HomeMy WebLinkAbout1981-0386.McCormick.81-11-27 ONTARIO
CROWN EMPLOYEES
GRIEVANCE
SETTLEMENT
- _- BOARD
180 fJfJNDAS STREET WEST, 70RONTp, ONTARIO- MSG 1Z8-SU1TE 2100 TELEPHONE- 416598-0688
386/31
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (John O. McCormick) Grievor
And -
The Crown in Right of Ontario
(Ministry of Correctional
Services) Employer
Before: Prof. P.G. Barton Vice Chairman
Prof. F. Collom Member
Mr. N. Cazzola Member
For the Grievor: Mr. N. Luczay
Grievance/Classification Officer
Ontario Public Service Employees Union
For the Employer: Mr. J.F. Benedict, Manager
Staff Relations
Ministry of Correctional Services
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A W A R b
The Grievor is a Correctional Officer 3 at the Burtch
Correctional Centre, Brantford, Ontario. On May 29, 1981 he filed
a grievance alleging that he had been improperly instructed to take
Monday, May .18, 1981 as a statutory holiday. He requested payment
of all premium pay and a lieu day to which he would have been entitled
if he had worked -that day, which was the Victoria Day holiday.
In order to understand the grievance it is necessary to
set out some detail concerning the facts. The Grievor who has been
with the Ministry since 1965 is one of five corporals at the
Institution. At the time in question the Institution worked on
eight hour shifts in which there would normally be three corporals
on duty in any one day. The cycle was a rotating cycle of five
weeks. Once every five weeks one of the corporals would be designated
as Relief Corporal . The Relief Corporal is normally scheduled to work
the day shift (8:00 a.m. to 4:15 p.m. ) Monday through Friday. On
Saturday and Sunday the Relief Corporal is scheduled for a day off and
the Institution proceeds without the benefit of a relief position. On
Monday, Tuesday and Friday of a normal week there are three corporals
scheduled to work one of each of the shifts and a Relief Corporal is
scheduled to work on the day shift and is available for relief. On
Wednesday only two corporals are regularly scheduled and the Relief
Corporal is scheduled during the day shift. Accordingly it is normally
on Monday, Tuesday, Wednesday and Friday that the person in this position
is truly available for relief in the sense that there are four corporals
scheduled to work on that day, and only three are needed for regular duties.
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Statutory holidays are normally treated like weekend days.
Unlike during the week, the inmates do not go out on work gangs to
work the farm but stay closer to their sleeping areas. On May 18, 1981 ,
a field day was scheduled at the Institution and the inmates took part
in various sport activities.
In the schedule posted for May 1981 the Grievor was originally
scheduled as a Rel.ief Corporal on Monday, May 18, Tuesday, Wednesday,
--Thursday -and Friday. He -was scheduled for Saturday and Sunday as days
off. On May 11 , 1981 he was advised in writing by Mr. Cornfoot, the
Assistant Superintendent at Burtch that according to section 10(1 ) of
the Collective Agreement his working schedule was being changed for
Monday, May 18 the statutory holiday and that he would now be taking
that date as a statutory holiday. He did in fact do so and received
the holiday pay provided for in the Agreement. In the reply to the
grievance dated dune 1 , 1981 the Shift Supervisor indicated to him
"it was felt that there was sufficient staff on duty and in view of
the fact that you were in the relief position, you were instructed to
remain off duty, and to take the holiday on the day that it fell ."
The reason which was suggested by the Grievor for requiring him to have
taken the day was that the Employer wished to save money.
We did not receive any evidence as to whether or not other
Relief Corporals have been asked to take off statutory holidays in the
past, or whether some of them have indeed requested to take off these
periods. The Grievor was asked on one other occasion to�take off a
statutory holiday and was fully reimbursed because he did not receive
the normal five day advance notice rewired by Article 10. In this case,
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As I understand it, the argument of the Tinian is that the
Employer discriminated against this employee by picking him out and
requiring him to take the statutory holiday. There is also some
suggestion that a doctrine of fairness in the application of the
Collective Agreement is breached. Section 18(1 ) of CECBA (the
deemed management rights clause) gives management the right to determine,
inter alia"complement, organization, assignment . . . . " .The matter of
scheduling employees is.dealt with in a number of places in the relevant
Collective Agreement, the question of shift schedules is covered by
Article 10. This Article provides that shift schedules shall be posted
not less than 15 days in advance and:
"There shall be no change in the schedule
after it has been pasted unless notice
is given to the employee one hundred and
twenty (120) hours in advance of the
starting time of the shift as originally
scheduled."
