HomeMy WebLinkAbout1984-0226.Bakker et al.86-03-25IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Be.fore
:
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU
et al
(Carolyn Bakker,
.I Grievors
- and -
The Crown in Right of Ontario
(Ministry ,of Health)
Before: E.B. Jolliffe Vice-Chairman
j. Smith Member G: Peckham Member
For the Grievor:
For the Employer:
M;.I . Rotman
Counsel Rotman, Zagdanski
R.F. Rey
Regional Personnel Administrator '
Ministry of Health
Hearings: August 13,
October 25 and 26,
December 3, 1984.
January 30, 1985.
DECISION
.In this case 16 employees of the Ministry of Health at
London, Ontario,, grieved in February, -1984, that they are
improperly classified "Clerk 3 General" and that they should be'
re-classified "Insurance Represe~ntative" in the Administrative
Services Category.
This grievance is made possible by Section 18(2)(a) in.
the Crown Employees Collective Bargaining Act and by Article 5 in
the agreement between Management Board of Cabinet---and Ontario
Public Service Employees Union which was--:still in force through-
out 1984. The first two clauses in Article 5 are:
5.1.1
5.1.2
An employee who alleges that his position is improperly
classified.may discuss hiss claim with his immediate
supervisor at any time, provided that such discussions
shall not be taken into account in the application of
the time limits set out in Article 27 (Grievance Proce-
dure). An employee, however, shall have the right to
file a grievance in accordance with the grievance proce-
dure, specifying in his grievance what classification he
claims.
In the case of any grievance filed under the above
section, the authority of the Grievance Settlement Board
shall be limited to:.
(a) confirming that the grievor is properly classified
in an existing classification, or
(b) finding that the grievor would be properly
classified in the job classificat,ion which he
claimed in his grievance.
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The grievance of -MS- Caroiyn H. Bakke.r, Exhibit 2, dated
February 8, 1984, put the case as follows:
I grieve that my position as Clerk 3 General (Customer
Services Clerk) is improperly classified.
The redress sought was the following:
My position be re-classified to Insurance Representative
Y... in the Administrative Services Category, with retro-
active pay to January 1, 1982.
All of the other 15 grievances are to the same effect
with minor variations in wording.
Hearings in this case began in .August, 1984, and
continued .i-nt~b 1985. For reasons to be explained, it was not
thought proper to issue a decision at an earlier date in 1985.
It is necessary to consider first and foremost two basic
documents: (11 the sta~ndaid’ for the classification “Clerk General
3” , the grievors’ present classification,, and, (2) the Sta,ndard
for “Insurance Representative,” the classification sought by the
grievors. Thereafter, in the light of those two documents, it
will be necessary to consider the actual duties and responsibili-
ties of the grievors, as established by the evidence. The
standards appear on the next two pages hereafter.
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-. .~
CLERK 3 GENERAL
CLASS DEFINITION
Employees in positions allocated to this class, as "journey-man
clerks", perform routine clerical work of some complexity according to
established procedures requiring a background knowledge of specific
regulations, statutes or local practices. Decision-making involves
some judgment in the selection of alternatives within a comprehensive
framework of guidelines. Initiative is in the form of following up
errors or omissions and in making'corrections as necessary. Doubtful
matters not covered by precedent are referred to supervisors. Much of
the work is reviewed only periodically, principally for adherence to
policy and procedures.
Typical tasks at this level include the preparation of factual
reports, statements or memoranda requiring some judgment in the
selection and presentation of data; assessment of the accuracy of
statements or eligibility of applicants, investigating discrepancies
and ~securing further proof or documentation as necessary'- overseeing,
as Group Leader, the work of a small subordinate staff by.explaining
procedures, assigning and checking work.
This is a terminal class for many positions~ involving the ~~ .
competent performance of routine clerical work common to the office
concerned.
QUALIFICATIONS:
‘1. Grade 12 or an equivalent combination of education, training and
experience.
2. About three years satisfactory clerical experience.
3. Ability to understand and explain clerical procedures and require-
ments: ability to organize and complete work assignments within
prescribed time limits; ability to maintain good working relation- ships with other employees and the public served.
Revised December, 1963
R
r; -4-
.
