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HomeMy WebLinkAbout1988-0183.Edmondson.90-07-10 ONTAR/O EMPI. OY~S DE LA COURONNE ~"~. ~. CROWNEMPLOYEES DEL'ONTARIO C,OMMISSION i '"'" ''~ :ii .... GRIEVANCE DE" .... j . j ..; ,~ SETTLEMENT REGLEMENT .{. ..... BOARD DES GRIEFS ~':"~:~"",'~'~,?,~c~ ................. ,'~c i i ,..,t:.?. ",' !'~' : 180 DUNDAS STREET' WEST, SUITE 2100, TORONTO, ONTARIO. MSO lZ,~ TELEPt-iONE/T~LEP~Or~E: (476~ 326~ 1388 1~0, RuE OUNOAS OUEST, ~UREAU k~O0, TORONTO fONTAR~O). MSG 1Z8 FACSIMILE/TEL~CO~tE ; (415} 326- [83/88 IN THE HATTER OF AN A~BITRATION Under THE CROTON E~PLOYEE$ COLLECTIIFE BARGAINING ACT Before THE G~IEVANCE SETTLEmenT BOAi~D BETWEEN OPSEU(Edmondson/Sween~y/Isherwood) : Grievor - and - The Crown in R~ght of Ontario (Ministry of the Solicitor'General) Employe~ - and - BEFORE: M. Watters Vice-Chairperson M. Lyons ~ember W. Lobraico Member FOR THE L. Rothstein GRIE~OR: Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE C. White EMPLOYER Counsel Hicks Morley Hamilton Stewart and Storie Barristers & Solicitors HEARING: May ~8, 19~9 June 21, 198'9 September 29, 1989 This proceeding arises from the grievances of Rs. Rosemary Edmondson, Mr; Paul Sweeney, and Hr, Dougl&s Zsher~ood ali dated March 29, 1988. At ~he time of filing, the. first two (2) of these 9r~evor$ were employed as Firearms and Toolmark Examiner Trainees a~ the Centre of Forensic Sciences in Toronto, Ontario. The lash grievor, Nr. Zsherwood, was e~p~oyed at ~he sa~e tocab~on as a Documen~ Examiner Trainee. Al~ of the grievors ~ere then c~assif~ed as Forensic Analyst'1 (F.A.~). Subsequently, ~hey were each reclassified to Forens'i¢ Analys~ 2 (F.A.2), The effective da~e of ~he reclassification ~as December 1, t988 in the rase of ~s. £dmondson; April 1, 1989 in ~he case of Nr.' S~eeney; and lastly, Nay 1, 1989 in respect Zsherwood. AIl of ~he 9rievors c~aimed ~hat ~hey h~d been performing ~he duties of ~he h~gher c~assification prior ~o the filing of the grievances. They ~herefore asked for compensation up ~o ~he da~e of ~he ac~ua] reclassification. The Centre of Forensic S¢i. ences provides services official investigatory agencies ~i~hin ~he Province of Ontario. Zt is presently directed by Mr. D, Lucss. The Centre employs %ota~ s~af¢ of one hundred and bwen~y (120) persons ~ho are divided into six (8) func~ion~ areas, including both a Firearms and a Documents section. Generaily, Firearms and Too~mark Examiners examine ~ems such as bu~ets, cartridges, ca~ridg'e cases, clo~hing,-tissue, firearms, tools and ~oolmarks for purposes of court proceedings. A number of tests may be 1 performed in respect of these items through the use of various pieces of technical equipment. Similarly, a Document Examiner studies handwriting, printing, indented writing, alterations, obliterations, inks, papers, check protectors and photocopies for the same purpose. Both types of Examiners ultimately prepare written reports containing their conclusions arising from specific examinations undertaken. It is their further responsibility to attend in court as an expert witness.to defend their findings should such be required i-n a given case. Attached to this Award as Schedule 'A' are the class standards for the Forensic Analyst series. These standards were effective as of February, 1988. They encompass'employees performing tasks at the Forensic Analyst 1, 2, and 3 levels. The Forensic Analyst 1 standard applies to those employees undergoing training in forensic examination and analysis. It also applies to those "positions of junior working level analyst regularly assigned to participate in forensic examination and analysis under close supervis'ion." It is readily apparen't that this case does not involve grievors at the junior working level. Those parts of the class standards relating thereto are, therefore, inapplicable. The Forensic Analyst 2 standard relates to the working level positions of employees carr.ying out forensic examination and analysis. The Forensic Analyst 2 standard is restricted to those working a= a more senior level. As noted earlier, bhis Board is called upon to 'determine whether these 2 grievors were more properly classified as Forensic Analyst ? or Forensic Analyst 2 as at the date of the grievances. A considerable amount of evidence was presented during four (4) days of hearings. Zt is unnecessary to reproduce all of this evidence for purposes of this award. Zndeed, by the conclusion of the proceedings, the parties-seemed to agree that there were few differences between them of'a purely factual nature. The evidence submitted by ~he Union may be summarized as follows: I (i) Ms. Edmondson'and Mr. Sweeney commenced employment at the Centre on December 1, 1986. Mr. Zsherwood started in the month of August, ~985. All were then advised that they would be involved in a'training period of approximately two (2) years. They were also advised that reclassification to the F.A.2 level would be contingent on the successful completion of a ~raining -- program including both general and technical components, The grievors were further informed of the need to complete a research project, of which more will be said below, within this initial period. In this regard, %hey were all provided with a Syllabus which outlined the various subject areas to be covered within the training period. (ii)' Ms. Edmondson and Mr. Sweeney never' formally completed all of the sec%ions in the training Syllabus. Nor were they · given a formal examination as contemplated therein. This failure did not impede their reclassification to ~he F.A.2 level. 3 Indeed, it. is our' assessment that their supervissr, Mr. Finn Nielsen, concluded such was unnecessary given the broad range o¢ duties which they had previously completed. Mr. Zsherwood finished both parts of his understudy training by July, 1986. (iii) All of the grievors were initially subject to close supervision. Ms. Edmondson testified that %his was first provided by Mr. Samuel Barbetta, a F.A.3. She was placed in his office at the commencement of her employment. He would gene;'~ally monitor and review her work on the various cases'assigned. While Ms. Edmondson would prepare the investigative report, the document would ultimately be signed by Mr. Barbetta. He would also testify in court on its contents should expert testimony be needed'. Zn May, 1987, this grievor.was transferred to. the office ef another F.A. 3, Mr, Robert Simpson. This gentleman provided supervision similar to that which had previously been given by Mr. Barbetta. It was the grievor's evidence that she was responsible for her own cases shortly after the transfer. She recollected that Mr. Simpson served as a technical advisor and that he reviewed her. reports f~r "a few months". This type of review ceased in approximately September, 1987 unless she requested same, Ms. Edmondson stated that Mr. Simpson did not review her work in detail after tha~ date although he did remain available to answer any questions she might have. It was her fur%her evidence that, thereafter, Mr. Nielson rev awed her reports for errors in grammar, spelling and ~echnical language much like he did for other F.A.2's and F.A.3's. Mr, Nielsen did not otherwise directly supervise her work, Ms. Edmondson asserted she had total accountabil, ity for her cases as of Becember, 1987 in the sense that she undertook all of the exams, determined the appropriate conclusions, and wrote and'signed the reports. She stated that this level of supervision did not change after she became an F.A.2 in December, 1988. Mr. Sweeney also received close supervision from Mr. Simpson in the period December, 1986 to Nay, 1987. His description 'of the supervjision received was similar to that provided by Ms. Edmondson. It was this 