Article 7 deals with hours of work. Article 7.02 reads as
follows:
"The normal hours of work for employees
on the schedule shall be forty (40) hours
per week and eight (8) hours per day. "
Article 19.01 deals with holiday payment and provides that
where an employee works on a holiday he receives time and one half
for hours worked plus extra pay or a lieu day in addition.
We are unanimously of the view that the grievance must fail .
It is clearly the prerogative of management to schedule work in accordance
with the provisions of the Agreement. That was done in this case. The
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Grievor received adequate notice as required by Article 10.01 and was
paid holiday pay for the day off. We have received no evidence that
the Grievor is the only Relief Corporal who has been asked to take
days off on holidays and thus there is no evidential basis for an
argument based on discrimination. There is no suggestion as well that
management has scheduled days off on holidays for Relief Corporals and
somehow reduced the normal forty hour per week work week over the year.
It seems clear that statutory holidays and weekends are treated in the
same way and that normally management does not require a Relief Officer
on these occasions. The decision in this case was based. on a decision
that extra staff was not required and it is not our function to second
guess the wisdom of this decision.
DATED AT London, Ontario
this 11th day of May, 1982.
Peter G. Barton
Vice Chairman
F. Collom
Member
N.- Ca22ola
Member
393/81
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Ms . Diane Freeman Grievor
- And -
The Crown in Right of Ontario
(Ministry of Revenue) Employer
Before: Mr. R. L. Verity, Q.C . Vice Chairman
Ms. E. McIntyre Member
Ms. H. J. Laing Member
For the Grievor: Ms. L. Stevens , Grievance Officer
Ontario Public Service Employees Union
For the Employer: Mr. R. M.- Gordon
Senior Personnel Officer
Ministry of Revenue
,
_ 2 _
A W A R D
This Arbitration is as a result of a classification
Grievance whereby the Grievor Ms. Diane Freeman claims that her
present position is improperly classified as a Clerical Typist 2,
when in fact it should have been classified as Clerical Typist 3 .
At the Hearing, the Parties filed the following statement
of fact with the Board:
(1) The grievance is properly before the Grievance
Settlement Board and that the Board has jurisdic-
tion to hear this matter.
(2) The grievor is employed as a Clerk-Typist in the
Welland District Office of the Retail Sales Tax
Branch and has been employed since August 27 , 1979
and during her term of employment has been a highly
satisfactory employee.
(3) The position specification number 22--3525-21
effective June 1, 1980 is the current position
specification for the position held by the grievor.
(4) That the Preamble dated "Revised February 1 , 1972"
and the class definition for Clerical Typist 2
and Clerical Typist 3 dated September, 1963 are
the current classification standards in use and
at issue in this grievance.
The evidence indicates that Ms . Freeman has been employed
with the Welland Office of the Retail Sales Tax Branch of the ProvincE
of Ontario for in excess of two years . The Welland Office contains
some 15 to 19 Employees divided into two sections -- an audit section
and a compliance section, both of which are supervised by a District
Manaaer. Technicallv the Grievor is in neither Denartment, and works
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The classifications of Clerical Typist 2 and Clerical
Typist 3 are both dated September, 1963. The classification standard
Clerical Typist 2 (Exhibit 4) reads as follows :
"52052
CLERICAL TYPIST 2
CLASS DEFINITION:
This class covers positions containing repetitive,
well-defined and closely supervised clerical and typing duties
any of which can be learned within a few weeks. Employees at
this level have a non-interpretative working knowledge of simple
regulations and a basic understanding of the purpose and procedures
of their work unit; they are responsible for independently searching
out simple data from standard sources and records and for producing
a high volume of. complete and accurate work. Standard practices
and close review of all outgoing work limit errors to minor delays
and duplications within the work unit or to inconveniences to the,
public due to incorrect directions or delay in providing information
or services . Decisions and opportunities for initiative are limited
and pertain to factors such as the composition of `elementary written
matter and the scheduling of work priorities.
CHARACTERISTIC DUTIES:
Type financial statements , expense accounts,' payrolls ,
summaries, tables, memoranda, letters , reports involving figure
typing, involved formats and spacing arrangements and a responsi-
bility for grammatical accuracy, compose elementary covering letters ,
acknowledgements and requests for information.
