HomeMy WebLinkAbout1985-0478.Taylor et al.87-10-21File # 470/U
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
OPSEU (Taylor et al)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Health)
Employer
G. Brent Vice Chairman
F. Taylor Member
G.J. Milley Member
M. Farson
Counsel
Cornish & Associates
Barristers & Solicitors
For the Employer: R.D. Smith
Regional Personnel Administrator
Human Resources and Personnel Development Branch
Ministry of Health
Hearings: November 10, 1986, June 9, 1987 and
September 14, 1987
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DECISION
The grievance alleges that the grievor's position of Camera/Reader
- Printer Operator in the Ministry of Health is improperly classified as
an Operator 2, Microfilm and shouldbe reclassifiedas an Operator 3,
Microfilm. The parties filed the following statement (Ex. 1) with us:
The parties have agreed to the following:
1.
2.
The Grievance Settlement Board has
jurisdiction in this grievance.
The Collective Agreement with respect to
Working Conditions and Employee Benefits
signed on December 17, 198.2 and covering the
period from January 1, 1982 to December 31,
1983 was in effect at all times relevant to
this grievance.
The Taylor grievance is beforetheGrievance
Settlement Board as a single grievance.
Effective September 1, 1984 the duties and
responsibilities of the positions of Camera
operator 05-7326-11 (attached to the Audit as
Appendix 1) and Reader-Printer Operator 05-
7326-12 (attached to the Audit as Appendix 11)
were~combinedinto a single position titled
Camera/Reader - Printer Operator 05-7326-11
(Attached hereto as Attachment 1)
I,.
The position description (Attachment 1) was in
place on the date the grievance was lodged.
An audit was carried out on Apri130, 1985,
the report of which, together with comments by
the grievers and supervisor is attached as
Attachment 11. The grievers' OPSEU Staff
Representative completed the incumbents'
coranents on their behalf.
The class standards for the Operator,
Microfilm Series, as revised October 1965, are
attached hereto as Attachment 111.
Ms. Susan Taylor was employed in the Ministry
of Health's Regional Microrecords Service in
Kingston from September 26, 1983 to August 31,
1984, as a Reader-Printer Operator. She
worked as a Camera/Reader Printer Operator
from September 1, 1984 (date of the combined
positions) until August 30, 1985. On
September 3, 1985 she was appointed, through
competition, to a position with the Ministry
3
in Toronto which is not affected by this
classification grievance.
It should be noted that counsel for the grievor informed the Board
at the outset that in making the case for reclassification there would
be no argumentthattheposition was improperly classifiedbased on a
comparison with the relevant class standards. Counsel stated that the
case would rest entirely on a %sage" argument comparing the grievor's
position with that of Microfilm Operator in the Ministry of
Transportation andcommunications, Licencing and Control Branch, in
Kingston. Atthetimethe grievance in this case was filed, February
18, 1985, that position was classified as Operator 3 Microfilm. It was
subsequently reclassified as Operator 2, Microfilm effective January,
1986.
The Board heard evidence about the duties and responsibilities
involved in the two jobs with which the argument is concerned. While it
is usual in classification cases to set out that evidence in some detail
and to make comparisons between the two jobs, this case is somewhat
unusual in view of the positions taken by the parties. The grievor's
case does not allege that her job is improperly classified according to
the class standards: therefore, we can assume that if the grievor's job
were compared to the class standard for Operator 2 Microfilm, it would
fit within that class standard. The Employer's argument hinges on the
submission that the Ministry of Transportation and Communication job was
improperly classified as Operator 3 Microfilm and that the proper
olassification of that job at all material times should have been
Operator 2 Microfilm. As a consequence, the only logical conclusion
that can be drawn fromthesetwo arguments is thatthesetwo jobs are
essentially, substantially, or virtually the same for the purposes of
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classification That is, since the Employer's view is that both jobs
are properly classified as operator 2 Microfilm, the Employer cannot he
heard to say that the two jobs are significantly different; and since
the Union's view is thatthetwo jobs are the same, it would not argue
that they are significantly different. Therefore, we can safely accept
that there is no significant difference for classification purposes
between the two jobs. There is therefore no need to canvass the
evidence of job duties and responsibilities thoroughly.
