HomeMy WebLinkAbout1987-2188.Cottrell.89-08-17‘. * ONTARIO EMPLOY~S DE LA CO”RONNE CROWN EMPLOYEE.5 OEL‘ONTAR,O
CflMMISSION DE
SETTLEMENT REGLEMENT
DES GRIEFS
IN TEE NATTER OF AN ARBITRATION
Under
THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT
Before
& -..
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
OPSEU (Cottrell)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Government Services)
Employer
-...
T.H. Wilson Vice-Chairperson
I. Thomson Hembe r
M. O'Toole Member
For the Grievor: D. Wright
Counsel ',
Gowling, Strathy & Henderson
Barristers & S6licitors
For the EmpL,oyer: V. Malpass
Staff Relations Officer
Staff Relations Branch .~
Human Resources Secretariat
Hearings: April 14, 1988
May 16, 1988.. August 8, 1988
‘..
. .
DECISION
1 This is a grievance that "a position of Executive Officer 2 was I
c(eated in the Contract Management Branch and no competition was held for this
pdsition contrary to Article 4.1 of the collective agreement." The grievor is
I cvsified as a Specification Officer 3 in the job position of a Senior
Q+lity Surveyor ins the Ministry of Government Services. The position which
I is the subject matter of the grievance is entitled Claims Administrator and is
I
cvified at the Executive Officer,2 level and is occupied by Fred Taylor.
I I On the first day of hearing (14 April, 1988), U&Ministry raised
t$e preliminary objection that the grievance was out of time. However, the
incumbent, Fred Taylor, had not received notice of the hearing. On its own
i .~ mqtion, the Board directed the parties to contact the incumbent immediately to
d&ermine whether h.e~ wished to attend. After he had been reached by
telephone, the Board was informed by counsel that he did not wish to attend on
I
y preliminary objection but in the event that ~the hearing should proceed
be!yond that, he wished to attend and be at liberty to participate. The Board
I agreed and argument was then received on the preliminary objection. In an
I
ofal decision (see Appendix 'C" for written reasons) the Board dismissed the
p+liminaryobjection and set May 16 for a continuation of the hearing on the
merits. On that-date and for the balance of the hearing, the incumbent
a&ended and was permitted full rights of participation as an added party to
I ty proceeding.
I
I Prior to March 1, 1986,.Taylor occupied a position entitled Claims
Cdordinator at the Financial Officer 3 level. The union's position is that a
I new position was created within the bargaining unit about March 1986. On I I i
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April 4, 1986 a position specification and class allocation was signed
reclassifying-Taylor's position to its present status of Executive Officer 2
effective March 1, 1986. "One other person tbe union submitted, occupied a
similar title, that was G. Lohasx who filed a grievance against the
reclassification of his position downwards from a Claims Administrator,
.Executive Officer 3 to a Claims Administrator Executive Officer 2. The
grievor, Cottrell, acted as the shop steward on the grievance. That dispute
was resolved on October 8, 1987 at the Executive Offices 3 level and the
present grievance was filed five days later.
The Ministry contends that there is no requirement to post
Taylor's position merely because it was reclassified to Executive Officer 2
from Financial Officer 3.
The factual issues which at this point are important relate to
Taylor's job. ~'Taylor has been employed by the Ministry of Supply and Services
for 18 years. In June, 1983, he transferred to the position of Claims
Coordinator on a successful application on the job posting for it. A Position
Specification dated 17 May '1983 described that position. Taylor testified
that the Position Specification was accurate from that period until November/
December 1983. About that time he was assigned additional duties relating to
claims. After that his job continued to evolve until perhaps the end of 1984.
-About Novqmber 1985, he proposed to his supervisor that his job should be
reevaluated. The additional responsibilities related to tbe~administration of
lien claims against the government. Under the Construction Lien Act,
protection is given to contractors and subcontractors. Claims under that Act
are received by the Legal Branch and from there are sent to the Contract
Management Branch. There the claims are reviewed and recorded. The project
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involved is;recorded and measures taken to be sure that any payments that may
be payable to the general contractor are withheld. The general contractor is
advised of the claim and his course of action is requested. If the claim is
pursued to Court, Taylor prepares the documentation including the Affidavit of
Receipt of Documents and Financial Status. He attends onthe pre-trial and
proves the documentation.
Upon judgment or settlement of the claim, he sees that the money
is paid out. Prior to November 1983, he was not involved in the preparation
of the legal aspects of these claims namely, for example, the Affidavit.
After November 1983 there was a reduction in the financial component of his
work and an increase in the administrative aspects. Taylor testified that
prior to November 1983, he had started to carry out the function of the Claims
,Administrator, G. Lohasz, whenever he was absent including the legal aspect.
