HomeMy WebLinkAbout1984-0240.Goobie et al.86-02-18Between
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Betty Goobie, et al) Grievor
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The Crown in Right of Ontario
(Ministry of Health) Employer
Before: R. L. Verity, Q.C. Vice-Chairman
P. Craven Member
L. Foreman Member
For the Grievor: M. Cornish
Counsel
Cornish & Associates
Barristers & Solicitors
For the Employer: J. P. Zarudny
Counsel
Crown Law Office, Civil
Ministry of the Attorney General
Hearings: November 2, 1984 - Toronto
March 18, 20, 25, 1985 - Toronto
April 24, 1985 - Hamilton
July 2, 9, 11, 1985 - Toronto
October 11, 28, 1985 - Toronto
November 8, 15 22, 1985 - Toronto
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), ‘: DECISION
In a Grievance dated October 21, 1982, Mrs. Betty
Goobie claims that her position is improperly classified as
Clerk 3 General, and requests reclassification as Clerk 4
General.
,I Mrs. Goobie is one of 18 female Information and
Assistance Clerks employed at the Hamilton District OHIP Office
who filed identical individual grievances in October, 1982.
Similar individual grievances were filed by some 164 OHIP
Information and Assistance Clerks employed at the Ministry’s
nine District Offices and five Satellite Offices throughout
Ontario. These grievances have been assigned to a common file,
number 240/84. Inasmuch as neither the Crown Employees
Collective Bargaining Act nor the Collective Agreement provides -
for the processing of group grievances, it is necessary to
cbnsider each Clerk’s grievance individually.
The Parties agreed that Mrs. Goobie is representative
of all the Hamilton District Office grievors. Accordingly,
this Board’s determination of the Goobie grievance shall
determine the disposition of all grievances in the Hamilton
Office.
Although the Parties have so far failed to agree upon
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any additional representative grievances, it is to be hoped
that this Decision will result in the resolution of most, if
not all, of the remaining grievances in file number 240184.
This matter is of considerable importance to the
Par ties, who have spared no effort to satisfy themselves that
the Board has been provided with all the facts and the
arguments. In the course of an exhaustive enquiry into the
merits of Mrs. Goobie's grievance, which involved 16 days of
hearings, and the introduction of voluminous documentary
evidence (61 Exhibits), and a view of the Hamilton District
Office, the Board issued a number of procedural directions.
In the particular circumstances of this matter, the
Board consented to the Employer's request to have a Court
reporter in attendance throughout the Hearing. In making that
order, and addressing the concerns expressed by the Union, the
Board directed that the Employer pay all costs associated with
the preparation of transcripts, if ordered, and that copies be
provided to the Union and to Board Members. Transcripts were
not ordered at any point in the proceedings.
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THE CLASS STANDARDS
A grievance alleging improper classification may
succeed before the Grievance Settlement Board on either of two
grounds:
(I) The measurement of the Griever’s job against the
wording of the applicable Class Standards (the
standards approach), or
(2) On proof, that notwithstanding the wording of
the Class Standards, other employees performing
equivalent duties are classified in a higher
classification (the usage approach).
These principles have been upheld by the Ontario
Divisional Court in the 3udicial Review of the Michael Brecht
Decision in Ontario Public Service Employees Union v. The Queen
in Right of Ontario et al (1982), 40 O.R. (2d) 142.
Mrs. Goobie's grievance proceeded solely on the first
test, namely the assessment of her duties and responsibilities
as against the relevant Class Standards. This Board has the
responsibility to interpret the Class Standards in-determining
whether the Griever’s position is improperly classified in its
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,exist ing classification. It is appropriate, therefore, to
begin by setting out the relevant Class Standards.
The preamble to the Clerical, Typing, Stenographic,
Secretarial Class Series states that, "these five series cover
all office positions and office supervisory positions that are
not covered by a specialized clerical, technical, equipment
operating, or professional class series”. With respect to the
>:
General Clerical Series, the preamble states:
“This series covers positions where the
purpose is to perform clerical work entirely
or in combination with incidental typing,
stenographic or machine operating duties.
Where exclusion of the latter would
significantly change the character of a
position, or where they occupy a large
propor~tion of the working time, the position
should be assigned to one of the specialized
classes, e.g. Clerical Typist. Positions
for which specialized clerical series exist,
e.g. Clerk, Mail and Messenger, Clerk,
Filing, etc. should not be assigned to this
series. Group leader responsibility
normally begins at the third level, while
the fourth and above usually cover positions
involving line supervision; however,
non-supervisory positions can also be
included."
The Class Definition for Clerk 3 General is as
follows:
CLASS DEFINITION:
Employees in positions allocated to this class,
as ‘journeyman 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 judgement 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 a
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 requirements; ability to organize
and complete work assignments within prescribed
time limits; ability to maintain good working
relationships with other employees and the
public served.
Revised, December, 1963”
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The Class Definition for Clerk 4, General is as
follows:
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“CLERK 4, GENERAL
CLASS DEFINITION:
Employees in positions allocated to this class
perform a variety of responsible clerical tasks
requiring a good background knowledge of specific
regulations, statutes or local practices.
Decision-making involves judgement in dealing with
variations from established guidelines or standards.
Normally employees receive specific instructions only
on unusual or special problems as the work is
performed under conditions that permit little
opportunity for direct supervision by others.
Hatters involving decisions that depart radically
from established practices are referred to
supervisors.
Tasks typical at this level include the
evaluation or assessment of a variety of statements,
applications, records or similar material to check
for conformity with specific regulations, statutes or
administrative orders, resolving points not clearly
covered by these instructions, usually by authorizing
adjustments or recommending payment or acceptance;
supervising a small group of ‘journeyman clerks' or a
larger group of clerical assistants by explaining
procedures, assigning and checking work and
maintaining discipline.
QUALIFICATIONS:
1. Grade 12 education or an equivalent combination
of education, training and experience.
2. About four years of progressively responsible
clerical experience or an equivalent combination
of experience and higher educational
qualifications.
3. Ability to communicate clearly both orally and
in writing; ability to instruct and supervise the work of subordinates.
Revised, December, 1963”
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As is usual in classification matters, the Board also
received into evidence a "Position Specification and Class
Allocation Form" describing the job. The position
specification form is not part of the class standard, and
therefore does not bind the Board. Mrs. Goobie’s Position
Specification is dated February, 1982, and is reproduced in
material parts:
"PURPOSE OF POSITION
To respond to the needs of the general public,
Hospital personnel, ‘practitioners and Group
Administrators in the registration of all eligible
persons. To provide a comprehensive service whereby
all written, telephone, or in person communications,
from the general public, concerning all aspects of
the Ontario Health Insurance Plan and related
government programs, can be directly or Promptly
resolved.
