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HomeMy WebLinkAbout1988-0146.Duff.92-02-11 GRIEVANCE C,OMMiSSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS RuE DUNDAS OUEST, B~EAU 2100, TORONTO ~ONTA~IO], MSG 1Z8 FACSIM~LE/TEL~COP~ : (4 t6~ 326- 146/88 IN THE I~,TTER OF Under THE CROWN EMPLOYEES COLLECTIVE B~RGAIN[NG ACT Before THE GRIEVANCE SETTLEMENT BETWEEN OPSEU (Duff) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE: J. McCamus Vice-Chairperson M. Lyons' Member D. Daugharty Member FOR THE R. Wells GRiEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE P. Pasieka EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING June 15, 1989 1 This is-a classification grievance. The Grievor is employed as a Parks Operations Assistant at the sPringwater Provincial Park. The Grievor's principal responsibilities relate to the care and m~aintenance of a substantial variety of wildlife in a wildlife compound at the Park. The position is classified as a Resource Technician 1 (RTl). The Grievor seeks reclassification at the level of Resource Technician 2 (RT2). At the time of the hearing, the Grievor had been working at the Springwater Park for about 5 1/2 years. Prior to that, he had spent 12 years engaged in somewhat similar work at the Wildlife Compound, a separate facility which maintained for display purposes something in the order of 80 to 100 animals. In 1983, the Wildlife Compound and the Springwater Park wildlife exhibits were amalgamated so as to avoid duplication. In the Park compound, there are approximately a 140 to a 150 animals maintained in cages of various kinds. While working at the Wildlife Compound, the Grievor had been initially employed as a casual labourer and was in due course appointed as a full-time labourer. The Class Definition of Manual Worker (Exhibit 7) provides, in part, as follows: "MANUAL WORKER CLASS DEFINITION: Employees in positions in this class perform a variety of unskilled manual tasks assisting technicians, tradesmen, maintenance, agricultural, highway or forestry workers in routine assignments. In most positions, their duties involve considerable physical effort and are 2 closely supervised. In some positions their tasks are so repetitive as to receive only general' review. In others, they may be training positions for more technical duties. The duties of these positions and their immediate supervision are indicative of the work areas in,which they are performed:- In some positions, in-a maintenance areal these employees shovel and spread coal and operate a conveyor; collect and burn garbage and refuse and~clean and service an incinerator; remove waste at a sewage pumping station and clean water tanks; clean combustion chambers and tubes in a boiler'room; remove paint or wallpaper and wash and prepare walls for painting. In other positions, in a forestry or landscaping area, these employees assist in weeding, hoeing, transplanting, packing and shipping young trees; butting brush and firewood, trimming t~ees and clearing underbrush. They may be required to service park comfort stations or. occasionally operate a truck or tractor to clear snow or underbrush or pick up and deliver freight. _In other positions in an agricultural area, these employees, plant, cultivate and maintain flower gardens, lawns and hedges; feed and tend animals and poultry; clean cages, barns and equipment; load and deliver milk, food supplies, farm produce, etc. In other positions, in a highway maintenance area, these employees dig ditches, clear culverts, shovel snow, sand, gravel, hot and cold bituminous mixes; .... OUALIFICATIONS: 1. Elementary school education. 2. Some working experience with labouring tools. 3. Ability to follow simple instructions; willingness to co-operate; good physical condition. 4. When operating Department of Highway's equipment must possess current Chauffeur's license and pass Departmen~ operational and safety tests. At the Wildlife Compound, the staff consisted of a Curator, 3 Assistant Curator, one full-time labourer and a casual labourer. Almost no evidence was led in the present proceeding with respect to the responsibilities of the Curator or the Assistant Curator at the Wildlife Compound or of the reporting relationship of either one or both of those individuals with the Grievor. When the Grievor moved to the Springwater Provincial Park in 1983, at least two significant changes in his employment situation occurred. First, the Grievor was reclassified as a Resource Technician 1. Secondly, the staff at Springwater consisted of the Superintendent, himself, and some casual employees and students. Three casual employees work at the Park, one who works on an eleven month per year basis and two so-called "summer men". Although, again, little or no evidence was led with respect .to the roles performed 'by the Curator and the Assistant Curator in the Wildlife Compound, one change in the relationship of the Grievor to his immediate supervisor resulting from the move to Springwater was noted by the Grievor in his evidence. The Grievor testified that with respect to some matters relating to the care and feeding'of animals, such as switching animals from one food to another, decisions that were normally taken by the' Curator or Assistant Curator at the Compound might be taken by himself~ in the absence of the superintendent, at the Springwater Park. The extent to which the Grievor exercises independent decision making powers in 'his role at the Park is,.however, a matter to which we must return. 