Similarly, he was beginning to do the legal aspects as Lohasz did them on a
diminished scale. There was a backlog by November 1983. He estimated.that by
November 1983 the percentages between the administration of claims and
specialised auditing and financial services had altered from 50% vs. 40% to
60% vs. 30%. That second component related to only construction management
contracts or cost plus. -'--In November 1985, he believes, the contract
management component increased. Prior to 1983 Taylor had done the preliminary
work or claims files and Lohasz continued with them to completion, but after
that, each person carried his own file through from beginning to end. By
November 1985, Taylor felt that. the evolution of his function was complete
perhaps even by the end of November 1984.
The position Specification dated 29/04/86 was prepared by Diane
Maynard who at the time was a Personnel Administration Generalist with the
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Ministry of Government Services. On February 8, 1986, she had been reguested
by A.W. Thurston, the Director of the Contract Management Branch to review
Taylor's position to provide upgrading commensurate with his duties. She
examined the branch organization and specifically the section he was in. Then
she met with Thurston who went over the changes that had occurred in the whole
area. She met also with Lohasz and Taylor and then prepared the draft which
became the Position Specifitiation. Because of the increased responsibilities
in administration and the decrease in financial responsibilities, she
concluded that the position was better in the Executive Officer series rather
than the Fin.ancial Officer series. It did not in her opinion suggest a new
position because Taylor's job description included administrative work.but the
financial element was still there. A review of a position in her view is
required when there are totally new responsibilities and where it involves
duties not done before and z-q&-iq new knowledge. Here that would only be
. . required if all the administration of claims component of his position had
been removed. She pointed out that the Financial Officer and Executive
~Officer series are parallel classifications under the Administrative Services
Category. The old position specification did not stipulate that he was
involved in Construction Lien hearings. In the administrative aspects, she
admitted the quality of the duties was a "bit higher." Even though he now
carried through a claim from beginning to end, she did not believe the quality
was sufficiently different,to make it into a new position.
The union's position is that Section 4.1 of the collective
agreement applies to this situation. It provides as follows:
4.1 when a vacancy occurs in the Classified Service for 'a
bargaining unit position or a new classified position is created in the bargaini?,? ,unit, it shall be advertised for
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at least ten (10) working days prior to the established
closing date when advertised within a ministry, or it shall
be advertised for at least fifteen (15) working days prior
to the established closing date when advertised service-
wide. All applications will be acknowledged. Where practicable, notice of vacancies shall be posted on bulletin
boards.
I The union argued that a new position had been created and that the
Grievance Settlement Board determines when such is the case.
A clear statement of the applicable standard is to be found in a
decision written by Vice-Chairperson Swan in Williams and The Ministry of
Natural Resources (G.S.B. 167/77).
At page 3, he states:
,, . . . -It is clear that Mrs. Harchant never ceased to do
this job, and so a "vacancy" never arose. The grievor's
claim could only succeed if changes made to Mrs. Marchant's
job altered it so fundamentally as to make it a "new job” as
set out in Article 4.1 . . . .W
As in our case, Mrs. Marchant's job had evolved. With very little arbitral
jurisprudence to draw upon, Mr. Swan proceeded as follows at pages 6 - 7 of
the Decision:
. . . . .; ._ ..,
"Perhaps the best starting point is the collective
agreement which, by force of s. 17/l/, [now 18/l)], is
deemed ~to provide that it is the exclusive function of the
employer to determine, among other things, employment,
appointment, complement, organization, assignment, work
'methods' and procedures, \and classification of positions.
The only limitation on this general authority appears to be
Article 4 of the collective agreement. which seems to be
accepted as outside the scope of the defined managerial
prerogative. The employer therefore, may shift duties
around among employees, assign new duties co an employee or
withdraw duties from an employee without hindrance, provided
that ~'appropriate alterations to classifications are made.
It may also create and classify new positions, but if it
does if must fill those positions in accordance with Article
4. Did the employer create a new position around Mrs.
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Marchant, thus leading to a breach of Article 4.1 when it
failed to post that position?
"The onus in this Case falls on the Union, and it is a
very difficult onus to meet. Incremental enhancementtof a
job can certainly produce a different job, and indeed, it
did in this case. But demonstrating just when the accreditation of new duties so changed the character of the job is not easy, and the grievor appears to have made this
task more difficult by laying stress on the purchasing
aspects of hi-s. Marchant's job. We are, at least, prima facie more attracted to an argument based on the assignment
of the supervisory duties over employees to whom Mrs.
Mar-chant could assign. In any event, the main changes had,
in our view of the evidence, occurred by 1975 when she had
taken over a substantial purchasing function and had begun
to supervise her small staff."
Because the grievor in that case had proceeded on the false
assumption that the Marchant position was a clerk 5 and it, in fact, had been
down-classified to clerk 4 a position for which he would not have applied on a
posting, the actual issue before the board was academic and the Board did not
pursue its analysis further.
The union relies on certain 'factual factors. Taylor began as a
claims coordinator and Lohasz was a claims administrator. After March 1982,
there were two claims administrators and no longer a claims coordinator. But :..
