HomeMy WebLinkAbout1984-0078.Smith et al.86-10-31CROWN EhmOVEES .’
-+ GRIEVANCE
: SETTLEMENT
BOARD
Between:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before,
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (C. Smith, F.C. Collins, E. Rainey, P. McNeil)
- And -
The Crown in Right of Ontario
(Ministry of the Solicitor General)
Before:
For the Grievers:
For the Employer:
Hearing Dates:
M. K. Saltman Vice-Chairman
J. McManus Member
K. .Preston Member
M. Farson
GXln?.el
Cornish & Associates
Barristers & Solicitors
D. W. Brown
COUllSel
Crown Law Office, Civil
Ministry of the Attbrney General
October 25, 1984
February 18, 1985
The Grievors in this case, F.G. Collins, P. McNeil,
E. Rainey and C. Smith claim that they ought to be reclassified
from Instructors 1, Ontario Fire College to Instructors 3, pi
pntario Police.College, retroactive to.September 14, 1982. At
the outset of the hearing, the parties agreed to proceed with the
grievance of Collins and to apply the ~outcome of the grievance to.
the other Grievors. _~,.
On April 18, 1986, the Board issued its decision
llow. These are those dismissing the grievance with reasons to fo
reasons.
The Grievors are employed in the Ministry of the
Solicitor General as Instructors at the Ontario Fire College. In
this capacity, they are responsible to the Chief Instructor and,
ultimately, to the Principal of the Ontario Fire College. The
Ontario Fire College provides general and advanced level training
to officers and officer candidates of municipal fire.departments.
The primary course g~iven by the College .is the Fire Protection
Technology Course, which is offered at the general, intermediate
and advanced levels. Upon completion of each level, a
certificate of completion is-,given to each successful candidate.
In addition to the Fire Prote.ction, Technology Course, the College
offers a number of specialized seminars of varying duration.
Courses range from one week, for some of the specialized courses,~
to twelve weeks, consisting of four units of three weeks each,
for the general level Fire Protection Technology Course.
3 2
With the exception of recruits, the average student
of the Ontario Fire College has had considerable field experience
(at least four or five years for students in the general level
course). Enrolment in each of courses is limited and application
for enrolment is made by the municipal fire departments to which
the candidate is attached. Students pay no tuition fees and are
inreceipt of their regular wages while in attendance at the
..~ Ontario Fire College. Students at the College are considered to
be-on duty‘and~~are required to maintain a 'minimum dress standard
(although no uniforms are required). Courses are offered.from
8:30 a.m. to 4:30 p.m. with scheduled breaks in between.
The duties and responsibilities of the Instructors 3
at the~ontario Fire College are set out in the .job specification
as follows:
"1. Provides instruction through lectures, discussions
and practical demonstrations in a variety of
subjects by:
- developing and preparing instructional material,
researching subjects to produce clear and I
up-to-date standard notes for students (sic) use;
- preparing lessons from appropriate textbooks and
publications, adapting as necessary'to reflect
current technology and students' needs;
- assisting students in the preparation of
assignments, recommending, obtaining and
distributing necessary equipment and visual-aids,
advising on lesson plans and answering technical
- questions as appropriate:
- conducting research programs with ~students,
graduates and Fire Department personnel in order
to determine present and future training needs;
- providing direction .and guidance to seconded
instructors at the .Ontario Fire College;
- developing syllabi and time tables for Ontario
Fire College programs, both operationaland
planned for future:
. 4
- teaching a variety of--subjects related to fire
prevention and inspection including: fire. and
building codes; states, structure and
flammability of matter; convection, conduction,
radiation methods,of heat transfer; units of heat
measurement: flame spread and control in relation
to various finishes and finishing processes;
spontaneous heating, etc. at the general level;
the use and application of the Ontario Fire Code
and _the Ontario Building Code, etc. at the
advanced level:
- teaching fire fighting operations at the College
and Regional Schools, conducting demonstrations
and instructing in the techniques of rescue,
salvage and forcible entry, ventilation
practices, hydraulics, fire streams, etc.; the
use of ropes-and knots, tarpaulin folds,
stretchers, chutes; the use and proper care of
pumpers, ladders, fire hose,'~,fire extinguishers,
breathing apparatus, etc.; the establishment of
command posts, efficient utilization of human and
physical resources, effective tactical survey
programs: contingency planning etc. at the
advanced level;
- providing instruction in fi-re department
administration, the developmentof fire training
programs, types and uses.of records, teaching and
assisting in the teaching of.manmanagement,
preventive discipline, personnel need and the
optimum utilization of human and material
resources: the elements of financial
administration, managing managers, grievance
procedures, master planning, etc. at the advanced
level;
- instructing in the proper use and care of a
.variety of types of fire department equipment and
apparatus, e.g. directing students in such
matters as hose lays and the cleaning, drying and
replacing of hose;
- preparing or assisting in the preparation of
class schedules, questionnaires, examinations,
etc.;
- marking papers and participating in student
evaluation as required;,
- designing-, fabricating, and setting 'up training
aids for instructional and display purposes;
- creating or assisting in the creation of
video-tapes: testifying in court re methodology;
authenticity and continuity of video-tapes of
tests and fire scenes;
- counselling students on academic and personnel
problems as required;
- remaining current with improved teaching and man
management techniques, technical changes, etc.,
5
reading relevant publications as appropriate.