On the occasion of the downgrading of the Ministry of
Transportation and Communication jobs to Operator 2 Microfilm, the Union
launched an action before the Ontario Public Service Labour Relations
Tribunal alleging violations of the Crown Employees Collective
Bargaininq Act, R.S.O. 1980, chap. 108. - Grievances were also filed by
the employees concerned. On July 10, 1987 the Tribunal released its
decision dismissing the complaint(T/OO08/86). It is clear from the
findings of the Tribunal and from the evidence before us that the..
Ministry of Transportation and Communications perceived in 1984 that the
position in its Ministry might be improperly classified, and commenced
an examination of the situation in November, 1984, before the grievance
in this case was filed. According to the uncontradicted evidence of
MS. Joan Crowther, Senior Policy and Standards Advisor, Classification
and Compensation Unit, Human Resources, Ministry of Transportation and
Communications, the grievances were withdrawn. In view of these facts,
we consider that we are justified in concluding that there was nothing
improper in the reclassification of the Ministry of Transportation and
Communications job, and that the employees affected have accepted the
reclassification as correct, It should be noted, though, that for some
reason whichwas not made clear, while the re-examination was taking
. 5
place the position was reconfirmed as Operator 3 Microfilm approximately
two and one-half weeks before this grievance was filed.
At the commencement of this case there was a dispute between the
parties as to whether the bsage"argument could be on its own, and as
to whether the Employer could argue that the Ministry of Transportation
and Communication position was improperly classified. On November 21,
1986 the Board issued the following directive to the parties:
1. The Union can make the usage argument even if
it is not alleging that the position measured
against the class standard should be in the
higher classification.
2. It will be a matter appropriate to final
argument whether the Union has proven on
balance that the grievers perform
substantially the same work as the employees
in the higher classification to which the
Union is making the comparison.
3.
If the Employer is asserting the right to
argue that the comparison is inappropriate
because the higher classified position was in
fact wrongly or improperly classified
according to the class standards as of the
date of the grievance, then we will hear that
evidence and will hear argument at the end of
the case as to whether that position is
possible inview of the decisions which have
followed Acton 456/83.
As we have already noted, we arepreparedto acceptthatthe only
logical conclusion which can be reached in view of the positions which
both parties are taking is that the Microfilm Operator in the Ministry
of Transporation and Communications and the job which the grievor
performs involve substantially the same duties and, for classification
purposes, are indistinguishable.
Counsel for the grievor arguedthatto defeattheusage argument
the Employer could not rely on the fact that the comparison job was
improperly classified. In particular, counsel referred us to the
decision of the Divisional Court in the Lowman case and to the'cases
which followed it. We were asked to uphold the grievance and reclassify
the grievor's position as Operator 3 Microfilm.
In essence, the Employer's position is that the usage argument made
on behalf of the grievor must fail because the Ministiy of
Transportation and Communications position was an anomaly in the system,
the anomaly has been corrected, and the corrected anomaly is not a:valid
basis for making the usage argument.
In connection with these arguments the parties referred us to the
following cases: Acton (GSB File 456/83); Lowman (GSB Pile 13/82,: etc.)
reversed by the Ontario Divisional Court in an unreported decision dated
April 22, 1985; Carvalho (GSB File 1484/84); Bahl (GSB File 891/85):
srick (GSB File 564/80); Montague (GSB File 110/78); Kahn (GSB File
290/82)1 Wallace (GSB File 274/84); and Ontario Public Service Employees
av- The Queen in right of Ontario et al. (Brecht) (198i), 40
O.R.(2d) 142 (Div’l Ct).
Many of the cases cited to us dealt with the application'of the
"usage"test in various circumstances where no mistake is being alleged
by the EmplOyer. For most purposes, we accept that the usage test was
definedby the Divisional Courtinthe judicial review of the Brecht
case (supra) in the underlined portion of the following passage: '
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 emplovees performinq the same -- duties in a higher, more senior classification....
- i&39= 145 -- underlining added)
In ActOn (supra) the Board concluded that the jobin question was
,
7
I
properly classified in view of the class standard. It then went on to
consider the classification question in view of the following set of
circumstances outlined at pages t2 and 13 of the award:
There is, however, another issue, one which
raises questions of principle. Some time before
this grievance was filed, an issue had arisen in
respect of a seventh payroll clerk job. In
December, 1982, a Ms.'A.Collin retired from a job
entitled Senior Payroll Clerk and classified as
Clerk Grade 4.~ This job was virtually identical to
the work being performed by all of the other
Payroll Clerks, except that the Senior Payroll
Clerk.was responsible forperformingthepayroll
for headofficepersonnel, andofficers andboard
members. Traditionally, this access to payroll
information relating to the senior management and
personnel had been used to justify a Grade 4
classification.