4 It is accepted by the parties that the Position Specification for the Grievor's currentposition (Exhibit 2) provides an accurate account of his duties and related tasks. That Position specification pro~ides, in part, as follows: "2. Purpose of position (why doeSthis position exist?) To assist the Superintendent of Springwater Provincial Park in the efficient operation of the wildlife exhibits and wildlife compound at Springwater Provincial Park. 3. Duties and related tasks (what is employee required to do, how and why? Indicate percentage of time spent on each duty) 1. Assists the Park Superintendent by performing such duties as: - preparing fees for a wide variety of captive birds, wildlife and fish; feeding at regular intervals. - cleaning and disinfecting cages, buildings, animal runways to standards acceptable to Federal Department of Agriculture inspectors. - inspecting and maintaining wildlife exhibits and cages for security, predator and disease control and to control rodents. Some application of approved pesticides involved. - ensuring that all staff conform to provisions in the Occupational Health and Safety Act and the Regulations and all other pertinent safety legislation, regulations, rules and policies - maintaining a schedule of vaccinations, veterinary treatments and other basic information on wildlife, waterfowl and.birds of prey. - treating sick o~ injured wildlife, waterfowl 70% or birds of prey as directed by a veterinarian. Also considers whether or not the animal should be euthanized. - in the absence of the Superintendent, accepting or rejecting wildlife brought to the park by the public. When animals are accepted, ensure that quarantine measures are implemented. - preparing feed .formulas and animals for shipment to various exhibits across Ontario, delivery of animals, to various shows or 5 exhibits. - ensuring that feed and supplies for animals are available by placing orders through the purchasing officer and making pick-ups. - receiving various species of wildlife, waterfowl and birds of prey brought to the park. - transferring animals to different cages or enclosures in the park. 2. Assist in uarious park maintenance function~~ by: - cleaning washrooms, collecting refuse, testing for trace chlorine in potable water, placement of fee deposit boxes at the park entrance gate. - maintaining roads and parking lots, snow removal and sanding of roads in the winter.~ 20% - working shifts and weekends as required. ~ - consulting with the public on park information or facilities. - maintaining basic records on equipment and vehicles regarding repairs and servicing. - ensuring park facilities are safe for public use and reporting deficiencies to the Park Superintendent. '3. 10% Performs other related duties as assigned by the Superintendent. 4. Skills and knowledge required to perform job at full working level. (Indicate mandatory credentials or licences, if applicable) A class G, M.T.C. driver's licence. Working knowledge of carpentry, painting and general maintenance duties. Ability to handle power tools, poWered mobile equipment, heavy trucks and tractors. An affinity with and understanding of wildlife is essential~ An appreciation of the value of good public relations in dealing with the public. Working knowledge of the Occupational Health and Safety Act and those regulations made under the act that apply to the work supervised or controlled. While the Grievor confirmed the accuracy of this Specification from his point of view, he added that he thought 6 perhaps his-involvement in the first category of responsibilities might more fairly represent 75 percent of his workload and that Item 3 ought to be reduced from 10 percent to 5 percent~ Before turning to consider the application of the Resource Technician Class Standard to the work performed by the Grievor, it may be noted that a number of the duties outlined in his current Specification appear to be quite similar to a number of the duties referred to in the Class Definition for Manual Worker. While we do not wish to suggest that there are not also some aspects of his current position which are not to be found therein, there can be no doubt that work'of a kind which could be assigned to a manual worker, so defined, forms a significant component of the GrieVor's work day. Thus, the Manual Worker Class Definition makes reference to duties relating to maintenance activities, highway maintenance, the feeding and tending of animals' and poultry, the cleaning of cages, barns and equipment, and so on, which evidently remain as a significant'component of the Grievor's workload after the move to the Springwater Provincial Park. 'The Grievor's current responsibilities, ~however, are to be measured against'the Resource Technician Series 'Class Standard. The preamble to that Standard states the following: 7 "CLASS STANDARD: PREAMBLE ~RESOURCE TECHNICIAN SERIES This series covers the positions of employees engaged in the performance of operational duties in any one or more of the specialized services, e.g. Forest Production, Timber, Fish and Wildlife, Lands, Parks, Research, etc. Employees in positions allocated to this series may perform a variety of duties ranging from those of a manual nature requiring only a relatively elementary understanding of natural resource management to those of a technical nature requiring independent judgement. ~_ Entry into this series for candidates who are graduates of an approved Technical School in Resource Management o__r an approved related discipline is at the Resource Technician 2 level. At this level such employees receive training in practical aspects of theories studied and, as experience is gained, daily supervision is reduced to instructions covering specialized technical problems. ~Positions involving full time performance of Fish and Wildlife management and/or enforcement duties are restricted to employees who are graduates of an approved Technical School in Resource Management. Research Branch positions allocated to the third level in this series will normally be underfilled by one grade for a