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HomeMy WebLinkAbout1981-0248.Wright.81-09-01IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Ms. Eva Wright and (Crievor) The Crown in Right of Ontario Minisny of Consumer & Commercial Relations 03nployer) Befue: For the Grievorz Prof. P. G. Barton - Vice-Chairman Mr. R. Russell - :Member Mr. A. G. Stapleton - lLlember Mr. N. A. Luczaj~ Grievance Classification Officer Ontario Pubiic Service Employees Union For the Employer: Mr. W. 1. Gorchinsky Staff Relations Officer Staff Relations Division Civil Service Commission July 8, 1981 -t- The Griever worked as a Clerical Steno 3 in the Ontario Securities Commission between January 1977 and February 1979. On February 26, 1979 she was appointed as a Clerk 4 General, (Corporate Finance Clerk) following a competition. On February II, 1981 she filed a grievance alleging that her classification should have been that of Clerk 6 General effective :March 1.1980. By way of general background it should be indicated that the Ontario Securities Commission, a part of the above mentioned Ministry has a number of branches. One of these, Corporate Finance employs several persons under R. Steen, the Deputy Director. Among these persons are the Senicr Accountant and Assistant Deputy Direc?or Mrs. Eby, four accountants, six lawyers, three secretaries and two clerks including the G rievor . The other clerk N. Falcioni is a Clerk 3 General although that position may be upgraded. <Much of the work done in the Corporate Finance Branch is in the area of the financial aspects of prospectuses. This includes dealing with new prospectuses from companies wishing to make share offerings as well as annual renewal prospectuses. The particular areas of responsibility in which the Crievor was working were in the area of prospecting syndicate agreements and escrow shares, and mutual fund prospectuses (renewals). With respect to renewals of mutual funds prospectuses it is ‘the responsibility of companies offering mutual fund to annually file an up-to-date prospectus. This prospectus takes into account changes in legislation and in the regulations from the previous year as well ‘as any changes contemplated by the Company. Any changes in the prospectus must be flagged by the filing solicitor on behalf of the filing -3- 1. company. The predecessor in the positicn of the Griever, a .Miss Smith, was dasfified as a Clerk 6. Her position had originally been classified as a Clerk 4 but was updated to a Clerk 6 in 1976. It remained at this position until she left in August of 1978. When the Griever took up the position the relevant position specification seems to have been that of a Corporate Finance Clerk Position Code 470303-11 which was classified as a Clerk 4 General. A new positim specificaticn was drafted in November 1980, subsequently classified as Clerk 4 General in July of 1981, and it seems to have been the preparation of this positim specification or Inore accurately its classification which led to the filing of the grievance. It was agreed by the Grievor who had a part in the preparation of this position specification, that the summary of duties and responsibilities accurately reflects what she did as of the date of the grievance. When the Griever took up her position as Clerk 4 General she underwent a one or two month training period under accountant. While she indicated in her evidence that teach her anything, we feel it is fair to suggest that during the first few months in the positicn she was in a learning capacity. IMuch of her work at this time was in the area of mutual fund prospectuses (renewals). She indicated that she had a major responsibility in this area and that eventually became responsible for contacting the filing solicitors for the outside companies with respect to major deficiencies. Evidence of !Jr. Steen the head of the branch shows that she was working on ten or fifteen -4- of these renewal prospectuses per year. It does appear that what she was doing with these was as complex as that which was being done by some.of the accountants and that she did take on additional responsibilities in this area over those which were shouldered by her predecessor. The other major area of responsibility of the Griever was with respect to prospecting syndicate agreements and esaow shares. Her supervisor between 1979 and 1980 ~Mrs. Adelaide Lamey, whose evidence impressed us, indicated that the Griever did take over a substantial responsibility in the area of escrow shares. The Griever was supervised, particularly with the more complex escrow matters and some considerable part of her time seems to have been spent in this area. It appears that just prier to her leaving the Commission in August of 1980 :Mrs. Lamey suggested that the Griever’s position shouid be reclassified up to perhaps a Clerk 5 General position. This led to the drafting of a position specification which was subsequently classified by IMr. Rich as Clerk 4 General and led to the filing of the grievance. It is well known that in grievances of this sort there are two ways in whi& the grievance might succeed. In the first place a comparison of what the Griever does with paper specifications and class standards may show that what the Griever does fits more properly within a higher classification than the one assigned to it. The second way in which a grievance may succeed is if the actual practices of the Employer seem to be ignoring the specifications and standards. This might be shown by proving that a number of other persons who were in a higher dassification -5- than the Griever were doing substantially the same work as the Griever. As pointed out by Vice-Chairman Swinton in Montague II&78 it might not be enough to succeed to show that one other person was doing a similar job in a higher classification because another explanation for that might well be that that other person was