Taylor also has financial auditing duties. However, what the union emphaslzed
was the change in Taylor's job. Attached to this Decision are Appendix "A"
and "B" which are respectively the Position Specifications in 1986 and 1983.
In the union's view the. focus of the two is different: the former focuses on
the Construction Lien Act while the latter focuses on costing. It now involves
more reeponsibility .and decision making. The union relied especially on a
decision of this Board issued on 27 March, 1987: Tine and the Ministry of the
Environment (G.S.B. 0124185). It' was in one sense the reverse Of the
situation. 1n that case, the incumbent grieved that her position ought not to
.: .-~Y
:..
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have been posted. The Board found that the Position Specification prepared in
January of 1985 was a new position which differed in material respects from
those previously performed by the grievor as a Chemical Laboratory Technician
3. The differences involved.substantial supervisory responsibilities and some
administrative responsibilities. Accordingly, the grievance against job
posting was dismissed. The union also cited Nanson and Ministry of the --
Attornev General (G.S.B. 449/81) and Citv of Edmonton & I.B.E:W., Local 1007
(1987), 30 L.A;C. (3d)353 neither of which I found of any assistance in
resolving the dispute before us.
The Counsel for the Ministry argues that the evidence indicates
.;7 that the responsibilities for lien claims were inherent in the coordinatorls
job. Between November 1983 and January 1986 his responsibilities increased as
'he continuously performed those duties. The Position Specification was
revised to reflect more accurately Taylor's actual duties. She further argued
that the provisions of Article 4.do not apply to a promotion resulting ~from a
reevaluation of an existing position which is not vacant. Upward or downward
change in duties are covered by Article 5. Specifically Section 5.1.1
provides that a promotion occurs when an incumbent of a position is assigned
to another job with a higher maximum salary than that.of his former position.
Furthermore, Section 5.2.1 indicates the recognition that duties may change as
a result of reorganlzation or reassignment of duties by providing for the-pay
treatment in such a case. These sections implement the powers management has
under subsection 18(l) of the C.E.C.B. AC&
The Ministry contends that mere changes in the percentages in the
Position Specification do not create a new job. Priorities in positions
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change as needs change. It is the character or nature of the job functions
that must change to require a pasting.
The union submits in reply that Article 5 relates only to pay
,administration. Where the promotion is of a sufficient degree as to amount to
a new classification, itmust be posted but that classification does not need
to be a new type of classification.
The G.S.B. jurisprudence in this area can only be described as
developing. From a practical point-of-view the statutory right to grieve I
improper classification creates a certain uniqueness. In the few cases that
Counsel have been able to cite, the Board has, I think, made it clear that a
mere change in classification does not fn itself trigger Article 4. Any other
result would produce chaos. The union contends that in a classification case
the grievor's functions exist and s/he is simply seeking to have the right
classification attached to those functions so that there really. is no new
position to trigger Article 4. That, however, in my experience is not
necessarily the usual situation in a classification case. Very frequently a
grievor contends that his position has taken on all sorts of new obligations
which render the existing class standard inappropriate and that he is now
entitled to either a higher existing classification or a new type of
classification directed to be created under the Berry rule. In a sense that .
is somewhat like the situation that Taylor found himself in: his position did
evolve and he sought reclassification. He got that reclassification as a
result of management's,conclusion that his claim was correct. His duties had
shifted. His financial analysis duties decreased and his construction lien
duties increased. There was a shift in duties although as the Ministry
contended, he never completely ceased to perform his financial analytical
c
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duties. Are the changes to use the Ting language "substantial" or to use the
Williams language: "altered it so fundamentally as to make it a new job" as
set out in Article 4.1. Certainly it is clear that the change need not be a
promotion to trigger Article 4 nor that every advance in functions triggers .:
Article 4.
Neither Ting nor Williams are helpful from a "factual" point-of-
view in the sense that both Mr. Swan and Mr. Verity looked at "supervisory
functions" to determine a change into 'a new job. And certainly that cannot be
the only criterion. The best solution for this issue generally would be
reached at the bargaining table. Unfortunately, the Board can assist only on
a case by case basis on the facts before it. The principal change in Taylor's
construction lien function was "assisting Attorney General's office in
;preparation for trials by arranging ,for Jinistry's witnesses, preparing
., . .
requested documentation including affidavits under oath, stating Ninistry's
policies and interests;
representing Ministry at hearings, pre-trials and trials;
arranging for payments into court."
It- lwas a natural evolution of Taylor's earlier work on
constructionlien claims that Taylor should move with experience to the level
of assisting the government's legal counsel at trial. At the same time he did
less on the financial work (i.e. construction contracts). So his job did
experience some change although if never lost all of its earlier aspects.
., Ultimately,~.the decision re Article 4.1 in each case is a matter of degree.