INSURANCE REPFLESENTATIVE '~'
CUSS DEFINITION:
This classcovers positions of those employees in the Health
Insurance Registration Hoard (HIFB) who,.under the general direction of
a District Supervisor, check mandatory and collector group records and
payrolls for compliance with the applicable Regulations under the
Hospital Insurance Act. These employees also provide advice and assis-
tance to facilitate the registration'of ,eligible persons under the.
Hospital Insurance Act and to register and service employers on a group
basis under the Medical Services Insurance Act.
Although on their own while in the field these employees work
within carefully prescribed guidelines. Their main function is to
visit various groups on a scheduled basis to ensure the proper
collection and forwarding of premiums, and to resolve specific
insurance problems. These employees may also lay charges, collect
evidence, and appear as witnesses for the Ontario Hospital Services
Commission (OHSC) where legal action is being taken with respect to
contravention of OHSC Regulations. . .
These employees provide advice and assistance to facilitate regis-
tration of eligible persons by staffing exhibition and conference booths, attending and addressing meetings of the public., .and visiting
any eligible groups to provide information on insurance benefits and
registration~'requirements.
QU=.LIFICATIONS:
1. Grade 12 or equivalent combination of education, training and
experience.
2. Several years of responsible clerical experience, preferably
gained in an insurance setting, or an equivalent combination of
experience and higher education.
3. Mathematical aptitude for checkin~g financial transactions in
bookkeeping and payroll functions: ability .to communicate
effectively with the public and management with emphasis on sales
and service; tact; personal suitability.
March 1968
F
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In the light of the two~standards, it will be necessary
to consider the actual duties and responsibilities of the
grievors~, as established by the evidence. Parts of that evidence
are to be found in the Position Specification of the grievors,
Exhibit 5, and the Position Specification of the Insurance
Representative, Exhibit 6.
."~Other important documents are the Agreed Statement of
Facts,.~ Exhibit 8, and the Job Audit, Exhibit 7, undertaken in
1983 as well as amendments thereto, such as Exhibits 9 and 10.
The current Position. Specification of the grievors,
dated February 11, 1982, was signed by Mr. J.M. Davis, District
Director, and also by Mr. T.J. Reader, "Exec. Co-ord, District
Ops." It gives the "Position Title" as "Information and
Assistance Clerk; London Customer Serv,ice Office," and the
Immediate Supervisor's title as "Group Leader, Information and
Assistance." The work is done in the Health Insurance Division
(commonly known as OHIP) Operations Branch, and it is said that
in 1982 there were 15 incumbents.
The "Purpose of Position" was then described as follows:
To respond to the needs of the general public, Bospital Personnel,
Practitioners and Group Administrators in the registration of all
eligible persons. To provide a comprehensive service whereby all
written, telephone, in person communications from the general
public concerning all aspects of the Ontario Health Insurance Plan and related government programs can be directed or resolved.
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g -6- -; i.
Then came a lengthy "Summary of Duties and Responsibili-
li ties," placing beside each ~"function".a percentage figure for the
time spent. Whether or not the Summary is wholly accurate, it
has such importance that it must be quoted in full.
1. Provides general information/assistance regarding other Ministry
of Health programs and resolves enrplment problems for
the general public, groups, hospitals and practi-tioners by:
- analyzing problems by. asking questions, check~ing relevant
'documents; determining corrective action, insuring follow-through
and that disposition is provided to source;
40%
- assisting subscribers/group adminis~trators in completing
appropriate forms i.e. Temporary Assistance, Premium Assistance;
- communicating by telephone, in person and in written.form to all
inquiries concerning general information, enrolment/eligibility
matters:
- liaising with related areas to clarify information/resolve
problems regarding group accounts pay direct, hospital claims
etc.'
--approving, assessing and coding of non-group applications, issuing
and controlling of OHIP numbers: determining eligibility for
coverage adjustment amounts and refunds required;
- obtaining update information by accessing on-line data base on
files, fiche, etc.:
- referring more difficult inquiries or problems to Supervisor for
decision or opinion i.e. if subscriber or Group Administrator
becomes irate.