SUMMARY OF DUTIES AND RESPONSIBILITIES
1. Provides general information/assistance and
resolves Enrolment problems for the general public,
groups, hospitals, practitioners, etc., by:
analyzing problems, by asking questions and
checking relevant documents; determining
corrective action, insuring follow-through and
that disposition is provided to source;
assisting subscribers/group administrators in
completing appropriate forms i.e.
Out-of-Province, Hospital/Medical claims,
Temporary Assistance, Premium Assistance; etc.
communicating by telephone, in person and in
written form to all inquiries concerning general
information, enrolmentleligibility matters;
liaising with related areas to clarify
information/resolve problems such as group
accounts, pay direct, claims etc.;
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approving, assessing and coding of non-group
40% applications, issuing and controlling of OHIP
numbers; determining eligibility for coverage,
adjustment amounts and refunds required;
obtaining update information by accessing
Subscriber Administrative System Data Base,
files, fiche, etc.;
referring more difficult inquiries or problems
to Supervisor for decision or opinion i.e. if
subscriber or Group Administrator become
inordinately irate.
2. Investigates/actions communications resulting
from Claim Eligibility letters initiated particularly
by the Production Services Section by:
applying the reinstatement policy to enable
claims or lapsed coverage to be paid;
communicating with the general public,
30% hospitals, practitioners, group administrators
re eligibility status;
updating eligibility/file records upon receipt
of premiums, status changes, new infor,mation;
assessing applications for Premium Exemption for
accuracy, verifying questionable 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-Province
hospital Admission and Discharge Reports by:
determining subscribers eligibility for
benefits;
communicating with the subscriber/hospital re
20% eligibility/validity problems;
approving/rejecting claims and referring
contentious cases to Group Leader.
4. Performs cashering functions for the office by:
accepting and issuing receipts of premium
payments; insuring that ch’eques received are
properly completed i.e. body and figures,
amount, date, etc.;
calculating and accepting premium arrears and
adjustment payments;
posting and balancing daily payment
transactions;
recording premium collections on SAS Data Input
5% - form for keying purposes, completing daily
walk-in inquiry deposit slip for Head office
balancing purposes;
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5.
5%
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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).
Performs other related functions such as:
maintaining daily production reports;
participating in public functions i.e.
University registration, seminars and public
information groups upon request;
typing and issuing replacement of OHIP
Identification cards in accordance with securitv
regulations;
insuring all confidential material/information,
claims, computer documents are secured in locked
cabinets at day end;
acting as Group Leader as assigned;
as assigned.
SKILLS AND KNOWLEDGE REQUIRED TO PERFORM THE WORK
Excellent oral and written communication skills;
excellent analytical skills; ability to handle
conflict situations; thorough knowledge of enrolment
PollcY, procedure and benefits; several years
progressive work related experience, preferably in
dealings with the public, diplomacy, tact and good
interpersonal skills; ability to type not to CSC
Standards an asset."
Mrs. Goobie's job is also described in an extensive
Job Audit prepared by the Ministry in January, 1983,
reproduced, in pertinent part as Appendix "A" to this Decision.
Mrs. Goobie described her duties and responsibilities
in minute detail during eight days of testimony. It is neither
practical nor necessary to set out her evidence or the evidence
of other witnesses here, except in some salient respects.
Before turning to the evidence concerning the Griever's job as
,it was at the time the Grievance was filed, it is helpful to
recites some evidence by way of background information.
EVOLUTION OF OHIP CUSTOMER SERVICES
The Ontario Medical Services Insurance P lan (OMSIP
enacted by the Ontario Legislature in 1965, became a reality
),
in
1966. In 1969, Ontario complied with certain federal criteria
for the funding of health insurance programs, and created the
Ontario Health Services Insurance Plan (OHSIP). In 1972, OHSIP
was merged with the Ontario Hospital Services Commission's
hospitalization insurance program, to create the Ontario Health
Insurance Plan (OHIP).
The creation of OHIP involved the administrative
reorganization of the provincial health insurance program.
While enrolment and related functions remained centralized at
Head Office, the claims-processing function was decentralized
among several new District Offices, among them the Hamilton
District Office, which opened in 1972 with a staff of some 400
employees.
Despite the formal separation of functions between
Head Office and the Districts, many local residents looked to
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#the local OHIP office for information about the Plan and for
enrolment assistance. Management in the Hamilton District
responded to this demand by opening a small public enquiry
office, staffed by claims clerks. By 1974-5, the volume of
customer enquiries coming into the Office had increased to the
point that a District customer service entity was required. A
new position, Customer Service Clerk, was created and filled by
recruiting applications from claims clerks. Since.the District
had no direct access to customer records stored in the Head
Office computers, the Clerks responded to local customer
enquiries by referring them to Head Office for investigation.
Between 1979 and 1981, a number of changes in OHIP
organization resulting from government policy initiatives
contributed to the evolution of the customer service function.
New security procedures came into effect in response to the
Krever Royal Commission on the confidentiality of health
information. The introduction of a new computer system
permitting District staff to gain access to Head Office
enrolment records led to the implementation of the "one window
approach", which decentralized eligibility determination
decisions that had formerly been taken at Head Office. The
Government introduced its Access'Program, emphasizing improved
customer services and the simplification of bureaucratic
procedures. OHIP offices were now expected to respond to a
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broad range of public enquiries, and such facilities as
toll-free telephone lines were installed to encourage public
access.
The combined impact of these changes on the duties
and responsibilities of the Information and Assistance Clerks
has moti~vated the present grievances. The Union claims that
the position has changed so substantially that it no longer
fits within the Clerk 3, General Class Standard. The Employer
acknowledges that the job has changed, but maintains that it
remains properly classified at the Clerk 3 level.
THE GRIEVOR’S 308
The Griever commenced employment with the Hamilton
District Office on 3anuary 24, 1972. In her first assignment
involving the processing of physicians' claims, she was
classified as Clerk 2, General. Approximately one year later,
her position was reclassified to Clerk 3, General. In 1974,
the Griever transferred to an Inquiry Clerk position within the
same classification. She remained an Inquiry Clerk until late
1979 or early 1980 when she became an Information Service
Clerk. The position title was subsequently changed to
Information and Assistance Clerk. The Griever's immediate
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supervisor was Group Leader Boyce Collis, classified as Clerk
5, General.
Mrs. Goobie testified that the Position Specification
and Class Allocation Form was defective, in that it failed to
specify a number of her duties, wrongly reported the
proportions of her working time spent on the duties specified,
and provided an inadequate impression of the knowledge required
/ to perform the job.
Mrs. Goobie testified that the gob Audit accurately
described her duties. She was personally involved in the
preparation and revision of the Audit. The Audit document
bears the signatures of Mrs. Goobie, her Supervisor Ms. Boyce
Collis, and the Hamilton District Director, Mr. Albert Board.