9rievor's evidence.that he was accountable for all of his cases after May, 1987. From that point on, h~ was responsible for the 9reparation and sigh'lng of the reports. Mr. Sweeney conceded that he would still consult with both Mr. Simpson and Mr. 8arbetta, He likened t~i~ to a s~tuation of a discussion between colleagues in contrast to a form of strict supervision. Mr. Sweeney also stated that Mr. Nielsen reviewed his reports. He indicated that the form of the review, which was of an editorial nature, did not change once he Pecame a F.A.2, Mr. Zsherwood received close supervision from Mr. G. de la 'Durantaye, a F.A. 3, from the commencement of his'employment to August, 1986. Zn this period, Mr. de la Durantaye would give him straight forward cases to examine and write up. Mr. Zsherwood's' efforts would then be reviewed by Mr. de la Durantaye. This 5 gentlemsn remained responsib}e for the actual preparation and signing of ~he reports. It was the g¢ievor's evidence that the assignments became progressively more comp]ex. He stated f'urt~er that he assumed accountability for writing and signing reports on a full-time basis in April, 1987. Mr. Zsherwood described the supervision received as o¢ March, 1988 as being general nature. I% was his assessment that i% d~d nob change materially upon %he reclassification to F,A.2, (iv) All of the grievors had tendered expert evidence in court prior to the date of the grievances, Ms. Edmondson twice testified in court in the month of December, 1987. She had also been subpoenaed but was not required %o give evidence on other occasions. The initial two (2) court appearances related to non- complex mat%ers. Ms, 5dmondson described her case load, as of December, 1987, as varied in terms of the degree of complexity. She conceded, however, that the ma3o¢ity of cases were of t~e simp]er variety including those relating to firearms identification, tool marks, and ~e~ial number restoratioa. Nevertheless, she noted that she had been assigned a more complex case in November, 1987. The issue ~n that instance arose from a charge of attempted murder. Her work in respect of same ultimately required her to testify in court in July, 1988. Mr. Sweeney had also testified in court on two (2) occasions as of the date of his grievance. Additionally, he too had been subpoenaed in cases where his testimony subsequently p~oved 6 unnecessary. In his estimation, these cases were of tim~ted complexity. As of the date of his grievance, Mr. Zsherwood had given expert evidence in court on seven (7) occasions. At that juncture, he had received a total of'fourteen (14} subpoenas. He testified that his caseload reflected a wide range of complexity from the very simple to the very complex. It was conceded by ~he Employer in i5s opening statement that "as at the filing of the grievances, the grievors had signed off their own reports and had appeared in court as expert witnesses. (v) All of the grievor's discussed their classification with their supervisqrs in early 1988. in January, 1988 both Edmondson and Mr. Sweeney advised Mr. Nielsen that they'believed they should be reclassified to t~e F.A;2 level. In both instances, Mr. Nielsen indicated that he would "look into" their claim. Shortly thereafter, Ms. Edmondston was informed that she was properly classified. Mr. Nielsen premised this opinion on the training period being two (2) years in duration And on the fact Shat she Bad not completed her research project.' Hr. Sweeney's request for reclassification was also declined for similar reasons, in February, 1988, Mr. Isherwood had an identical discussion with his supervisor, Mr. G.' Dawson. He was told that a research project had to be completed before he would be eligible for reclassification. 14r. Isherwood testified that Mr. Dawson then stated, "Doug, you are doing the job, you should 7 get more money, just get me a research project.", In this regard, we note the followin9 comment found'in Mr. Isherwood's Performance appraisal dated February 9, t988: "Capable Document Examiner who should be promoted ~o Forensic Analyst II when he completes his research project" (exhibit '10', paragraph 9). (vi) The grievors all eventually completed an independent research project. Ms. Edmondson's pro3ec~ was submitted to the Director for approval in December, 1988. It was approved the next month retroactive to December 1, 1988. Ms. Edmondson, as noted above, was reclassified to F.A.2 effective that same date. Mr. Sweeney's project was approved in April, 1989.. He was reclassified to F.A.2 as of April 1, 1989. Lastly, Mr, Isherwood's project'was approved in May, 1989. His reclassification was effective May 1, 198g. Mr. Lucas described the training progham provided at the Centre, He testified ~hat it. has both general and operational.. components. With respect to the former, the'trainees are exposed to areas such as onganization of the government, the court system, history of forensic science, rules of evi'dence and the "art of witnessmanship." With respect to the Tatter, the trainees are assigned readings on technical subjects and are given an opportunity, to assist more experienced analysts with their cases on an understudy :basis. This training also. inc}udes a mock court program. Mr. Lucas stated t~at the program takes approximately ~wo (2) years to complete although he acknowledged that it could take either more or less~time to finish. He noted that the R.C.M.P. and several jurisdictions in the United States of America have similar.programs of the same duration. Mr. Lucas ¢n his evidence al§o sought to distinguish Detween a F.A.1 and F.A.2, In his estimation, F.A.1's do cases "to build up their experience." In contrast, the F,A.2 should be able to perform the responsibilities assigned with little or no supervision. Mr. Luoas expected that an analyst at the second level should be able to attend court on an independent basis to defend their findings. Lastly, he testified that an independent research project had to be completed in order to proceed to F.A.2. It was his judgement that this task was an integral part of the training progr'am. From his perspective, 'an employee who had not completed the ~ssignment would not have satisfied the prerequisites of such program. Mr, Lucas stressed that the project had to be one of , · independent research which would add to the knowledge available in the field. A search or review of existing literature would not meet that expectation. Mr. Nielsen testified that Ms. Edmondeon and Mr, Sweeney were not_reclassified during their second year at the Centre because their projects were then incomplete. He further skated that the train-lng was for a period of two (2) years which he seemed to consider as mandatory. Mr. Nielsen conceded ~hat he would have reclassified Ms, Edmondson earlier had the appropriate mechanism existed to do so. He stated that he would not tqave 9 done so in the case of Mr. Sweeney as he believed'that grievor needed to improve his written skills. Mr. Nielsen expressed the opinion tha~'a F.A.1 in their second year could perform the duties of a F.A,2 except for the more complex and high profile cases, He also testified that a F.A,1 would receive less supervision during their second year. Mr. Dawson was also of the view that the training program was for a two (2) year period and that a research project had to be completed within that time. It was his evidence that a F.A.1 would be assigned simpler cases and would be subject to close supervision. Mr. Dawson stated that the sole reason for Mr, Isherwood remaining at the F,A.1 level as of March,.1988 was. that he had not then completeU the necessary'research project. Counsel in this case elected to file written argument wi~h the @card. Attached hereto as Schedules 'B', 