Perform routine, repetitive clerical duties such as :
calculate pay deductions , rates of interest, extensions , etc;
check for mechanical accuracy and completeness a limited number
of simple invoices , applications , expense accounts , permits; receive,
issue receipts for and record limited quantities of cash; forward
data and/or form letters to standard locations at given times ;
distribute mail of low complexity on basis of content.
J.
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Under direction maintain and use a moderately-sized
filing, card or ledger system on the basis of an understanding
of its subject matter. Perform cumulative and control posting
of data such as weather, mileage, equipment use, address, com-
pensation, weather and attendance data.
Provide elementary information and regulations to the
public and obtain data necessary to complete simple documents .
Compose modified form -letters - or standard acknowledgements .
Contact public to obtain or clarify specific information such as
delivery date or price changes.
Assist in training new staff.
QUALIFICATIONS:
1. Grade 10 education, preferably Grade 12 or an equivalent
combination of education and experience. Successful completion
of the Civil Service Commission typing test.
2. At least two years experience as a Clerical Typist 1 or
equivalent education and experience.
3. ' Ability_ to understand and follow detailed instructions ;
alertness ; adaptability; satisfactory physical condition;
personal suitability, neat and well groomed appearance. "
The classification standard of Clerical Typist 3 {Exhibit 5;
reads as follows :
52504
CLERICAL TYPIST 3
CLASS DEFINITION:
This class covers positions containing skilled typing
duties in combination with semi-routine clerical work performed
under general supervision but clearly defined guidelines . Employees
at this level require an understanding of the intent and content of
their duties and have a good working knowledge of segments of acts ,
regulations , precedents and policies pertaining to their work. They
have necnaGinnai writ-t-Pn and verhal cnntacts with members of the publi
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information. They explain segments of acts and regulations and
are responsible for maintaining co-operation and good public
relations. Errors at this level may consequently entail embarrass-
ment and a temporary loss of public relations , as well as delay and
possible financial loss to the work unit. However, all outgoing
work and any problems that are not soluble by standard practice are
reviewed by the supervisor but the employee is held responsible for
tracing and correcting any routine errors. Decisions and initiative
are exercised in weighing the urgency, importance and intent of
enquiries and work assignments and in selecting material necessary
for the completion of such assignments. Some positions at this
level are responsible for work supervision and training of small
groups of subordinates .
CHARACTERISTIC DUTIES:
Complete quickly and accurately, specialized and/or highly
skilled typing assignments involving considerable length, complexity
and variety of subject matter; assume complete responsibility for
acceptable formats , layouts and grammar, subject only to spot checkir
by supervisor and drawing his attention to possible modifications in
grammar.
Compose semi-routine, non-specialized correspondence in
answer to enquiries related to the work of the unit.
Perform semi-routine clerical duties under general
supervision including checking a variety of material for compliance
with clearly defined regulations; maintaining a variety of simple
records pertaining to the activities of the unit and preparing,
reports and statements from these involving some discretion as to
the selection of data and methods of presentation; balance records
to control ledgers ; distribute branch or section mail on basis of
content and knowledge of unit's work areas .
Operate and maintain complete responsibility for a complex
medium-sized filing system on the basis of an understanding of its
content.
Perform personal and telephone receptionist duties involvir
a sense of discretion.
Give work guidance to a small group of typists, including
training on procedures , allocating and checking work.
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QUALIFICATIONS :
1. Grade 10, preferably Grade -12 education or equivalent
combination of education and experience; successful com-
pletion of Civil Service Commission typing test.
2. A minimum of three years ' clerical-typing experience or
equivalent combination of education and experience.
3. Initiative, tact, ability to communicate orally and in
writing; personal suitability; neat and well groomed
appearance. "
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Subsequent to the filing of this Grievance, the Grievor
was requested by the Ministry to complete a questionnaire regarding
her present duties and responsibilities. The Grievor ,complied with
the Ministry request, and as a result of her answers to the
questionnaire (Exhibit 14) a Position Specification and Class
Allocation Form was prepared by the Ministry (Exhibit 10) .
The Position Specification Form was subsequently reviewed
and approved by the Grievor (Exhibit 15) . The only qualification
expressed by Ms . Freeman in approving the Position Specification
Form at that time was the fact that she provides a bilingual
service (French and English) that was not indicated on the form.
The Grievor's Position Specification Form reads :
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"POSITION SPECIFICATION AND CLASS 'ALLOCATION FORM
Use only where classification decisions are made under
agreement between a Deputy Minister and the Chairman
of the Civil Service Commission.