These signatures attest to the Audit's accuracy. Mrs. Goobie's
only comment about the Audit was that it did not adequately
address the importance of her position in dealing with the
general public.
The Griever worked in the telephone enquiry unit of
the Information and Assistance Unit at the Hamilton District
Office, and filled in, as required, in the walk-in enquiry
unit. It was her job to provide callers with comprehensive
information about OHIP and related programs in a prompt,
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courteous and efficient manner; to answer, where possible, a
broad range of public enquiries about other Government programs
and services; and to assess OHIP subscribers’ eligibility for
premium assistance and the like.
The Griever testified that the core duties of her
position, which amounted to 70% of the job, involved resolving
eligibility and enrolment problems, processing OHIP application
i forms, and answering general enquiries, unrelated to OHIP
matters. Other duties, which accounted for the remaining 30%
of her job, included processing hospital claims, chequing and
cashiering functions, and other related duties.
The Griever handled between 70 and 90 telephone calls
per day. Of these, 70% related to OHIP problems, and 30% were
general enquiries. Of the OHIP-related calls, 85% involved
eligibility and enrolment problems. These required her to use
the office’s SAS computer terminal to retrieve information.
appl
each
In addition, the Griever processed some 50 OHIP
ications each day, spending an average of 10 minutes on
such application.
Mrs.
In cross-examination, Mr. Zarudny established that
Goobie completed the equivalent of 900 to 1,240 minutes'
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,work in a 405 minute (6-3/4 hours) working day. She
accomplished this by performing two or more tasks
simultaneously. For example, she would review an OHIP
application while speaking to an enquirer on the telephone.
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The evidence established that there was a
comprehensive set of OHIP policy and procedural guidelines in
the Enrolment Policy Manual, which was a detailed
interpretation of the Health Insurance Act, and in the
Enrolment Service Bulletins, which detailed policy changes
affecting the disposition of eligibility and enrolment
matters. These were voluminous documents which the Griever had
substantially committed to memory. The "One Window Manual"
detailed a step-by-step procedure for editing, assessing and
coding each of the seven OHIP application forms. The Gr ievor
was thoroughly familiar with this document, although she had
not memorized it line for line.
To assist her in responding to general enquiries, the
Griever was provided with numerous pamphlets and brochures
outlining certain Government services as for example, Ontario
'Tax Grants for Seniors, Drug Benefit and Income Maintenance
Programs, The Assistive Devices Program, and information about
service providers in the Hamilton District, to mention but a
few.
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The Griever acknowledged the existence of guidelines
for the conduct of her non-core duties, such as hospital
claims, chequing and cashiering functions,. and (in some
respects) for related duties.
The Griever considered the essence of her job to be
Customer service, and in particular communicating effectively
with members of the general public. In her own words, “I am *
/ the first line of communication the public has with the
Government... I must be prompt, courteous, informative, and have
a keen sense of listening...". She testified that Clerks were
instructed to assist the public to the best of their ability,
and where possible, to avoid the transfer of calls to other
government offices. The Grievor testified that she dealt with
99% of the eligibility and enrolment calls without involving
her Supervisor.
The thrust of the Grievor’s’ evidence was that the
essence of her job was dealing with the public. While there
were extensive guideliqes and policy directives governing the
substance of the information she could relay to callers, she
testified that there were no guidelines or specific directions
to assist her in managing the communication aspect; in phrasing
the questions necessary to elicit or analyse the topic of the
caller's concern; in dealing tactfully
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,and diplomatically with angry or emotional callers; in stating
the policy in words the caller could understand; and in framing
suggestions or recommendations to the caller about resolving
a problem.
The Union also called Dr. Pat Armstrong, Professor of
Sociology at Vanier College in Montreal. Dr. Armstrong’s
publications include - A Working Majority; What Women Must Do
( For Pay (1983); The Double Ghetto: Canadian Women and Their
gegregated Work (1984); and Labour Pains: Women’s Work in
Crisis (1964), the two former co-authored with Dr. Hugh
Armstrong.
The Board received Dr. Armstrong’s testimony on the
Union’s submission that it might be of material assistance with ’
respect to the analysis of job content, a subject about which
Dr. Armstrong is a recognized expert. Dr. Armstrong
admitted that she lacked expert knowledge of the Ontario
Government’s classification system, and that her familiarity
with the Griever’s job was limited to a review of the relevant
Position Specification and Job Audit.
Dr. Armstrong testified that one-third of all
employed women perform clerical work, and that in our society
people tend to associate clerical work with women. In this
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.-. .context certain skills, particularly communication and
relational skills, tend to be undervalued or even invisible
when performed by women.
The thrust of Dr. Armstrong’s evidence was that much
of the work performed by the Griever involved the application
of highly-developed skills. For example, she suggested that
not only was the Griever required to be thoroughly familiar
/’ with OHIP enrolment and eligibility policies, but she also had
to employ a high-level skill in applying that knowledge to
particular problems and in making the policies understandable
to subscribers of varying levels of sophistication.
Similarly, Dr. Armstrong suggested that much of the
Griever’s work involved relational and tension-management
skills that are highly valued and rewarded in certain
male-dominated professions, but which are taken for granted and
thus become “invisible” when exercised in the context of
female-dominated clerical occupations.
Dr. Armstrong characterized Mrs. Goobie’s evident
success in performing two or more tasks simultaneously as
further demonstrating another set of “invisible” skills. She
testified that the requirement for confidentiality in the
Griever’s job exemplified an additional layer of
responsibility.
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In cross-examination, Dr. Armstrong expressed the
view that to the extent the Griever has to make information
understandable to a third party, she is engaging in
“interpretation” even though the information in itself is
largely predetermined. In Dr. Armstrong's opinion, the
Griever's responsibilities were more complex than Mr. Zarudny
was prepared to suggest. For example, she considered that the
communication of information to the elderly and to people whose
first language is not English, are complex tasks: in her own
words, it is "not my experience that Government regulations are
understandable to the general public".
The Employer called three witnesses. Albert Board is
Hamilton District OHIP Office Director, and has been involved
with the administration of Government Health Insurance in
Ontario since the early days of OMSIP. Mr. Board presented an
historical overview of OHIP and the development and organiza-
tion of the Hamilton District Office. Parts of Mr. Board's
testimony have been referred to earlier in the Decision.
Norman Glaze is Manager, Customer Services, at the
Hamilton District Office. At the time of the Grievance, he was
Supervisor of Customer Services: Mr. Glaze was the direct
Supervisor of Ms. 3oyce Collis.