'C' and 'D' are the Submissions of The Union And The Grievors,. the Submissions of,The Employer, and the Reply Submissions of The Union And The --' Grievors, respectively., We appreciate the efforts of counsel in addressing the ca-tested issues in a c~ear and concise manner. The Board agrees with the Union'that reclassification could not be withheld on the ground that a F.A.1 had to complebe two (2) years of training. The current class standards do not make reference ~o a minimum period of training. In this sense, they 10 are unlike the former class standards which did specify that a F.A.1 would undergo training "for a minimum period of 'bwo years." Mr. Lucas recognized that progression to the second level was not dependent on the completion of two (2) years of training. As stated previously, he testified that the training could be concluded in le'ss than two (2) years. To the extent that Mr. Nielsen and Mr. Dawson believed a two (2) year program was mandatory, they were in error. We have not been persuaded th&b the practice in other jurisdictions should be accorded any 'weight in these proceedings. The Board also accepts the submissiUns of the Union found in paragraphs 15 (a),(b), and ¢c) of Schedule 'B' and in paragraphs 5 (a),(b), and (c) o¢ Schedule 'O'. Simply put, we agree that t~e'independent research project requirement is inconsistent with the F.A.1 class standards. In addition to the reasons cited by the Union, we note that "participating in approved research programs to improve existing procedures or develop new ones "is reserved for analysts at the working levels. Similarly, ~he class standards require the F.A,2 and F.A.3 to possess" research skills to participate in developmental work iQ area of speciality." This skill is not demanded of the F.A.1. The Board has been persuaded that the primary, if ~ot sole, reason for the Employer's reluctance to reclassify the grievors at an earlier date was because they had not completed their independent r,esearch projects, %his conclusion flows directly from the evidence of Mr. Lucas, Mr. Nielsen and Mr. Dawson. Each of these witnesses clearly believed that reclassification could not occur until the project had been submitted and approved. The timing of the actual reclassification was consistent with that belief. In each instance, the grievors were reclassified to F.A.2 contemporaneously with the acceptance of their completed project. In view of our finding that the independent research project requirement was inconsistent with the F.A.~ class standards, it is the Board's ultimate jumdgment that the Employer improperly used this criteria in its determination as to when a trainee should be reclassified to'the working level. The Employer, in paragraph 3 of Schedule 'C', agreed that if we should find the grievors were performing the work of a F.A.2 at the time of the grievances, then the non-completion of the research project could not, in and of itself, act as a.bar to their reclassification. The Board accepts that reasoning as, in our judgment, the threshold issue is whether.the 9rievors were performing the tasks of the higher level as of the date of the grievances. After considering all of the evidence, in the context of the present class standards, we conclude %hat the grievors were performing the work of F.A.2's at. the time material to this proceeding. We have reached this conclusion for the following reasons: ~2 (i) It was undisputed that these grievors were accountable for their cases and were responsible for' the provision of expert evidence in court in respect of same. While we accept that exposure to such tasks could serve as a valuable educational methodology, we are satisfied that their performance went well beyond the training objective. Indeed, with some limitpd exception, we think that these grievors were acting at the working level. It is apparent from a reading of page 5 of Schedule 'A' that the F.A.1 classification relates to "employees undergoing training in forensic examination and analysis ..... ". Further, Ohe description of that level states, "These employees are not assigned accountability for casework or provision of expert testimony in courts of law." We interpret this latter restriction as applying to both the trainee ann those at the junior working level. Had that not been the intent, we believe that the restriction would have been clearly limited to those a% the junior working' level. In contrast, the description of the F.A.2 level states, interalia, ~hat it encompasses "employees carrying out forensic exEminatio~s and analyses, in an area (s) of specialization on a variety of cases, prov'iding expert testimony in courts of law ....... ". This d'istinction between structured training and the working level is further reinforced on pages 6 and 7 of the class standards. In the final analysis, the Board has been persuaded that each of %he 9rievors had progressed beyond the F.A.1 level and were. in fact acting as F.A.2'S by the date of the grievances. We were not persuaded ~3 that the nature and content of the tasks assigned to the grievors were s'impler, in a material sense, than those assigned to a F.A.2. Our finding is supported by the evidence o¢ the grievofs that theic assignments did not change significantly upon their reclassification. We also note that the grievors were not actively involved in working through the Tr-aining Syllabus as of March, 1988. Nothing was completed therein after that date. (ii) The Board finds, on the evidence, that the grievors were subject to general, as opposed to close, s~pervision as the date o¢ the grievances. It is clear that each of the trainees did receive close supervision from F.A.3's for varying periods of time 'after they commenced work at the Centre. We are satisfied, however, that this was replaced by more general supervision well before March, 1988. Zn summary, we find that the supervision then received was more in accord with that contemplated by the F.A.2 class standard. Such standard states that, "Work is performed under general supervision, wsth access to more senior analysts for technical advice, as required. For all of the above reasons, the Board finds that Ms. Edmondson, Hr. Sweeney and Mr. Zsherwood were all improperly classified as at March 29', 1988. We order that they be reclassified to Forensic Analysts 2 as of that month. The Board cannot find reason to extend retroactivity beyond the normal twenty (20) day period referred to in article 27.2.1 of the collective agreement. We will remain seized fo'r' purposes of 14 resofvin9 any difficulties which may arise in the implementation of this award, During the course of the hearing, this Board had a tour of the Centre of Forensic 'Sciences. We were most impressed with the professionalism and commitment of all of the staff with whom we came in contact, including al! of the wi%nesses to %he instant dispute. The grievances are accordingly allowed. Dated a% Toronto ,Ontario this t0th day of July ,1990. M.V Wat%~rs, Vice-Chairperson / ~ M. Lyons, Member 15 Schedule 'k' "; ~ C~,d CLASS STANDARDS S~vice COmmission ,' i Cate~ow Group PREAMBLE TECHN2CAL SERVICES TS-06~ SCIENTIFIC SUPr~ORT ,Series Class Code FORENSZC ANALYST 61800 - 04 ANALYST 1-3 The Forensic Allalys~ series covers the york of employees who, within the s~a~a~s for 6ontinui~y of evidence, security and identification estab- lithe4 by the ~Zs, ~es of evidence, the scientific pro~ession and ou~ ~ien~fi~ ~~tion an~+analysis of a wide variety of objects and ~i~s ~ in~e~e~in~ results in order =o 4ete~ine fac~s, es~bl'ish id~=lfi~ion ~ fo~late the'~sis '~or zxpert6~inion. ~ese emina- ~ ~ ~l~s ~cl~e ~ scientific and technical applica=ions (e.g. ~Z~ees at or ~ ~e ~rking level are r~ir~ ~o present sU~rt, ~~et ~ def~d ~e~r findings in a court of law. ~ee~ ~ly ~rfo~ a range of duties associa%ed with one or of ~e foll~ing ar~s of s~cialization: - the ~*w4~Cion and 'analysis of all cy~s of d~nCs, the nature or auto,icily of which is being questioned, including analysis of ~iting, Cy~face, print, ~r and ink; -~e ~~=ion and analysis of all ty~s of firea~s, a~nitions ~ ~nen~s and.