Position Code
22-3525-21
ONTARIO PUBLIC SERVICE
PART 1 Position Title This Position is :
NEW
Clerk Typist X R VISED
PREVIOUS Position Title Class Title Class Code Position Code
Clerk Typist C lerk Typist 2 52052 22-3525-21
Immediate Supervisor's Title- Position Code
District -Compliance Supervisor 22-3525-13
Ministry Division
Revenue Revenue
Branch Section Location Address
Retail Sales Tax District Office 'Welland
No. of Positions Supervised Incumbents Supervised
Incumbents Directly Indirectly Directly Indirectly
1 N/A N/A N/A N/A
2. PURPOSE OF POSITION (Why does this position exist? State goals .
objectives etc. )
To provide typing and clerical services for the Retail Sales Tax
District Office.
3. SUMMARY OF DUTIES AND RESPONSIBILITIES (Indicate percentage of time
spent on each significant function. _ Indicate scope
equipment working conditions unusual features etc. )
1. Provides typing services for the District Manager, Compliance
Supervisor and some relief typing for other staff in the
District Office by performing such duties as :
60%-typing expense accounts, summaries, tables , memoranda, letters ,
reports (involving figure typing i.e. budget) , from handwritten
draft or oral instructions;
-determining proper format and spacing arrangements , ensuring
grammatical accuracy and proofreading for accuracy;
_rmmnnsina eZementary covering letters . acknowledgements and
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2. Performs general clerical duties and
provides informational
assistance. to taxpayers by performing such duties as :
25%-answering all incoming calls and transferring to the appropriate
staff member; recording and relaying messages, as required;
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-providing basic information to the public on request, over the
telephone or in the --office reception area;
-providing assistance to vendors in the completion of applications
for permits and return cards;
-obtaining all the necessary information for closeouts , chattels ,
final tax, change of address, etc. ;
--preparing receipts for taxpayers for cash payments ; obtaining
the necessary money order from the bank; recording all -voluntary
payments and maintaining a monthly record;
directing the public to the appropriate office or providing the
necessary telephone numbers to ensure enquiries will be dealt
with promptly;
-maintaining records on the issuance and control of Single Event
Permits; mailing out applications on request;
-preparing requests for information on chattels; following up to
ensure information is received.
3. Performs other related duties including:
10%-replenishing the postage meter as required;
-receiving, sorting and distributing incoming and outgoing
mail;
-updating address or name changes for compliance records; filing
return card changes;
-filing correspondence and documents ; opening new files as
required;
-photocopying material on request;
-recording incoming applications in the ledger; issuing numbers
to all applications;
-verifying the new vendor listing from Head Office against the
applications ledger;
-maintaining the bring forward folder for the Compliance Supervisor;
-keeping daily statistics on applications received and forms issued
for monthly summaries
4. Performs various other duties as assigned.
5%
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4 . SKILLS AND KNOWLEDGE REQUIRED TO PERFORM THE WORK (State
education, training, experience, etc. )
Knowledge of general office procedures; typing to Civil Service
Commission standards; good knowledge of spelling and grammar
usage; ability to communicate effectively and deal tactfully with
the public.
5. SIGNATURES
Immediate Supervisor DATE i Ministry Official DATE .
DA MO YR I DA MO AYR
"R. Patton" 29 05 81 "T. Benson" 03 06 81
(please type supervisor' s name) (please type official ' s name
& title)
R. Patton, Acting District Manager T. Benson, manager, Field
operations
6. CLASS ALLOCATION
Class Title Class Code Occupational Effective
Group No. Date
DA j lYfl
Clerk T ist 2 52052 OS 03B 0i 06 8
I have classified this position un er au ority delegated to me by the
Deputy Minister and in accordance with the Civil Service Commission
Classification standards for the following reasons :
A. Provides typing services including the typing of correspondence,
reports , etc. , involving the determination of proper format and
grammatical accuracy. Composes routine letters.
B. Performs basic clerical duties , verifying the accuracy of information,
obtaining additional information as required.
C. Provides information and assistance to the public. Acts as telephone
receptionist for the office, relaying calls , taking messages and
responding to general enquiries.
. Signature of DATE (please type evaluator' s name)
Authorized DA IMO Y E. C. Farragher, Director
Evaluator "J. Julien" 1 04' 0'6 S1 for Personnel Services"
The Grievor gave evidence as to her present responsibilitiez
that elaborated upon the information contained in the Position
Specification Form, but was substantially in agreement with the
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Douglas G. Frost, a Personnel Administrator with the
Ministry of Revenue, testified that he prepared the Position
Specification Form as a result of the Grievor' s reply to the
Ministry questionnaire. . Mr. Frost has ,been with the Ministry
for two years in his present position, and prior to that period
he was employed with the Personnel Department of Canada' Trust
and with the Personnel Department of a private industry. J.'r.
