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HomeMy WebLinkAbout1990-0672.Mills.92-08-06EMPLOY&SDEU 00”!?0NNE OEL’ONTARlO C$JMMlSSlON DE REGLEMENT DES GRIEFS IN TRB MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before i THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Mills) Grievor BEFORE : FOR TEE GRIEVOR REARING - and - The Crown in Right of Ontario (Ministry of the Environment) Employer B. Fisher Vice-Chairperson G. Majesky Member M. O'Toole Member C. Dassios Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR TRR RMPLOYRR C. Peterson Counsel Winkler, Filion & Wakely Barristers & Solicitors November 5, 1990 February 5, 6, 1991 June 19, 1991 This is a classification grievance involving an Environmental Officer 2 (E02) who seeks to be reclassified to an Environmental Officer 3 (E03). The entire Environmental Officer series is attached to this decision. The Grievor’s job specification, which the Union accepts as generally accurate, is also attached to this decision. The Union disputes a number of aspects of the job specification, notably the numerous reference to “non complex” tasks and the degree to which he was supervised by the District Officer. As these Class Standards are set out under distinct topic headings, it makes sense to analyxe the evidence in the same fashion. TIis class covets positions iavolviag data colledioa and limited aaaiysis ot muline iaspBeti~~tkia~elielddepviroame~alaraumemaadpolluti~~attol. Tbirisa junior working level pasifioa ot a positioa ia wbiib smplqsat gain tniaiag and srpatisace. Tbe compensable ladots al this level are lypically talk&d as follows: ibis class Wets porit~~siovolvingiarpeclioe,irvertigalions aad eolotcemanl adivilies ia Ibe ePvito!dmelltal assassmeal and pollutioa waltol lield. la some positions they ceuld coadudiauestigalionsto identily monitor, aad topott sowcas ol polllltioa d aii, lapd,ot watst,iaolvdingaoire,aadplaa,otgaa~aaadeo~dudarratsmaattuneyta~daoeitotiag 2 ol tI~a natural amitoamad With taspsel to pollatiov control occatteacas, they could also elfed cotteclii action by mating tecommeodalioar lot implemeatatioa d appropriate abatement q easates, aad initiate wheta saxessaty appropriate enforcemeat a&ii to aasata compliaaca with eavitoamaatal legislatioa. Tbay may also be taspoasible lot providing emetgaacy tespoase 10 spill contiagsay situations aad plant process upsets, lo q oailot and ptovide tacommaadatiom and/or remedial q easatos. Tbay may review and process applicalioos aad prepare Catiilicates d Approval. As the job specification has been accepted as generally accurate, it is useful to also set out the relevant position of that document. Catteal Job Spacilicaiioa Ideatily, monitor aad teporl oa soatcas d pollalioa from a vatiely ol soacomplax, iadasltial, mvaicipal, agticabtal, wmmatcial and private lacilities in tba district Easata tbal EA Patl VII complalnls specifically aad other complaiais tacaived ate iavastigatad aad repotled opoa as a-ty. Recommend and coadud abatamatd programs under the gtovp leadetsbip d the SE0 spa&M aad rnpetvision al tbe Oisttid Ofliwt. Maintain good liaison with the general public and clieal tepteseatalivas. Assess compliance aad tosommead legal adioa. Etdone envitoamevial legislaiion, iacludiag tba issuance d olfenca notices avdet Patl 1 d tbe Provincial OIluues Ad.. The Grievor’s position was that he was never told that this position was a training one. In addition the Grievor referred to a document given to another E02; Roxanne Villeneuve, entitled “EO-2 Training Programme for Junior Environmental Officers” which set out in detail a 3 year training programme. No such document or formal training programme was ever set out for the Grievor. However, as the Ministry’s lawyer correctly set out, the preamble indicates that this is either a junior working level position or a position in which employees gain training and experience. In other words, training Is not a necessary component of this position, rather it could be that the Grievor is simply assigned to permanently carry out “junior working level” responsibilities. 