.- Here, I do not feel that we can say hisjob has changed so fundamentally.tbat
it represents a new position so as to trigger-the job posting requirement of
Article 4. It did not in my opinion create either "a vacancy in the
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Classified Service for a bargaining unit position or a new classified I
position." Accordingly, the grievance is dismissed.
DATED at Toronto this 17th day of August , 1989. _ T7LLWk’/A
Thomas H. Wilson, Vice Chairperson
.I. Thovn. Member
To provide technical expertise to the Director in the administration of the Construction
Lien Act involving full responsibility for the settlement of claims against the Act. To
provide specialised auditing and financial~aervices for construction management contracts.
Datiss md rs!stsd talks Iwiuc ii mplovr m@sd to da. harmd rrhy? lodlute buwm~ d dmr spent m uck duty1
1. Administera the Construction Lien Act, (subject only to general review for policy
conaiderationa) by:
- developing new procedures and policies to cover the wide variety of complex claim
situations where no precedent or written standards exists; documenting precedents;
- recoasaeoding dolicy changes and adopting procedures to ,comply with changes in the
Act;
65% - interpreting the Act and exercising judgement and knowledge of the contracting
aspect of the construction industry to determinezvalidity of claims and to
ieject invalid claims; ’
- investigating all circumstances, verbal or informal agreements between the parties,
coat8 and estimates in order to process each claim;
- reviewing submissions, rebuttals, etc., from claimants and/or lawyers and assessing
all information to dete&sine course of action required to settle’claims; in highly
sensitive caaea, recommending possible courses of action and receiving direction
before proceeding; 9
- corresponding with banks, trustees in bankruptcies, lawyers, Ministr; of Labour and
government agencies to ensure claims are expeditiously dealt with; ensuring
deciaioaa are completeli unbiased;
- assisting Attorney Gen&al’a office in preparation for triala by arranging for
Hiniatry’a witnesse’s, preparing requested documentation including affidavits under
oath, stating Uiniatry’a policies and interests;
- representing Ministry at hearings, pre-trials and trials; arranging for payments
into court.
(cont’d 12)
I full WMkl ‘f%PG!J$~~Jfl~~~ WCo%k%.A=on at-3 su -con rat Ing prlnclp?es, prac ices and lwgl. Ilndl~t~ lmpmfy cmJontlah r ikmm. If rppllab*~
techniques. Some experience in estimating and contract management of construction projects.”
Ability to carry out complex and sensitive negotiations. Ability to tender a clear (cont’d.)
I
iClUSJbcrtioa clsa 11th clracod, :.: pauadsn4l woup nl#nlml Pflrtlw dw
,’ 0345 Day Mmm YI
Executive Officer 2 (B/U) 0392 AD-01 01 103’. 1 86
hm “‘Ld thh rlOsWwl In accolw Ah ?a cl44 pm’0 csnvn~~on cc8$uiuaon sundmb 1 1 r ttN 1~ow.d
,. Admlaiatera the Constructron Lren Act which rnvolvea camp ex rnvee lgatLon,*of claims, *I’*“‘* ’ and
aubmiaaions related to them, to determine validity for.proceasing,apd cour#b of action for
eettlemente. Provides speciali&d-auditing and financial cervices such as co-signing all
expenaer for construction management contracts , auditing site expenditures and approving
I* payment of holdback release;
Interpr&s and applieB the’ Construction Lien Act and assists in the formulation of
r policy. Ensurea miniatrj.accounting procedures and controls are adhered to.
Rapreeanta the Ministry at hearings and trials, communicates with senior level personnel,
when nettling claims and establishing ministry’s financial management procedures.
-1-
‘: :
Duties and RelatedTasks: (Cont’d.)
I’, .,
2. Provides epecialiced auditing and financial servicee to assist in the overall
financial management of construction management contracts by:
- meeting with Construction Manager’s senior staff to outline the ministry’s
procadural requirementa; :.”
2.0% - presenting PIGS accounting procedurea and controls and negotiating any changes; *, ..- ., ,,co.$s&gnirrq with Construction Managers, all expenses and sub-contract payment cheques
to ensure immediate payment to contractora and auppliers;
-. aaaefsing contractor’s claims and submissions for extra coats or credits arising
from.changes in Federal or provincial sales taxes by reviewing all pertinent
documentaiand recommending approve1 accordingly;,
- reviewing budget reconciliation reporta to ensure accuracy and adherence to
~,, procedures, diacuasing required corrections with Construction Manager and~approving
requests for re-diat.ribution of funds within budget;
- evaluating completion of work and presentation of appropriate documentation and
approving for payment, holdbeck release request from Construction Waneger and
subcontractors; i
- auditing site expenditures made by Project Managers and submitting report;
3. Adhinietera other miscellaneous claims, except contractors’ claims for extra,costs, by:
_ - assessing interest claims and recommending approval by Director;
5% - processing judgement ordera from creditors on Ministry projects and creditors not
involved on Ministry projecta, when requested by contractors;
- ensuring claims under the Financial,Administration Act are processed properly;
- preparing or reviewing assessments made under the Workers’ Compensation Act;
analysing contractora’ directions and arranging for payment when direction is
enforceable;~
- ensuring ministry offices are notified of bank and other types of assignments,
obtaining legal approval and arranging for payments accordingly;
- arranging for approval by the Treasury of demands on third parties; arranging
corporate searches at Registry Office for corporations and partnerships.