period not longer than one year, to allow for the necessary "on the job" training in specific research aspects of the duties involved. Positions will be allocated to a specific level only when all the requirements of that level have. been fulfilled. The separate class standards for Resource Technicians 1, 2 and 3 are set out in the following terms: "RESOURCE TECHNICIAN 1 This is the working level Of employees performing a variety of manual and semi-skilled duties Which require only a relatively elementary understanding of natural resource methods applicable to their particular Work area. The knowledge required to carry out the responsibilities of positions~allocated to this class is generally acquired through detailed instructions received on the job and through working experience. SKILLS AND KNOWLEDGE REOUIRED: Some mechanical aptitude; ability to operate simple power machinery and drive vehicles. RESOURCE TECHNICIAN 2 This class covers positions of employees responsible for performing a variety of skilled and/or technical, production-oriented duties in any or all ministerial services. They may be required to take charge of casual employees in such activities as fire suppression, tree planting, lake surveys,, etc. They may also be assigned to specific duties which contain some latitude for decision-making such as scaling, property assessment, technical laboratory or field work, etc. At this level, technically qualified employees, may receive practical training in more complex resource management work, eog. Fish.~ and Wildlife management and/or enforcement, technical research work, basic Timber management, etc. SKILLS AND KNowLEDGE REOUIRED: 1. Ability to control work of others; ability to meet and enlist co-operation Of public. 2. Good knowledge of operations in .the specific area of activity concerned. RESOURCE TECHNICIAN 3 This class covers positions of employees performing more complex, demanding and responsible technical duties containing considerable latitude for decision-making, e.g. check scaling; compiling lake development data; training fire crew; operating type "C" parks and type "C" hatcheries; carrying out Fish and Wildlife management and/or enforcement work; gathering, assembling and compiling technical or scientific data; preparing technical reports and/or plans; assessing technical needs of management or scientific projects and submitting technical recommendations, etc., in any assigned area of 9 responsibility. They may supervise and/or train regular employees or take charge of groups of casual employees and, in this context, organize and schedule activities within the general framework of laid down plans or instructions and assume responsibility for the quality and quantity of production and for the work performance of assigned staff. SKILLS AND KNOWLEDGE~REOUIRED: Ability to organize projects and supervise implementation; initiation and ability to assimilate new techniques to be applied in a variety of situations; good understanding of resource management principles. In comparing the RTl and RT2 standards, a number of differences may be noted. First, the RTl standard refers to a "variety of manual and semi-skilled duties which require only a relatively elementary understanding of natural resource methods" whereas the RT2 standard refers to "a variety of skilled and/or technical, production oriented duties in any or all ministerial services". RTl involves manual and semi-skilled duties. RT2 involves skilled and/or technical duties. Secondly, the RT2 standard refers to the possibility that incumbents may be "required to take charge of casual employees in such activities as fire suppression, tree planting, lake surveys, etc." The Skills and Knowledge Required section, in similar vein, refers to the "ability to control work of others". There are no similar references in the RTl standard. Thirdly, the RT2 standard refers to an "ability to meet and enlist co-operation of public". Again, there is no similar 10 reference in the RTl standard. Fourthly, the RT2 standard indicates that the incumbent "may also be assigned to specific duties which contain some latitude for decision-making such as scaling, property assessment, technical laboratory or field work, etc." Again, there, is no similar'reference in the RTl standard. Finally, a fifth potential point of difference should be noted. Paragraph 3 of the Preamble to the Series, quoted above, indicates that RT2 is the entry level for candidates who are "graduates of an approved Technical School in Resource Management or an approved related discipline". The Grievor possesses no qualification of this kind. Further, the RT2 standard indicates that "at this level, technically qualified employees, may receive practical training in more complex resource management work, e.g.' Fish and Wildlife management and/or enforcement, technical research work, basic Timber management, etc." Thus, .the RT2 standard appears to be tied, at least to some extent., to a particular credential. With respect to this question of credentials, we are satisfied ~ indeed, we understand this to be common ground between the parties - that the absence of a credential would not preclude the Grievor from classification at the RT2 level if his duties made such a classification appropriate. Further, though we note.that the Preamble indicates that "positions will be allocated to a specific level in this class series only when all the requirements of that level have been fulfilled", we do not think that this stipulation means that the Grievor must be in a position to receive the practical training referred to~in the RT2 standard with respect to management, enforcement, technical research activities,, etc. As we read the RT2 standard, we understand that it states that those incumbents holding positions