2. Reviews claims rejecting for eligibility reasons andgenerates
appropriate correspondence. Investigates/actions communications resulting fromclaim Eligibility letters by:
- applying the reinstatement policy to enable claims on lapsed
coverage to be paid:
30%
- communicating with the general public, hospitals, practitioners,
group administrators re eligibility status;
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----I - updating eligibility/file records upon receipt of premiums, status
changes, new information;
- assessing applications for Premium Exemption for accuracy,
verifying quest,ionable information supplied, calculating
eligibility based on taxable income; allowable deductions etc;
- preparing SAS update documents for data processing, correcting
rejects, resubmitting as required.
3. Investigates/actions rejected In-Provi~nce hospital
admission/discharge forms.
- determining subscribers eligibility forbenefits;
20%
- communicating with the subscriber/hospital re eligibility/validity
problems: >
- approving/rejecting claims and referring contentious cases to Group
Leader.
4. Performs cashiering functions-for the office by:
- accepting and issuing receipts of premium payments; insuring that
cheques received are properly completed i.e. body'and figures,
amount, date, etc.
- calculating and accepting premium arrears and adjustient payments;
- posting and balancing daily payment transactions;
5%
- recording premium collections on SAS Data Input form for keying
purposes, completing daily walk-in inquiry deposit slip for Head
Office balancing purposes;
- Preparing daily bank deposits by, counting, listing cash by
denomination, totalling cheques, etc.;
- maintaining a cash reserve, reporting discrepancies in monies
immediately to Supervisor (subject to periodic audits).
5. Performs other related functions such as:
- maintaining daily production reports:
2 participating in public functions i.e. University registration,
seminars and public information groups upon request;
5%
- typing and issuing replacement of OHIP Identification cards in
accordance with security regulations;
- insuring all confidential material/information, claims, computer
documents are secured in locked cabinets at day's end;
- acting as Group Leader as assigned;
- as assigned.
The Position Specification concluded with a paragraph
headed "Skills and Knowledge Required to Perform the Work", as
follows:
Excellent oral and written communication skills; excellent
analytical skills; ability to handle conflict situations; thorough
knowledge of enrolmentpolicy;procedure and benefits: several
years progressive work related experience, preferably in dealings
with the public;-'diplomacy, tact and gocd inter-personal skills;
ability to type not to CSC Standards an asset.
At the foot of the first page of Exhibit 5 appears an
item numbered 6 and headed "Class Allocation ": presumably pre-
pared after study of the "Position Specification." It was signed
by Mr. R.F. Rey, "Authorized Evaluator,!! and date-d April 9, 1982.
Mr. Rey also appeared at the hearings of this case as the spokes-
person for the Employer. The reasons given for the allocation of
"Clerk; 3 General" were the following:
Performs routine clerical work of some complexity requiring a
thorough knowledge of OHIP enrolment policies, procedures and
benefits.
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Decision making involves"some judgement in resolving a variety of
problems associated with OHIP enrolment e.g..lapsed Coverage,
rejected hospital admission and discharge reports etc.
Exercises initiative when liaising with other areas of OriIP to
clarify information; when communicating with general public,
hospitals, etc. to ascertain eligibility status etc:
Since the work of the Information Services Clerk must be
compared with that of the classification sought, i.e. that of the
~."Customer Service Representative," classified "Insurance
~~.. Represen,tative," it.is now necessary to refer to the Position
Specification and Class Allocation of the latter, Exhibit 6,
completed in February, 1982. There are said to be two incumbents
of this position in the London District Offices; Actually, there
was only one in 1984 and 1985.
The "Purpose of Position" is stated as follows:
To check and service mandatory and collector group records and payrolls
to ensure that they comply with Regulations under the Health Insurance
Act; to assist group administrators in the registration of new groups;
to assist Hospital Administration in the accurate submission of
Admission and Discharge forms: and, as required, liaise with,and
provide CHIP information to the ge~neral public.