3 According to the job specification about 35% of the Grievor’s work involves dealing with matters under Part VII of the Environmental Protection Act, which involves in ground septic systems. Although there was some variation in the complexity of the issues the Grievor faced in dealing with Part Vii matters, it seems clear that, compared to the work performed by other .E03’s, dealing with septic tank problems is properly described as non-complex. However, an equally significant amount of tfme (35% according to the job specification) is spent by the Grievor on duties in relation to spills. The Grievor and his direct supervisor, Mr. Ray Bannock, a E05, are responsible for dealing with ail the non-routine spills in the area. Non-routine refers not to complexity, but rather to the location of the spill. if the spill occurs at a site which is the responsibility of a specific E03 (i.e. a water treatment plant) then it is a routine spill. if the spill occurs at a site not assigned to a specific E03 (i.e. a turned over tanker on a highway) then it is a routine spill. The evidence disclosed that the Grievor is assigned to spills often without the prior knowledge of the complexity of the spill. The evidence also disclosed that the actual complexity of the spills which the Grievor did attend on by himself ranged from straipht forward to moderately complex. . Ail in ail, from a review of the job specificatron and the evidence presented, the preamble to the E02 does not adequately describe the Grievor’s functions. Although he may not fulfil ail the requirements of the E02 preamble, the E02 preamble better describes the Grievor’s duties. 4 The Position Specification speaks of “practical and. relevant knowledge in the environmental field” as it is not consistent with an E02 position, which is considered an entry position. Therefore it would be less likely that the incumbent would have practical experience. The’Position Specification speaks of “basic knowledge of environmental legislation, Ministry policies, etc., which is more akin to the E02 standard which speaks of ‘some* knowledge. WI Kaowledao Work requires rafficienl technical hwwladgs to aaderstaed the priociplas rad praoticas of Pasilioar q q iavofva knowledge ol: Industrial proceaqs/municipal water supply qstamshewage disposal qstams/agrlcufturaI actffitisr/waste q anagemaat/ground aod surlaca water tacboology/aaviroemoatal q oofloriag equipmoat. Soaa knowledge of eoviroemoetal lagirlation, q ioistry policias, practices and administrativs proceduras Is also required. EG3 A working koawladge ol tbe priaciplas and practicer of iodustrial and q naicipel environmoatal coa4rol, pollatioa abatemeat, land asa aod coatiogosq respoasa pradicos. Positions may involve kaowlodgs of: iodustrial procaosfmooicipal water supply qslems/sawage disposal qstems/agricuftural activftitiasta maaagomentjgrouad and enforcement adivllk Knowlodgo ol ooviroamoahl bad r&tad ~o&afffn, rogufatiios, ministry policias, pndicos and admioistrative prwxderes is also required. Good oral and wrilten. communicatfve skills and tad are q aodataq. Potftioa Soocificdioo Working Knowledge of priacfplas aad pndices of industrial, ‘muaicifwl and private environmeatal matrol, pdlutioa abatameat, land use and cantiageaq raqooses. Pradiul and relovanf erparieow ia tbe seviroaaoatal fiild. Basic knowledge cd eavirooraoatsl Iegisldion. Ministry policias, practicas aod administratfvo procadures. Abilff to coromunicata orally aad io wrfliog in botb official languages to ao advaacad level. Tact, parsuariveness and ability to daal wftb a varialy d client groups. Valid drivers licence. The first sentence of the Position Description almost matches word for word the first 5 sentence of the E03 standard of these areas. Although this is a close call, it seems that the Grievor’s job duties are marginally better described under th,is category as being in the E03 classification. (C) Accomtability EOZ lf~esv positions are accondabla for tbo accuracy of tbe data and information collected and for the technical qvaltt d reports and recommsadatiotm. The impad of decisfonv and recommendations, bowever, it limfted as tbq ara subjed to review. EW This incumbent k directly accountable for: collecting complels and accurate ivlormatttaterprvting and vttliiing intormation gathered to implement corrective procedures and intiiativg enforcerned actfffty. Inappropriate recommendations could revuft In some movetay loss to the ministry or otlsr: and In lo% 64 tbe Mr&try’s credibility sad prestige. Posftion Spoclficatioa Accountable for the accuracy of the data and information colfeded and lot tba technical quality of reporta and recommendations wbicb ara rvbjed to review. Improper advice 01 required wrrvctffe adioa ta ownerv of pollution vources oould resufl ia uonawuary expemiftures d capital and therefore, crconoaical bardrbip. Inappropriate assessment or adions coold: resuft in potential anvironmevtal damage, have poblic bealtb implications, rwdl io embarnuiaed to tbs Ministry or rvsuff ia loss .d eujqmenl properly by the public The position specification speaks of giving advice on required corrective action; which is found only in the E03 standard. furthermore, the E02 standard speaks of the limited impact of decisions, while the Position Specification confirms that the impact of improper advice on corrective action could lead to economic hardship, environmental damage, public health concerns, loss of enjoyment of property 3 ? 