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Mr. Glaze substantially agreed with the Griever's
testimony about her duties and responsibilities. He character-
ized her as a “very competent, well-trained person". He
admitted that the Griever exercised judgment in numerous areas
of her work as, for example, in formulating appropriate
questions to put to a caller. He acknowledged that parts of
the enrolment policy manual were “very complex" and admitted
that judgment is exercised in sifting information to yield
appropriate solutions to callers' problems. However, Mr. Glaze
stated that in 90% of the enquiries, solutions were readily
apparent. In his opinion; "the vast majority of the problems
presented are routine and of a repetitive nature".
Mr. Glaze testified that the Griever was provided
with a comprehensive set of guidelines in the form of manuals,
and that she had little, if any, authority to vary from those
guide1 ines. However, he agreed that there were no guidelines
relating to such matters as how to glean information from
callers. or how to deal with enquiries from the general public
with courtesy and with sensitivity. He acknowledged that
maintaining the confidentiality of health information was a
very important aspect of the job.
Mr. Glaze testified that both he and Group Leader
Collis monitored the Clerks' telephone calls, but on a very
#infrequent basis. Further, he acknowledged that Clerks would
serve as Acting Group Leaders in Boyce Collis’ absence.' At
such times, the Acting Group Leader would.perform most of Ms.
Collis' regular functions, except for appraising or counselling
employees.
In cross-examination, Mr. Glaze acknowledged that the
Information and Assistance Clerks are in a "constant state of
f~ learning" new and up-dated policies and procedures. It was his
evidence that twelve to eighteen months of on-the-job training
are required before a new Clerk is fully capable. In his view,
the fact that the Grievor had memorized the contents of the
manual did not make working with the manuals "routine" because
the memory and recall that are required make it skilled work.
Mr. Glaze testified that the Griever spent approxi-
mately 80% of the average day exercising her "communication
skills". She wai required to have detailed information
committed to memory and to communicate it upon request. Mr.
Glaze agreed that there was a “wide variance" in callers’
ability to comprehend the "pre-determined solutions" found in
the manuals and guidelines.
Having considered the evidence and the submissions
carefully, this Board finds as a fact that the Griever's core
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#responsibility is to communicate OHIP policy and procedure to
members of the general public, and to actively assist them in
securing and maintaining health insurance coverage within the
scope of that policy. The Board also finds that the Griever’s
chief ancillary responsibilities are to process various OHIP
application forms, and to respond within the framework of the
Access program to general public enquiries, unrelated to OHIP.
The Board is satisfied that the Grievor is required to have
i extensive knowledge of OHIP policies and procedures.
Considering the volume of enquiries and the heavy workload
generally, we are of the opinion that it is a requirement of
the position that the Griever have most of the materials
described above committed to memory.
We also conclude that in carrying out her principal
responsibility, the Griever is required to exercise a range of
interpersonal communication skills. These may be enumerated
(at least in part) as follows:
1. Courtesy, tact and diplomacy.
2. Interviewing, information-eliciting skills.
3. Tension-management skills with respect to
apprehensive, emotional or irate callers.
4. Interpretive skills, with respect to
conveying government policy to callers in an
understandable and contextually clear manner.
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5. Problem-solving skills with respect to
identifying a method by which the caller’s
difficulties may be resolved.
6. General relational skills that permit the
grievor to empathize with each caller’s
difficulties without becoming so involved as to
neglect other responsibilities, within the
context of a heavy workload.
In arriving at these findings, we have considered the
Employer's submission that the majority of callers present
familiar problems which have simple solutions. We have no
doubt that'this is the case. The Board is impressed, however,
by two related points.
First, in many cases the familiarity and simplicity
of the caller’s problem only becomes evident as a result of the
Griever’s exercise of the communication skills outlined above.
Indeed, it is a crucial requirement of her job that she be able
to identify the problem promptly and accurately, despite
confusion or lack of clarity on the part of the caller.
Second, the fact that the majority of callers present
substantively simple problems should not obscure the fact that
a significant proportion of callers do present more complex and
subtle difficulties. The Griever is expected to deal with the
latter as well as the former. In assessing the level of
complexity of the Grievor’s job, we have considered not only
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the extent to which apparently routine matters are rendered
"routine" only by virtue of the Griever's skills and
experience, but also the extent to which she is expected to
resoond to non-routine occurrences in the same manner.
Finally, we have considered the objection that the
communication skills exercised by the Griever in her daily work
differs little from skills exercised by most people in their
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working and non-working relationships, and therefore cannot
serve to distinguish her work as particularly complex or
responsible. It is trite to say that given a common stock of
basic ‘social skills, some people have developed certain of
those skills to a far greater'extent than others. While
interpersonal communication skills exercised by the Griever in
her daily work are possessed by most members of society, she is
required, in the context of her work, to exercise those skills
at a significantly higher level of specialized competence and
experience than is the general norm.
INTERPRETATION OF THE STANDARDS
Bryan Neale was the Employer's final witness. Having
worked with the Ontario Civil Service Commission between 1976
and 1982 in such capacities as Clasification Officer, Category
Officer, Standards Officer, and Category/Module Officer, Mr.
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Neale is well qualified to testify as to the interpretation
placed upon the Class Standards by the Commission.
Mr. Neale testifed that the classification system is
a "grade description system" within which job levels or grades
are narratively described and ranked in order of increasing
complexity. It was his evidence that each Class Standard
specifies "compensable factors", which are significant and
i identifiable elements of the job to be applied in the
measurement of the job's relative worth. According to Mr.
Neale, the Clerk General Series incorporates three compensable
factors:
1. The extent to which the job requires knowledge
of specific regulations, statutes or local
practices.
2. The nature of the decision-making required in
the job.
3. The types of problems that incumbents refer to
persons in higher positions, and the
availability of supervision.
Mr. Neale stated that the level 0.f job complexity in
each of the general clerical grades is illustrated by example
in the relevant "typical tasks" description. He also drew the
Board's attention to the Preamble to the series, which
specifies that group leader responsibility begins at the Clerk
3 General level, and that the majority of positions at the
- 27-
Clerk 4 General level are supervisory in nature.
Mr. Neale characterized the Clerk General Series as
"task-oriented", in which the incumbent's skills were only
relevant to the extent that they might fall within the
"knowledge factor". The thrust of his evidence was that while
the Grievor exercised communication and relational skills in
her work, these are not compensable within the Clerk General
Series. He testified that these skills have never been taken
i'nto account in analyzing a job for classification purposes.
Mr. Neale stated that the ability to communicate was not a
compensable factor, but rather a minimal staffing requirement.
In his opinion, the knowledge required by the Grievor to
perform her job was "near" the Clerk 4 level, while the tasks
performed were at the Clerk 3 level.
