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HomeMy WebLinkAbout1981-0300.Duck.82-06-01300/81 m Between: IN THE FITTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Befbre: For the Grievor: For the Employer: Hearings: OPSEU (Mr. Arthur Duck) - And - The Crcwn in Right of Ontario (Ministry of Revenue) Prof. M.R. Gorsky Vice Chairman Mr. R: Russell Member Mr. A.G. Stapleton Member Ah-s. J. Miko Grievance/Classification Officer Ontario Public Service Employees Union Mr. E.C. Farragher Director, Personnel Services Branch Ministrv of Revenue ., July 29, lYS1 December 11, i981 January 23, iOS2 ! .‘I The Grievor, Arthur Duck , claims that he should be classified as a Property Assessor 3 and not as a Property Assessor 2, which latter classification he occupied at the time of the grievance. The relief claimed is that the classification be made retroactive to October 5, 1978, when the matter of reclassification was first raised by Mr. Duck with his supervisor (see Exhibit 8). In so claiming, the Grievor alleges that the Employer has violated s.18(2) of the Crown Employees Collective Bargaining Act, R.S.O. 1980, c.108. Section 18(l)(a) of the latter Act provides that - "classification of positions" is within the exclusive jurisdiction of the Employer. Where an employee alleges, relying on s.l8(2)(a),that he or she has been improperly classified, a board is precluded, by s.l8(l)(a), from interfering with the classification system adopted. This Board is restricted to determining whether the Employer is conforming to the relevant classification system. The legislation further precludes this 8oard from doing other than ascertaining whether the employee, whose case is before the Board, actually performs the.duties assigned to the position. As well, in a case where the employee is performing the duties assigned to the position, it must be ascertained whether he or she is, as well, being required to perform virtually the identical duties which are being performed by employees whose position is included in another and more senior classification. In Re: Rounding, 18/75, Professor Beatty describes the juris- diction of a board in matters such as the one before this Board: -3- .I II . ..this Board is limited by the express provisions of legislation to determining whether or not on the system employed in the classifications struck, the employee in question is actually performing the duties assigned to the position or even assuming that to be~the case, whether 'that employee is nevertheless being required to perform virtually the,identical duties which, the class standard notwithstanding, are being performed by employees whose position has been included in some other.more. senior classification." It was the position of the Union that the Grievor was performing substantially the same duties as employees classified as P.A.3s. In this regard,evidence was heard from George Broadfoot and Mike Campbell, two employees classified as P.A.3s. It was the position of the Employer that the Grievor was not performing substantially the same functions as those of P.A.3s and that,, in fact, he was neither able to,nor required to,perform many of the functions which are set out in the class standards applicable to the P.A.3 classification. It was the position of the Union that if Mr. Duck was not performing certain functions which are set out in the class standards applicable to the P.A.3 classification,then this was's0 because those particular functions were, at best, infrequently, performed by P.A.3s. In the case of Re,Roundinq, su'pra, it is stated,at p.8,that where certain duties set out in a class standard are in fact not being performed or only in,frequently being performed by persons .' within that class, such standards would be overlooked. That is, the Board would look to see whether the Grievor was performing "virtually the identical duties which, the class standard notwithstanding, are being performed by employees whose position has been included in some other more senjor classification." I agree with Professor Beatty's interpretation,which in no way detracts from the binding effect of the'class standard. Such a case is not to be confused with a situation where only one employee ina higher classification "performs the same'tasks, for it may be that such an employee has been improperly classified'. (See, k . r - .i - Montigue, 110/78) Swinton. Professor Swinton stated at pp.5-6: "If another employee doing identical work to the grievor is classified at a higher grade, it may indicate that the employer's actual classification practicesdiffer from the written classification standards." Professor Swinton then goes on to indicate that evidence-of the performance of one employee might be inconclusive for the reasons stated. In the case of Re Charbonneau and Skomorowski 435/80, at p.36 I stated that: "I treat the class standards as being the absolute standard. The reliance on evidence relating to jobs performed ty other employees covered by the class standards provides an illustration of 'the application to particular cases of what are necessarily generally worded statements'.To this extent they serve as aids to interpretation. They cannot, however, serve to undermine the class standards as the governing basis for determining classification disputes." :: I .:G There is nothing inconsistent. in the last quoted statement, with examining the actual performance of responsibilities by employees assigned to a particular classification. Depending on the circumstances, they may assist in determining what the class standards are. If a significant number of employees are assigned to a particular classification and it is demonstrated that tliy do not perform certain of the work set out in the written classification standards, then an employee, in a lower classification, doing work identical to that which is assigned to employees in the higher classification, should be treated as included in the higher