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HomeMy WebLinkAbout1990-1392.Giberson et al.92-05-25OPSEU. (Giberson et al) - and - Grievor The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE: J. Samuels .Vice-Chairperson M. Lyons Member F. Collict Member FOR THE GRIEVOR T. Hadwen Counsel Cavalluzzo, Hayes & Shilton Barristers & Solicitors FOR TNB BNPWYBR G. Gledhill Staff Relations Consultant Ministry of the Attorney General HEARING April 30, 1991 April 30, 1992 ! 2 The grievors are five of the six salaried Sheriffs Officers in the Toronto Region. They are classified as Sheriffs Officer 2 and they claim that they are improperly classified. They ask for an Order that an appropriate classification be developed to cover their positions. There are also several fee-for-service officers, whose work is very similar to the grievors’. They have recently been found by the Public Service Relations Tribunal to be members of the Public Service, and their compensation is now under negotiation. By and large, the grievors’ work consists of enforcing a wide range of Court orders and writs. About 70% of their time is taken up with the enforcement of Writs of Seizure and Sale. The Courts issue these writs in favor of judgment creditors, and the Court orders the Sheriff to enforce the collection of monies owing to the creditor. The grievors will speak with judgment debtors to try to arrange payment, assess the value of the debtor’s assets for purposes of seizure and sale, seize such assets as they think appropriate, arrange sale of the assets and payment of sufficient proceeds to answer the creditor’s claim and the Sheriffs costs of the process. Other significant orders which they enfome are: l “Jane and John Doe Orders” which anise where a plaintiff claims that his/her copyright or trademark is being violated and the Court orders that unknown defendants cease and desist this violation, and authorizes the Sheriff to seize any goods which violate the copyright or trademark. Par instance, the grievors have been asked to search out the persons and property involved in a violation of the Cattier label (watches and other objects labeled as “Cartier”, but not manufactured or licenced by Cartier); and they have been asked to search out the persons and property involved in the sale of souvenirs bearing the name and symbol. of a rock group, when the rock group had not given a 3 licence for. hese souvenirs. Enforcement of these orders has involved the grievors in investigation (including posing in plain- clothing as prospective customers), tracking down the source of goods, and seizure of property. l Injunctions, where the Court orders that someone cease doing some act or to permit some act to be done, For instance, the grievors were ordered out a number of times to keep the Court- ordered peace in .front of Dr. Morgenthaler’s abortion clinic, when pro-choice and anti-abortion groups gathered, creating a potentially explosive situation. During one period, one or more of the grievors was on the scene every day. And the grievors were required to attend at a Sikh temple, where opposing factions claimed possession of the place and the Court ordered that possession he given to one faction. The grievors were there to help in the enforcement of the order and to keep the peace. They would call on the police if additional officers were required. l “Anton Piller Orders”, where the court grants aninterlocutory order to enable a plaintiffs solicitor to search the defendant’s documents and property and seize certain materials related to the matter before the Court. These orders are granted to prevent the loss of evidence necessary to the determination of the case. The grievors will attend at the defendant’s premises to keep the peace and to assist in enforcement of the Court’s order. The grievors are “peace officers” under the Criminal Code and provincial offences legislation, and they have the power of arrest. They wear uniforms which make them look very much like police officers, except that they do not bear firearms. They carry night-sticks. They have two-way radios, which are equipped with an emergency call feature (if the 4 I ! ! 1 officer pulls a grenade-like pin, a signal is relayed to the Sheriffs dispatch office that the officer is in trouble). The grievers’ claim arises from the fact that their work has changed over the last fifteen years. The work now involves more emphasis on their role as “peace officers” than it did before. It is only in the later years that they were involved in the enforcement of “Jane and John Doe Orders”, “Anton Piller Orders”, or Injunctions which took them into situations like the Morgenthaler clinic or the Sikh temple. Their day-to-day operations have become more like policing than was the case ten or fifteen years ago. It is for this reason that their clothing was changed from plain clothes to the type of uniform and equipment they wear and carry now. This change in appearance came about after a grievance was filed in 1986, alleging that the Ministry was not taking reasonable measures for the health and safety of the officers. Now the grievors arrive on the scene looking like persons in authority. The grievors say, and management agrees, that their work has become more difficult because debtors and others are .more litigious