The general principles concerning the Grievance
Settlement Board's jurisdiction with respect to the
interpretation of Class Standards are well known. Briefly
stated, the Standards are absolute standards to be taken as we
find them, and to be interpreted as a whole. Similarly, Class
Standards are, of necessity, generally-worded. The essence of
the Board's enquiry is to determine whether the Employer has
conformed to its actual classification standards in the
particular case before us. In answering this question, the
.I
li ‘2
- 20-
I
aBoard is not bound by the Employer's interpretation of its
Class Standards, which inevitably is self-serving. On the
contrary, the correct interpretation of the Class Standards is
a question which falls to the Grievance Settlement Board for
determination pursuant to its authority under Section 18(2)(a)
and Section 19(l) of the Crown Employees Collective Bargaining
Act. _
._ The Grievance Settlement Board has been called upon i
to interpret the Class Standards for the clerical series on
numerous occasions. Various Panels of the Board have commented
on the fact that the Standards in question were last revised
almost a quarter of a century ago, when the general character
of office work in large organizations was vastly different than
it is today. For example, see Re McCourt, 198/78 (Saltman); F&
John et al, 463/81 (Zlolliffe); Re Garrard, 521/81 (Solliffe);
Re Cho-Chu et al, AA/82 (Teplitsky); and Re Eiorges et al,
21104, 22184, 23184 (Verity).
While it is true that absolute standards should be
revised infrequently, they must surely be made subject to
periodic revision if they are to serve their intended purpose
in a meaningful way. Clearly, the Board has no jurisdiction to
amend or alter the Class Standards. However, as stated by
Vice-Chairman Draper, we are required to consider them to be
i 2,
- 29-
i
,“referrable to the state of the art, that is, to the current
stage of development of their subject matter" - Re Parker,
107/83 at p. 7. Sooner or later, it may occur that the words
of the standard and the nature of the work performed diverge so
completely that the incumbent is prima facie misclassified. In
the inte’rim, this Board must treat the standards as though
drafted with the Griever’s work in mind.
gust as this Board has commented on the antiquity of i.
the clerical series standards, so has it commented on the
apparent overlap between the various levels in the series. For
example, see Re Montague, 110/78 (Swinton); Re McCourt, 198/78
(Saltman); Re Barnes, 306/82 (Jolliffe); and Re Borges et al,
21184, 22184, 23104 (Verity). The Series is graded at the
various levels by degree of responsibility, complexity,
knowledge, authority, judgment, autonomy and discretion, more
than by the nature of the basic tasks performed. That'
observation has been well characterized by Vice-Chairman
B'runner in Switzer and McKenna, 804/84, 805/84 at p. 11 as
follows:
"An examination of the class definitions of
Clerk 3 and Clerk 4 General makes it clear
that the dividing line between the two
classifications is not black and white.
These definitions do not contain water
tight compartments which are easily
distinguishable from one another but
constitute only a general outline of the
..,
7. 2,
- 30-
duties and responsibilities of the
employees, with the main difference or
distinction being the degree of
responsibility, independence and judgment
that is exercised."
A third feature of the Clerical Series Standards to
have attracted comment by the Grievance Settlement Board is
their general and encompassing nature. These are "global and
composite" standards which are designed to cover a very broad
spectrum of tasks and working environments. See for example,
f’ Vukoje, 13/75 (Beatty). As the preamble clearly states, the
clerical series .is a large residual class, consisting of "all
office positions and office supervisory positions that are not
covered by a specialized clerical, technical, equipment
operating or professional class series". Within the clerical
series, the Clerk General series is defined in residual terms:
it covers Clerks whose work is "general" in the sense that it
does not fall within a more specialized classification within
the Clerical Series.
In interpreting the standard for a global and
composite series, this Board has neither expected nor required
that every element in the standard would have its counterpart
in the job under consideration. In Re Vukoje (supral, where
the Grievor claimed that she was misclassified as Clerk Typist
.I;
- 31-
$3 and sought reclassificat ion as Clerk 3 General, Vice-Chairman
Beatty at p. 22 recognized that in view of the global and
composite nature of the Class Standards, “-a person may perform
only one or two of the duties described therein and still
properly be classified as a Clerk 3".
Taking both the degree of overlap between levels and
the global character of the standard into consideration, this
Panel of the Board has placed more emphasis on locating the job
appropriately within the continuum than on the performance of
specific tasks. This approach cannot be described as novel and
without precedent. As Vice-Chairman Swinton stated in Montague
(supra) at p. 8:
"Classification of position does not
necessarily turn, however, on the fact that
an employee performs a given duty, particu-
larly when.the classification standards
under consideration are very general and
applicabJe to a wide range of positions.
This is especially true of the Clerk series
of Class Standards. Many similar tasks
will be performed by employees with differ-
ent classifications within the Clerk
series. Their classifications will vary
because of factors such as the degree df
complexity of the task or the degree of
independent judgment required in performing
the task."
Having reviewed the Grievance Settlement Board's
existing jurisprudence, and after careful consideration, we
find that we cannot accept Mr. Neale's characterization of the
- 32-
1 :
Clerk General Class Standards in terms of narrowly-construed
"compensable factors” which exclude consideration of factors
such as the exercise of communication and.relational skills
which we'have found to be central to the Griever’s job. We
adopt this position for two reasons.
First, in our opini
on, the approach recommended by
Mr. Neale, if followed exact1 y, must lead to arbitrary, if not
and the
be mist
General
compensable factors, then, we must find Mrs. Goobie
lassified, not only as a Clerk 3 General, but as a C
at any level or grade.
'lerk
absurd results. We have found that the Griever’s core
responsibility is to communicate OHIP policy and procedure to
members of the general public, and to assist them in securing
and maintaining health insurance coverage within the scope of
that policy. If the Class Standards for the Clerk General
Series preclude consideration of precisely those job qualities
that are most representative and necessary to the performance
of core responsibilities, then it must surely follow that the
Grievor is misclassified in the Clerical Series. It is true
that the classification system is within the control of the
Employer; but it,is equally true that it is a system for
classifying jobs and as such must take account of the work that
is actually being performed. If Mr. Neale is correct in the
approach to be taken in interpretation of the Class Standards
to
, Of more importance, the Board finds that there
nothing in the wording of the Class Standardsto restric
relevant factors to the three enumerated by Mr. Neale:
knowledge, decision-making, and autonomy. Indeed, it is
is
t the
clear
on the face of the Standards that other factors are to be taken
into account. As Mr. Neale himself pointed out, supervisory
responsibility is one such additional factor. There is nothing
in the Standard to suggest that persons are to be compensated
for supervising others merely as an incident of their own
autonomy. We prefer to consider that supervisory
responsibility is compensated for its own sake. Similarly, the
Standards clearly refer to such factors as complexity,
initiative and responsibility in addition to the three
enumerated by Mr. Neale.
