statutes or regulations which
directly or indirectly authorize the work they are doing. They
are more likely to be familiar with the prevailing practices of
the office in which they are empl.oyed, as taught by their super-
visors. The evidence suggests that the grievor hassuch familiarity,
which is a necessity. For example; her current Position Specifi-
cation, Exhibit 7, provides that she must, among other things act
as "Chairperson or recording secretary at Tender Openings: pro-
viding guidance to Substitute Chairperson to ensure procedures
are followed." And one of the reasons given in Exhibit 7 for the
CT3 allocation (although it had not appeared in the 1976 form,
Exhibit 9) is the following: "Initiative is required in resolving
discrepancies in balancing the unit advertisement account and
guiding the Substitute Chairperson at Tender Openings."
It is interesting to note that the Standard for a Clerical
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Typist 3 also makes reference to knowledge of "acts and regulations."
The definition of the class includes words in respect of which
members of the public may entertain some scepticism:
!&nployees at this level require an understanding of the intent and content of their duties ard have a goad wzrkirg
knowledge of segments of acts, regulations, precedents and
policies pertaining to their uork. They have occasional'
written and verbal contracts with membzs of the public and
other sections and branches in which they give and seek
routine information. Ihey explain segments of acts and
regulations at-d are responsible for maintaining co-operation'
and good public relations.
The third distinctive element in the CT4 standard relates
to financial questions. Among "Characteristic Duties" an incumbent
may be required to "determine,eligibility and make recommendations
regarding financial payment and other appropriate action; produce
financial statements, cost break-downs~ and reports of moderate
complexity pertaining to the work unit; follow up and clarify
discrepancies in person and by letter."
On this point there was no testimony by the witnesses,
KS. Clarke and Ms. Sidney. However, both of them signed' the Job
Audit of June, 1981, Exhibit 6, which is a very detailed recital
of the duties carried out by the grievor. That document contains
no words resembling the words quoted in the preceeding paragraph
above. Of course, the term "Characteristic Duties" does not
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necessarily imply th,at all duties mentioned (such as the pro-
duction of financial statements, etc.) are essential components
of the class.
At the hearing of this case there was some contention
about the motivation or provocation for reclassifying the grievers
position. MS. Sidney conceded there had been a complaint from an
employee elsewhere who apparently did not enjoy a CT4 classification
F^ but thought her job~similar to that held by Ms. Clarke. ..She agreed
that ~the complaint had "triggered a change;" .She aLso said,
however, that there had been a general review of positions in 1980
fdiiowing the re-organization in which the position of Assistant
Supervisor was eliminated, and the junior position in the office
(which had been ST31 became ST2. Thus the grievor's position was
not the only one to be "down-graded."
For,the grievor, Mr. Ryder argued that the original
c classification was not clearly wrong and seemed-"generally con-
sistent" with the CT4 standard. There should be compelling
reasons, he said, for scrapping an allocation which had been in
effect for several years, and the evidence did not disclose such
reasons. No obvious mistake had been shown. The only change in
duties was the loss of responsibility for Assets Disposal, but
that was counterbalanced by an increase in supervisory respons-
ibility, as when the grievor substituted for her supervisor during
5 2
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the latter's lengthy absence. Mr. Ryder suggested that a complaint
by another employee was the real reason for the change.
For the employer, Mr. Moses emphasized the re-organization
of the, Tenders Office and other Ministry offices in 1980. It
was not due to a complaint but to the need to recognize realities.
Mr. Moses submitted that merely because an employee has the
capacity to fill a higher position or to be an acting supervisor
from.time to time does not constitute an element attaching to the
requirements of a higher position. He said the Job Audit showed
the present position to be inconsistent with the CT4 etandard, and
referi-ed to the elements.discussed.earlier in this-decision. He
stressed in particular that the griever normally has no.supervisory
function and does not evaluate tenders,. Based on the standard,
the Ministry had.concluded that the position did not match CT4
requir.ements.
,.. C~. In reply, Mr. Ryder said that t2e existence of two super-
visors in a very small office from 1975 to 1980 demonstrated the
importance of the work being done. He suggested that the very
general language in both standards --- CT4 and CT3 --- was not
really applicable to the peculiar responsibilities being carried
by the grievor and her co-workers.
tip to a point, this case bears a certain resemblance
to those of Newdick & Jansen 516/80 and 517/80, in which two .
.employees who had carried considerable responsibility and super-
vised themselves for,some years were re-classified downward when
a re-organization led to the appointment of a supervisor over
their heads. At pages 4 and 5 Vice-Chairman Barton said:
In dismiss~ the grievances we cannot help but say
that we feel a considerable amount of sympathy for the
grievers, being pioneers in the Section, being actively
involved inits growth sod in thedirections that it tcok, and now finding themselves doingjobs which are somewhat
different,from the jobs they did involving considerably less independence and freedom. If thenature of their
job had not changed after theirreclassification in1980
we muld have had no difficulty in allowing the grievances. Fkwever, unfortunately for the grievors we can provide
them with no remedy.
