Loading...
HomeMy WebLinkAbout1986-2028.King et al.89-09-13EMPLOY.hDEL4 CO”RONM DEL’ON%4R,O COMMISSION DE RkGLEMENT DES GRIEFS IN TEE NATTER OF AN ARBITRATION under THE CROWNEUPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEKENT BOARD Between: OPSEU (King et al) Grievor - and - The Crown in Right of Ontario (Ministry of Community a Social Services) Before: For the Grievor: For the Employer: Uearinq: June 21, 1989 Employer R.J. Roberts Vice-Chairperson W.J. Shipman Member D.P. Daugharty Member R. Ross Wells Counsel Gowling, Strathy & Henderson Barristers & Solicitors S. Patterson Counsel Legal Services Branch Ministry of Community & Social Services This is yet another case testing the impact of the Divisional Court's decision in Re Berry and Ministry of Community and Social Services, Case #607/85. Unpublished Reasons for Judgment (March 13, 1986), upon classification procedures. Here, the classification procedure drawn into question is that of giving an "atypical allocation" to certain positions. An "atypical allocation" occurs when a position is allocated to a particular class even though it is significantly different from other positions in that class, the only criterion being that the position generally fits that class better than any other. In this case, the issue arises in the context of a claim by the grievors, who are Job Placement Officers, that their positions are improperly allocated to the class of Social Worker 2 (Atypical). They request the Board to declare that they are improperly classified and order the Employer "to find or create a classification for the grievors." Z)erry, at p. 13. The class standard for Social Worker 2 reads as follows: This class covers the positions of qualified social workers who provide professional social work services to clients under the general supervision of a senior social worker or other professional or administrative official. They conduct interviews, compile social histories and formulate psychosocial diagnosis of the personal and environmental causes of social dysfunctioning. They, implement treatment plans to assist clients to resolve their problems and develop their maximum potential. They provide service by any one or a combination of the social work methods appropriate to the functions of the department and 2 service. They evaluate the effectiveness of the treatment plan and modify or revise as necessary. They consult with members of other professional disciplines and may serve as members of treatment teams, institutional and community committees. They may supervise and review the work of social work assistants, child care workers, residential counsellors and other staff in the area. They participate in conferences and group discussions, interpret departmental policy and objectives, and maintain liaison with other disciplines, jurisdictions, and community agencies. They may assist in the training of departmental personnel and students in social service courses. KNOWLEDGE AND SKILLS REQUIRED: Thorough knowledge of the principles, techniques, and methods of social work and ability to apply them in the work situation: ability to formulate psychosocial diagnoses and skill in implementing them: knowledge of diagnostic and treatment procedures utilized by related disciplines: good knowledge of departmental programs and policies: ability to develop co-operative working relationships with other professional staff: personal suitability. This is a class standard for "qualified social workers who provide professional social work services." Persons occupying positions allocated to this class are required, inter alia, to have a "thorough knowledge of the principles, techniques, and the methods of social work and ability to apply them in the work situation." The evidence at the hearing disclosed that the grievors are not qualified social workers and they do not know or apply in the performance of their duties the principles, techniques and methods of social work. Their knowledge and skills are in the area of job placement of handicapped clients referred to them by Vocational Rehabilitation Counsellors, who are professional 3 social workers. Th,e grievors function, more or less, as specialized employment agents for this client group. Any interviewing and counselling which they might perform in this capacity is to facilitate job placement. It is not to perform a social work function such as developing, implementing and/or evaluating social treatment plans. At the hearing, the Ministry took the position that nevertheless, it was appropriate atypically to allocate the positions of the grievors to the class of Social Worker 2 because the grievors functioned in a social work setting, closely co- operating in the job placement process not only with the client but also with a professional social worker, the Vocational Rehabilitation Service Counsellor. Moreover, it was submitted, the positions of the grievors in general fit that class better than any other. As to this, counsel for the Ministry reviewed the position description of the grievors against the class standard with a view to demonstrating that if the word "vocational" were substituted for the word "social" in the class standard, and