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HomeMy WebLinkAbout1987-1349.Aird et al.89-09-08SElTLEMENT EMPLOYES DE LA COURONNE DEL’ONT*R,O CQMMISSION DE REGLEMENT DES GRIEFS mo DUNOAS STREET WEST TORONTO, ONTARIO. Mm Izs-s”ITEz1oo r.8Q RUE DUNOAS OUEST, To*oNTo, (ONTAR,O, Mm I,%-.9”Ru\“PIW IN TEE MATTER OF AN ARBITRATION Under TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEKENT BOARD Between: OPSEU (Aird et al) - and - Grievor The Crown in Right of Ontario (Ministry of Consumer & Commercial Relations) Employer Before: E.K. Slone I. Thomson G. Milley Vice-Chairperson Member Member For the Grievor: B. Herlich Counsel Cavalluzzo, Hayes & Lennon Barristers. & Solicitors For the Employer: C. Peterson Counsel Winkler, Filion & Wakely Barristers & Solicitors Hearings: July 17, 18, 1989 2 This award deals with 24 grievances filed by Senior Inspectors with the Fuel Safety Branch of the Ministry of Consumer and Commercial Relations. They grieve their classification as Technician 3, Fuel, seeking instead a higher classification that, they say, more properly reflects their duties performed. Mr. David Aird was put forward as a representative grievor. The disposition of his case will apply to all of the other Senior Inspectors who have grieved. According to the evidence of Mr. Aird, there are.some 25 Inspectors working for the Ministry. They work out of five regional offices. Mr. Air-d's office is in London. The Inspectors perform functions in essentially three areas: 1. They ensure the safe handling, storage, utilisation, distribution and transport of hydrocarbon fuels in the Province. 2. They investigate all fires, explosions and asphyxiations caused by a confirmed or suspected hydrocarbon fuel. 3. As enforcement officers, they are charged with enforcing by prosecution or otherwise the provisions of the Enerav Act and the Gasoline Handling Act. 3 Over his eight years on the job, Mr. Aird has experienced some changes to the way the job is performed on a day-to-day basis. One of the reasons for such change has been the sheer increase in the work load. Where once an Inspector had the time to do spot audits of fuel users and give informal advice on safe handling, there is now too much else to do and the Inspector is more apt just to give out an "Inspector's Instruction" or a ticket. Since 1985, all of the Inspectors have been designated as Provincial Offences Officers. This gives them the additional authority to issue tickets on the spot, which the offender may pay in the same manner as a traffic ticket. Formerly, the Inspectors had to make a report which led to the launching of a prosecution. Changing technology has also contributed to changes in the job. In particular, the increased use of propane - a very volatile hydrocarbon fuel - has forced the Inspectors to make changes to their priorities, and less time is being spent on some duties that once occupied more time. One of the functions that has come about since the 1985 designation, is that the Inspectors are 'occasionally called upon to attend Court and single-handedly conduct a prosecution. This is in addition to attending to give evidence as an expert, something which the Inspectors have always done as a significant part of their jobs. However, we understand that the prosecutions conducted by the Inspectors are of the simplest kind, often lasting no more than 15 minutes. Moreover, the Inspectors are not called upon to do this task frequently. For a classification grievance to succeed, the grievor must show that his job does not fairly fit within the relevant class standard. The class standard must necessarily contain some general language, but it must not be phrased in such generalities as to make the description meaningless. Like the strings of a' musical instrument, the standard must be neither too tight nor too loose. The class standard for the Technician, Fuels series, so far as it is relevant to this grievance, is as follows: PREAMBLE TECHNICIAN. FUEL CLASS SERIES The Technician, Fuel series covers the positions of employees engaged in the enforcement of the regulations and codes of the Energy and Gasoline Handling Acts which govern the following fuels: Propane, Fuel Oil, Gasoline and Natural Gas. Employees in positions in these classes are responsible for ensuring that industrial, commercial and domestic gaseous and liquid fuel facilities meet Government regulations and standards by inspecting the design, installation, distribution, operation and maintenance of all types of fuel facilities governed by the Acts. They approve or reject according to inspection results and prepare reports regarding inspection findings. They interpret Government Acts, codes, and regulations to public and private organizations, in order to provide guidance on specific provision requirements and recommend acceptable alternatives. They investigate complaints concerning fuel installations and initiate corrective action. 5 These employees also perform investigations in conjunction with the Fire Marshall's Office and other government investigation agencies to determine the cause and effect of fires and explosions. They also prepare and present evidence at boards of enquiry and civil courts. They maintain an effective liaison with private industry and government to seek, provide and exchange information. They provide instruction on codes, standards and safety regulations to municipal and training school personnel and may conduct technical examinations for industrial personnel. TECHNICIAN 3. FUEL This class covers the positions of fuel technicians who are fully qualified and technically competent in all types of liquid and gaseous fuels governed by the Acts. Under general supervision, in an assigned area of the Province, these employees conduct inspections of all types of fuel facilities. In addition to conducting investigations and gathering evidence for accident reports, they analyse the evidence and prepare conclusions as to the probable cause and effect of fires or incidents. Also in addition to presenting evidence at boards of enquiry or civil courts, as fully qualified technicians, employees