~tentially'dangerous ~a~ns and ~ls; - ~e ~ysical ~cching, com~rison and analysis of a wide variety obj,%s, ~%erials or pieces of fra~enc~ articles, of obs~r~ .identifying ~rks such as oblitera=~ serial numbers, or of other ~rks or impressions such as Cite ~rks, through the use of photo ~lysis, chemist~, e=c.; - ~e detection retrieval, examination, identification and classifi- . cation of fingerprints for evidential value; - the recording,-collecCion, examination, analysis, identification and interpretation of scene-of-crime .evidence. Res~nsibilities of ~itions at the working levels (levels 2 and 3} typically include a range of the following: - a~tendinq =rime. scenps.and providin~ advice and expertise to iden=ificaCion and ocher officers in complex cases; -co-ordinating the sequence of examination/analysis with other units; - dete~ining Che nature of the problem ~nd selecting/adapting the appropriate procedure for examination or analysis;  C,vfl " CLASS STANDARDS Comm~$s~n C,~ar~ ., Category Group PR EAMB LE ~ries Class C~e · - examining items including ~_..~an remains, biological materials and physical objects to identi~y and analyze potential evidence, in a~ea of specialization;. - researching, d~veloping and testing examination, restoration, and anaiysis p~ocedures used to decerm/ae facts or esCabZ£sh ide~ci~- cation, in ocder to resolve problems hOC previously encountered; - preparing reports, char=s, diagrams, photographs and documen~ation as required to support findings in court; /. - communicating the findings, £nterpre~ations and s£quiticance of conclusions reached to ~he investigating officer, crmm or ~efense a~orneys as appropriate~ - presenting, supporting and defending findings', interpretations and conclusions-reached, in cour~ under oath, as an expert witness; - participating in approved ~esearch programs ~o improve existin~ procedures or develop new ones; - providing ~raining, advice and guidance ~o other analysts, police, fire and other investigators, coroners, pathologists, judiciary, crown and defense a=~orne¥$, lawyers and law students, on requirements and procedures; -assisting or undergoing training in any o£ ~he above mentioned areas of sPecialization. The following elements are con.ann to all levels of work:' Skills and Knowledge: - knowledge and experience in relevan= ~echnical and scientific disciplines such as physics, chemistry, pho=ography, etc.; - knowledge and unders=anding of con[inuity of evidence, security and iden~ifica[ion, as required by ~he tour=s, rules of evidence ~rofession and laboratoryl oknowledge of =he procedures and precautions for the safe' handling o~ =oxic and hazardous materials~ - analytical skills required [o iden[ify na[ure of problem and to participate in developmental work of the organization, as assigned. ~ ¢'"I CLASS STANOAROS .%ee~ice Commission Category Grou~ PR EAMB LE TEChNICAl. SERVICES TS-06B SCIENTZFIC SUPPORT Series C;ass Code FOI:LE:NSZC ANALYST 61800 - 04 Accountability: -ensuring assigned work meets the criteria of the laboratory, profession, courts and rules of evidence; The following elements are common to both working and senior working Skills and Knowledge: - kno~l~ge and skills related to a part£cular area(s) of speciality, such as firearms and tool marks exam/nation, document examination, p~oto analysis, fingerprint examination; general familiarity with other fields of specialization in forensic science, including rela~ed methods and techniques; - demonstrated competency in the presentation and defense of expert 'testimony in a court of law; - analytical skills required to identify the nature of the problem, interpet the significance of findings in specific cases, and formulate the basis for expert opinion evidence; - research skills to participate in developmental work in area of Judgement: - judgement is exercised in identifying the nature of the problem and selecting an appropriate a~proach to solution, in determining, evaluating and interpreting facts, and/or establishing identifica- tion, in presenting, supporting and defending examination findings and interpretations in court, and in handling media queries following court proceedings. Accountability: - individual accountability for assigned Cases and for ensuring that casework and results meet the criteria of the laboratory, profession coqrts and rules of evidence; -for presentation and defense of evidence as recognized expert witnesses in a court of law; - for development of credibility as an expert witness and representa- tive of the laboratory, demonstrating accuracy and acceptability of analytical ~valuations and interpretations; ( C,,,,~ CLASS STANDARDS Comm~5$~on Category Group PREAMBLE TECHNIC~ $~VICES TS-O6B SCIE~ZFIC SUP~RT ~ri~ - Class Code FORENSIC ANALYST 61~0 - 0a . Accountability: - errors could result in ~he misdirec~i~ of ei~e~ ~Zi~ sys~. e.g. ~s~rria~e of j~=ice, as ~11 as ~oss ~ of ~ ~e ~ividual ~d the ore,om. OR a~lysis assis=~ce to ~re o~or ~~ ~ ac ~ ~ a sup~ a deled findings a~ in~e~re~ions of r~ts in court as an ~rt wit~ess. Allocation Criteria: Allo=ation of ~sitions in this series, is ~s~ ~ ~si~.ti~ ~f the roll,lng eriteria: al g~plexity of ~rk - includes ~pi~ity ~d v~iety of cas~rk re~larly assi~; avail~ility of prec~ents, acce~ ~ide- lines and 9roc~ures for reference/~e; ~ ~tent ~o ~i~ adjus~ents or deveIo~ent of proc~ures are r~ir~; .s~ for initiative and degree of su~ision; nature of ~evel~nt and research assig~ents. b) Accountability - includes extent of accountability for: casework and findingsl research and develo~nt assig~nts; group leadership/technical training ahd guidance; training of professionals outside the organization; the im~ct of errors. Levels: There are three levels of work within the series: Forensic Analyst ! .~mi%i~ o~loyees ua~e~goi~ training in forensic ~nation assigned to participate in forensic examination and analysis under close supervision. These employees are not assigned accountability for casework or provision of ex~ert testimony in cour%$ of law. Fore,sic Analyst l .. working level positions of employees carrying out forensi~ examYna- tions and analyses, in an area(s) of specialization on a variety' of cases, providin'g expert %e~ti~ony in courts of law, pa'r%iciI~ating or assisting ~n assigned research projects, and providing %echnLcal assis%ance ~o tralnee analysts as required. ?crens~c._Anaiyst ~ ' .... Senior working !evel positions of employees carry, lng our forensic examinations and analyses in an area(s; of s.oecialIzatiom and regularly responsible ~or complex cases and a wide variety of casework, providing expert testimony in courts of law, undertaking inda?enden5 r'asearch assignments, and providing group leadership or 'z~sbn!sal guidance tc trainee/working level analys%s. ~ Ci~l . CLASS STANDARDS Service Comm~flion Category Group ~NI~ SERVICES TS-06B SCIENTIFIC SUPPORT Class Code a) This level covers Positions of enployees who are undergoing s~uccured ~a~ntr~ in forensic e~Aminaciofl and a~lysis to a~re s~lls ~ ~l~ge in a s~ializ~ area of forensic sct~ce, d~~ate ~ence for ~es~inq a~ defendin~ ~ses la ~ ~ ga~ ~sic~lf~ca~ions for recognition as ~ ~ wi[ness in a ~ of law; b) ~s Level ~rs ~it~o~ of ~loyees who, ~der close Su~isi~ of ~re s~io= a~lys~s, assis~ in ~he examina[ion ~ ~lysis. ~ foXl~n~ criteria appXy: - ~l~ees car~ ou~ ~s~s of limt[~ ~= grad~lly increasing ~[exi~y, r~iring accura~ and a[=ention to de,ail, and ~=~o~ ~er close su~lsion~ - [here is 1~ o~~lty for initla[ive as procedures are ~u~inely us~ ~ ~ll~efin~, adJus~n~s/~ifica=ions are no~ usually =~uir~ a~ ~he ~=k is review~ for accuracy and adherence [o es~blish~ ~idelines. Accoun~abili[y: - employee~ are.in~olv~ in research p=ojec=s as assis=ants to ~re senior analys~s and, as such, are r~uired ~o carry defin~ ~asks, e.g. ob~ining [echnical data from journels~ - employees a~ ~his level are no[ r~uir~ to provide =echnicai or group leade=shi~ co o[her analys[s; - ~he im~ct of errors is mini~l because work is c~ose/y su~rvised,.ins=~c[io~s are provided, procedures used are ~ell-doc~e~[~, and ~rk is of limited complexi[y. ~ C,,,,~ CLASS STANDAROS Ser~¢~ Category GrouD TECHNTCAL SE.