2. Performs a variety of duties to ensure for the
safe, efficient operation of fire equipment and
the College by:
- conducting regular inspections of College
buildings and grounds for adherence to fire
safety regulations;
- detecting potential hazards and correcting
de~ficiencies or making recommendations for
modifications ,and improvements;
-.checking Commissionaires' reports for unsafe
conditions and addressing same;
- maintaining breathing apparatus and keeping
records related to same;
--explaining and demonstrating the use of fire
fighting equipment to College staff;
7 establishing and maintaining controls of
equipment utilized'in demonstrations, e.g.
vehicles, aerial ladders, pumpers,~ hoses,
selection of hose bore~and pressure rations,
and various types and sizes of fire
extinguishers;
- cleaning, lubricating, adjusting and making
minor repairs to equipment and instruments;
- maintaining inventory and service records of
all equipment and vehicles for which an
instructor has Bssigned responsibility; - supervising safety aspects during fire fighting
exercises, demonstrations and tests,
recommending preventative measures and changes
in proc~edures, taking immediate action to
ensure safety if necessary;
-.ensuring adequate supplies, proper condition
and readinessof equipment such as pumpers,
aerials, sizes of hose, etc.;
- maintaining and refilling extinguishers for use
in training exercises and Regional Schools;
- liaising with vendors and ordering supplies for
training. ar&qperations, recommending major
repairs or purchase of replacement or improved
items and arranging same;
- inventorying and restoring all items donated or
loaned to the College Museum and preparing
items for parades and/or displays as required.
3. Performs related duties such.as:
- participating in staff training programs,
providing instruction in first aid and safety:
- representing the College at association
meetings;
- conducting tours of the College, explaining its
purpose and programmes and answering queries:
- auxiliary duties as assigned."
6
This description was supplemented by the evidence of .~ ?.
the Griever, Mr. Collins. Throughout his testimony, Mr; Collins
attempted to distinguish between his duties as Instructor and his
duties as Course Co-ordinator. According to Mr. Collins, one
.Instructor is assigned responsibility for each course. This
Instruct&‘&is in essence the Course Co-ordinator and may be
distinguished from an Instructor who provides instruction in a
course that someone else is co-ordinating. According to Mr.
Collins, each of the Grievors is Co-ordinator for one course and
Instructor in one or more other courses, Although there was some
suggestion in the evidence that the situation may have changed,
the job specification in effect at the time of the grievance
makes no express reference to course co:ordination.
Nevertheless, in Mr. Collins's view, this is the essence of the
job.
According to Mr. Collins, the Course Co-ordinator i
.~ responsible for performing the following functions, subject to
the approval of the Chief Instructor: 1) developing teaching
objectives: 2) determining course content; 3) developing a
timetable or work plan setting out the material to be covered
each day and assigning 'Instructors to teach the material: and
S
4) hiring guest lecturers. In addition, the Course Co-ordinator
is responsible for 1) supervising seconded Instructors; and -
2) generally ensuring that the course runs efficiently,-which
includes making sure that notes are printed, physical resources
are availab 1’ e, assignments are prepared and marked, and marks are
7 i
recorded for each student. Finally, the Course Co-ordinator may
be required to deal with students' problems.
All Instructors, including the Course Co-ordinators,
are responsible for developing lesson plans for each of the
. courses in which they instruct. There is no specialization among
the Instructors at the 0ntari.o Fire College; each of the Grievors
.s. may be called on to provide instruction in any course.
The Union sought to compare the Griever's duties with _~
t,hose of Robert Brock, who is an Instructor 3 at the Ontario
Police College. There was considerable dispute between the
parties as to whether this was an appropriate comparison or
whether the comparison ought to be with all Instructors 3'at~ the
Ontario Police College.. In our view, even if the comparison
suggested by the Union is the appropriate one, the grievance
cannot be sustained. Although there is similarity in the
subject-matter taught by Messrs. Collins and Brock (both teach
a form of management theory), there are sufficient differences in
the two institutions and in the nature of the functions performed
by.the two Instructors to defeat the Union's claim.
