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HomeMy WebLinkAbout1990-2939.Hrycyna.91-11-21 DecisionONTARIO EMPLOYEs DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMlSSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST. SUITE 2100, TORONTO, ONTARIO. M5G 128 180, RUE DUNDAS OUEST, BUREAU 2100. TORONTO (ONTARIO). M5G 1z8 (4 16) 326- 1388 : (4 16) 326- 1396 2939/90 IN THE MATTER OF AN ARBITRATION Under the CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hrycyna) Grievor BEFORE : FOR THE GRIEVOR FOR THE EMPLOYER HEARING The Crown in Right of Ontario (Ministry of Transportation) Employer R. Verity I. Thomson F. Collict Vice-Chairperson Member Member N. Coleman Counsel Gowling, Strathy & Henderson Barristers & Solicitors J. Lewis Counsel Winkler, Filion & Wakely Barristers & Solicitors October 25, 1991 2 DECISION John Hrycyna works as Senior Operational Policy Officer with the Operational Policy Office of the Ministry's Licencing and Control Branch at Downsview, Ontario. He claims that his position is improperly classified as Review Supervisor 2, atypical. Mr. Hrycyna seeks reclassification to a number of suggested classifications and asserts a usage claim to classification as Engineering Services Officer 4. At the outset of the hearing, the parties agreed on a novel procedural approach. The Union brought on a motion that the grievor cannot possibly be properly classified at present on a comparison of the grievor's Position Specification form and against the Class Standard and certain agreed facts. If the panel found that the Employer had an arguable case that the grievor was currently properly classified, the motion would be dismissed and the hearing would proceed in the normal fashion. However, if the motion succeeded, the Board would issue a Berry type order and remain seized on the issue of retroactivity. The agreed facts can be briefly summarized. In June 1988, as a result of a major reorganization within the Ministry, the grievor became one of three Senior Operational Policy Officers in the Licencing and Control Branch. Each Senior Operational Policy Officer supervises two Operational Policy Officers. 3 The grievor's Position Specification form, prepared in March 1988 and acknowledged to be generally accurate, reads as follows: Purpose of position To plan, assess/develop/modify and implement very complex operational policies and procedures, to meet the changing needs and priorities of the Licensing and Control Branch and the Ministry. To provide technical advice, expertise and liaison service to the Office, Branch, Ministry. Other Ministries and jurisdictions, and the public, and to provide supervision and direction to Operational Policy Officers reporting to the Senior Operational Policy Officer. Duties and related tasks Under the general direction of the Head, Operational Policy Development, the incumbent is responsible for the following: i) Planning, assessing/ developing/modifying and implementing complex operational proposals, policies or procedures: planning how and when assigned work is to be carried out within the context of established priorities, deadlines and completion dates; analyzing briefs, submissions, proposals or requests from internal and external sources, estimating costs, labour and time implications, and making recommendations as to appropriateness for further development; researching situations, policies, procedures or legislation through internal or external sources; developing options/alternatives, analyzing financial, legal, economic, social and other implications and making recommendations to senior management through reports and presentations; 50% preparing briefs, Cabinet or Management Board submissions based on senior management's direction; developing or modifying operational policies and procedures, forms, news releases, informational presentation and other materials and identifying training and development needs of users in implementing approved policy or procedural decisions; 4 assisting Legal Services Office in the drafting of legislation/regulations required to implement new and/or changed operational policies and procedures; attending Regulations Committee of Cabinet as required to represent the Safety and Regulation program in explaining Regulations amendments pertaining to operational policy matters; liaising with the field, head office, other internal groups, other ministries, industry and special interest groups, and other government groups and jurisdictions in the research, development and implementation of operational policies and procedures: keeping the Head, Operational Policy Development, informed of work/project progress and changes and consulting with Head for direction and advice. ii) Providing technical advice, expertise and liaison advising on and participating in the communication of policy development to all relevant staff and affected parties including the development of systems and procedures to ensure successful implementation of operational policies; acting as a resource person in the formulation of procedures and training programs to reflect policy requirements and Ministry objectives; providing input in the review of manuals documentation to ensure consistency of policies and procedures; reviewing feedback on the effectiveness and degree of adherence to new/existing policies, coordinating follow-up action; developing recommendations and providing briefing materials and reports covering politically sensitive policy issues to all levels of Government; attending meetings seminars conferences presentations of committees, task forces or special groups, as a resource or audience, as assigned. service: 30% iii) Providing supervision and direction to Operational Policy Officers : supervising Operational Policy Officers, providing direction, advice and technical information to enable them to function in an efficient and effective manner, and monitoring of their work assignments; 5 - determining resource requirements for