improperly classified. Dealing with the first approach, the question of a comparison of work done with paper specifications, the evidence of Mr. Rich who classified the job was that he felt that the Griever’s job fit “beautifully” within the position of Clerk 4 General and did not come within the class standard of Clerk 6 General. It is relevant to note here that positions classified as Clerk 6 General involve specialized complex clerical or subprofessicnal work which forms a significant part of the administration of the organization concerned. The standard continues: “Decision-making requires the analysis of complex problems in specialized clerical fields or arise from the supervision of a large staff where the volume, variety and complexity of the duties is extensive.” It was IMr. Rich’s evidence that he did not feel that the job specification prepared by the branch in consultation with the Griever showed that the Grievor was involved in “the analysis of complex problems in specialized clerical fields”. We feel that the position specificatico which covers what the Griever did when the grievance was filed does seem to fit more -properly within the class standard of Clerk 4 General as indicated by Mr. Rich. It is significant perhaps that that class standard refers to dedslon making as follows: “Decision making involves judgment in dealing with variations fmm established guidelines or standards. Normally employees receive specific -6- instructions only on unusual or special problems as the work is performed under conditicns that permit little opportunity for direct supervision by others.” Although the Crievor seems to have had a small amount of responsibility greater than that contemplated by a Clerk 4 General we feel that, particularly in the area of mutual fund prospectuses, she very much over stressed the extent of that responsibility. As indicated earlier the second way in which a grievance can succeed is by stowing that other preople who are higher classified are doing similar work. We were somewhat hampered in our attempt to apply this test to the evidence because the only position to which the Crievor’s position was compared was that of her predecessor, based on a job desuipticn of 1976 which lapsed in 1978. We have however carefully compared what Miss Smith did with what the Griever did and have decided that amiss Smith’s positicn may have been classified too high and in any event did involve a considerable amount more of independent complex work than that done by the Grievor. We might add.that even if we had found that the two had been doing substantially similar jobs, based on the above mentianed case of Montague that might not have been sufficient fa the grievance to succeed. What amiss Smith seems to have been primarily doing was a comprehensive research study to form a factual basis for the Securities Commissicn‘Jmicr Mines Expicration Policy which was then in the process oft being formulated. This involved fairly complex independent work, far more complex than that described by the Crievor’s ultimate supervisor Mr. Steen. It is true that iMiss Smith did involve herself in prospecting -7- syndicate agreements and escrow shares although not to the extent that the Grievor did. It is also true that she did involve herseif in some examination of mutual funds prospectuses but again not to the extent of the Grievor. Amcng other things which Bliss Smith did that the Grievor does not do was the scrutinizing of preliminary prospectuses and issuing the official Commission receipt upon compliance. In the position specification prepared for the Griever’s position in November 1980, the research component was reduced to 15%. It was pointed out by ,Mrs. Lamey that this was in case the Commission needed the sort of research done by the Griever’s predecessor but that this part of the duties and responsibilities had never been placed upon the Grievor. Because we feel that there was a substantial difference between the duties of .Mrsi Smith and those of the Griever we do not feei that the Griever has succeeded on the second approach to the problem. Accordingly the grievance ls dismissed. DATED AT London, Ontario this 1st day of September, 1981. &>es&;i P. G. Barton - RX---- (Addendum .Attached) R. Russell - Member A. G. Stapleton - Member It .- -8- ADDENDUM This is by way of an addendum to the report of Prof. Peter G. Barton to which I concur in the final decision. Nevertheless a number of matters came to the fore in the course of the hearing that are somewhat distressing. ;Mrs. Wright appears to have taken the position of one :Miss Smith, who has left the Ministry as in fact has Mrs. Wright, although the Board does not know why Ms. Wright has left. Perhaps Amiss Smith was treated too “liberally” when she was upgraded to a clerk 6,since it is fairly dear she was doing much the same work as Mrs. Wright, but it appeared she was being paid for what she & not what she did. Also pointing to the fact that Mrs. Wright was not getting full marks for her efforts was the statement made by a witness and Mrs. Wright’s supervisor, Mrs. Adelaide Lemay. Mrs. Lemay, who also is no longer with the Ministry testified that in her opinion the job should have been classified as a Clerk 5 General. What I find distressing and counter productive in this case is that in one case, that of bliss Smith, she appeared to be paid for what she knew, not what she actually did. ‘Whereas in the case of the griever, management -9- went strictly by the book i.e. as per their interpretation of the Position Specifications. They were not even prepared to bend in her case to the Clerk 5 grade while upgrading another to Clerk 6 while doing primarily the same work as the grievor. This smacks of favouritism which is abhorrent and self-defeating wherever it exists. It therefore should be rooted out if it is practiced in this department of this Ministry. Ross Russell.