-.
4. Administera contract defaults, ,bankruptcies and enforces agreements with the
defaulting contractor’s Surety by: ‘
5% - arranging for completion of the contrsct with the Surety or, negotiating with their
representative or arranging for a contract award for completion of the project;
- ensuring the monies owing under a contract are, properly appropriated in the event of
a bankruptcy. lub4,rMc Ijp ~OWV~~WU b-d4&+rrw Pa+u+d, UJcarw~~r k -r&q Is b~4ac?w.
5. Per,forms other auxiliary duties such as:
- authorizing requisitions for construction equipment and/or office equipment required
for a project;
5% - maintaining an inventory of capital equipment purchased in connection with project
work; ”
- evaluating, and deciding on disposal of, surplus site materials and equipment,
~-/. -_ reviewing and approving bids for disposal of items by tender.
arranging letters of credit or other securities to ease financial burden of the :
contractor to maintain continuity on the progress of a project; authorising progress
” draur’and final paymenta; ensuring payments are stopped upon receipt of claims and
releasing Treasury cheques to appropriate parties, e.g. claimants, banks, lawyers,
etc. ;
-- ~.:‘A-as.aisting-.in:.the-.administration ‘of contract management in the absence of the - -~ Contract Administrator; -i-~- _~ .- ---- .- _~ _~ ,. - -.. _~_. -- -;-.
. . . . ..t.authorizing payments on capital projects on certification of work done and the
.‘.“” release of holdback in the absence of the Director;
.*.L..F i’ c;‘:>, familiarining District staff in the administration of Liens and Payments;
,. :I ,- ‘as?‘aisigned.
..~ ‘ixr,tpt i
,Skilla .and’knowledge ‘. (cont’d) ‘:,, ,,:i, . .I. i ”
l ndv~onc$ac report on any construction difficulty. Experience in court procedures,
knovledge’:Qf,the judicial system as applicable to lien matters. Good knowledge of
Coverome~2account~ng and auditing prlncrples and procedures and aales tax acts.
Ex+~&l+y$ cousnunicttion skills. ..-
P ‘!:~.‘..p ‘~.
ooop L’,. .‘!) ‘2: . :i ::
._
:
Al’l’liNUlX U
Director, Contract Management Branch ,iri .~ ._._ -- .._. 1 rs-aloo-01
Government Services ~.- . . --.. &bfl.‘zomodStion Croup
ircrw4 LOCIrlON <A00111 $:<I
Contract Ranagement _........, _ _..._. -__. _.-. _~~ . ,.. ‘I”E”“.L*.* .caI,IOUI sLI.LRYI*IO IUCVIIIICNIS *“Prr!“l~~D D,“IC,L” WD~IECIL” m.yL” INOI”~EC1L” 11th floor, Perguson Block
1
JRPOSE OF P0SlTl0Ntw~r “OFS THISMSI,ION IXIO,IS,~,EOD~,SOR,EC~,V~S~, ., assist the Director, Contract Management Branch w i th the financial aspects of
.lstruction activities, implement. the accounting procedures required;for~sound financial
ltrol of Construction Management Contracts,, including assisting vith contracts
niniattation;‘inve,6tigating current practice6 and situations, and recommending improved
thoda’ ind: protbdures.‘: ‘:. ‘: I
llMMARY Of 0 TIES AtjO RESf’~NSlBlLlTlES ~~ICLIT P~CCN~ .y,... NE SPEN, ON CACH IIGNWICANT FVNCIWN.
oIc*rc scwrz. mu WIEW. WclRIlNG CONo,r,ONS “H”S”IL rElrURL* ETC.,
Participate6 in the admi er 6uch’legiSlatiOn a6 t&.Rechanics
Lien Act,. the Construct1 such tabb’ ai: j It ncial,AdminMration Abt, by performing ,
- receiving , “logking ilad ms received by the Branch; ensuring
4 payments are atopped o nding investigatjon;
- receiving: tevihwing~aad conducting in
inclhding”d&and6’ on third parties,’ in
tions associated all’,claims received,
L’cbntra~tb~‘~“when’ tr%st funds must be
claihs’and +voicea received from
ned, determining the validity of ,clsims
submitted, rejecting,out-of-time or d.claims, and administering the processing of
claima”hot’ iij&t&d;' ensuring prope
legirlation;
ing of claims in acwr,da+e pith releva,nt
-: providing’preiimiharjr or fact-El icei for Claims or Contract Administrators as
required;
-:.tecei+ing’ &d’ hcknovled
‘- researchir+ dkkh;” fro
ers from creditors oh ministry projects;
inclnding Reg!atrp Offike Records) to obtain
informatibn reqlixdd’ t
- enaurillg thpt ,,any, pattie,
and:provided’vith
iring &ification of claims abtivity are so informed,
infordPatioh ab required; .