now. There is less simple compliance with the demands of the Sheriffs Officers than there used to be. And there is now a greater apprehension of the possibility of assault on a Sheriffs Officer. We mention these points, but, in our view, these changes do not have much significance when it comes to determining the grievors’ classification. Their responsibilities and day-to- day duties do not change merely because it is more difficult to get the job done. However, the greater difficulty and. stress involved in the performance of the work may be a matter to be taken into account when salaries are negotiated. The class standard for Sheriffs Officer 2 reads as follows: This class covers positions of employees who execute Writs of Fi Fa, and perform other I functions connected with the Sheriffs Office, such as escorting pnsoners, serving legal documents pertaining to civil and criminal litigation, serving Notices of Arrest of Vessel and reading Injunction to Union Officials, etc,. These employees work with little supervision. They receive documents from the Sheriffs Office set priorities and time of visits, interview defendants in Writs of Fi Fa to determine whether full or partial payment can be made to satisfy judgement and expenses, decide whether parties possess goods and chattels suitable for seizure, seize goods and arrange removal to a pre-determined location, serve Notices to Vacate and evict tenants where notice has been ignored. In addition, they prepare reports on execution of Writs and Orders and arrange meetings between defendants, plaintiffs and their Solicitors. They may be required to apprehend persons in execution of a Sheriffs Warrent (sic) or conduct public auctions for the sale of seized goods. They also communicate with legal firms to exchange or obtain further information. These employees spend at least 70% of their time fin the execution of Writs of Fi Fa with at least 25% of this time involving Seizures, Evictions, Sheriffs Sales. Because of the nature of the work, this frequently takes place after normal working hours. SKILLS AND KNOWLEDGE NEEDED: These employees require persistance (sic) and patience, and need to use considerable initiative and judgement in the performance of their duties. Maturity, stability and the ability to deal effectively and firmly with people are essential. Because of the possibility of physical assault, they need to be in good physical condition and able to withstand unusual provocation. Are the grievor’s properly classified as Sheriffs Officer 2? In our view, they are not. The standard does not capture a very significant element of the grievor’s current duties and responsibilities- their role as “peace officers” pure and simple. When they enforce a “John and Jane Doe Order”, they are called on to perform a level of investigation which is signifuxntly different from the type of writs and orders .which were contemplated when the standard was written in July 1971. when the grievors attend at the Morgenthaler Clinic or the Sikh temple, they are called on to act as “peace officers” in a way which was not contemplated and does not appear in the standard :for Sheriffs Officer 2. And these tasks are significant to their work. It may be that they still spend 70% of their time enforcing Writs of Seizure and Sale, but these other duties and responsibilities are not marginal. These other matters are now part of the core of the grievors’ work. The grievors go about their daily business every working minute as “peace officers” -dressed and equipped appropriately to handle the situations in which they find themselves. It is their range of tasks which is critical, not merely the fact that they are dressezd like peace officers. This is a qualitatively different job than it was when the standard was written in 1971. We order that the Ministry prepare a class standard appropriate for the grievers, and that this be done within a reasonable time. After the new standard is written, the parties will negotiate suitable salaries, and we order that the grievors receive compensation so that they will have been paid according to the new salary levels from twenty days before their grievances were filed on June 27, 1990. They should also receive interest 7 on any sum which ought to have been paid at a rate of 8% compounded annually from the date on which the sum ought to have been paid to the date on which it is paid, While we leave the writing of the new standard to the Employer, we have a brief comment to make concerning this. Though we heard no evidence concerning the work of Sheriffs Officers elsewhere than Toronto, it may be the case that, in Toronto, these officers face situations which are quite different from elsewhere. In particular, we have the feeling that in smaller centres ,there is much less of the type of “peace officer“ work which is so significant in Toronto-the under-cover investigation involved with “John and Jane Doe Orders” and the peace- keeping at the Morgenthaler Clinic~and the Sikh temple. If our feeling is correct, then it may be useful to write the new standard so that it applies only to Sheriffs Officers in Toronto, or, in large centres with similar problems. We will remain seized to deal with any matters arising out of our orders. 8 Done at London, Ontario, this 2 5th day of nay , 1992.