The "Summary of Duti
necessarily lengthy and detailed,
ies" is es and Responsibilit
as follows:
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1. Ensures that mandatory, collector groups comply with applicable
Regulations under the Health Insurance Act by:
-visiting assigned group administrators on a regular basis to ensure
that the correct premiums are being remitted as required, and that all
eligible persons are properly insured or legitimately exempted through
checking a positive listing (GCL)-of insured persons in the group
against the appropriate payroll;
-providing a continuing educational program to ever-changing group
administrators as revisions are made in benefits, rates, rules and
regulations, and as procedures are up-dated. I
-resolving problems pertaining to arrears, refunds, status changes,
55% -unaccounted for employment, unpaid premiums and rejected claims
encountered by group administrators; -collecting unpaid group premiums as requested by the group collections'
officer;
-registering new groups on request or as they becane mandatory;
-working with the Labour Relations Department i,n,.,$foviding an,.
information and enrolment service to organized labour;
-following up on group cancellations to ensure that accounts are
properly reconciled and groups closed out in accordance with
~legislation and regulations;
-collecting evidence in situations where legal actions may be required
to enforce OHIP regulations;
-working with employers to help resolve problems concerning incorrect
certificate of Payment forms.
2. Ensures that assigned hospitals, maintain efficient, effective systems
and procedures to enable them to report accurately and promptly as required by the Ministry under the various in (sic) order to pay for
insured services and determine future Health - Care needs by:
-visiting with administratorsand other.key personnel on a regular
basis to discuss their responsibilities;
-holding meetings with those involved to resolve reporting and related
problems;
25% -referring unsolved problems to the responsible Branch or Department
(Operations) Ambulance Service,s Group Accounts, Pay Direct Institution
Operations etc.);
-operating with these areas by bringing their problems to the attention
of personnel in Hospitals;
-creating a good rapport between all concerned personnel within the
Ministry and Hospitals and maintaining a good rapport between all con-
cerned personnel within the Ninistzy and iiospitals.
3. Provides general information regarding the Plan by:
-attending public meetings, conferences, etc. to explain insurance
benefits and registration. requirements;
-visiting institutes of learning to advise students of registration
requirements on reaching age 21, and premium assistance facts;
10% -assisting the enquiry services area (when circumstances dictate) in
the disseminationof pertinent information to the general public in person, by telephone or in writing.
c-
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4. Performs other related duties such as:
-completing daily call reports, mileage reports, week
reports;
:ly planning
10% -carrying out special investigations and preparing appropriate
reports;
-as assigned.
The "Ski
also be quoted:
.ll s and Knowledge Required" in paragraph 4 must
A thorough knowledge of the Health Insurance Act and Regulations and
related legislation, practices, and procedures; an aptitude for
accounting and a knowledge of payroll procedures an asset; good written
and oral communications skills, publics relations skills, initiative,
tact and good judgment.
In April, 1982, Mr. Rey gave the "Class Allocation" of
"Insurance Representative," for the following reasons:
.
Under the general direction of the Supervisor, Customer Services,
checks mandatory and collector group records and payrolls for
compliance with the applicable Regulations under the Health Insurance
Act.
.
Provides education and service to personnel in assigned hospitals,
doctors' offices and other Health-care facilities to facilitate the
payment of insurance claims.
Provides advice and assistance in registering new groups and provides
OHIP information to general public as required.
At the outset of hearings in this case, the Soard received a
Statement of Facts agreed to by the parties, as follows:
1.
2.
3.
4.
5.
6.
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The grievance is properly be.fore the~Board and there are no
preliminary matters. ,~
All sixteen (16) grievors are employees at the Ministry of
Health and at all pertinent times are in the position of
"Information and Assistance Clerk" London Customer Services
Office.
The Job Audit submitted by the employer was completed and
agreed to~by one of the grievors in February of 1983.
The Job Specifications of 'the respectivepositions are part
of the current official records of the employer.
The class standards submitted as exhibits are official class
standards.
Al.1 the grievors are essentially performing the same job.
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As previously explained, the 16 grievors are all
classified "Clerk 3 General," and they seek reclassification as
"Insurance Representative." The Employer's spokesman, Mr. Rey,
said the latter classification has only one level and is unique;
i.e. it exists only in the OHIP offices of the Ministry of
Health. When he added that there is salary differential of
$8,000 per annum between the two classifications, the Union's
counsel, Mr. Rotman, objected that such considerations are ,,.
irrelevant. In argument Mr. Rotman also suggested it is not
without significance that all of the grievors are women and the
only Insurance Representatives mentioned at the hearings are men,
which may or may not be relevant.