~VICE$ T$-O6B SCIENTIFZC SUPPORT Series CJass Code FORIiNSZC M~ALYST 61802 FORENSZC ANALYST 2 This level c~vers positions of u~rking level analysts who 'carry out forensic ex~m'~na=ions and analyses in an area(s) of specialization on a variety of cases and who are fully accountable for~=egularly providing of law, support/ng and. defending opinions and conclusions. Work is performed under general sul~e=visioa, with access to more senior analysts for technicalladvice, as required. - employees work on =ases, w~ere a~=ep~ed guidelines/methods for use in ~mina=lon arid analysis are available. While the analyses ~b_-~,elves. often require considerable skills, knowledge and experience, the work processes usua11~ require relatively minor adjustments to su/t Sl~cif£c circumstances7 - initiative and judgement is exercised in determining and. assessing the nature of the problem, selecting the most appropriate procedures for specific kinds of examinations and analyses, and making minor adaptations or amendments to suit circumstances of case, condition or specimen. Accountability: - employees are accountabZe for a variety of routine casework, presenting' supporting and defending findings'as an expert wi=ness in court, and for gradual development 'of credibi[ity as an ex~ert witnessi - employees are required to participate in the development of new or revised procedures and,.as such, are accountable for field testing/evaluation .and reporting of results for these procedures, and may assist senior analysts in developmental research work; - employees at this level are required to provide technical assistance and guidance to less experienced staff, as required; - ~he impact of errors at this level can be significant~ errors in meeting case requirements or criteria for concinuity and security of evidence in presenting the findings, interpreting their significance and supporting and defending the conclusions, could resu[t in a misdirection of the investipation or the court, with potential miscarriage of justice and loss of credibility zn the organizatioo and in the individuaL.  Ov, l '" CLASS STANDARDS ; ,S~rv,ce C~mmt$$,on Cat~o~ Group TECHNIC~ SERVICES TS-06 SCIENTIFIC SUPPORT --- ~ries Class Code FO~NSIC ~A~YST 6 ~ FORENSIC ANALYST 3 This level covers'positions of senior working level analysts responsible for a full range of casework in an area(s) of specialization, who regularly carry out forensic examinations and analyses in complex cases, ~rovide expert testimony in a court of law, independently undertake or direct research and developmental assignments, and provide either group leadership o__r ~raining/technical guidance to less experienced analysts. 't Employees at this level work under general supervision; they are recognize4 as having a complete technical understanding of and full competence in their area(s) of s~cialization, and are expected to · ain~ain this expertise through study .and research. Work Complexity: - work involves.the application of accumulated skills and know- ledge, u~derstanding and experience in an area(s) of speciality, since assignments are often complex, lack precedents and guidelines,.and involve the develojxaent of new procedures or'major revision of existing procedures to resolve complicated problems; - considerable initiative and judgement is used in determining the nature of the ~roblem in complex cases, in applying general g~idelines and principles to determine the need for amending procedures or developing new procedures, and in evaluating their suitability in order to satisfy the requirements of legal proof, professional and laboratory standards. Accountability= - employees are accountable for a wide variety of casework including regularly assigned complex and sometimes controversial cases, presenting, supporting and defending findings and conclusions ~n court as an expert witness; - employees are required to independently conduct research projects in their area(s) of specialization and are accountable for the development of new methods of examination and analysis, the evalu- ation of the reliability of-these methods, and for undertaking research to enhance knowledge of their field of specialization; - employees at this level are accountable for providing group leadership and/or technical training to less experienced staff, and for advising them on the use of suitable analytical metho~!~ and the presentation/defense of expert evidence In court ; ( ~ Or,; ~ CLASS STANOAROS ~mgo~ Group ( TECHNIC~ SERVICES TS-06 SCIENTIFI'C SUP~RT ~HeS C~ass Code ~NS~C ANALYST 6~0~ Accountability: - con:inved - as senior analysts, employees may supervise the technical wor~ of analysts assigned tO asSiSt vit. h research projects; -- e~ployees are accountable for providing training and expertise to police, crown ami defense attorneys, lawyers and law students. c~ronera, patbolo~ia~s, ~ciary, fire and o~her investiga~ors, on requirements proCedures and the capabilities of laboratories and staff; ~hey may par~i¢tpate in established training pro, rams for same; ..~ - emp~oyeea are a~ao &¢coua~ble for providing expertise and ad~ice, as required, to senior minis~-'7 maaag~n~ and o~her ministry officials, in carrying ouz developmental projects and .associated problems; ,- ~he iml~c~ of errors at. ~his level ca~ be substantial; in addition to the consequences ou.~lined at ~he w~rking level, errors in developing and evaluating ne~ techniques or procedures could result in the perpetua=ion of erroneous/misleading data until ' errors are discovered. Sche,aule '3' G.S.B. File No. 183/88 oPSEU File Nos.. 88A958, 88A959 88A960 IN THE MATTER OF A GRIEVANCE Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTI25MENT BOARD Between: OPSEU (Edmondson) Grievor - and - The Crown in the Right of Ontario (The Ministry of the Solicitor General) Employer - and - IN TH~ MATTER OF A GRIEVANCE 'Between: OPSEU (Isherwood) Grievor - and - The Crown in the Right of Ontario (The Ministry of the Solicitor GenerAl) Employer - and - IN THE MATTER OF A GRIEVANCE Between: OPSEU (Sweeney) Grievor - and - The Crown in the Right of Ontario (The. Ministry of the Solicitor General) Employer SUBMISSIONS OF THE UNION AND THE GRIEVORS 1. On March 29, 1988 when these grievances were filed, the grievors were employed by the Ministry as follows: a) Edmondson - Postion: Firearms and Toolmark Examiner Trainee Classification: Forensic Analyst I (FA I) b) Sweeney - Position: Firearms and Toolmark Examiner Trainee Classification: FA I c) Isherwood - Position: Document Examiner Trainee Classification: FA I 2. Subsequent to the filing of these grievances; all three of the gri~vors were reclassified as follows: a) December 1, 1988 - Edmondson was reclassified to FA II; Positon: Firearms and Toolmark Examiner b) April 1, 1989 - Sweeney was reclassified to FA II; Position: Firearms and Toolmark Examiner ¢) May 1, 1989 - Isherwood was reclassified to FA II; position: Document Examiner 3. In the Ministry's Statement Of Facts and opening statement to the Board, it took the position that the grievors were properly classified as FA I's on March 29, 1988 (the date of the grievance) and not FA II's because they weren't doing the work of a FA II. In particular, the Ministry took the position that the grievors were still "in training", that they were closely supervised, and that'the failure of the Ministry to reclassify them to FA II was. not simply based on the grievors' lack of completion of an independent "research project". 