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HomeMy WebLinkAbout1985-1553.McTamney.88-06-10ONTARfO EMPLOYESOEL4 0O”RONNE CROWNEMPLOYEES DEL’ONTARIO GRIEVANCE CQMMISSION DE SEllLEMENT REGLEMENT DES GRIEFS 1553185 Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMFNT BOARD OPSEU (Sharon McTamney) Grievor and The Crown in Right of Ontario (Liquor Licence Board of Ontario) P.,Draper Vice-Chairman J. Solberg Member L. Foreman Member For the Griever: M. Levinson Counsel Koskie and Minsky Barristers and Solicitors For the Employer: N.E. Eber Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers and Solicitors Employer Hearing: September 29, 1987 The Grievor, Sharon McTamney, grieves that her position, Clerk, Permit and Organization Approval, is improperly classified Clerk Grade 3 and requests that it be reclassified Clerk Grade 4. The Grievor's testimony dealt in detail with the duties she performs in her position, with'particular emphasis on two instances in which new duties were assigned to her and was to the folIowing effect. in 1963 she took over the,duties of a retiring employee whose position was classified Clerk Grade 4. Those. duties, by her estimate, make up twenty-five percent of her work. Eier position was stil: to be classified CIer!i Grade G. In i98C she took over duties for the Toronto and Kississauga area similar to duties which are performed for the rest of the province by an employee whose position is clasai- fied Clerk Grade 5. She estimates that those duties would average thirty percent of her work over the period of a year. The Grievor continues to perform the original duties of her Clerk Grade 3 position. In cross-examination a position descripticn said to describe the duties of her position was presented to the GrieVGr . She had played a role in its preparation but it was not put in fina: form until after the date of her grievance. 2 - It was admitted in evidence over the objection of counsel to the Grievor. However, we agree-with COUiSel's subsequent argument that it does not; standing alone, go to show that the Grievor's position is properly classified Clerk Grade 3. The Employer did not submit any evidence-in-chief. The Grievor was the only witness called to testify by the Union. Welther classification guides nor position descriptions for the Clerk Grade 4 and Clerk Grade 5 positions to which reference is made in the Griever's testimony are in evidence. This is not a case in which facts are peculiarly within the knowledge of the Employer or in which it is argued that they are not reasonably available to the Union. We must conclude that the Union is content to rest its case on the testimony of the Grievor. It is well settled that in classification cases the on&s of proving, on the balance of probabilities, that his or her position is improperly classified is borne by the grievor. What must be shown where, as here, the "usage" approach is chosen is that the work performed by the Grievor is the same in its distinctive and essential elements as that being performed by employees whose positions are in the classification sought. 3 It is not sufficient to claim, as the Union does here, that some of the world the Grievor does is also done by employees whose positions have been placed by the Employer in a higher classification. To paraphrase the view expressed in Montaque, llo;7a, classification does not necessarily turn on the fact that an employee performs a particular duty; many similar tasks will be performed by employees in positions which are in different classifications within the same occupational series. We would add that the presence of a given duty in differently classified positions will not, of itself, determine proper classification; the whole of one job must be compared with the whole of another. Our obligation in this case is to compare the work required to be performed by the Grievor with that performed by employees whose positions are in higher classifications. Obviously, there must be in evidence the facts upon which that comparison may be made. It is the Union's task, in the first instance, to present an appropriate basis for comparison of the duties of the Grievor and those of the employees in the higher classifications. The Grievor's description of her duties as including duties performed by those employees, with nothing 4 more, does not constitute proof of the duties in fact performed by them. Nor does it give rise to an obligation on the part of the Employer to call evidence to establish what their duties actiially are. Our view of the evidence must be that it simply does not give us the facts about the work performed by the employee in either of the higher rated positions necessary to enable us to compare it with the work the Grievor performs. Consequently, we are -unable to determine.whether or not her position is improperly classified Clerk Grade 3 and, if it is, that the proper classification is Clerk Grade 4. In the result, we find that the Union has failed to make a p rima facie case that the Grie-vor's position is improperly classified. The grievance is dismissed. Dated at Toronto, Ontario, thisloth:BaY of June, l9aa. P.M. Draper - Vice-Chairman "1 dissent" (Dissent Attached) J. Solberg - Member L. Foreman - Member . J. Solberg Member