The principal witness called by the Union was Ms. Ann
Tavares, an employee with 13 years' experience in OHIP. She had
.L.
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participated by way of,amendments in the final version of a job
audit (Exh~ibit 10) drafted originally by Ms..,.,Sally Kelly, a
-Personnel Officer in the Ministry of Health, which is Exhibit 7.
Ms. Tavares testified for two and one-half days. She
showed a thorpugh grasp of all the duties of her position and a
remarkable lucidity Ian explaining them. Her experience has
included the training of new employees and the authorship of
Exhibit 20, which is in effect a manual of "Information Services
Enrolment Procedures" and an "Enrolment Policy Work-Book,"
Exhibit 20.~
The qualifications of the witness were noted in the
"Employee Appraisal and Development Guide," Exhibit 12, signed in
February, 1984, by the Manager of Cu.stomer Services in the London
.-District Office, Mr. Dennis Dickson, in which he said:
Ann displays an excellent understanding of OHIP Regulations and enrol-
ment policy. Has participated in the training of many of the Customer
Service staff.
. . . . .
Approaches daily routines methodically. Organizes work according to
priority and maintains set standards.
. . . . .
Remains composed at all times. Explains herself rationally, in terms
that are easy for the customer to understand.
. . . . .
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Uses sound judgement in the decision-making process. Systematically
-evaluates unusual situations and solves problems in a knowledgeable
fashion.
. . . . .
Eagerly seeks new information that will facilitate her job. Easily
grasps new concepts and frequently acts on own initiative.
. . . . . . .
Displays a keen interest in doing a good job. Willingly shares her
knowledge with others. Appearance is always neat and business-like.
. . . . .
. -Excellent attendance. Shows an air of self-confidence. Is able to
functions as an independent.
. . . . .
Able to communicate well, both orally and in written form, perhaps best
demonstrated by a talent for training new individuals.
. . . . .
Ann is one of the original Customer Service staff and as such has
acquired an extensive knowledge~of the inner-workings of the area. She i,~, continues to be of great value to the London operation.
. . . . .
I would hope that Ann will continue to pursue an active interest in
OHIP, but more importantly, continue to shared her experience with others.
It is no reflection on Ms. Tavares and her very
enlight,ening testimony when we do not find it possible to review
that testimony in detail. To review itall.would reauire a book-
length decision, not appropriate in this case --- for reasons to
be explained. Suffice it to say that Information and Assistance
Clerks are required to deal daily with an immense variety of
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problems raised by members of the public, group plan adminis-
trators, employers, employees and former employees, hospitals and
physicians and their staffs. This is due in part to the fact
that the Act, the Regulations and the Ministry's policy guide-
lines are very'complex~and a,lso to the fact, that employment and
social and economic conditions in our society are far from.being
stable or unchanging.
To cite only one example: what is to be done whe~n a
married working couple are both laid off but at different dates,
although one.or both have been enrolled for some time in a group
plan? Or if both employers are bankrupt Andy have failed to pay
OHIP? For this and many other reasons, the London Office of OHIP
receives, according to Mr. Dickson, thousands.of inquiries by
"walk-in" or telephone as well as processing about 750,000 ,claims
~per month. To do all this, Mr. Dickson has at London one
Insurance Representative, responsible for over 2400 group plans
(o,f which,almost a quarter are usually in arrears with their
payments) two supervisors (now c,lassified Clerk 5 Ge.neral) 16
Information and Assistance Clerks, two cashiers, two query
clerks, and a Control Clerk who distributes the mail and logs
cheques received. It is futile to suggest that group adminis-
trators should deal exclusively with the only Insurance Repre-
sentative --- who is seldom in the office. They often telephone
the clerks, who can always be reached.
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Although there is no great dispute about the accuracy of
the Position Specification, Ms. Tavares stressed that it fails tom
cover all the work required. For example, one duty was said to,~
be: "assessing applications for Premium Exemption . . . calculating
eligibility based on taxable income..." Actually, Ms. Tavares
(until her grievance was filed) sat almost weekly on.an appeal
committee to adjudicate on disputed claims' for exemption, .which
certainly cannot be described as "routine clerical work." Other
clerks have served on that committee from,time to tim~e. This and
other responsibilities and proposed duties of the clerks were
curtailed when they.presented ~their grievances in 1984.