4. It is respectfully submitted that this position is contrary to the evidence, even the evidence of the Ministry's own witnesses. The evidence makes clear that the grievors were not reclassified because they ha4 not completed an independent research project. This submission is more fully developed in paragraphs 6 - 14 .below. 5. With respect to the Ministry's reliance on the lack of completion of an independent research project, it is respectfully submitted that this stipulation is not provided for in the relevant class standard (FA II) and therefore is not relevant to the determination of the grievors' appropriate classification. This submission is more fully developed in paragraphs 15 and 16 beIow. ~' A. ROSEMARY EDMONDSON 6. It is respectfully submitted that with respect to Rosemary Edmondson, the evidence is uncontradicted that, as of the date of the grievance: a) she had completed all of the training syllabus that she ever completed up to the date of hearing~ b) she had assumed "total accountability" for all of her own cases (by September 1987); c) she had appeared as an expert witness in court on at least two occasions and had been subpoenaed but not been required to give evidence on other occasions; d) she operated under a .level of supervision (if any) that did not change when the Ministry finally decided to reclassify her in December 1988 and had not changed as of the date of hearing; e) .she had not completed her independent research project. The project was completed in November 1988 and approved_in January.of_.1989_~etroactive.~o-December. I, .... 1988, the same date on which she received her reclassification to FA II. 7. Further, the evidence was uncontradicted that the research project which Ms. Edmondson completed and was euentually approved was a totally independent project of origina~ research. 8. Mr. Finn Nielsen, Ms. Edmondson's supervisor, acknowledged in testimony that the only reasons Ms. Edmondson was not reclassified in January of 1988 was because (a) she had not completed her independent research project and (b) had not finished a full two years in the position of FA I. It is to be noted that there is no stipulation in the class standards'that a FA I complete two years of training before classification to FA ~I so the second reason put forward by Mr. Neilson is clearly irrelevant. ~In any event, Mr. Neilson did not maintain that Ms. Edmondson's work was too closely supervised to constitute' the work of an FA II, or that in any other way she'did not perform all of the functions of an FA ii. B. PAUL SWEENEY 9. .With respect to the grievance of Mr. Sweeney, the evidence is uncontradicted that as of the'date of the grievance: a) he had completed all of the training syllabus that he ever completed up to the date. of hearing; b) he had assumed full accountability for his cases; c) he had provided expert testimony in court on at least two occasions and had been subpoenaed to provide that testimony on other occasions; d) he was operating under a level of supervision that was the same as the level of supervision under which he was operating at the time he gave evidence (at which time he had been reclassified as an FA II); he had not completed his independent research project. This project was completed in the spring of 1989 and approved retroactive to April 1, 1989 the same day as his reclassification to FA II. The project was done independently and involved original research. 10. Mr. Neilson testified that Mr. Sweeney was'not reclassified in January 1988 because (and only because) (a) he had not finished the training syllabus and (b) had not completed his independent research project. However, it is to be noted that Mr. Sweeney d~d.~n0~ .complete anything ~rther. on the training~ syllabus between January 1988 and April 1, 1989 (the date of T reclassification to FA II). C. DOUG IS~ERWOOD 11. With respect to Mr. Isherwood, the evidence is uncontradicted that as of the date of the grievance: a) he had completed all of the training.syllabus (by June or July of 1986); b) he had assumed full accountability for all of his reports (by April 1987); c) he worked on cases of wide-ranging complexity - the same mix of cases as he worked on the date of giving testimony. d) he had appeared in court as an expert witness and had given evidence seven times a~d had been subpoenaed to give expert evidence on various other occasions; he operated under "general supervision", the same level' of supervision under which he operated at the time of giving evidence. f) he had not completed his research project. This project was finally approved retroactive' to May l, 1989, the same day on which he was reclassified to FA II. 12. Mr. Dawson, Mr. Isherwood's supervisor, testified that in February of 1988 (one month before filing the grievance) he told Mr. Isherwood that the reason he was not yet an FA II was: "you are doing the job now, just get me a research project". Again, Mr. Isherwood's own supervisor did not suggest that Mr. Isherwood was otherwise still "in training", that he was too closely supervised to perform the work of an FA II, or that he was otherwise not performing the work of an'FA II. 13.. In summary, the evidence of the grievors' supervisors makes clear that the only reason the grievors were not reclassified as of the date of filing their grievances was because they had not completed their independent research projects. 14. Mr. Lucas, who also test'ified on behalf of the Ministry, conceded that the training period that is contemplated for the employee who occupies the position cf FA I can take less than two years (as indeed the class standards themselves make clear) and that "whatever else an employee may be doing, if they haven't completed a research project, then they are not eligible for reclassification to FA II". Mr. Lucas further confirmed that the nature of the research project contemplated for promotion for reclassification' to FA II is an independent research project, i.e. that merely assisting or participating in a research project is insufficient, ~nd that a literature search or the obtaining of technical datas from journals is insufficient to meet the requirement. In short, the research, has to be bo~h original and independent. D. THE "INDEPENDENT RESEARCH PROJECT" REOUIREMENT 15. It is respectfully submitted that the Ministry's insistence that the grievors complete an independent research project prior to reclassification to FA II is contrary to the language of the class standards in that: (a) the class standards at page 6 makes clear that FA I employees "are involved in research projects as assistants ~to more senior analysts and, as such, are required to carry out the fine task, e.g., obtaining technical data from journals." The evidence of the Ministry's own witnesses was that the nature of the research undertaken by all of the grievors while they were still classified as FA I was very different than the .involvement in research projects contemplated by this language; (b) even the class standard for FA II does not suggest that employees classified at this level be involved in independent/original research projects. Rather, page 7 states that FA II's "may assist senior analysts in developmental research work;" (¢) only the class standard with respect to Forensic Analyst III stipulates that employees