- identifying possible potential problems la order to avoid unnecessary and unwanted
problame regarding possible claims against the government.
Ptovidea~.bph;ialized audit& and financial s&vices to assist tn’the overall financial
msnagement.“of cunstruction management contracts by: ’
;~~maeeli~‘tith’Const~~tion Manager’s Sen!or staff after the award of ihe’cont;+ct to
R outline* tbe’:‘s&iiatrjr’s procedural requirements;
(cont’d)
iKILLS AND KNOWLEDGE RECIUIRED TO PERFORM 1HE WOAKIST~.~EC(,VC~~~ON. I~~I(INING. LXPIA~LNC~ CIP.!
pod knowledge of g0vernmen.t accounting.and auditing principles and procedqres. Analytical
;illa:and the ability to syet up accounting records and procedures. Good knowledge of sales
1x acts, end legislation governing constriiction sctivities and financial sdministration.
rnateri_alR,~~ma~~-~g~~~~~~~.~~-~~~~-~. yP_.! ._._,
OAO I 0 REASONS‘ A?focation to this class is warranted since position involves: the administration of
financial claims under the Mechanics’ Lien Act ., the Construction Lien Act, and the
,_ Financial Administration Act; the provision of specialised auditing and financial
Services to assist the Director in overall financial management of construction
management contracta; and the review and improvement of financial reporting systems.
‘. Incumbent investigate6 claims to determine their validity, including auditing external
firm’a.accounting records, ensures proper handling of clsims according to relevant
legislation, and authorizes payment of valid claims. -.
. . . .
‘.
uties and Responsibilities (cont’d)
- presont$ng..HCS eccopnting procedures and controls and negotiating changes t-o effect an
acceptable compromise with Construction Management firm’s own accounting ‘practices;
- reviewing change orders for sales tax debits or credits submitted by Construction
kfanager’e staff, inVeStigating firm’s accounting records if necessary to validate
amounts and signing;
- co-signing vith.Conatruction Managers, ell expenses and sub-contract draws to ensure .,
immg@iatp:paym+~ to contractors and suppliers;
- .asaesaing contractors’ claims and submissions for extre costa or credits arising from
taxes by reviewing all pertinent documents and
from a conatkuction management project to
discussing required corrections with
requests for rerdistribution of funds
holdback release request from Constiuction
f; CaFrying. pvt )’ vhen, required, an eudit of site expenditures’made by Project Managers on
project management contracts, and submitting report;
- carrying .out, vhen Fequired, an audit of the disbursements charged by Architectural or
EogfneerJpg .copaultante,pn all ministry projects..and submitting repprt;
- ensuring that payments and contracts for leasehold improvements are properly
adnJ#atered.in the+vent of a.claim; . ‘.
- maintaining up-to-date knovledge of all legislation applicable to’the duties being -t
per&*$(.. b:,:, ;. :. , .’ -*7
..,Performa related duties such ba:
- ~,~~b~f~~L~~,~~~lsLFions for,office supplies,. equipment purchases and serv$‘ces, eg: .
trucking, equipment rental, ftc.;
- maipta~ntpg’,~n.inveptory of capCta1 equipment ,purchased in coonection uith project work;
- evaluating .and.deciding on disposal of, surplus site materials and equipment,
(~ey~+w)~ and approving bids for disposal of items by tender.
i
Performs other auxiliary duties as assigned.
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killa and Knovledge (cont’d)
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communication sbilla; in?l~tidlng -thi abili-ty, to negotiete-- . -~
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I
APPENDIX IC"
P-Y DECISION
At the commencement of the hearing the Ministry Counsel moved to
have the grievance dismissed on the grounds that the grievance was out of
time. The argument on this issue proceeded on an Agreed Statement of Facts.
The following provisions of the collective agreement are relevant to the
issue:
27.1 It is the intent of this Agreement to adjust as
quickly as possible any complaints or differences
between the parties arising from the interpretation,
application, administration or alleged contravention
of this Agreement, including any question as to
whether a matter is arbitrable.
27.2.1 An 'employee who believes he has a complaint or a
difference shall first discuss the complaint or
difference with the supervisor within twenty (20) days
of first becoming aware of the complaint or
difference.
27.2.2 If any complaint or difference is not satisfactorily
settled by the supervisor within seven (7) days of the
discussion, it may be processed within an additional
ten (10) days . . . .
The parties agree that the subject grievance was not filed within
20 days of the alleged event, namely the creation of a new position on or
about March 1986. The grievance was filed on October 14, 1987. ~The u-&ads ., -.z:.. ~.
contention was that a job posting grievance is based upon?% continuing
grievance. This Board was unanimously in agreement with that submission and
dismissed the preliminary objection.