One result of the grievances was that Ms. Sally Kelly, a
personnel officer with the Ministry, conducted a job audit. It
. was notentirely satisfactory; for example she chose to base her
report on interviews with the most junior incumbent, who had less
than a year's experience. The Regional Personnel Administrator,
IMP.
Bryan Neale, then asked for comments on the Kelly audit. The
Union insisted that all the grievers be present but Mr. Neale ~,_
succeeded in getting a number of amendments from Ms. Tavares and
Ms. aakker.
The last version of the job audit appears to correspond
with ills. Tavares' explanation of the work ;equired, although she
says she saw the Kelly audit "for the first time" when she met
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Mr. Neale. It is impossible to do justice to that detail
.explanation in the body of this decision. The job audi
-~ however, has been of some assistance to us.
ed
t,
Mr. Neale testified that he decided the classification
of Insurance Representative was correct for Mr. Cutter, the only
incumbent of that position in the London office.
Mr. Neale concluded, however, that there are signifi-
cant differences between the Insurance Representative's position
and that of the clerks. the gave the following reasons:
( 1~) .The Representative spends 'most of his time out of
the office and has little or no access to management when dealing
with group plah administrators. Except when assigned to outside
duties (such as enrolling students at the University of Western
Ontario or attending meetings with hospital staffs) the clerks
spend practically all their time in the office, with ready access
to their Group .Leaders, who are supervisors recently classified
C.lerk 5 General.
(2) The Representative must ensure regular payment by
the groups for which he is responsible and the collection of "*
arrears from delinquents --- which can amount to more than one
million dollars a week. The clerks have no such responsibility
since they deal mostly with individual subscribers, hospitals and
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physicians' offices, acting in accordance with detailed
instructions in their manuals.
(3) The Representative .is responsible for the
establishment of new groups (mandatory where the employer has
more than 15 employees) and,. for training and guiding ~,..
inexperienced administrators through the maze of OHIP
requirements. The Clerks have no such responsibility, although
they.may get telephoned inquiries from such administrators.
The Board tends to agree with Mr. Neale's claim that
there are significant differences between the two
classifications: Insurance Representative and Clerk 3 General.
This is not to say, however, that we can agree with Mr. Neale's
second assertion, which is that the grievers are correctly
classified Clerk 3 General. We have noted that --- notwith-
standing the distinctions identified by Mr. Neale --- there are
some close resemblances between the language used in the Repre-
sentative's Position Specification and the Clerks' Position
Specification.
We note also certain differences between the Position
Specification given the clerks in 1979, Exhibit 27, and the
.~. revised version issued in 1982, Exhibit 5. For example, in 1979
the only reason for the allocation given by the evaluator (Clerk
3 General) was the following:
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As journeyman clerks, incumbents perform routine clerical
work of some complexity according to established procedures
requiring a background knowledge of-specific local practices.
Apparen~tly, the inadequacy of such reasoning was
eventually recognized. There were changes made suggesting that
the evaluators realized the position"had grown in scope and
responsibility between 1979 and 1982, which is also our opinion.
In 1982 the rea<&-(as previously quoted) became the following: ,I~
Performs routine clerical work of some complexity requiring a
thorough knowledge of OHIP enrolment policies, procedures and
benefits.
~L&cision making involves some judgement in resolving a variety of
,problems associated with OHIP enrolment e.g. lapsed Coverage,
rejected hospital admission and discharge reports etc.
Exercises initiative when liaising-with other areas of OHIP to
clarify information, when communicating with general public,
hospitals, etc. to ascertain eligibility status etc. ,z,.:
The first reason above opens with the words "performs
routine clerical work of some complexity." In light of all the
evidence we doubt that "routine clerical work" is a fair or valid
description. Of course'"routine clerical work" are key words in
the Standard for Clerk 3 General --- appearing twice in that
rather brief document.