that are classified at the RT2 level and who do hold technical qualifications ~ receive such training. Thus, it is consistent with the standard that there may be incumbents who do not hold such a credential and who may therefore not receive such training but who may, nonetheless, be properly classified at the RT2 level. Accordingly, with respect to this fifth possible point of difference,'we conclude that the Grievor's lack of a technical qualification - in fact, the Grievor completed Grade 10 of secondary school - would not preclude his classification at the RT2 level if his assigned.duties made that classification an approDriate one. We return then, to consider the evidence relating to the other points of difference between RTl and RT2, "level of skill", "taking charge of casual employees", "meeting and enlisting the co- operation of the public", and "some latitude for decision-making". Level of Skill. There can be no doubt on the evidence before this panel that the Grievor provides a valuable service to the employer. It is another and more difficult question, however, whether that service involves the provision of a "variety of 12 skilled and/or technical, production-oriented duties" as is required by the RT2 standard or is rather the provision of a "variety of manual and semi-skilled duties which require only relatively elementary understanding of natural resource methods applicable to their particular work area" in the language of the RTl standard. In attempting to make this determination, the focus of our attention must be placed on the evidence concerning the Grievor's activities in maintaining and caring for the wildlife species resident at the Park. In arguing the case for characterization of the Grievor's skills as being "skilled and/or technical", counsel for the Union placed considerable emphasis on the variety of species of wildlife attended to by the Grievor. As well, he emphasized the considerable knowledge the Grievor has developed with respect to the care and feeding of these animals during his work at the Park. The Grievor provided eVidence of situations in which he would, for example, appreciate that an animal was suffering from some basic disorder'and that he would, in the absence of the Superintendent, administer the usual remedy. In'caring for infant animals, the Grievor would, again in the absence of the Superintendent, appreciate that'the animal was in .sufficient condition to be moved to a different foodstuff. Other similar illustrations were provided in the Grievor's testimony. At the same time, it was noted that the Superintendent would often be involved in making such determinations. Further, it was conceded by the Grievor that the feeding and care of these animals was essentially routine in nature. That is to say, once the 13 routine was established, it would be followed unless signs of illv health appeared. Further, it was conceded that in the event of difficulty, the Superintendent, or the Grievor in his absence, would contact a veterinarian. In making the case against characterization at the "skilled and/or technical" level, counsel for the employer emphasized the routine nature of this work. In essence, or so it was'alleged, the Grievor's work in caring for various species was not really more complicated than the care of domestic pets. One had to follow certain instructions concerning feeding and one needed to pay attention to signs of illness, administer standard remedies if there are such and call the veterinarian in the event of difficulty. Further, counsel for the Employer emphasized that much of the Grievor's work in caring and maintaining the animals and the facilities in which they are kept is of a manual nature. Thus, in her view, this work is best described as being constituted by "a variety of manual and semi-skilled duties which require only a relatively elementary understanding of natural resource methods applicable to (this) particular work area". While we do not view the point as free from di.fficulty, we are persuaded that the Employer's characterization of the' level of skill deployed by. the Grievor is the more appropriate one. Although the substantial number of different species attended by the Grievor no doubt complicates his task, we were impressed both 14 in his evidence and in the evidence of Mr. Bill Wilson, who had served as Park Superintendent at Springwater since 1975, with the routine nature of the tasks performed with respect to feeding, maintenance and the administration of remedies /in the event of sickness. We note, as well, that the'Grievor was not in a position where he must, on his own, determine appropriate feeding arrangements or diagnose and treat illness. ~ He was supervised in ~this work by Mr. Wilson and had ready access to expert advice, in Mr. Wilson's absence. Accordihgly, we conclude that the Grievor's duties are better described as "manual and semi-skilled duties which require only a relatively elementary understanding of nature resource methods" rather than "skilled and/or technical, production-oriented duties". Taking Charqe of Casual Employees. Although it is true that the Grievor testified that occasionally he would involve a casual employee in his work, he was candid in saying that he did not view himSelf as being in a position to give orders. Of the three casual employees, one serves as foreman of the casuals. .The Grievor testified that if the foreman could spare a casual labourer, the latter might help him with a particular project such as cleaning, maintenance of cages or feeding the animals. In such cases, said the Grievor, he didn't see himself as giving the casual employee orders but rather being in the position of asking them to help. We do not view this kind'of co-operative .activity between 15 employees as a "duty" that requires one "to take charge of casual employees in such activities as fire suppression, tree planting, lake surveys, etc.", in the language of the RT2 standard. Such responsibilities are very likely to involve some organizational aspect and some ability to issue orders to others that must be followed. In coming to this conclusion we are mindful of the point stressed by counsel for the Union, that the RT3 standard uses the phrase "supervise and/or train regular employees" in addition to "taking charge" of "casual employees". Thus, or so it is argued at least, "taking charge" is something different from (and, counsel argues, less than) "supervising and/or training" employees. Nonetheless we are persuaded that "taking charge" must include an element of responsibility for the giving of orders that appears to be lacking in the Grievor's relationship with "casual employees". The Grievor is also assigned a summer student on a half-time basis during the summer months. In the. context of this relationship, the Grievor indicated that he viewed it as his responsibility to assign duties to the student. While there is thus a greater element of "taking charge" in this context, we are doubtful that activity of this kind with one student on a part- time basis during the summer months rises to the threshold intended by the RT2 standard in this respect. Meetinq and enlisting the co-operation of the public. Two aspects of the Grievor"s duties were relied on with respect to the 16 reference in ~he RT2 standard to ~a required "ability to meet and enlist co-operation of public". 'First, the Grievor frequently has conversations with visitors to the Park with respect to the Wildlife contained therein and other matters of interest to the public. We understand these contacts with the public to be of a casual nature'in the sense that the Grievor is not called upon to make presentations to groups nor act as a guide in some fashion to groups of tourists. Secondly, in the absence of the Superintendent, the Grievor will often be required to deal with members of the public who wish to drop off animals at the Park. In such situations, the Grievor must either accept or reject the' animal and in doing so, or so it was argued, he must enlist the co- operation of members of the public. Presumably, the need for co- operation is greater where the answer to the individual's request that the Park take custody of the animal is a negative one. Again, we are doubtful that the threshold, required for the RT2 standard is met by this aspect of the Grievor's duties.. It is arguable, of course, that the apparently frequent and unavoidable contact the Grievor has with members of the public who visit the Park in responding to their enquiries suggests that he must possess, in the ianguage of the standard, an ability to "meet" members of' the public.' We are not persuaded, however, that the Grievor's responsibility to turn away animals offered by members of the public in certain circumstances is the type of "enlisting of co-operation of members of the public" envisaged by the RT2 17 standard. Some latitude for decision-makinq. Although there is some evidence in the present case of a capacity on the part of the Grievor to make decisions with respect to such matters as changing foodstuffs, administering routine remedies and so on in the care and feeding of animals, we are again doubtful as to whether the threshold set out in the RT2 standard is met in' this regard. We note that the examples of decision-making referred to in the RT2 standard appear to be of a more technical and complex nature. Further, we are not persuaded that the Grievor's case in this respect is strengthened by the decisions taken by him, in the absence of the Superintendent, to accept or reject animals offered to the Park by members of the public. As the Grievor explained in his evidence,' such decisions are based upon a set of written instructions which, to be sure, he himself prepared in consultation with the Superintendent indicating which species should be rejected and which might be accepted in appropriate circumstances. Again, then, the decisions appear to be rather routine in nature and subject to reasonably close supervision and/or instruction. For the foregoing reasons, then, we have come to the conclusion that the case has not been made out for reclassification of the Grievor at the RT2 level. Of principal importance in coming to this conclusion is our determination that the types of duties 18 performed by the Grievor with respect to the care and maintenance of wildlife at the Park are. better described as involving a "variety of manual and semi-skilled duties which require only a relatively elementary understanding of natural resource methods applicable to (this) particular work area" rather than a "variety of skilled and/or technical, production-oriented duties in any or all ministerial services". Although, as we have noted, there are areas of responsibility which are suggestive of one or another of the aspects of the RT2 standard and which, it must fairly be said, may not be completely captured by the RTl standard, we do not believe that the RT2 standard has been plainly met in any of these areas and we are certainly confident of our conclusion that, in the language of the Preamble, it is not the case that "al__~l of the r'equirements of that level have been fulfilled". Almost all of the work of the Grievor is, in our view, accurately captured.by the RTl standard and we therefore have come to the conclusion that it is certainly the preferable standard of the two on a "best fit" basis. Accordingly, we have come to the conclus ion that this grievance should be and is hereby dismissed. 1 [tl~ day of February, 1992. Dated at Toronto, Ontario this . ~ ~. ' ~ ,"~ '~" . x--Vice-Cha i~rsg.r~. D.P. Dau~h~ember }