The Ontario Police College is an institution with
some similarities to the Ontario Fire College, but on a much
larger scale. The Ontario Police College has a substantial
recruit training programme for probationary constables and also
provides specialized or advanced training for senior officers.
Courses range from two.to three'days to 12 weeks, with the
average.course lasting about three or four weeks. Application
for enrolment in the Ontario Police College is made by a
-. municipal-police force on behalf of one of its members.. Most
candidates for advanced and specialized courses have between 10
to 15 years' field experience. Students cont.inue to be employed
by a municipal police force while att.ending the Ontario Police
College and continue to receive their regular wages.
There are three levels of Instructor at the,Ontario ,!.
Police College. Instructors 1, &o have no
are responsible for physical activity train
self-defense and first aid. Instructors 2,
police background,
,ing,' such as
who have some police
i:. training, have specialized responsibilities, including the range
and driver training. Instructors 3, all of whom have
considerable police experience, are responsible for academic
subjects, including police methods, . investigation procedures,
identification techniques and management theories and concepts,
which is Mr: Brock's.area of specialization.
The.position specification for Instructor 3 at the
Ontario Police College sets out the duties and responsibilities
as follows:
"1. Provides instruction in assigned subject area
while,maintaining course training standards by:
- researching the subject to ensure thorough
know'ledge;
- preparing lesson plans and assembling
illustrative visual aids, exhibits and hand-outs;
9
- checking and evaluating assignments:
- administering and scoring written, oral, and . -
practical examinations;
- compiling detailed student assessment forms:
- maintaining familiarity with an assigned course
or subject area specialty other than formally
assigned to provide continuity and a back-up
resource.
2. Performs an organizational function by:
- assuming responsibility of subject co-ordination
to update specifically assigned material;
- co-ordinating special senior courses as
periodically detailed:
- liaising with police officials and guest
lecturers;
- co-ordinating the college selection process
examination procedure.
3. Performs other related duties by:
- responding to regular daily queries from Police
Forces with respect to matters of law procedur.es;
- as assigned." -_
.,/
According to Mr. Brock, an Instructor 3,may be
assigned responsibility for co-ordinating a course and/or for
teaching in a course co-ordinated by another Instructor 3. When
assign.ed to course co-ordination, the Instructor is given
responsibility for "building the course", which includes
1) developing 'teaching standards or course objectives; .'.
2) pre-course planning, including determination of course content
and.course design, curriculum research, design and dissemination
of course materials, and preparation of lesson plans and
examinations; 3) engaging guest lecturers; and 4) assigning '
subject-matter to other Instructors. Instructors who are not
Course Co-ordinators may assist on. occasion in the determination
of course content and course design and regularly prepare their
own lesson plans. There is a high degree of specialization among
.^ I”
the Instructors 3, who are responsible for courses only within
'their own specialities. There is also a great variation in the
amount of instructi.onal time spent by each of these Instructors.
Some, like Mr. Brock, devote almost all of their time to course
.co-ordination.
Based on the evidence, the Union claimed that the
to prove its claim, '-.I~ Grievor was improperly classified. In order
the Union must establish that the employee's
the relevant class standard comes within a h
'~;or, if the job fails to fall within a higher
job measured against
igher classification
class standard, that
:. there are employees in a higher classification performing the
same or substantially the same duties as the Grievor: ..;, e.g., Re
Rounding et al. 18/,75: Re Lynch 43/77; Re Pretty 64/77; Re -
Edwards & Moloney 11/78; Re Montague 110/78;-Re McCourt 198/78;
Re McLean et al. 499/82; Re Ontario Public Service Employees
Union and The Queen in right of Ontario (Ministry of Community
and Social Services), December 21, 1982 (Ont. Div. Ct.
.(unreported)). .-._
The essence of the Griever's claim is that the second
test applies, i.e. that there are other employees in a higher
classification performing substantially the same duties.
However, there was some suggestion that the first test might also
apply, i.e. that the Griever's job measured against the relevant
class standa,rd was improperly classified.
:
11
In light of the Union's reliance on the first ,test,
it is necessary to examine.the class standard for Instructor 3,
Onta~rio Police College. Instructor 3 is placed within the
Instructor, Ontario Police College series. The preamble to that
series reads as follows: ,_.
"The,class series covers positions of Instructors,
below the level of Chief Instructor, at the Ontario Police College.
DETERMINATION OF LEVEL:
Basically, the levels are determined according
to the type of subject being taught. At the lower leve.ls are Instructor and Group Leader positions
specializing in physical activity subjects, such
as: weaponry, police holds, drill, physical
training, and swimming. In the higher level
positions, Instructors'specialize in academic type
subjects, such as: English, law, police methods,
traffic-control, investigation procedures, and
identification techniques.