The Board became aware in 1985 that a large number of
similar grievances have been referred to arbitration, some of
which have been heard or part heard, and for that reason, we have
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hesitated to issue a decision. However, in view of the
conclusio~n we have reached it would no longer be appropriate to - : withhold.the result in this case.
Apart from the documents in evidence, there was certain
testimony about the work of,an .jnsurance Representative. Ms.
'Tavares could not say a great deal about it, but she made clear
that many inquiries' from group administrators which'should
probably be directed to the London Insurance .Representative are
necessarily telephoned to the .clerks. .This is inevitable:
formerly~ there were two Representatives at London, now there is
only one, and he must work with at,least 2,400 groups.
The Union called Mr. Emile Kehimkar, who is the
Representative in the Oshawa area. He said that in his office
there are only four or five Inf~ormation and Assistance Clerks ---
an interesting contrast with the ~situation .at London. He,spends
most of the week “on the road" and works from his residence. The
essence,of the job, he said, is mostly "group-related", setting
up new plans, training administrators and solving problems ---
frequently those raised by bankruptcies. Other problems arise in
connection with coverage of employees during prolonged strikes.
Mr. Cutter, the only Representative at London, was not
called to testify, but Mr. Dickson, the Manager of Customer
i.’
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Relations, had much to say about the job, little of which
suggested that the Representative's work resembles that of the
Clerks.
It is important to keep in mind that inreality two
issues were raised by the grievors iii this case: (1) they
complained of being improperly classified as Clerk 3 General, (29
they asserted that their proper classification .would be that of
Insurance Representative. Both issues turn on the application of
existing standards. The la'nguage of Article 5L1.2 in the
agreement purports to link the two issues together in a way which
can deprive,the-Board of the capacity-to render a meaningful ._
decision. It is unlikely that this was the intent of Section
18(2) in the Crown Employees Collective Bargaining Act.
After reading and carefully considering the standards
for both classifications, we do not think it has been proved that,
the grievors' position falls within the.standard for an.-
Insurance Representative, although,at the same time we have
serious doubts that it falls properly within the standard for a
Clerk 3 General.
The right to gr ieve against classification is of course
a statutory right, enshrined as follows in Section 18(2)(a) of
the Crown Employees Collective Bargaining Act:
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(2) In addition to any other rights of griev~ance under
a collective agreement, an employee claiming,
(a) that hisposition.has been improperly
classified
.*...
may process such matter in accordance with the grievance
procedure provided in the collective agreement.,.... _ .;y :,.
Nevertheless, the collectiv~e agreement in Arti cle 5.1.2
mow purports to restrict the authority of-this Board to "(a)
.confirming that the grievor is properly classified in an existing
classification, or (b) finding that the griever would be properly
classified in the'job classification which he claimed in his
grievance."
We are of course aware of the Divisional
decision in the Brecht case (1982) reported at 40 O.R. (
Speaking for the Court, Callaghan J. said at pages 145-6:
Court's
2d) 142.
:
Where a right to grieve a particular matter is specifically
recognized by legislation it ought not to be restricted
absent a clear intention on the part of the legislature to do
SO-~ The effec't of the board's decision herein is to restrict
the right to grieve classification to levels within a
particular class series. It denies a grievance for cross
group classification or cross series classification. We see
nothing in the Act justifying the limitation imposed upon the
right given by section 18(2)(a) by the Board herein. On a
classification grievance the Board is generally mandated to
consider two matters, namely, whether or not the grievor's
job measured against the relevant class standard comes within
a higher classification which he seeks, and, even if he fails
to fit within the higher class standards, whether there are
2
-23-
employees'performing the same duties in a higher, more senior
classification. The jurisprudence of the Board cited to us
on this application indicates clearly that these matters have
been conside,red by the board onclassificationgrievances.
Such matters in no way infringe the management rights
provisions of the Act. We are of the view that in dismissing
this grievance the Board declined to exercise its
jurisdiction under section 18(2)(a) of the Act. The Board
was obliged to consider whether or not therievor was
properly classified regardless of whether or not he claimed
in his grievance a classification in a different series. The
obligation of the Board was to measure the duties performed
by the grievor against either the class standard or other
employees performing the same duties. In failing to
determinethesematterstheBoarddeclinedtoexercise the
jurisdiction conferred upon it by the legislation.