Although there was in 1980 no substantial change of
the work done by the grievor, she did.find herself in a smaller
office under one supervisor rather than two; thus, she may be
justified in considering herself a victim of "retrenchment" and
'Ye-organization." It seems clear that after 17 years of varied
experience in the public service of Ontario and another juris-
diction, including nine years in the Tenders Office,she has become
highly qualified to carry out her present duties and is probably
capable of carrying even greater responsibility. Opportunities
for advancement in her present office are limited or non-existent,
and no one need be suprised if she succeeds in winning promotion
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to another position elsewhere.
We are satisfied that the responsibilities attached to the
grievor's position as Senior Tenders Clerk are not insignificant.
The need is obvious for scrupulous care in processing advertise-
ments for tenders and the resulting bids. Nevertheless, the . .
procedures followed are principally of a routine nature, having
been devised in detail by management'and by the grievor herself,.
(." ,.
as appears from the Manual, Exhibit 12, and the group of work- _~
. sheets,Exhibit 11, prepared by the grievor. In short, procedures
have been so systematically developed that theirapplication .
requires.care and diligence rather than the exercise of initiative
or difficult judgments.
In summary', the duties,-responsibilities and.characteristics,
of the position are distinguishable from those attached to a CT4
position. The evidence does not suggest that supervisory functions
are normally or regularly vested in the Senior Tenders Clerk.
While the position certainly demands that documents be processed
in accordance with "established practice," it does not require
that the incumbent make "frequent applications of specific statutes,
rules and regulations, administrative orders and precedents" ---
as called for by the CT4 Standard. Finally, evidence is lacking
that there is any independent responsibility for financial st,ate-
ments or decisions. On balance, we are not persuaded that the
“‘. 8,
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Ministry was wrong in finding that the griever's position matched
the CT3 Standard rather than the CT4 Standard.
Notwithstanding the view expressed above, we find there
is another consideration which was not mentioned by either party
at the hearing of Ms. Clarke's grievance. Thus we do not know
whether it was taken into account in fixing the grievor's salary
level after the reclassification of September 1, 1980. It has
come to our attention that there is a passage,in the "Ontario
Manual of Administration" which seems applicable to an employee
like Ms. Clarke demoted because of the Ye-assessment". of her
position.. It is in that part of the Manual headed "Poiicy" and
"Pay Administration,", with a subheading "Upon demotion beyond
employee's control." The figures at the foot of the pages to
be quoted are,~"9-36-1;' and'"9-36-2" and both are dated "1 June 76."
In effect the passage provides, in appropriate circumstances, for ~
what is- commonly known as 68red-circling." The relevant passage
is as follows:
Definition:
"Demotion" A demotion:
. Occurs when the incumbent of a classified,position
is assigned to another position in a class with a
lower maximum salary than the class of his former
position.
. Does not occur when the position vacated by the ..~.. . ~T_~. employee was occupied by him U'I an acrlng caPac:ty.
i
Causes of
Downgrading
Beyond Employee’s
Control:
Normal Salary
Treatment:
The assignment of an employee to a class with a lower
maximum salary can be caused by:
. A change in duties due to re-organization.
. A change in duties due to a re-assignment of duties.
. &a-assessment of a. position. . Abolition of a position and no suitable vacancy at
the same level..
. Poor physical or mental health.
Subject to special conditions as outlined in the following
sections. an emnloyee who-is assigned to a classification
with a lower saiar$ maximum than iis previous classifi-
cation, is entitled to normal salary progresAon,to the’
maximum salary of his previous classification. This
maximum salary:
. Is that which is in effect at the time of the re-
classification.
. ‘. . Includes’ retroactive revisions effective prior to
but announced subsequent~ to the re-classification. ” . Includes any revision of the maximum.salary of the I higher classification that takes effect,during the
salary cycle in which the re-classification takes
place.
Retention of
Salary Rate: Where reference is made to “retention of salary rate” under
any of the headings in this Section, the rate will be the
hourly, weekly or annual rate the employee was receiving
prior to the re-classification. This rate will not be changed to an equivalent rate in another schedule where the
schedules applicable to the classification involved are not the same.
Changes due to
Re-organization A civil servant is afforded salary protection as follows _
Re-assignment where.he is occupying a position:
of Duties, or nil wherein duties are changed due to re-organization, Re-assessment ii) wherein duties are changed due to re-assignment
of a Position: of duties; or
iii) which is re-assessed
with the result of re-classification to a class with a lower salary maximum than his previous classification:
a) Such a civil servant:
. Nil1 retain his existing rate of pay. . Will retain his existing anniversary date.
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Shall continue to be entitled to salary
progression based on merit, to’the maximum salary of the higher classification, including
any revision of the maximum salary of the
higher classification that takes effect during
the salary cycle.in which the re-classification
takes place.
Will not be.eligible for further salary
progression until such time as the maximum
rate of the new classification exceeds his
salary rate.
May then proceed to the’new maximum rate effective the date of-the change to the salary
range.