6 use, and perhaps most importantly, embarrassment to the Ministry. This statement closely follows the E03 standard of some monetary loss and loss of the Ministry’s credibility and prestige. We have no doubt that on this factor, the Grievor fits squarely into the E03 category. EM Work is podormod andsr direU saporvirion witb sems discration to wake technical decirioas within ostablisbad practims and procadwdr and to q aka minor on-sita r~mmoodationr. Matters tbal lnvolva davidion from astablirbed pradiw bowovor, era referred to saaior staft. Judgmad fs axercised ia asssmbling~data, praparing tecboical reports aad making recommeadations, arually la coesidaratioa witb sanior staff. EO3 Work is parformal under gsoeral tapervision witb some iodepaadonca in tbe planning and asacutioo of field iarpectioas aed tunq% complaiat invastigatioar aad aoforcamerd adiitly. Jadgmaal is alse exercised is tbs prefnratioa el cemprebensive tacbnical mporlr, iaterpretation d information aod data, He developmeat of remedial reeommaodations aad wbea reprosaetfng tbe miaistry at public aod q aaicipal meetiags, and More courts and other quasi-judicial bodias. In soma positions jadgmeat is esarcisad when: evaluating complaiotr/ulibrating aed sorvicisg instruments and eqaipmeet/ennlring appropriate cloeoup actioo at spills/ ioffiafiag a&r recemaeadiag apfwopriete legal ediee eed saforcamoat activity wbers infractioas of lagirlation bavs bona discoverad. Persuasiveness and mduro judgmeat are raqairad ospecialb whoa daaling wltb complainaats, tbo media, aad aloded officials and coatoatious isssas. Position Spacification Work it petformed under tbe group loadership d SE0 sod direct supervision ef tbe Didrid Officer. Oa mutiab ffefd essessmoefs plaer aed terries eel work iedefmedaeffy. Formulatar dacisioas aed makes raquests for adioo on ansopbidicatad problems where wfsronca cae ba made on procadent aad similarity ol situations. Rafars to SE0 lor guidance OP more complex or coatentious problems. Judgmeel Is oxorcisad io preparing Iotters, memoranda red iarpedioa/obrervation reports indefwodsatfy sod ia suggssting recommoodod action for furtbar conridsratioo by more sanior tosbuical stalt. 1 The evidence revealed that the day to day supervision of the Grievor’s work is conducted more by Mr. Bannock the E05, than by Mr. Harmor, the District Officer. Mr. Harmor himself said in his examination in chief that he told the Grievor that the Grievor was to report to Mr. Bannock for day to day direction and to him for management supervision. in any event we are satisfied that the type of supervision which was exercised over the Grievor is more accurately described by the term ‘direct supervision” in the E02 standard that the term ‘general supervision” as found in the E03 standard. However, given the considerable independence given to the Grievor when he is the only EO at a spill, the E03 standard of “some independence” is more appropriate than the E02 standard of “some discretion to make technical decisions within established practices and precedents and to make minor on-site recommend-ations”. Furthermore, the oral evidence and the job specification indicated that the Grievor evaluated complaints, represented the Ministry in municipal hearings, ensured appropriate cleanup action at spills, recommended appropriate legal action and enforcement activity; and dealt with complaints, media and elected officials. Again although this one is a close call, we feel the Grievor’s job more closely fits into the E03 class standard than the E02 one. Work involves regular teatacls wftb tbe general public, coatradon, project oporatioas and technical support stall aad q aaicipaf, Industrial aod other agency employees al the technical loval for tba purposa of oxobanging lsformatioo and data. ttagular coatad is mada wftb the pablic, iadustrial chards, tbo media, q anicirl officials, corsuftants, davelopsn, coatraUors, bodlb officials, amergenq raspoase porsoanof, otbor Provincial rod, Moral agoacios ad olactod eftfflr Contacts are lor tbe purposes of excbaogiog idormatioa, giving tecbaical advica, making recommoadatioss, respondiog to watingeacies, dwolopiag ordars, ad oaforciog proviacial legirlatioo. The inoumboat officially rapresods the Yiaistry ia all watacts aad may bo regoirad to appear as a ministry wftness at bearings aad io courts of law and to provide ioformation al pablii