Prior tothepostingofthis job, there was a
request for a job evaluation and a position
identification questionnaire was prepared. That
questionnaire was in evidence, and it is difficult
to see any substantial distinctions between it and
the documentsusedinthepresentgrievance. The
evaluation wentthroughthe usual process,... and
the salary committee took the view that the correct
classification was at the Clerk Grade 3 level.
( . .
At this point . . . the Assistant Director
Finance intervened in the process. He argued to
the salary committee that the position should be at
the Clerk Grade 4 level because of the
confidentiality issue, the requirement to deal
directly with senior management and board members,
and certain minor technical differences because of
management compensation methods. Ultimately,
apparently for the reasons just set out, [he1 was
successful in convincing the salary committee that
a Grade 4 classification ought to be assigned.
Therefore, the employer in that case was not arguing that the
ClerkGrade level was inappropriate for the Senior Payroll Clerk or
that the Senior Payroll Clerk classification had been an error. The
Board, on examining the two positions and comparing the job duties for
the purpose of the "usage" test, believed that it had to determine
whether the higher classifiedposition was properly classified, and
reached the conclusion that the Senior Payroll Clerk was not properly
classified as a Clerk Grade 4. At pages 15 and 16 of the award the
Board said:
In circumstances where the Grievance
Settlement Board is justified that a classification
is wrong, is it proper nevertheless to use that
classification to justify the reclassification
upwards of another employee? In our view, we do
not think that it is. Classification is an inexact
science, and it may be that an employer will apply
the classification criteria differently from case
to case; where that has occurred, and where it
appearstbata grievor is disadvantagedby a more
stringent application in his or her case than in
the great majority of other cases, there is an
argument for an upward classification adjustment.
The Grievance Settlement Board has accepted such an
argument on a number of occasions in the past, and
undoubtedly will do so again. In the present
circumstances, however, where one employee appears
to have been given a windfall in the classification
system because of what appear to us to be
inadmissible factors, factors covered neither by
the classification guide nor by the general
principles of job evaluation, we think it would be
incorrect to pass that windfall to other employees
as well. While the assignment of a-higher
classification to another employee doing similar
work may be evidence that the job of the grievor
should be classified at the higher level, the
evidentiary value of that fact is completely
underminedonce it has been made to appeartothe
Grievance Settlement Board that the higher
classification is the incorrect one, rather than
the lower classification. In other words, whatever
persuasive value the fact of [the employee's1
higher classification may have had, that persuasive
value is vitiated by our finding,,at least on the
evidence before us, that she is misclassified.
In that decision the Board was giving the classification system as
it ought to be properly administered greater weight than the system as
it was administered in the case of the higher classified employee. The
employer there was not admitting that it made a mistake in the case of
the higher classified employee and was not trying to ask the Board to
regard the higher classification as anomalous. The Board considered
.
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that in dealing with a usage argument ithadto determine whether the
higher classifiedposition was in fact properly classified before it
could award the higher classification to the grievor*.
The correctness of the approach taken in ACtOn (supra) must be
viewed as being open to considerable question since the decision of the
Divisional Court in reviewing Lowman (supra). In Lowman the Board had
before it five employees, all of whom it concluded were doing the same
job. Four of the employees were in one classification and one was in a
higher classification. The employer had at one time reclassified the
higher job downward; butduringthe course of the hearing it returned
the job to the higher classification. These were the only five
employees in the civil service who were performing this work or whose
jobs were so classified. The Board held that the fact that all five
were doing the same work even though they were not all classified
identically was not determinative of the issue, and said at page 10:
As previously stated, the essence of the Board's
inquiry in a case of this nature is to determine
whethertheBmployer has conformed to its actual
classification standards. These standards are
measured by the Employer's written class standards
unless there is proof that the Employer has varied
the written standard. If there are employees
classified at a higher level who are doing the same
work as the Grievors, it may indicate that the
Employer has by its practice varied its written
class standards (E Montague 110/7S). In these
circumstances, the EmplOyer'S practice of
classifying employees is a form of extrinsic
evidence which may indicate that the Employer has
in fact reinterpreted its written class standards.
However, in order to rely on such evidence, there
ordinarily must be a consistent practice of varying
the class standards and, in the usual case, the
class standard must be sufficiently broad to cover
the job in question.