Frost compared the contents of the Position Specification Form
to the classification standards for Clerical Typist 2 and Clerical
Typist 3 (Exhibits 4 and 5) . As a result of that comparison, Mr. '
Frost was satisfied that the Grievor was in fact properly classified.
It was Mr. Frost' s evidence that the Grievor's ability to communicate
in French was not a requirement of the class definition. Briefly,
it was his evidence that the core of the Grievor' s duties fell within
the position of Clerical Typis.t 2. In addition, he testified that
placement in the classification. of Clerical Typist 3 , rather than in
the classification Clerical Typist 2 , depended upon the levels of
complexity of the Grievor' s actual duties and responsibilities.
Mr. R. R. Patton, the District Manager of the Welland
Office, gave evidence as to the day to day operation of the Welland
Office in general, and the responsibilities of the Grievor in
particular. He testified that he supervised the Grievor directly ,
and that the type of information given by the Grievor to the
general public was in the nature of general knowledge as opposed
to "interpretations" of the relevant Act and Regulations.
In a classification Grievance, the law is well established.
In order for a Grievor to succeed, he or she must prove that the core
of the duties performed by the Grievor were those duties associated
with the higher classification (See Leworth and- the Crown in the
Right of Ontario, Ministry of' Transportation and Communications
1981 26/80 R. J. Roberts, Vice-Chairman) . Given the general nature
of the worked performed in the two classifications under scrutiny,
it is inevitable and unavoidable that there will be 'some degree of
overlap between the responsibilities of those classifications
(Messrs. R. Beals and M. Cain and Ministry of Community & Social
Services 1981 30/79 P. Draper, vice-Chairman) .
In a determination of the issue , the Board is of the view
that the core of the Grievor's present responsibilities and duties
fit within the classification Clerical Typist 2. From the evidence
presented, we are unable to find that Ms. Freeman is required to per`<
"specialized and/or highly skilled typing assignments of considerable
length and complexity" as required for the classification of Clerical
Typist 3. From her own evidence, her typing responsibilities take
up 60% of her time. The evidence indicates that the Grievor' s tv^inc
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is of an elementary nature and is generally routine. The Board
finds that the Grievor' s position is essentially that of a typist
with clerical, responsibilities and not that of a clerical worker
,with typing` responsibilities.
The preamble for clerical, typing, stenographic and
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secretarial class services (Exhibit 2) under the heading Clerical
Typist Series - 4 Classes states in part:
"All levels within this series are based on
graduations in complexity of the clerical work
with the first three also depending on the degree
of typing skill required. "
F
In a review of the relevant classifications , it is apparent
that all of the clerical typist classifications contained common
elements, and each level differs depending on the degree of the
complexity of the responsibilities involved.
Admittedly, some of the Grievor' s clerical duties are at
the Clerical Typist 3 level. We find that some overlap between the
classifications is inevitable. Further, the Grievor's personnel
and telephone responsibilities do require a "sense of discretion"
which is Typist 3 requirement.
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The Board accepts the Employer' s evidence that the t
Grievor' s responses to public inquiries are more in the nature
of general knowledge as opposed to specific interpretations .
The Welland Branch office has personnel available to answer simple
public interpretations , and more difficult interpretations apparently
are referred to the Toronto office for clarification.
The Board finds that the supervision of the Grievor's
work by the District Manager, Mr. Patton is more in keeping with
the Clerical Typist Z classification than the higher classification.
Unfortunately, the ability of the Grievor to communicate
fluently in the French .language is. -of no assistance to her in the
determination of the proper classification, as bilingualism is not
part of the job description. Accordingly, this .Grievance must be
denied.
In spite of the result, this Board would be remiss indeed
if we did not comment on the Grievor's obvious abilities.. The
evidence is clear that Diane Freeman is a fine employee. There is
little doubt that she is both bright and articulate. Her Supervisor,
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Mr. Patton, described her work as being "neat, up-to-date
and organized" . It is to be hoped that her full potential
will be recognized in the future.
DATED at Brantford, Ontario this 27th day of Novembers
1981.
Mr. R. L. Verity, Q. C. Vice Chairman
c
Ms. E. McIntyre Member
Ms. H. J. Laing Member