At all levels, Instructors may also be required ~
to assist with various administrative or other
related duties, such as: preparing instructional
material, conducting tests, evaluating students,
recommending changes in courses, ensuring proper
discipline, and supervising recreational
activities."
From the preamble, it is evident that the series is designed to
cover Instructors in police skills. The grade levels reflect
differences in the complexity of the subject-matter upon which
instruction is provided, e.g. Instructors 1 teach physical
training whereas Instructors 3 teach academic subjects.
12
The specific class standard for Instructor 3, Ontario
Police College, which is relevant to an assessment of a
grievance, reads as follows:
"This class covers positions of fully qualified
Instructors of academic type subjects at the
Ontario Police College. ,: ~'
Employees carry out the fully range of duties,
outlined in the preamble to the series, with a
minimum of supervision.
SKILLS AND KNOWLEDGE REQUIRED:
.
..~-Expert knowledge of police methods and law
enforcement techniques. -Ability to organize
material and to instruct effectively."
. .
It is patently obvious that the Griever's job does no~t.come'
within the class standard for Instructor 3, Ontario Police
College. The Grievor is neither a "fully qualified Instructor of
academic type subjects", such as English, law, police methods,
etc. Nor does he have "expert knowledge of police methods and
flaw enforc,ement techniques". Accordingly, the Griever's claim _-._
for a higher classification based on the application of the class !
standard must fail.
Notwithstanding the class standard, the Grievor
claimed that his job was substantially the same as the job.of
Instructor 3 at the Ontario Police College. It is the Board's
view that, notwithstanding superficial similarities, the two jobs
are fundamentally different. Leaving aside the differenc.e in
subject-matter, the Grievor is a generalist whereas the
13
Instructor 3 at the Ontario Police College is a specialist with
highly developed skills and responsibilities. Moreover, the
Grievors carry out-their responsibilities under the close
supervision of the Chief Instructor whereas Instructors 3 at the
Ontario Police College, although accountable, would appear to
have more autonomy in the performance of their duties.
Furthermore, the~evidence would indicate that the
organization of the Ontario Police College is far more complex
than the Ont.ario.Fire College and, consequently, that the
responsibility ex~ercised by the Instruc.tors 3 at the Ontario
Police College ismuch more highly developed than the
responsibility assumed by the Grievdrs. It may be that the .~
Grievors perform.some form of course co-ordidation. However, in
view of the limited number of Instructors (there are 7 permanent
Instructors at the Ontario Fire College as opposed~ to !~?7 to 30 at
the Ontario Police College), the magnitude of this responsibility
is significantly less than at‘the Ontario Police College.
Although the size of the institution may not affect all of the
Griever's responsibilities (e.g. the size of the institution may.
. have no substantial effect on the teaching function), in the
Board's view, size has a significant impact on the co-ordinating
function. There is much more responsibility in co-ordinating a
large, highly specialized programme than in co-ordinating a
small, less formalized programme in which the Instructors are
more or less interchangeable. Although, in either case, there
are administrative and co-ordinating functions to be performed
14
(both programmes must have teaching objectives, course content,
course materials, etc.), the magnitude of the responsibility
depends to a great extent on the size and complexity of the
programme, i,ncluding the number of courses offered. According to
the evidence,~ the Ontario Police College offers a wide range of
courses and subjects whereas-the Ontario Fire College offers a
more limited curriculum. Accordingly, although there is some
similarity in the functions performed by the Grievor and by the
Instructor3 at the Ontario Police College, in the Board's view,
the level of rezaponsibility of the Instructor 3 is significantly
greater. Therefore, in order to prov~e his cla-im, it is not
enough for the Grievor to say that he is a Course Co-ordinator as
is the Instructor 3 at the Ontario Police College. It also must
be shown that the quality of the responsibility exercised is .-
similar. In this case, the evidence is otherwise. at least with ,.,;.;~. ..~_ ~I~,, “1.. _
respect to the co-ordinating function. Furthermore, the
Griever's claim cannot be sustained simply on the basis that they
are both Instructors as there are Instructors in all nine d,
occupational categorie‘sln the Ontario Public Service.
suff
In summary, the Board finds that there is not
'icient.similarity between the Griever's job and the job of
Instructor 3 at the Ontario Police College to sustain the
Griever's claim of improper classification. Accordingly, the
15
.
grievancPmust be dismissed.
DATED AT TORONTO, this 31stday of October, 1986.
.
M. Saltman, .Vice-Chairman
"I dissent" - disseni to fpllow
J. McManus, Member