perhaps other minor adjustments were made, the functions performed by the grievors generally f it the main duties c set forth in the class standard. On the evidence, we accept that while the positions of the grievors are significantly different from those of professional social workers, they in general fit the class of Social Worker 2 4 better than any other class presently in existence. We also accept that according to the pre-Berry practice of the Employer this would have been regarded as sufficient justification for allocating the grievors' positions to that class. We further recognize that pre-Berrp, the burden on the grievors would have been to show that there was a better fit for their positions in some other existing class. The Union submitted that post-Berry all of this has changed. For under Berry, this Board was empowered to direct the Ministry to create new classifications. The Divisional Court said, "The question that does arise is whether the Board had power to require the employer to find or create a classification for grievors. I think it had that power." &I. at p. 13. The Board should direct the Ministry to create a proper classification for atypically-classified positions such as those of the grievors, it was submitted, because they. by definition, do not fit within the classification to which they were allocated. They are, in short, misfits. Such misfits, it was submitted, could not be permitted to remain without a proper classification. As to this, it was said, it was irrelevant that management attempted to minimize the misfit by "atypically" allocating them to the class which they fit better than any other. 5 Since Berry, this Board has consistently held that it remained possible for the Ministry atypically to classify a position. See Re Berry and Alcampo and Ministry of Community and Social Services (1988), G.S.B. #217/83, 218/83, at p. 16 (Verity); Re--~-Union Grievance and Ministry of Transportation and Communications (1989), G.S.B. #1642/85 (v), at p. 22 (Verity). In other words, the Board recognises that its power to require the Ministry to create a classification must be exercised reasonably and, in certain circumstances, it may be reasonable to refuse to direct the Employer to create a classification for some positions. We can imagine that it might be reasonable to allow an atypical allocation to stand where the position in question is unusual, in the sense of being occupied by only a few incumbents. It might well be unreasonable to expect the Ministry to proliferate classifications for such individuals like so many rabbits in a.warren. It, indeed, would be unreasonable to make an order which would have the effect of "gridlocking" what might seem to be an already overburdened classification system. But that, of course, is not the present case. Here, we see no reason why we should not issue an order directing the Employer to find or create a proper classification for the position occupied by the grievors. We agree with the submission of the Union that it is irrelevant whether among existing 6 classifications, the classification of Social Worker 2 is the “best fit." It is still a misfit, and a misfit by a significant margin. Accordingly, we declare that the grievors are improperly classified and we direct the Ministry to create a proper classification for them. This process must be undertaken without undue delay: however, at this stage we decline to impose a finite time limit. We will retain jurisdiction of the matter pending implementation of this process. After 60 calendar days from the date of issue of this award, either party may apply to the Board for an expedited hearing on the matter of imposing a time limit. DATED at London, Ontario, this 1989. R. J. R&&r ts, Vice-Chairperson \ ADDENDUM While I agree in the result of the majority in this case, I wish to express my own thoughts on the matter of atypical classifications. The majority names two cases in which the Board has dealt with atypical classifications: Re Berry and Alcampo and Ministry of Community and Snci.al Services, GSB #217/83, 218/83 and Re Union Grievance and Ministry of Transportation and Communications GSB #1642/85. It should be noted that while the Board seemed; in those cases, to approve of the concept of an atypical classification, in neither case was the atypical allocation in fact left to stand. It is also of interest to note that in neither of the decisions noted did the Board address the Public Service Act provisions which were argued before us and which would seem to prevent the use of an atypical allocation. I would conclude that the classification in this case is inappropriate, both for the reasons outlined by the majority and because an atypical allocation is, by definition, inappropriate. The Crown Employees Collective Bargaining Act s.l8(2)(a) provides the right, to.an employee claiming that his position has been improperly classified, to file a grievance and come before this Board for the final determination of the issue. It is unacceptable to determine that an employee is properly classified where he or she is designated as atypical because he or she, to use the language of the majority decision in this case, is a "misfit".