Part of the passage~above was quoted with approval by a
differently Constituted Court (Reid, Steele and Anderson J.J.)
in OPSEU and St. --- Lawrence College of App - lied Arts and Technoloqy --
(1984).
What was clearly established in those cases is that an
employee's claim to a different classification need not be within
the same class series. In other words, the grievers in this case
were not obliged to-claim reclassification within the "Clerical,
Typing, Stenographic and Secretarial Series;" they were free to
lay claim to the. Insurance Representative's classification. But
this did not relieve them of the onus of establishing that their
duties and responsibilities fall within the I.R. standard or are
the equivalent of the duties and responsibilities carried by an
1-R. such as Mr. Cutter. We do not think the evidence in this
case goes far enough to meet that onus.
‘L!
- 24 -
Returning to the problem raised by Article 5.1.2 in the
agreement, we have taken note of'the opinionexpressed by psler
J. in the Stephen Smith case :(237-81) when it reached the ---
Divisional Court on No,vember 24, 1983. In quashing a Board
finding that it lacked jurisdiction, the Court said:
To the extent the Board based itself on the view that s.5 of
the Agreement limits the operation of s.18(2), we believe
they are wrong. That is an interpretation of the language of
the statute it cannot reasonably bear. We do not find it
necessary for the purposes of ,this application to constru?V.
\ s.5 of the agreement standing alone. We are of the opinion
that the Board declined its jurisdiction by refusing to hear
evidence and to consider the grievance on its merits.
.L
.,
In this case, the board 'is not declining jurisdiction.
.We have heard extensive evidence and we have taken pains to
consider the grievance on its mer-its. ,. Xearings extended over
five days in 1984 and 1985. Testimony was given by five
~witnesses and 52 exhibits were admitted into 'evidence.
Notwithstanding its bulk,
the evide~nce as a whole is not
satisfactory. As advanced by both* parties it was almost entirely
negative in nature.
Thus, the thrust of the brievors' evidence was to show
that the actual duties and responsibilities of the grievors do
not fall within the Clerk 3 General Standard. -
..~
:-
R
,; ’ -
- 25 -
Similarly, the thrust of the Employer's evidence was to
demonstrate, we think successfully, that the actual work does not --
fall within,the 1n;urance Representative Standard. ,..i.
Further, it appears to us that the Employer's attempts
to refute the testimony of Ms~: Tavares were not very convincing,
consisting principally of expressions of opinion by management
witnesses. By the same token, nothing.of any real weight was
adduced to re,fute the-&mploy.e~r's evidence that the work is very
different from that of fan Insurance Representative. _.
The net result in our view is that the grievors have
succeeded in casting doubt on the validity of their present
classification, but adduced no evidence whatever in support of a
different and mo're appropriate classification. That of the
Insurance Representative is clearly not appropriate.
Thus, even if it be assumed that 'the Act and the
Agreement empower us to determine the appropriate classification,
evidence is lacking~upon which we could make that.determination.
For the reasons aforesaid, our view is that we are not
declining jurisdiction when we conclude that there is not
sufficient evidence to confirm the present classification or to
hold that the grievors should be reclassified in the
classification they sought.
:
- 26 -
After considering all the evidence placed before us we
are obliged to state our conclusions in two parts:
(1)" We cannot' find that the grievors would be properly
classified Insurance Representative;
(2) We cannot confirm that the grievers are properly
classified Clerk 3 General and we make no finding on that~issue.
In the result, these 16 grievances must be dismissed.
Dated at Rockwood this, ~25th.day of March, 1986. . .._. *-.~
. Vice-Chairman
-- . .
"I dissent' (to folidi].
J. Smith; Member
. c 3
SCHEDULE A -
List of-Grievors:
Carolyn H. Bakker
M. Faye Hardwick
Joan E. Wickhain
Patricia A. Hawkins
Margaret Paul
Dorothy McLean
Anna L. Galloway
Ann Tavares
Wanda Urbanowicz
Margaret 3. Kovacs
LYonica Breman
IYonica M. Price
Kathleen E.~ Laurie
Carmen Branchflower
Margery Bell
Patricia Pascuzzo