are required to conduct independent research. Page 6 of the class standards defines FA .III employees as "required to independently conduct research projects in their areas' of specialization." Simply stated, the Ministry's reclassification from FA II arguably transforms the grievors not.into FA II's, but FA III's. 16, In light of the Ministry's acknowledgement that the reason the grievors were not reclassified was because of their failure to complete an independent research project, the Ministry's contentions in its opening statement and Statement of Facts that the grievers were not performing the Job of FA IIs is without any evidenciary basis. In other words, the evidence strongly supports the Union's position that the grievors were all performing the job of an FA II as of the date of their grievances and the only reason they were not reclassified to FA II was because of the independent research project requirement, a requirement that is 'inconsistent with the class standards. All of which is respectfully submitted, Linda R. Rothst~in ¢oun~l ~or tho Union Sche~lule 'C' G.S.B. File No. 183/88 OPSEU File Nos. 88A958, 88A959, 88A960 IN THEMATTEROF A GRIEVANCE Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTT.RMENTBOARD Between: OPSEU (Edmondson) Grievor - and - THE CROWN IN THE RIGHT OF ONTARIO (The Ministry of the Solicitor General) Employer - and - IN THE MATTER OF A GRIEVANCE Between: OPSEU (Isherwood) Grievor - and - THE CROWN IN THE RIGHT OF ONTARIO (The. Ministry of the Solicitor General) Employer - and - IN THE MATTER OF A GRIEVANCE Between: OPSEU (Sweeney) Grievor - and - THE CROWN IN THE RIGHT OF ONTARIO (The Ministry of the Solicitor General) Employer SUBMISSIONS OF THE EMPLOYER 1. The Employer accepts as correct the summary of the grievors' work history as set out in paragraphs 1 and 2 of the Union submissions. 2. The Employer contends, however, that as of the date of the grievances'(March 29, 1988) the grievors were properly classified as Forensic Analysts I. The thrust of the Union argument focuses on the contention that the research project was the only condition precedent which remained to be satisfied at that time and in all materiaT respects the grievors were performing the work of Forensic Analysts II. 3. Should the Board find'that this is the case then the Employer agrees that th~ non-completion of the research project cannot, in and of itself, act as a bar to the re-classification of the grievors. 4. .The Employer, however, respectfully submits that the grievors were engaged in a training process contemplated by the Class Standards and the requirement of a research project is only indicative of the grievors' involvement in that training process. As such the Employer was treating the ~esearch project as part of a means to an end and not an end in itself. To the extent that the objective measure of.a completed research project acted as a threshold for'a subjective determination as to when the grievor~ should be re-classified upwards we would argue that such. a process is appropriate and reasonable in all the circumstances. 5. Turning to the applicable Class Standards, as set out at Tab 5 of Exhibit I, we note that the first two pages of the Class Standard Set out some standard duties and elements common to all three levels of the Forensic Analyst series (training, working and senior working). This indicates that there is a continuum or learning curve through which the A~alysts progress. 6. At page 4 of Tab 5 there is a note respecting Forensic Analysts I which'delineates the level of accountability applicable to such employees. It is the Employer's submission that the grievors fall within the first description set out therein, ie. employees acquiring skills and knowledge and developing and demonstrating judgment. 7. Similarly at page 5 of Tab 6 we would submit .that the grievors fall within the first category of Forensic Analyst I set out therein, ie. employees undergoing training in forensic examination and analysis. 8. Similarly at page 6 of Tab 5 we would submit~ that the grievors fall within the description designated as (a). 9. What each of these references to Forensic Analyst I in · the Class Standard make clear is that such employees will be un'dergoing training, demonstrating competence and gaining basic recognition as experts in the courts. The tasks that these employees perform may be identical to the tasks performed by a Forensic Analyst II but the level at which they work will be different. 10. Making a determination as to which classification a.n employee will fall is, of necessity, a subjective decision-making process and it is not surprising that the grievors may' have viewed their work as placing them in a higher classification. 11. Notwithstanding their subjective opinion of their level of work it is the EmDloyer's position that they were properly classified at the time of the grievance. In that regard we invite the Board to review the evidence of the' Employer's witnesses. It is submitted that the evidence discloses that the content and nature of the tasks assigned to'an Analyst I are simpler than those assigned to an Analyst II and that this is consistent with the purpose of the assignment, which is to allow the Analyst I to build his/her knowledge to a working level. In this regard Mr. Lucas' evidence was most clear. 12. It is clear upon a review of Lucas' evidence that a period of two years-was seen as normal prior to the upward reclassification of Forensic Analysts I. It is admitted that such a re-classification may occur at an earlier point (or, conversely, a later point), however, the two year training period is a norm. This.is consistent with other jurisdictions as described by Lucas. As well, it is consistent with the previous Class Standard set out at the second page of Tab 4 in Exhibit 1. While the previous- Class Standard is not the operative'one for this grievance it is corrobora%ive of the Employer's argument on this point. 13. Finally, we note that ~here is no other program from Which the Employer can obtain its employees and it must train suitable candidates from scratch both in the area of the tasks which will be performed and in the presentation of evidence and findings before the courts. It is submitted that on a simple common-sense basis that an approximate two-year training period is a reasonable time-frame. As well, this has always been the Employer's practice as stated in the evidence of all the Employer's witnesses. 14. With respect to the duties and responsibilities of the grievors themselves we would submit that the following common elements were disclosed through the evidence: a) the tasks assigned to the grievors were simpler than those routinely assigned to Forensic Analysts II; b) .the Court cases in which the grievous testified were essentially simple cases; c) the level of supervision given to the grievors was greater than that given to Forensic Analysts II in that their reports were more closely reviewed and monitored; and d) the grievors had not completed their research projects at the time of the grievancel 15. With respect to Section "D" of the union argument and, specifically, paragraph 15(a) it is the Employer's argument that the grievors did not fit within section b) of the Forensic Analyst I description at page 6 of Tab 5 of Exhibit 1. Rather, as previously stated, we would submit that the grievors fall within the description in paragraph a) on that page. It will be noted that in that seCtion there is n__o reference to any research project. We would simply state that suCh a requirement, is completely consistent with the purpose of the training period and as such is reasonable. -- 7 -- 16. Accordingly, we would ask that this Board find that the griev0rs were properly classified as at the date of the grievance by Virtue of the duties and responsibilities being performed by them at that time. We note that much post-grievance'evidence was admitted with weight to be given to it at the Board's discretion. We would ask that this evidence be given little weight. It would appear that what "triggered" the grievance was the fact that as of the date of the grievance the grievors had given expert evidence in a court of law. We would submit that this is not evidence tha~ they were acting as Forensic Analysts II but that such testimony was part of the training process. 