In summa.ry, the Board finds that the Clerk General
Series is described by global and composite standards, with
significant overlap in tasks among the levels in the Series. A
position's level within the series is to be assigned by
determining where it falls with respect to a broad range of
factors including responsibility, complexity, knowledge,
authority, judgment, autonomy and discretion. Positions ranked
higher in the Series will have these factors in greater degree
than those ranked at a lower level. In sum, there are no
simple touchstones established in the Class Standards, and
- 34-
, &determining the correct classification within the Series must
involve the exercise of judgment and the balancing of all
relevant factors.
APPLICATION OF THE STANDARDS TO THE 308
There was no dispute between the Parties as to
whether the Grievor’s position was properly classified in the
Clerk General Series. We are satisfied that it was properly
classified in the series. The Board is required to determine
whether the position was properly classified at the Clerk 3
General level, or whether it should have been classified as
Clerk 4 General.
We have set out our determination of the nature of
the job, and described at some length our reasoning on the
interpretation of the Standards. It is unnecessary to discuss
in exhaustive detail the correspondence between each word and
phrase of the two Standards and each task and responsibility of
the job. Suffice it to say that we heard extensive submissions
from Counsel and have given them due consideration. In the
result, the Board finds that the Griever's position was
improperly classified as Clerk 3 General and would have been
properly classified as Clerk 4 General. Our reasons are
5 >.
- 35-
/
*. summarized in respect to the three main components of the
Grievor’s job - responding to OHIP enquiries; responding to
general enquiries; and processing app1icat.ion.s.
The Clerk 3 General Standard refers to “routine
clerical work of some complexity", while the Clerk 4 Standard
refers to “a variety of responsible clerical tasks". Of the
three main components, processing applications came closest to
the Clerk 3 Standard. However, regarding that task, the work
was "responsible" inasmuch as the Grievor made eligibility
determinations. General enquiries fell between the two
Standards, but somewhat closer to the Clerk 3 than to the Clerk
4. With respect to the Griever’s core responsibility, namely
the handling of OHIP related enquiries, the Board has no
hesitation in finding that it fell squarely within the Clerk 4
range. Unquestionably, it was "responsible" work, and whfle
the majority of enquiries were more or less routine in
substance, the Board finds, on the evidence, that with respect
to eliciting information, communicating effectively with
callers of varying levels of sophistication, and managing the
heavy workload, the work was of significantly more than merely
"some complexity".
The Clerk 3 General Standard refers to work performed
according to "established procedures" and "requiring a
‘i
i
i
,..
. .
*,
- 36-
I, background knowledge of specific regulations, statutes or local
practices". The corresponding requirement of the Clerk 4
General Standard refers to the performance of tasks "requiring
a good background knowledge of specific regulations, statutes
or local practices”. There is little dispute on the evidence
that the knowledge requirement in the Griever’s job was in
excess of the Clerk 3 Standard. This was true not only with
respect to the volume of material the Griever was required to
digest and comprehend concerning OHIP practices, policies and
procedures, but also with respect to the additional
requirements that she commit the bulk of this material to
memory, and that she constantly renew her knowledge as
practices, policies and procedures changed. While processing
applications was clearly performed according to “established
procedures", and while in resolving OHIP-related enquiries, the
Grievor was clearly bound by such procedures, there was no
"established procedure” to direct her in the communication and
relational aspects of her work.
The Clerk 3 Standard refers to decision-making which
"involves some judgment in the selection of alternatives within
a comprehensive framework of guidelines". The Clerk 4 Standard
refers to decision-making which "involves judgment in dealing
with variations from established guidelines or standards".
Processing applications fitted the Clerk 3 Standard at best.
- 37-
5 ,The communication and relational aspects of the other two tasks
involved the exercise of substantial judgment, well beyond
selecting among specified alternatives, and even beyond dealing
with variations from established guidelines inasmuch as few if
any real guidelines can be said to have existed for this aspect
of the job.
The Clerk 3 Standard refers to initiative, "in the
form of following up errors or omissions and inmaking
corrections as necessary". The parallel provision in the Clerk
4 Standard specifies that “normally, employees receive specific
instructions only on unusual or specific problems as the work
is performed under conditions that permit little opportunity
for direct supervision by others”. To the extent that Mrs.
Goobie's work involved dealing with paper, she exercised
initiative at the Clerk 3 level. To the extent that her work
involved dealing with people, the Clerk 4 language appears to
us to describe the situation more closely.
So far as "conditions that permit little opportunity
for direct supervision" are concerned, there is no doubt that
the Griever’s Stipervisor was normally present in the room where
she worked. The Supervisor had ample opportunity to direc tlY
supervise the Griever’s paperwork. In our opinion, she di d not
have the same opportunity to supervise the Griever’s hand1 ing
!
..;-::.
5
- 38-
L, .of telephone calls; certainly not on a regular and effective
basis: For his part, Mr. Glaze monitored Clerks telephone
calls only very~ occasionally.
With respect to supervision, the Clerk 3 Standard
states that "doubtful matters not covered by precedent are
referred to Supervisors". The Board is satisfied that most of
the Griever’s work, if reviewed at all, was reviewed only
periodica
p.rocedure
decisions
1
.
ly, principally for adherence to policy and
The Clerk 4 Standard states that "matters involving
that depart radically from established procedures are
referred to Supervisors". On balance, we consider that the
Griever’s supervisory situation is better described by the
Clerk 3 than the Clerk 4 Standard. It is necessary to add once
again, however, that with respect to the communication and
relational aspects of her core responsibility, the Grievqr was
not subject to "established procedures" in any meaningful way.
Taking the job as a whole, and comparing it to each
Standard as a whole, we are satisfied that the Griever’s work
responsibilities with respect to communicating OHIP policy and
procedure to members of the general public, and assisting them
actively in securing and maintaining health insurance coverage
within the scope of that policy, involved significantly more
,i‘. ” 2, ’
- 39-
,. ,.. , knowledge, complexity, responsibility, and discretion than are
contemplated by the Clerk 3 General Standard. In our view,
these factors outweigh others that would place the job properly
within the Clerk 3 General Standard. On balance, the Board
finds that Mrs. Goobie's position was misclassified as Clerk 3
General and would have been properly classified at the Clerk 4
General level.
,’
(,, In all likelihood, the Griever was properly
classified prior to 1979 as a Clerk 3 General. On the
evidence, the Eoard is satisfied that government initiatives
between 1979 and 1981 brought about substantial and material
changes in the quality and quantity of the Griever’s duties and
respongibilities, which by the date of the filing of the
grievance, justified the higher classification of Clerk 4
General.
In the result, we
must succeed. She is entit
hold that Mrs. Gbobie’s Grievance
led to ret lassification at the Clerk
4 General level effective October 21, 1982, the date of the
filing of the Grievance, and she is to be compensated
retroactively to that date. The Board does not consider this
to be an appropriate case for an award of interest. We shall
remain seized in the event of any difficulties in the
,
- 40-
ation of this Award.