his/her work unit, to meet project commitments, priorities and schedules, through participation in the requirements of management control and reporting systems, and by providing estimates for budget allocations and estimates to budgets; 20% - providing his/her work unit with ongoing on-the-job training, assisting them in their career development by recommending developmental assignments, training opportunities, etc.; - providing input to the Section Head in performance evaluation and proposed merit increases of his/her work unit, and taking necessary corrective action for improve performance; - representing the Head, Operational Policy Development in his/her absence, as required. Skills and knowledge required to perform the job at a full working level SKILLS Proven and extensive planning, research, estimating and analytical skills in the development of complex operational policies & procedures; - considerable and varied writing skill for preparing letters, memoranda, policy proposals and reports, briefs, Cabinet submissions, information/presentation materials and policy/procedure documents; proven ability to provide supervision and clear direction to Operational Policy Officers regarding complex policies, procedures and projects; - very good judgement for supervisory role and policy development, proposals and recommendations; - excellent oral communication and interpersonal skills to fulfil supervisory, research, implementation, presentation and advisory functions; excellent comprehension and interpretive skills regarding complex operational policies, procedures, legislation and regulations. - - KNOWLEDGE - Extensive knowledge of the Ministry and excellent working knowledge of the Highway Traffic Act, Off-road Vehicles, Motorized Snow Vehicles Act and related regulations as they relate to Driver and Vehicle operational programs; - excellent working knowledge of Driver and Vehicle programs, policies and procedures; - substantial knowledge of planning, research, estimating 6 and analytical processes; a broad knowledge of the Ministry's and government's operating system, policies and procedures, and substantial knowledge of the approvals process for policies, procedures, legislation and regulation; knowledge of main frame and micro/personal computer systems in general, and the Driver and Vehicle computer systems in particular. The position was classified as Review Supervisor 2, atypical on the basis of "best fit". The Class Standard of Review Supervisor 2 together with the Preamble reads as follows: PREAMBLE REVIEW OFFICER AND REVIEW SUPERVISOR SERIES KIND OF WORK COVERED: These classes cover the positions of employees in the Department of Transport who review records and interview drivers under the provincial driver improvement programme. DEFINITION OF COMMON TASKS: Employees interview problem drivers coming to the attention of the Department, usually for one of the following reasons : demerit point accumulation, repeated accident involvement, medical or physical condition affecting driving ability, or application for re-instatement of licence. They examine driving records, medical reports and the results of additional driver tests, in some cases personally conducting the road tests. During interviews they try to determine the underlying cause of the poor driving performance. They also counsel drivers, impressing on them the value of safe driving, pointing out factors contributing to poor driving habits and giving advice on appropriate corrective measures. 7 From the analysis of records and/or results of interviews, employees decide on an appropriate course of action such as: cancellation of licence, recommendation for suspension or re-instatement of licence, referral to the Medical Advisory Committee or a demand for further tests or submission of annual medical reports. They write comprehensive reports on cases investigated, including details of interviews and tests, conclusions reached, and the reasons for the recommended action. They contact doctors and lawyers, when necessary, to request information or to explain procedures under provisions of the Highway Traffic Act. They provide information to the Medical Advisory Committee or the Appeal Board as required. They compile statistics on drivers interviewed and deal with correspondence arising in the course of their work. REVIEW SUPERVISOR 2 This class covers the position of the employee who administers the driver improvement programme in the Department of Transport. Under the general direction of the Manager of Driver Control, he is responsible for the overall supervision and direction of review officers and support staff engaged in the post-licensing control of drivers. With the assistance of first level supervisors, this employee co-ordinates the activities of staff at the head office and in regional offices. He is involved in a variety of personnel matters including the assignment of duties and disciplining staff. He makes recommendations on hiring and promotion of staff, merit increases and granting time off. He reviews the work of subordinates, and plans various training programmes to improve the skills of review officers. He actively participates in the training courses by delivering lectures and leading discussion groups. The employee reviews all recommendations for suspension of licence made by review officers following demerit point interviews. He approves or rejects the recommendations, being guided by regulations and departmental policies. He also reviews problem cases referred to him by subordinates or others, such as police officers and provincial judges, taking or recommending appropriate action or holding consultation with superiors. He checks the documentation of cases to be presented to the Medical Advisory Committee to ensure that all relevant facts are included. 