classification. At no time are the class standards discarded or ignored, they are merely interpreted in the light of standard practice. It was the position of the Employer that the Property Assessor classification is a training position and accordingly an employee does not attain a higher classification until he or she demonstrates competence in carrying out the functions of the higher classifications and it is not enough to merely demonstrate that the employee performs or is expected to perform the work of that classification. There is nothing in the language of the Property Assessors classification which designates those within the classification as being part of an overall training scheme whereby~ they move from position to position as they attain an acceptable standard of performance. There was no evidence of any cornnunication to employees that this was the case when they were assigned to the performance of work which was arguably within the ambit of a higher classification. Given the nature of the Property Assessor classification, it is inevitable that there will be a certainamount of overlap between'the work performed by persons within the. several classifications. In the absence of any clear language disclosing that an incumbent must attain a particular standard of proficiency to 1 qualify for advancement to a higher classification, I am unable to accept the Employer's submission that this Board should imply such a' term. I must' also reject the submission of the Employer that the 'process undertaken requires us to.rot only rate an employee with respect to the job functions expected to be performed, but also to rate the employee's proficiency~in performing the functions. If that were the case..it would be expected that this requirement would be represented in the class standards. There was no evidence disclosing that when the Grievor was given responsibility for assessment in a-neighbourhood, he was also. informed that this was merely part of a ongoing training process which might lead, upon satisfactory completion of training, to the acquisition of the status of a P.A.3. It was the position of the Employer that the class standards for the P.A.2 and P.A.3 positions were clear and unambiguous. I must confess that I do not find them to be so. The meaning of the general language contained in each of the class standards is capable of being clarified, Utilizing, for that purpose, examples of the work actually performed by persons classified as P.A.3s. On several occasions.it was submitted, on behalf of the Employer, that it was necessary that the Grievor first "establish and prove that he has the ability to perform the higher level duties described in the P.A.3 class standard." Mr. Dick, the Grievor's Manager, testified that, in his opinion, the Grievor, who was classified as a P.A.2, not only did not have the ability, at the material times, to perform many of the P.A.3 functions, but, as well., did not even have the ability to perform many of the P.A.2 functions. In fact, he volunteered, Mr. Duck did not even have the ability to carry out many of the P.A.1 functions. Nevertheless, the Grievor was classified as a P,A.2. In August of 1978, at an appraisal meeting, he was advised that his level of performance as a P.A.2 was less than satisfactory. It would appear, from Mr. Dick's evidence,that the Grievor had never acquired qualifications, in the sense used by the Employer, at any level of the Property Assessor classification. This might be the case. However, the promotion of the Grievor to the P.A.2 classification by the Employer is consistent with my view of the class standards as job related and not man related. If an employee is assigned to perform the work of a particular classification, in the absence of clear language in the class standards, such employee is within that classification, whether he or she performs the work -7- ‘; .:,11 ..: . well or badly. Poor work performance need .not be tolerated by the Employer, " but we are here not concerned wi.th the expedients availa,ble to the Employer in such a case. Certainly, in the viewof at least one of his SuperViSOrS, the Grievor was unqualified, at any level, to function as a Property Assessor. I have not been directed to any case on point which establishes that an employee must be,able to perform the work set out in the class standard to a particular level of.competency in order to be within that classification. In the ab,sence of such a requirement being present in the class standards the issue is to be decided in the manner set out in the Rounding case (supra). Mr. Farragher characterizes his position, at p.9 of his * written argument: ".;,.[S]ince the duties performed by Mr. Duck were not identical to those performed by Messrs. Campbell and Broadfoot, I suggest that there is no indication of the employer's actual classification practices differing from the written classification standards." What I take him.to mean, is that Messrs. Campbell and Broadfoot were accepted by him as representing P.A.35, properly classified and performing their functions as set out in the P.A.3 class standard; whereas the Grievor, who it was alleged was not performing those duties, could not be considered to be improperly classified as a P.A.Z. My examination of the duties carried out by Messrs. Campbell and Broadfoot satisfies me that there were many areas within the class standards for the P.A.3 position which they did not carry out, and.which they were not required to carry out. There was no suggestion that Messrs. Campbell and Broadfoot .fell within that group of employess in a higher classification referred to in the MontigE case - " decided by Professor Swinton and relied upon by the Employer. From the argument of the Employer, it is clear that it accepts that the work performed - B- by Messrs. Campbell and Broadfoot was representative of the work performed by P.A.3s and that they did not constitute isolated examples of improper