DATED at Brantford, Ontario this- 18th day of
A.D., 1986.
4
t
,>.A - d /GzY > 4~ -I
R. L. Verity, Q.C. - Vice-Chairman
%+J-
P. Craven - Member
"L. Foreman - Dissent to Follow"
L. Foreman - Member
i.
DISSENT
GOOBIE. ET. AL. - 1\240/8(1
In the long and difficult set of hearings in this classification grievance, the chairman
has striven mightily to steer a course between Scylla and Charybdis. Alas, within.sight
of port. I fear he has run aground. With respect, I must dissent from the decision of
the majority in this case, on the grounds outlined below.
1. INTERPRETATION OF THE STANDARDS
The majority refers to the Class Standards in the Clark General series as a
“continuum” Cp.311 with “no simple touchstones” [p.331 on which a decision can be made.
Rather. any decision must be based on a purely subjective decision made by the
appropriate panel of the Grievance Settlement Board. I suggest that such a call for
subjectivity [rather than objectivity] in the interpretation of the Class Standards is
a recipe for chaos. Surely the responsibility of the panel is to apply objective standards
that would be reached by any other reasonable person. If that is not the case. every
classification grievance will be decided on ~the purely subjective view of the panel hearing
it.. As a result. the entire classification system will disintegrate under a welter of
conflicting decisions and it will be impossible to arrive at any reasonable determination
of the appropriate classification for a particular job. While there are overlaps in the
Clerk General series. there are also break points which clearly distinguish the Levels.
The “judgement call” approach may be appropriate to refereeing situations in sports
events, but I suggest it is not appropriate to the calmer environment of an arbitration
hearing.
2. APPLICATION OF THE STANDARDS TO THE JOB
In classification grievances. the onus is on the Griever to establish that she is
improperly classified in her current position. On the basis of the evidence presented.
I believe that the Griever did not satisfy that onus and so I would have dismissed the
grievance. In support of this position. I will review the majority award as it applied
the standards and then review the standards and the evidence as I think it should be
applied.
-2- i
First the majority award. On pages 35 to 39. the majority establishes five
categories for comparison between Clerk 3 and Clerk Y and then reviews the three main
components of the Griever’s job to determine her proper classification. For ease of
review. I have summarized the results of this analysis.
Class Standard
Routine clerical work
[Clerk 31 vs. a variety of
responsible clerical tasks
[Clerk 41
Majority Analysis of Griever’s Job
Two of the three main components are
assessed as falling in Level 3 and one is
in Level q.
Established procedures and
background knowledge.
Although recognizing that the Griever “clearly
performed according to established
procedures”. [i.e.. Level 3 standard) the
majority decided to place her in Level 4
on this category.
Judgement and Guidelines Processing applications clearly falls in Clerk
3. The communication and relational aspects
of the other two tasks bring it into Clerk
4.
Initiative The majority appears to ,split this evenly
between Clerk 3 and Clerk 4.
Supervisory Situation “On balance. we cons.ider that the Griever’s .’
supervisory situation is better described
by the Clerk 3 than the Clerk r( standard.”
A review of the above information reveals that the majority considers the Griever
to fall part way between Levels 3 and 4. In one category she is clearly a q, in another
clearly a 3. and in the other three categories evenly split between a 3 and a 4. On page 31
of this award. the majority approvingly quotes Vice-chairman Beatty when he stated
“a person may perform only one or wo of the duties described therein and still properly
be classified as a Clerk 3.” Since the Griever must establish that she was improperly
classified as a Clerk 3 in order to be reclassified as a Clerk ‘+.‘I submit that on the basis
of the analysis dons by the majority, she has not fulfilled this onus and so the grievance
should be dismissed.
A determination of the proper location of an employee in a classification grieVanCe
requires an application of the entire Class Standard. including the preamble and the
qualifications not just selected portions. I propose to review the standards in order
_! ::
I
! -3-
to find the break points end thus arrive at a determination where this Grievor fits on
an application of the standards.
.
f
.
.
Preamble
The preamble states that “group leader responsibility normally begins at the third
level, while the Fourth and above usually cover positions involving line supervision:
however, non-supervisory positions can also be included.”
It is clear on the evidence that. at best, the Griever may have group leader
responsibility. but definitely does not have complete line responsibility. While
&eve1 rl positions can sometimes include non-supervisory positions. this is clearly
intended to be an exception. This Griever is one of a large number of OHIP
employees. all of whom claim elevation from their current classification to a
higher one. Clearly it is not the kind of exception anticipated in the preamble
to the Class Standards. Thus. on this ground she clearly is a Level 3.
Established Procedures
The Level 3 standard refers to “routine clerical work according to established
procedures”. The modifying phrase referring to established procedures is Bbsent
in the Clerk 4 standard. Clearly, the touchstone between the two levels is the
extent to which the clerk has established procedures to guide her in her work.
We were inundated by manuals outlining procedures that the OHIP clerks were
required to follow. The fact that their volume and the extent and frequency to
which the clerks refer to these manuals required them to memorize the relevant
portions doesn’t detract from the fact that the procedures were available. It
is also clear that the vast majority of the work was repetitive and therefore
“routine”, as opposed to “variety”.
On balance. in light of this aspect of the standard, I would have placed the Griever
at the Clerk 3 level.
Knowledge
The difference between the Clerk 3 and Clerk ‘f standard is the insertion of the
word “good” in front of background knowledge in Level 4. This is a good example
of the continuum in the Clerk General series to which the majority refers and
leaves little to choose between the two levels. Nevertheless, the Griever in this
case is required to have a good background knowledge. and may be said to be in
Level 4.
I
:
-+
. Decision Making
The Clerk 3 standard refers to the “selection of alternatives within a comprehensive
framework of guidelines”. while the Clerk ‘I standard does not refer to the selection
of alternatives but rather “dealing with variations from established guidelines”.
As noted above, the OHIP clerks were given guidelines to deal with almost every
conceivable situation. In cross examination. the Griever admitted that virtually
every task she completed was covered by some aspect of the manuals with which
she was provided. Very little of her work dealt with variations from guidelines.
On the basis of this aspect of the Class Standard. she clearly falls in Level 3
rather than Level 4.
. Initiative
The Level 3 standard refers to following up errors or omissions. while Level 4
states that normally, employees receive specific instructions only on unusual or
special problems.
Again, much of the work done by the Information and Assistance Clerks deals
with reviewing and checking application forms or answering questions from the
public that deal with issues that are frequently raised. Obviously the Level q
Clerks are expected to exercise a much higher degree of initiative, because
instruction is only provided on unusual problems.
On this basis, the Griever should be classified ss Level 3.