8 The employee keeps informed of all new developments in the field of driver improvement programmes by participation in conferences and through study of various publications. He advises the manager of significant new developments which may affect policy. He also evaluates the effectiveness of existing measures, initiating changes in methods or procedures as required. He carries out other administrative tasks, such as preparing annual estimates, authorizing expense accounts, preparing various reports, and answering correspondence. SKILLS AND KNOWLEDGE REQUIRED: Ability to counsel and communicate effectively with members of the public in a tactful and courteous manner. Some skill in the techniques of interviewing and assessing attitudes. Administrative skill and ability to resolve disputes arising from the operation of the Driver Improvement Programme. MINIMUM STAFFING STANDARD: 1. Post-secondary education and preferably several years' related experience in dealing with the public; ability to successfully complete the Driver Examiner Training Course. High school graduation and several years' experience as a Driver Examiner. 2. Many years' supervisory experience, preferably in a related area within the Department of Transport. Possession of a valid Ontario driver's licence and a good driving record. 3. The grievor does not supervise Review Officers. Rather, he supervises Operational Policy Officers who are separately classified as Executive Officer 1. Further, it was agreed that the 9 grievor has Programme. no direct involvement with the Driver Improvement The issue is whether it can be said that the core duties of the grievor's position are encompassed by the core features of the class standard. The Union contends that the Review Supervisor 2 Class Standard does not describe any of the grievor's core duties and responsibilities. Mr. Coleman contends that the grievor's duties, relate to policy development and implementation in the Licencing Control Branch. He maintains that the current Class Standard is specific in nature and assigned to apply to employees involved with the Driver Improvement Programme. The Employer maintains that there is an arguable case that the grievor is currently properly classified. Mr. Lewis contends that by analogy the core duties of the grievor's position such as supervising subordinate staff, receiving recommendations, being guided by policy, procedure and regulations, and administrative tasks are captured by the Class Standard. In support, the Employer cited the following authorities: OPSEU (Komendat et all and Ministry of Housing 1246/90 (Dissanayake); and OPSEU (White/Foster/Kellar) and Ministry of Transportation 670/88 (Stewart). 10 There is no dispute that, in appropriate circumstances, cal class allocations may be alid. In that regard, arbitral jurisprudence is neatly summarized by Vice-Chair Dissanayake in OPSEU (Komendat et all and Ministry of Housing, supra, at pp. 8-9: It is well established now that this Board has a mandate to remedy a grievance where it concludes that a position is wrongly classified. Re OPSEU and Berry vs. Ministry of Community and Social Services, decision dated March 13, 1986, Ont. Div. Ct) Nevertheless the Board has recognized that the Berry decision did not altogether preclude atypical class allocations. See, Re Kuntz 85/89 (Verity). Despite this continuing recognition of atypical class allocations, the Board has held that the core duties of a position must comfortably fit within a class standard. In Re Kelusky et al, 1098/86 (Wilson) the Board stated: I am of the opinion that while the Berry decision may not have invalidated atypical classifications, this Board, given its clear mandate to direct that a new classification be established when it is satisfied that a grievor is improperly classified, must insist that an atypical classification not vary widely in its core features from the archetype of the classification. In our case, on the evidence it is clear that the grievors do an entirely different job from that described in the class definition. In the instant matter, in examining the core features of the archetype of the classification of Review Supervisor 2, it is obvious that the Class Standard is designed to apply to employees required to administer the Driver Improvement Programme. The grievor has no responsibility for that program, does not work under the direction of the Manager of Driver Control, and is not responsible "for the overall supervision and direction of review 11 officers engaged in the post-licencing control of drivers", as contemplated by the Class Standard. Clearly, the grievor performs a different job entirely from the archetype of the classification. In sum, the grievor is responsible for the development and implementation of complex operational policies and procedures in the Licencing Control Branch. In that capacity, he is required to supervise Operational Policy Officers but not Review Officers. We do not accept the argument that the grievor's duties and responsibilities by analogy fall within the core features of the Class Standard on an atypical allocation. In our view, the Class Standard must be examined to identify its distinctive features and not those features that are in common with a number of other classifications. While it is true that the grievor performs certain supervisory and administrative duties, it can be said that those duties are common to most supervisory positions in the civil service. On the motion before us, we find that there is no arguable case that the grievor can be properly classified as Review Supervisor 2, atypical. Accordingly, the motion is granted and the grievor shall be entitled to a Berry order. In the result, the Employer is directed to "find or create" an appropriate classification for the grievor within 120 days of the receipt of 12 this decision. As requested, we retain jurisdiction on the issue of retroactivity in the event of any difficulty encountered by the parties DATED at Brantford, Ontario, this 2lst day of November, 1991. /> . . , . . , . , I.. . . . . R. L. VERITY, Q. C. VICE-CHAIRPERSON ODD..... I. THOMSON MEMBER F. COL