In essence, the Board's decision was that one variation does not a
consistent practice make. The decision was quashed by the Divisional
Court on April 22, 1985. The complete decision is set out below:
In our opinion, the Boasderredin failing to
apply the second test in OPSEU v. The Queen in --- Right of Ontario c & (1982), 40 O.R.(Zd) 142
(Brecbt's case). Having found that there was an
employee performing substantially the same duties
as the grievor8 andthatsuch employee had been
deliberately classified by the respondent in a
higher classification, the Board acted unreasonably
and without jurisdiction in failing to find that
the grievor6 wouldbeproperly classified in the
higher classification.
The higher classified employee and the four
grievor6 are the only persons in the Public Service
performing the function of remote sensory
supervision. In the circumstances we are of the
opinion that it does not assist the respondent to
argue that the senior employee may have been
improperly classified.
The decision of theBoardis quashed and set
aside and the matter remitted back to the Board,
costs to the applicant.
The Divisional Court seems to be saying that the fact that the
employer "deliberately" classifies one employee in a classification is
sufficient for the purposes of determining the classification of other
employees doing substantially the same work, regardless of the class
standard. That is the general statement contained in the first
paragraph. In the second paragraph the Court said that in the
circumstances before it the employer could not argue that there was an
error in the classification of the one job. The court does not say that
the employer can never successfully argue error in other circumstances.
In the particular case before the Court the employer had done nothing to
correct the error which it was trying to rely on to avoid reclassifying
other employees, and so by its own deliberate act was continuing an
inequity and could be said to have varied its own classification system.
Three cases whichhavebeenconsideredbythe BoardsinceLowman
11
(supra) are Wallace (which predated the judicial review), Carvalho, and
Bahl (all cited supra). None of the cases dealt with situations similar
to the one before us where the Employer was alleging that the position
which was being used as a comparison was classified in error and where
the error had been corrected by the time the grievance was heard.
Clearly the Boards in Carvalho and @& disagree about the effect of the
Divisional Court's decision in Lowman on the usage test.
Following the Lowman decisioni it is our view that the Employer is
precluded from pleading error or anomaly where there is a deliberate
decision to classify substantially similar jobs differently. It would
appear that the overriding consideration, in view of that decision, is
that the classification system be applied uniformly and consistently so
that positions which are alike in all relevant respects are classified
alike. The Court did not consider a situation where the Employer
recognisedan error and then did something to restore consistency and
uniformity to its classification system by applying the class standard
as written.
It is our view that for a classification system to workproperly
and to ensure that the same work attracts the same pay there must be a
mechanism for correcting the errors which will inevitably arise in the
application of the system. No classification system can hope to achieve
even a semblance of equity and fairness if errors must be frozen for
evermore. If the Employer recognises an error and then does nothing to
correct it, it would appear that since Lowman it can no longer refuse to
acknowledge that the "error" has in effect become a relevant standard of
comparison. Where the Employer recognises that a mistake has been made
and acts to correct it, then surely it has restored consistency and
uniformity to the system and can once again rely on the class standard
12
as written as being the applicable standard against which to measure the
job which is the subject of the classification grievance. In our view,
it is irrelevant that the error was not corrected by the date the
grievance was filed, andin this csse the fact that the Employer was
engaged in correcting the error at the date of the grievance and
subsequently did correct it is sufficient to show that it was applying
the class standard se written and did not intend to vary it through
application.
It would be strange result, indeed, if the effect of this decision
were to force the Employer to reclassify a job which is classified
correctly according to the class standards simply because it was
substantially the same job as one which had once been improperly
classified higher than the grieved job but which was now properly
classified in the same classification as the grieved job. If we were to
do this we would be forcing the Employer to perpetuate a mistake it had
already corrected and leave it vulnerable to claims for reclassification
from every employee occupying jobs classified as Operator 2 Microfilm.
Such a result would not benefit anyone interested in encouraging a
reasonable, fair and equitable application of any system of job
classification.
The question before us is whether the position in question was
properly classified. In view of the evidence, we conclude that it was
properly classified, and can see no justification for granting the
relief sought, which would result in the job being classified at a
higher classification than warranted by a proper application of .either
the class standard or of the usage test. For all of the reasons set out
above, the grievance is dismissed.
:. ,.
’ 13
, : DATED AT LCNDON. ONTARIO TaIS 2lst DAY OF October , 1987.
&J 3243
Gail Brent, Vice-Chairman
~,&.&& : . -
'F. Taylor, Memb
6 lsli.y
G.J. Milley, Member‘
I