The union referred the Board to section 4.1 (text set out in the
Decision at pp.4-5). It claimed that if the employer fills a position which
is in fact required to be posted under section 4.1 it has placed a personin
- 2 -
that position.who has no proper right to hold such a position. Each.day that
the incumbent who so improperly holds that position, Article 4 of the
collective agreement is violated and gives rise to a fresh ground for the
filing of a grievance. The employer argues that the alleged error by the
Ministry would be a single discrete error not repeated presumably about March ~..
1, 1986 when the 20 day period began to run.
A number of Grievance Settlement Board decisions were cited by
counsel. Most relevant in our opinion was a decision of vice-chairperson ....j_..
Verity in OPSEU (Union Grievance) and Winistrv of Correctional Services
(G.S.B. 498/85). That case involved~. a union grievances that temporary
vacancies resulting from maternity leave were vacancies within the posting
requirements of section 4.1. A fact relied upon by the union as a basis for
its grievance was the appointment of Darleen Williams to the bargaining unit
. .I". position of Acting Assistant Office Manager. The triggering event was a
Memorandum of the Superintendent of the Maplehurst Complex dated.February 27,
,,- 1985 in which he set out that Ms. Williams would begin a training program
which would result in her filling the Assistant Office Manager's position on
an acting basis during that manager's maternity leave commencing &out August
1. The grievance was filed on May 24, 1985 almost two months subseguent to
the Memorandum and thus well beyond the 30 day period set out in Section
27.8.1. [now ~27.12.11. In response to-.the employer's objection .that the
grievance was out of time, Hr. Verity at page 4 states:
"The Union Grievance filed on Nay 24, 1985 is almost- two
months subseguent to the Memorandum. Clearly, the Grievance was
not filed in a timely fashion,, and it does appear that the time
limits are mandatory rather than directory. However, in our
opinion, the alleged violation of the Agreement is of a continuing
nature, and accordiijgly strict compliance with the time limits is
of less significance. The Employer candidly admitted that it has
not raised the timeliness issue prior to the Hearing. In our
opinion;, this second'tireliminary-objection mist fail."
- 3 -
In Wm a& Winistrv of Transportation and Communications
(G.S.B. 761/84) the Board again concerned itself with the question of
continuing violations of the collective agreement. This time that issue arose
within the context of retroactivity of remedy. lithe grievance claimed that the
" travel time of the grievor under Article 23 was “being assessed contrary to
the collective agreement." The relief the grievor sought was to have his
travel time reassessed and paid to him retroactive to Nay 1, 1982. The Board
found that the grievor retained the right to have his headquarters re-
determined on the equitable basis Which was first defined in m &
Hinlstry of Transportation and Communications (1982) (G.S.B. 356/82).
It then went on to deal with the~retroactivity tissue at pages 14-
15:
"The B&d hastens to add, however, that any re-assignment
'- of headguarters to the grievor pursuant to such an e&table
determination hvuld not entitle him to re-calculation of his time
q-edits back co May 1, 1M2z~~- The grievor received retroactive
benefits, more or less, as a gratuitous benefit in a settlement
agreement in which he was not directly involved. The grievor
could have grieved his own situation at any time within that
period, but he did not. He waited until after the settlement
*' ,became knoll to him, which was in August, 1984.
"In these circumstances, the matter of retroactivity arising
out of the grievor's grievance must be governed by the usual rules
which are applied in cases of 'continuing violations of the
collective agreement. Here, there was a continuing violation
because from et least May 1, 1982 onward, the grievor was assigned
to a headquarters which was not e&uitably determined. There was a
fresh violation of Article 23.3 of the Collective Agreement on
each day thatthe grievor remained assigned to his headquarters.
For any of these violations, the grievor was entitled to grieve,
but only within the time benefits specified in the Collective
Agreement. This means that the earliest violation that the
grievor could have complained of in his grievance dated August 15,
1984, would have occurred 20 days prior to, that date. See Article
27.2.1 of the Collective Agreement. In view of this, the maximum
amount of retroactivity allowed to the grievor would be limited by
that date."
- 4 -
That decision was followed in Seeback et al a&I Ministry of Transportation and
Communications (G.S.B. 480/85) where .the Ministry objected that the'grievance
._ was filed too late under the collective agreement. '~The grievance was that
surplus employees who had been reassigned in accordance with the collective
agreement had been given new designated headquarters improperly selected by
.~ the Ministry according to the appropriate criteria. The Board found that
under Wilcox the grievances were continuing grievances based on repetitive :..
breaches of the collective agreement.
?The criteria for a continuing grievance appear in Lee and Ministry
of Health(G.S.B. 103/85) at pages 3 1 4:
"The issue is whether or not this is a "continuing"
grievance, or an isolated matter. If it is a "continuing"
grievance, then each time the problem arises, the 20-day
limitation begins to run anew, and the grievance in this case
would not be untimely.