at this level may be designated by the court as an "expert witness". Duties and responsibilities at this level may also include providing technical guidance and instruction to subordinate technicians when conducting inspections and investigations of fuels in which they are not fully qualified, and in the preparations of conclusions as to the probable cause of fires or incidents. Skills and Knowledge Knowledge of all types of liquid and gaseous fuels governed by the Acts and a thorough understanding of all related provisions, rules and regulations are required to enforce and interpret legislation,to the public and private organisations, provide technical guidance and instruction to subordinate inspectors and to act as an expert witness, as required. Excellent powers of observation, ability to assess, evaluate and analyze situations are necessary to conduct inspections and investigations and determine probable cause of fires and incidents. Effective oral and writing skills are required to liaise with industry and public, other government agencies and departments, media, etc. to ptrepare comprehensive reports and conclusions, to present evidence, and when designated as an expert witness." .i 2 6 These class standards are fairly modern (1981), and it was not seriously contested that by and large they describe the grievor's job perfectly, but for their failure to refer to the prosecutorial and Provincial Offences Officer functions. It was argued that there is also nothing in the standards to cover a function that the grievor performs, of being on the spot in an emergency situation attempting to prevent further damage or injury, and providing technical knowhow to the police or fire departments. As we see it, the crux of the problem seems to be an unfortunate choiCe of words in the class standards, where they refer to "prepar[ingl and present[ing] evidence at boards of enquiry and civil courts". On the evidence, almost all of the court duties involve criminal or quasi-criminal prosecutions, which take place in a court that could not fairly be described as a "civil courtW. As for "boards of enquiry", no one at the hearing seemed to know what was meant by that term. The grievor occasionally attends at a coroner's inquest, which might be characterized as a board of enquiry. As for attendances in civil courts, this almost never happens because the grievors are not compellable witnesses in civil proceedings (i.e. in private disputes concerning matters which the grievor may have investigated as part of his public duties.) There was no evidence that Inspectors have ever participated to any extent in civil matters, and it is not disputed that Inspectors have always been involved in criminal and quasi- criminal prosecutions, dating back to long before the drafting of the class standards. What then are we to make of the failure to mention these types of proceedings, and the inclusion of civil proceedings in which no role is currently played? The only conclusion that we are prepared to come to, is that the drafter of that document was unsophisticated in his or her understanding of the judicial system, and applied several misnomers. The word "civil" could easily be deleted and would never be missed. Although it is a word that attempts to qualify the type of court attended, it is simply a poorly-chosen word that has not misled anyone in any real way and ought to simply be ignored. Moreover, there are other references in the document to "the court", which in our view amply cover those functions performed by the grievor. While it is also true that there is no explicit mention of the prosecutorial function or the Provincial Offences Officer designation, it is our view that these functions are amply covered within the language of the document. The function of "presenting evidence at . ..courts" is close enough to cover the prosecutorial function, which after all is an infrequent occurrence and on the evidence before us only occurs in the simplest of cases. As for the Provincial Officer designation, it is fundamental to the job that the grievers "enforce" the a relevant legislation and regulations. The ability to issue a ticket on the spot to an offender is merely in aid of that purpose, and to use the analogy given by the grievor's supervisor Mr. Ingram, amounts to simply another tool in the Inspectors' toolbox. As for the very infrequent occasions when the Inspectors lend their assistance in an emergency, in our view this is also covered by the language of the class standards. This is not so different than the conducting of investigations and inspections that are part of the daily job. The only difference is that once in a while the Inspector gets to see a situation of potential as opposed to actualised danger. Were this a frequent occurrence, it might change the complexion of the job, but as a highly- infrequent occurrence it cannot be said to take the job out of the investigation and inspection functions altogether. On the caselaw which we have considered, the addition of new duties may take a job out of its original classification, but only where those duties are of such a kind or occur in such a degree as to amount to a different job altogether. See for example Baldwin and Lvng, GSB 539/84 (Palmer) and Fenske, GSB 494/85 (Verity). As these and other cases show, the propriety of the classification is a factual issue to be decided on the merits of each case. In the instant case, we cannot find that the job as performed is something other than the type of job contemplated 9 by the class standards. The onus is on the grievor to show that he is actually performing a job, the essence or core duties of which do not fit within the class standard to which it has been assigned by the employer. In the instant case, we see a class standard that (subject to the poor choice of words to describe the courts in which the grievers appear), is well drafted and neatly describes the job being done by the grievor. In the result, these grievances are dismissed. Dated at Toronto this 8th day of Sept., 1989. Eric K. Slone, Vice-Chairperson C. Milley, Member