q odiagr Job Specification lateraal: Regular coatacl wftk stafl ol similar classification at the regional, didrid aod bead oftics level. COnlads above tbis classification will normally be wodudad by tba SE0 or supervisor. External: ftogslar coatacts wflb tbo general pablic, wotradors, proiact oporatioos aad tacboical support staff aad q asicipaf, iodustrial sod other agsacias emplqees at oqufvalod tacbnical lwal for the parposa of exebanging information and data. The iacnmboaf will make rocommoodatiins, respond to minor cootingeacios aad enlorco provincial legislatioe tbrougbtbs issuance d summonses, racommending legal adioat rncb as prosecutioos aad control orders after masultation and approval by the SEO/supervisor. Outias and Rafdod Tasks Oivo testimoq ia coarts d law and bafora quasi-judicial bodies such as tbe Oatario Yooicifral hard, Eavironmaatal Assessment hard and Ewiroamaotal Appeal Board. Ltaise with tbo public, municipalflies, clioet groups, news media, ether q ieistries and gwernmeat agoncias to provide or obtain iaformatioo attend and give advica regardiog mhor spill cfaaa-up as aacossary, ia coasuffatioo witb ragiwal and/or Spills Actioa Ceafres dalt. The contents listed in the Job Specification more closely parallel the E03 standard than the E02 standard, both in terms of the range of persons contacted as well as the type of contact. The E02 only exchanges information with a limited range of people. This Grievor is called upon to deal with a larger group of contacts (quasi-judicial boards, news media, client 9 groups) and at a more sophisticated level than simply exchanging information and data (testifying in court giving advice re minor spills). it is our conclusion that ail in ail the Grievor’s job fits better into the E03 category than the E02. The Board therefore orders as follows: (4 The Grievor is to be reclassified as an E03 with full compensation from the date 20,days prior to the filing of the grievance (which is September 20, 1989). (b) The Grievor is to receive interest, for the period in question, except no interest shall be payable for the period November 5, 1990, to February 5, 1991, as this period covers an adjournment necessitated by a change in the Union’s position. The parties agreed in the hearing to this provision. interest is to be awarded on the principle in the case entitled Hollowei House ltd., 1980, OLRB, Rep. Jan 35. (a This Board remains seized of any matters arising from the implementation of this award and the calculation of the compensation owing. 3 10 Dated at Toronto, this 6th day of ~ugdt , 1992. .“I Dissent” (dissent attached) M. O%ole, Employer Nominee PISSENT RE: 672/90 OPSEXI (MILLS) and the, Crown in Right of Ontario (Ministry of the Environment) After a careful review I have concluded that the majority are in error in allowing this grievance and, accordingly, I must dissent. The nature of the majority's error is two fold: 1) failure to interpret the class standards properly; 2) failure to properly weigh the evidence of the grievor's job duties. It will be convenient to discuss the above according to the general topic headings set out in the majority award. Preamble The majority conclude that the E02 preamble better describes the grievor's duties than the E03 preamble. The key to this conclusion appears to be their finding that the spills dealt with by the grievor "ranged from straight-forward to moderately complex.n No detailed analysis of the evidence with respect to these spills is given to support this finding. In my opinion it would be more 'accurate to characterise the spills attended by the grievor as ranging from straight forward to marginally complex. The significance of the latter factor is attenuated by the fact that the grievor is subject to direct supervision on 'a day to day basis. Accordingly, as is specifically set out in the section of the job specification dealing with "Judgement8*, the grievor "refers to SE0 for guidance on more complex or contentious problems." In the result this factor does not substantially vary the non-complex character of .the spills dealt with by the grievor. Accordingly, I am satisfied that the SO2 preamble more properly describes the grievor's functions than the E03 preamble. Knowledue The majority, in effect, find that two out of three factors they analyse favour the E03 class standard with the result that the latter is more appropriate to the grievor's job than the E02 standard. However, I do not accept the analysis offered by the majority with respect to one factor. That is their conclusion that the reference in the position. specification to "practical and relevant knowledge in the