"The distinction between a "continuing" grievance and an isolated matter has been discussed in many cases and it is not en
understatement to say that the law is not entirely clear. The
general notions are fairly. straight-forward. A "continuing" grie.$&e& involves,. repetitive breaches of the collective
agreement , or, as some have put it, a "recurring breach of duty"
(this formulation is found in all three of the'leading Canadian
works on the matter - Palmer, Collect Aureement Arbitration in
Ma (2nd edition 1983);. eat. pages 191-5; Brown and Beatty,
Canadian mr Arbitration (2nd edition, 1984), at pages 95-6;
and Gorsky, Evidence ad Procedure Ln Canadian ar Arbitration
(1981). at page 35). The breach of a recurring duty is to be
distinguished from an isolated breach of the collective agreement which ceuses recurring damage. The latter is not the basis of a
"continuing" grievance. The difficulty comes.in the application
Of these concepts. One recent arbitration decision has
characterized the jurisprudence well es "brsngled . . . a
fruitless search through a thicket of precedents" (Ee Province of
British Columbia and British Columbia Nurses' wn (10921, ~5 LiW
(3d) 404 Getz); at 414 2/3).
"In cases involving the allegation of deficient wage
payments, some authorities suggest that this is a "continuing"
grievance (see Palmer, at page 112 3/4, and the cases cited"in
footnote 113). However, in & Province of British Columbia (cited
above), it was decided that the real breach is the' original
calculation of the wages which is en isolated evenc,~ and the
.
- 5 - ,c -
character of the breach does not change though the calculation
governs an'on-going series of wage payments (at page 415).
"In our opinion,
the better opinion is that each wage
payment is an isolated event. If the payment is noF in
accordance with the collective agreement, then the employer has
breached the agreement. Each time a wage payment is not in accordance with the agreement, the breach recurs. Thus, this is a case involving a "continuing" grievance.
"The grievor did not file her grievance until March 1, 1985.
‘-.!l'herefore,. if her grievance is sound in substance, she is entitled
to a remedy only in respect of any wage payment in the twenty days
preceding-her claim, and thereafter."
The employer cited, m & Ministry of Transportation and
Communications (G.S.B. 377/83).. That case dealt with. a'grievance by Ms. Lam
Who had to choose between~ moving to Kingston or accepting a position in
Toronto at a lower level (clerk 2); stie had been a clerk 3. This .Toronto
alternative included being red circled until either the salary of the clerk 2
position rose higher than her current clerk 3 salary or promotion. She
accepted the lower position in writing. Subsequently she learned that she had
other possibiliti&under Article 24 and grieved as a result. Mr. Joliffe
writing for the .B~+rd held that her grievance was out of time. At 'pages 9 -
10 he wrote:
"Further, the Board is not persuaded that the alleged breach
of Article 24 was a "continuing breach." As held in Dominion
Glass (19721 1 L.A.C. (2d) 151 (Reville) and other cases, continuing violations are ones which involve repetitive breaches
of the collective agreement rather than a single or isolated
breach. If there was a breach as alleged here, it occurred by way
of the offer or assignment accepted by Ms. Lam iti August and
October, 1982, which wa8 not repeated daily, weekly or monthly
thereafter.
.~. "Finally, i,t Kould be unrealist%c to deem the assignment
grievable for an indefinite period of time after it had been
accepted in writing, initialli in Atiguse when Ms. Lam commenced
work in her new position. The seconds acceptance in October was
merely for the purpose of correcting an error made~ in the previous
letter to her. "
- 6 -
The decision of Mr. Verity in Union Grievance (G.S.B. 761/84)
supra and the Lam decision are the two most directly on point. One ison one
side of the continuing grievance issue and the other case on the other side.
Apart from the bare fact that ms Grievance is a job posting grievance under
Article 4 and a is a job security (surplusage or redundancy) grievance under
Article 24, two other matters distinguish them: principally, that Ms. Lam
made an election i.e...d~irectly participated in the event that gave rise to her
subsequent grievance. That element gave the situation an event discreteness
that distinguishes it from a failure by management to post a 'vacant position -
a decision in which a grievor plays no part. The,.other element, -which is
indirectly referred to by Hr. Joliffe is that, at the time, Article 24, which.
is complex, was not fully understood'and as a result time elapsed before
someone advised Ms. Lam that she might have rights under Article 24. It may
be that the possibility of reopening all the potential Article 24 cases caused
Mr. Joliffe to draw tbff line at .that point. Furthermore, generally mere
ignorance of one's rights, as distinguished from facts, are not grounds for
restarting the time running - a second alternative to the continuing grievance
approach. In any event, the line between the job posting and then job security
cases has been so drawn and I have no cause to reverse the Verity position.
Furthermore, in the private sector cases, the job posting cases are also
generally classified as continuing grievances. Accordingly, the motion to
dismiss the grievance asout of time iS dismissed. 1