classification. Therefore, if I find that the Grievor was required to perform virtually the identical duties which, the class standard notwithstanding, were being performed by Messrs. Broadfoot and Campbell, whose positions were included in the P.A.3 classification, then I would find that the Grievor / has been improperly classified. See, the Rounding case supra. I would find that there are areas of responsibility established under the P.A.3 classy standard which the Grievor did not carry out nor can I find that he was required to carry them out. This was also true of Messrs. Broadfoot and Campbell and I am sdtisfied that the result in this case must be based on a comparison of the responsibilities attached to the Grievor's position and those attached to the positions of Messrs. Broadfoot and Campbell. In doing so, I must once again emphasize that the alleged deficiencies in Mr:Duck's work performance cannot be considered in this case, although they may have to be dealt with in other grievances filed by the Grievor and which are proceeding to arbitration. One of the positions taken by the Union was that the Grievor, in June of 1977. was assigned to a neighbourhood when the neighbourhood system was established, and that as all of the other assessors assigned neighbour- hoods were P.A.3s this represents some evidence demonstrating that the Grievor was required to perform the work assigned to P.A.3s. The evidence discloses, however, that there were some P.A.Zs assigned to other neighbourhoods and that, in fact, there was a P.A.2 assigned to a neighbourhood in the Grievor's area. -9- The Employer endeavored to differentiate the responsibilities of the Grievor from those of the other P.A.3s assigned a neighbourhood, by stating thatthe Grievor's neighbourhood was a training neighbourhood and was one presenting less complicated assessment problems.. Mr. Campbell's evidence was to the effect that his own neighbourhood was not 'that complex and was similar io that of theGrievor's,with a small incidence of commercial properties. An examination of Exhibit 2-11 discloses that there are a number of other P.A.3s who have a small number of commercial properties; for example Mr. R. Murray in neighbourhood 501, and Mr. F. Fry in neighbourhood 514. The Employer emphasized the training nature of the neighbourhoodm assigned ,to the Grievor. It is true that he received some supervision, although it is not clear that such supervision was appreciably ~greater than. that furnished P.A.35 in the same area. Whe~re a P.A.2 was assigned functions in a'nei:ghbourhood,it would 'seem that he was under the.direct supervision of a P.A.4. For example, Mr. Peter Jensen, a P.A.4, who~was assigned neighbourhood 516 and in turn assigned to Mr. T. Dineen, a P.A.2, certain functions in his neighbourhood which were carried out under the direction and guidance of Mr. Jensen. i Reliance was also ~made, by the Employer, on the Grievor's allegedly poor statistical record of jobs completed. I do not believe that the volume of work performed is germane to this issue, as this would relate to whether an employee was meeting acceptable production requirements but would be irrelevant to the question of whether he was expected to perform the same function as P.A.3s assigned to neighbourhoods. A review of Exhibit 2-11; "Comparative Records and Quarterly Production Reports," demonstrates that Mr. Duck carried out assessor' functions also carried out by P.A.3s. These duties are associated with Sales; the s.42143~; s.636 A/B and Appeals. These were described by Mr. Campbel his evidence as "ordinary neiqhbourhood functions." There was a great deal of evidence as to, what was termed, Mr. Duck's unwillingness to go c.. but I into the field and, particularly to his refusal to go out in;o the field at night to perform various assessor functions. Once again, this relates to the standard of performance and not to the functions assiqned. In their evidence, both Mr. Campbell and Mr. Broadfoot testified that they made court appearances with respect to assessment appeals,as did the Grievor. There was an attempt to differentiate the nature of the responsibility based on the Grievor being subject to greater supervision. The Grievor and Messrs. Campbell and Broadfoot all testified that their Manager,mr. Dicklwas present at court hearings and I am unable to find, on the evidence, that the Grievor was being supervised to such an extent that it might be said that the nature of the work being performed by him was not, therefore, the same as that assiqned to P.A.3s such as Mr. Campbell and Ylr. Broadfoot. In his initial presentation of evidence, Mr. Dick emphasized the.degree of supervision given Mr. Duck in connection with court appearances, but in cross-examination admitted that he went to court with all of the assessors. I cannot avoid observing that there was manifest hostility existing between Mr. Dick and Mr. Duck. When Mr. Dick stated, without further explanation, that Mr. Duck, who was classified as a P.A.2, could not even perform the functions of a P.A.l, I can only interpret this as representing a form of animus which affects my ability to give credence to many of his answers. I must also state that Mr. Duck was a less than open witness, and was often defensive and evasive. Nevertheless, Messrs. Campbell I and Broadfood appeared to be anxious to testify frankly and openly and appeared to have no special interest in supporting either side. Upon a review of the relevant evidence I conclude that the Grievor was assigned to perform the work of a P.A.3 and should be 50~ classified. In so ruling I make no finding either as to the quality or quantity of his work performance or whether he refused to follow instructions, which matters, I find, for the reasons above set out, are not relevant to the issue before me. DATED at London, Ontario this.lst day of June, 1982., - :‘., .~f ,, ..:.; M.R. Gorsky Vice Chairman R. Russell Memb e 1‘ A.G.Stapleton Member