environmental field" is inconsistent with the E02 position because it is an entry level job. There is no objective evidence to support this conclusion. Moreover, the conclusion is not self-evident given -that the E02 position is described in the standard as *Ia junior working level position." Accordingly, there is no warrant for concluding that the incumbent of the E02 position would be less likely to have practical experience. In the result, the factors under knowledge are clearly weighted in favour of the E02 standard. Accountabilitv The majority conclude, with "no doubt," that the grievor's job fits squarely into the E03 standard under this category. They appear to base their decision solely on the close parallel between the language of the grievor's position specification and that of the E03 class standard concerning giving advice and the impact of improper advice. In so doing they entirely overlook two other relevant factors. The first is the fact that the opening sentence of the position specification very closely parallels the language of the E02 standard which stipulates that the grievor's decisions are reviewed. The second is the evidence regarding the role played by the grievor's supervisor, Bannock, in reviewing his decisions. In this regard I would note that the Preamble to the EO series specifically refers to "the nature of supervision received" as a relevant factor. The cumulative effect of these two factors is to substantially reduce the significance of the above language in the position specification regarding the impact of the grievor's decisions. Having regard to the foregoing, I am persuaded that the E02 category better captures the grievor's job. Judsement The majority conclude that the E03 category more appropriately describes the grievor's job functions. The critical factor in their analysis appears to,be the level of independence they find the grievor has with respect to spills and the items enumerated in the 2nd last paragraph on page 7. ,In my opinion they overstate the level of the grievor's independence by being somewhat selective in their analysis of the oral and written evidence. Particular flaws in their analysis are as follows. First, they overlook the numerous references in both the E02 standard and the position specification that clearly circumscribe the grievor's independence. Specifically, both documents state that the grievor is subject to "direct supervision" as opposed to general supervision. Both indicate that .independence is only exercised by the grievor with respect to straight-forward, non-complex matters, and that he refers to senior staff on more complex matters. Second, the majority fail to recognize that, while the grievor may be the only EO at a spill, the evidence demonstrates that he is usually only called upon to make "minor on site recommendations" as set out in the E02 standard and that he refers to supervision "for guidance on more complex or contentious problems" as set out in the position specification. Third, with respect to the functions outlined in the 2nd last paragraph on page 7, the majority overlook the fact that those involving municipal hearings, media and elected officials are not really core functions and are performed quite sporadically, while the others are done under direct supervision. Having regard to the foregoing, it is my opinion that the majority attach undue weight to the grievor's independence and that when this factor is appropriately weighed, it is clear that the E02 category more aptly captures his duties. Contacts The majority find that the contacts listed in the position specification are of a wider range and a more sophisticated level than those set out in the E02 standard,and that, therefore, the E03 standard better fits the grievor's duties. In my opinion the above findings are flawed by a selective reading of the relevant evidence. With regard to the range of contacts, no weight appears to be given to the fact that the opening sentence of the paragraph of the position specification dealing with 10externalVt contacts matches almost word for word the E02 standard. With regard to the level of contact, there appears to be no weight attached to the fact that the examples given arise very infrequently. When appropriate weight is given to the above factors, it is clear that the grievor's contacts do not vary in substance from those set out in the E02 standard. Conclusion It is my opinion that, if the class standards are read as a whole and the evidence fairly weighed, the grievor's core functions are clearly captured in the E02 standard. While the latter may not be a perfect fit, it is nontheless the best fit.