17o If at some later date the grievors performed duties at the higher level of Forensic Analyst II and were at that point disentitled by virtue of the non-completion of research projects then that is another matter but is not the subject of this grievance. 18. For all the foregoing we would ask that the grievances be dismissed. ALL OF WHICH IS RESPECTFULLY SUBMITTEU Sche~J. ule 'D' ~ G.S.B. File No. 183/88 0PSEU File Nos, 88A958, 88A959, 88A960 IN THE MATTER OF A GRIEVANCE Under THE CROWN EKPLOYEES COLLECTIVE BARGAINING ACT Before Between: OPSEU (Edmondson) Grievor - and - The Crown in the Right of Ontario (The Ministry of the Solicitor General) Employer - and - IN THE MATTER OF A GRIEVANCE Between: OPSEU (Isherwood) Grievor - and - The Crown in the Right of Ontario (The Ministry of the SoliCitor General) Employer - and - IN THE MATTER OF A GRIEVANCE Between: OPSEU (Sweeney) Grievor - and - The Crown in the Right of Ontario (The' Ministry of the Solicitor General) Employer - 2 - REPLY SUBMISSIONS OF THE UNION AND THE GRIEVORS 1. 'The Employer's primary position, as set out in paragraphs 4, 6, 7, and 8 of it5 Submissions, is that the grievors were still undergoing trai~ing as of Marc~ 1988 (the date of the grievances). The Employer contends that the 'grievors are properly classified as Forensic Analyst I's (Group a) (page 6 of Tab 5), i.e., that they were "undergoing structured training in forensic examination and analysis" (emphasis added). 2. It is submitted that apart, from the evidence of Mr. Lucas that the research project was part of a Forensic Analyst I's training, there is no ~¥~ence before the Board to support this contention. Indeed, there is considerable evidence to the contrary, namely: the evidence of the grievors that by March 1988, all of them had long. since completed the training syllabus which had been outlined for them, at least to the extent that it was ever and has ever been completed. This evidence was uncontradicted. b) the evidence, of the grievors that the content and nature of their assignments did not change when they were reclassified to Forensic Analyst II's, i.e. that - 3 - their assignments were no less demanding in March of 1988 than they were when the Ministry finally reclassified them to FA II's. It is to be noted that the Employer's suggestion that the nature and content of the tasks assigned to a Forensic Analyst I are simpler than those assigned to a Forensic Analyst II (see paragraphs 11 and. 14 (a) of the Employer's submissions) and the evidence of Mr. Lucas to this effect does not contradict the grievors' evidence on this point. Mr. Lucas testified only as to what was generally the case but he did not suggest that this general princiDle actually'applied to the grievors as of March 1988. It was clear from Mr. Lucas' testimony that he had no knowledge of what the grievors were actually doing in March 1988. c) the evidence of the grievors was that they were given no greater supervision when they became Forensic AnalySt II's than that which they were receiving in March of 1988. On the issue of supervision, it is to be noted that the Forensic Analyst I class standard provides for "close supervision" (see page 6, Tab 5) while the Forensic Analyst II class standard provides for "general supervision with access to more senior analysts for technical advice as required" (see page 7, - 4 - Tab 5). The grievors differed slightly as to whether the level of supervision which they received in March of 1988 should be characterized as "general" or "minimal" but in any event they denied they' were closely supervised. Further, none of the Employer's witnesses suggested that the' grievors were receiving close supervision in March 1988. 3. Secondly, the Employer relies (in paragraphs 12 and 13) on the "norm" of a two-year training period in support of its' · contention that the. grievors were properly classified. It is respectfully submitted that this factor is irrelevant to the disposition of these grievances in that: a) the class standards were specifically amended to remove the two-year period as a prerequisite to reclassification. Since the previous class standard is no longer operative, it 'cannot 'be corroborative of the Employer's argument on this point as the Employer contends in paragraph 12 of its Submissions. b) the appropriate classification can only be determined by what the grievors had been doing as of the date of the grievances and not by how long they'd been employed by. the Centre of Forensic Sciences; c) the practice in other jurisdictions cannot be relevant to the determination of the grievors' appropriate classification and there is simply no jurisprudence to support such a proposition. 4. With respect to the Employer's contention in paragraphs 4, 10 and 11 of its Submissions that the classification of the grievors as Forensic Analyst I's can be justified as "subjective decision making" and that determination of' appropriate classification is necessarily "subjective", the Union submits that this flies in the face of classification principles as elucidated in all of the Board's jurisprudence. Neither the grievors' nor Employer's subjective opinion of the appropriate classification is relevant. The only relevant matters are what the grievors actually do, the language- of the class standards and, in appropriate cases, the Employer's practice. While it is clear that the Employer's position that a research project is required is consistent with its subjective view of what constitutes a Forensic Analyst ~II, this in no way justifies its decision. The requirement for an independent research project .either is or is not required by the class standard. If it is not, the Employer's "subjective" belief in its importance is - 6 - irrelevant. 5. With respect to the Employer's submissions in paragraphs 4 and 15 that the research project requirement should be seen simply as part of the training process, it is to be emphasized that the nature of the' research project demanded by the Employer in this case goes beyond the kind of research .contemplated even by the. Forensic Analyst II class standard (which states that the FA II "may assist ~enior analysts in developmental research work" (page 7, Tab 5). And~ it is entirely inconsistent with the language of the Forensic Analyst I standard in that: a) the independent original research work demanded of the grievors cannot be seen as a "task of limitgd but gradually increasing complexity"; b) it was not performed under "close supervision"; c) it was not a project in which there was "limited opportunity for initiative" (emphasis added) 6. Finally, it is submitted that in many respects the FA I cl'ass standard' is entirely inconsistent with the uncontradicted evidence of the grievors' responsibilities in March 1988. The FA - 7 - i class standard (see page 5, Tab 5) states "these employees are not assigned accountability for casework or provision of expert testimony in courts of law." The evidence makes clear thatLthe grievors had all been assigned full accountability for casework and the provision of expert testimony in courts of law as of the date of the grievances. Ail of which is respectfully submitted,