(Ref. REGS. 29(l) and 29(4).)
employee to uhom-either i) or ii) above applies:
Is entitled to be ~appointed to the first
vacant position, allocated to the same
classification as his former position, which
occurs in the same administrative unit, insti-
tution or other work area in the ministry in
which he was employed at the time of the
change; and.-
In such a-case uill:
. Retain-his existing rate of pay. . Retain his existing anniversary date. ‘.
. Be eligible for normal salary treatment
following re-assignment.
(Ref. REG. 29(2).)
The provisions quoted above appear to have been utilized
Article 5 of the applicable collective agreement, as follow:
5.3.1 'Wnere the duties of an employee are changed as a result
of reorganization or reassignment of duties ard the position
is reclassified to a class with a lower maximum salary, an emoloyee
who occupies the position when the reclassification is made is en-
titled to salary progression based on merit to the maximum salaq'of
the higher classification includingany revision of the maximum salq
of the higher cl&sification that takes effect during the sabry cycle
in .k.hich the reclassification takes @lace.
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5.3.2.
An employee to whcm the above section applies
is entitled to be appointed to the first vacant
position in his former class that occurs in the same admin- istrative district or unit, institution or other mrk area
in the same ministryin which he was employed at the time
the'reolassification:;was made.
5.4 Fiire a position is reassessed ard is reclassified to a class with a lower maximum salary,any employee
who occupies the position at the time of the reclassification shall continue to be entitled to salary pmgression based on
marit to the maximum salary of the higher classification, including any revision ofthemaximum salary of the higher
classification that takes effect during thesalary cycle in
Mich the~reclassification takes place.
On examining the passages quoted abo.ve, the case of
Ms.
Clarke appears to be covered as follows:
She was the incumbent of a position classified CT4
between 1975 land September 1, 1980, when she was assigned to
another position, classified CT3, which had a lower maximum salary
than the class of her former position. The demotion was caused
_.-
i' by Ye-assessment" of the position.
As for "normal salary treatment" an employee so demoted
would be entitled to "normal salary progression to the maximum
salary" of the previous classification --- in this case the max-
imum for a CT4 --- including retroactive revisions effective prior
to but announced subsequent to September 1, 1980, and including
any revision of the maximum salary of the higher classification
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taking effect.during the salary cycle in which the re-classification
was made.
Further, if attention is given to the section described
as "Changes due to Re-organization, Re-assignment of duties or
Re-assessment of a Position," it will. be seen that the demoted
employee is entitled to retainhis or her existing rate of pay and
existing anniversary date; further, is. entitled to salary pro2
gressio? based on merit, to the maximum salary of the higher class-
ification taking effect during the salary cycle ins which the re-
classification takes place.
Moreover, if the real or effective reason for,the demo-ticn
was a change of duties due to's reorganization within the Pub.lic
Tenders office of.the Ministry of Government Services or due to
re-assignment of duties, then Ms. Clarke would be entitle~d to
"the first vacant position, allocated~to the same classification
c. as his ~(her) former position, which occurs in the same administra-
tive unit . . . . . or other work area in the Ministry in which he
(she) was employed at the time of the change . . . ..I(
As already stated, we have not been informed whether
the rules set out above were applied when fixing Ms. Clarke's
ent itlement after September 1, 1980. If they were, we think no
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problem arises.. If not, the matter should be reviewed. The
present opinion of this Board is that the grievor's salary ought
to have been "red-circled," not only because of the principles
recognized in the Manual of Administration .and the collective
agreement but also because the evidence is that she had given
satisfactory service as a CT4 for five years, and the demotion was
through no fault of hers.
The Board, however, takes note of certain provisions
in .Article 5.1.1. and 5.1.2 of the collective agreement as follows:
5.1.1 An employee who~alleges that his position isTim- L properly classified may discuss his claim withhis imediate supervisory at any time; povided that such discus-.
sions shall not be taken into account in the application of
the time limits set out in Article 27, Grievance Procedure.
An employee, however, shall have the right to file a grievance
in accordaxe with thegrievance procedure, specifying in his
grievance what classification hs claims.
5.1.2 Ln the case of any grievance filed under the above
section, the authority of the Grievance Settlement BDard shall be limited to:
(a) confirming that the griever is properly class- ified in an existing classification, or
(b) finding that the griever would be properly
classified in the job classification which he
claimed in his grievance.
f.
What bearing, if any, the provisions just quoted should
have on the opinions expressed herein is a matter on which the
parties, after consideration, may wish to make representations to
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5:.
this Board, with due regard for the language in Section 18(2) of
the Crown Employees Collective Bargaining Act.
mentioned
tliis case.
"red-circl
Since the question of "red-circling" has not been
by the parties we think it proper to remain seized oft
We are prepared to hear representations as to whether
ing" was applicable and, i.f necessary, evidence as to
what was actually done. A further hearing will be arranged at the
request of either party, provided that the Registrar is notified
not later than May ~15.
If no request for a further hearing is received, this'
decision is to be taken as denying the claim for re-classification
of Ms. Clarke's position as Clerk Typist 4.
Dated at Toronto this 7th day of
April, 1982 JW
k,
/
i.B. Jolliffe, Q.c.
Vice Chaknan
EBJ : jce
R. Xussell Member
."!. Gibb Yember