. Supervision
The Level 4 Standard states that “work is performed under conditions that permit
little opportunity for direct supervision by others”.
It is clear on the evidence that the Griever had ready access to her supervisors.
The question is not whether she used that access. but rather the extent to which
it was available to her in order to solve problems or answer questions that she
could not deal with on her own. I submit that the fact that she did not have to
cal~i on her supervisor very frequently is evidence of good training. a comprehensive
set of procedures and guidelines. and a good working relationship instead of a
complex job.
The standards continue in this matter of supervision. indicating that in the Clerk 3
level “doubtful matters not covered by precedent are referred to the supervisors”
and “much of the work is reviewed only periodically”. The Clerk 4 level. on the
other hand. would only refer matters that depart radically from established
practices and there is no reference to review of the employee’s work by supervisors.
.,-:.I: :
, .
.
.
-5-
Thus, it is apparent that the Clerk 4 level is expected to operate much more
independently then the Clerk 3.
It is e matter of record that Miss Goobie’s work was reviewed periodically land
monitored by her supervisors.
In the matter of supervision. the job is reflected much more accurately by the
Clerk 3 then in the Clerk 4 level.
Typical Tasks
The Clerk 3 level refers to “assessing the accuracy of statements or the eligibility
of applicants. investigating discrepancies. and securing further proof or
documentation es necessary”. By comparison the Clerk 4 level requires an
“assessment of a variety of statements. applications. records, or similar
material...resolving points not clearly covered by...instructions”.
On this basis. how does the Griever’s job compare? Clearly. she was only expected
to assess OHIP applications using a comprehensive set of guidelines. By far the
largest portion of the work she did on a daily basis fell into this category. Although
she was sometimes called upon to resolve points not covered by her instructions.
this represented a very smell amount of her daily duties. The fact that she was
able to combine a number of tasks simultaneously is evidence both of her
capabilities and the relatively simple and routine nature of most of her work.
On the application of this aspect of the standard. I would have placed her in
Level 3.
Supervisory Responsibility
The Clerk 3 level envisions operating es a group leader by “explaining procedures.
assigning and checking work”. The Clerk 4 may “typically supervise a smell group
of Journeyman Clerks or a larger group of Clerical Assistants...maintaining
discipline”.
At no point -in the evidence was it apparent that the Griever exercised true
line responsibility in supervising other clerks. On a rotational basis. the clerks
sometimes filled in during the absence of the supervisor. But this was the exception
and they were not required to exercise true supervisory responsibility. particularly
in maintenance of discipline.
On this aspect of the standard, I submit that the Griever falls within the Clerk 3
level.
.
i
-6-
* Qualifications
Since the qualifications sre minimal. there is little to distinguish between the
Level 3 end Level 4. But it is worth noting a few points. Level 3 refers to the
“ability to understand and explain clerical procedures and requirements”. On
the basis of the evidence. I have no doubt that the Griever fully meets that
requirement. Similarly she is quite able to “organize and complete work assignments
in prescribed time limits”. By comparison, the Level 4 standard requires an “ability
to instruct and supervise the work of subordinates”. While we heard some evidence
on her assistance in helping to train new employees, there was virtually no evidence
on her ability to supervise subordinates so it is not possible to infer that she should
be in Level 4 on this aspect.
The final qualification specifies that in Level 3 the clerk is required to “maintain
good working relationships with other employees and the public served”. The
Level 4 minimal qualification specifies an “ability to communicate clearly both
orally and in writing”. I submit that as a minimum the Griever gave evidence
that she is able to maintain good working relationships both with her colleagues
and the public she interacts with. Indeed, she is able to communicate clearly
both orally and in writing. But to the extent that such communication is relatively
routine and straightforward the job is satisfactorily described in the Clerk 3 level.
Summary
It is apparent that the Grievor performs her job at a consistently high level. But
one must not confuse excellence in performance of a job with the proper
classification of the job. On the basis of the analysis above. I submit that the
job performed by the Griever and her colleagues at the Hamilton office is properly
classified as a Clerk 3. While there may be some elements of the Clerk 4
classification in the job. particularly as they relate to dealing with the public.
they are not sufficient to take it out of the Clerk 3 level.
3. PAY EQUITY
Counsel for the Grievor in this case is a ,prominent leader in the pay equity issue
in the Province of Ontario. Some aspects of this issue were brought into this case.
both in the submission of documents and oral evidence. In support of her position. counsel
,
i -7-
imported en instructor from a CEGEP [Community College] from Quebec. Unfortunately.
Dr. Armstrong is unfamiliar with the Ontario Government classification system and
was not present during the lengthy testimony about her job provided by the Griever.
These shortcomings. however. did not prevent her from coming to some conclusions
about the nature of the Griever’s job. One such insight is quoted by the majority on
page 20. “It is not my experience that government regulations are understandable to
the general public.” At best. this is a non sequitur and is. like much of her testimony.
irrelevant. Surely, if all the government regulations were understendable to the general
public, there would be no need for clerks to help explain the regulations. That is exactly
the Griever’s job. The point has absolutely no bearing on the level which the classification
system assigns to that job.
c
,‘.. .:..
,,
..:::,.:+
It is diff.icult. on a reading of this award. to know whet weight the majority assigned
to the pay equity arguments made by counsel. I trust that it had no beering whatsoever.
The issue is a red herring and confuses en already difficult situation. In calling for
an assessment of “invisible skills” counsel introduces a level of subjectivity that is wholly
unwonted in classification matters. Panels of this Board should not import foreign
concepts into the application of the Class Standards. As the majority notes on p.28.
“the Board has no jurisdiction to amend or alter” them. Arbitration panels are not courts
of equity. .However tempting it may be, we have no role in correcting potential
deficiencies in the classification standards or’ redressing perceived societal or cultural
shortcomings. Until the gender related issues are brought within the scope of our
authority, this Board should refuse to entertain attempts to introduce them. whatever
the merits. To reverse a well-known dictum: Justice must not only be seen to be done.
it must be done.
4. PROCEDURAL FAIRNESS
In defense of the approach used to arrive at its decision, the majority refers to
several cases which were neither presented nor argued by counsel [see for example
Parker 107/W et p.291. This introduces a new element to the case which was not
previously addressed. Thus. the parties are not able to rebut or submit alternative
arguments.
As a matter of procedural fairness. I submit that arbitrators shoclld eschew this
praceise. It puts et least one party at a serious disadvantage.
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This should not be teken to mean that arbitrators can’t do research prior to arriving I
et a decision. But if new issues are raised in such research that were not even touched
in evidence or argument [such as this one in which the class standards ere said to be
referrable to the state of the art]. then the parties should be invited to address them.
That was not done in this case.
All of which is respectfully submitted.
Leslie D. Foreman