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HomeMy WebLinkAbout1988-0279.French, Kiproff & Flaherty.90-06-29 ONTARIO EMPLOYES DE/_.4 COURONNE CROWN EMPLOYEES DEL'ONTARIO GRIEVANCE' C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 ,{~)[.tNDAS $'J~EET WEST, SUITE 2100, TORONTO, ONTARIO. M5G ;Z8 TELEPHONE/T£L~PHOrqE,. (4~'~j 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTAR;OL M5G 1ZB FACSIMtLE/T£LECOPIE : (4~6) 326-~3S6 279/88, 280/88 286/88 IN THE MATTER OF,ANARBITRATION Under .TEE CROWN F2~PLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU(French/Kiproff/Flaherty) I Grievor - and - The Crown in Right of Ontari° (Liquor License Board of Ontario) Employer - and - BEFORE: T. Wilson Vice-Chairperson , S. Urbain Member t I. COwan Member FOR THE A.M. Heisey GRI~VOR: Counsel ; Barristers & Solicitors ~ Kerzner, Papazian, MacDermid FOR iTHE S.J. Shamie EMPLOYER: COunsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors HEARING: Novembver 30, 1988 January 26, 27 1989 March 29, 30 1989 April 21, 1989 May 24, 1989 1 DECISION The three grievors are currently classified as Clerk Grade IV's by their employer, the Liquor Licence Board of Ontario (LLB0). Their job titles are Permit Approval Clerks. They grieve that they' are improperly classified and should be either reclassified as Clerk Grade V's or alternatively, that their employer should be directed to properly classify them under what is generally referred to as the Berry Order. The Union called Shirley Flaherty, one of the grievors, to present extensive evidence on the work performed by herself as a Permit Approval Clerk (PAC). As such, she is responsible for the eastern part of the province within the subunit Special Occasion Permits in the Licensing a~d Permits Branch of the LLBO. This function finds its origin in the Liquor Licence Act R.S.0. 1980, c.244 and specifically section 8. 8. - (1) Subject to the regulations, the Board may issue a permit authorizing the holder thereof to keep for sale, offer for sale, sell'or serve liquor on a special occasion.' This must be contrasted with a iicence which finds its origins in sections 5 and 6. 5 - (1) The Board may, subject to the approval of the Minister, issue a licence authorizing the manufacture of spirits, beer or Ontario wine to keep for sale, offer for sale or sell such spirits to the Liquor Control Board of Ontario under the Liquor Control Act and the decision of the Board to issue or to refuse to issue a licence, with the approval of the Minister is final. 6 - (1) An applicant for a licence, ~or for approval of the transfer of a licence other than a licence referred to in section 5, is entitled to be issued the licence or have the transfer approved except where, [long list of exclusions]. For permit purposes, ~he province i's divided into five zones and there is a PAC for each zone. At the relevant times for the purposes of her grievance, Mrs. Flaherty's immediate supervisor was Mrs'. Laurel Del Genio, the Licence and Permit Officer and' Mrs. Del Genio's supervisor was the Manager of Licensing and Permits, Mrs. Sheila Wilson. With Mrs. Flaherty, there is also an Assistant Licence Approval Clerk (ALAC) and in the summer months, there are additional employees - students or go-temps, employed because of the heavy work-load. The PAC, in her work, refers from time to time to the'Act, the regulations issued under the Act., directives and the Manual. The Manual also contains ma%erial on licensing to which she also on occasion must refer as there may be licensing aspects to a Special permit ~application. The specific provision relating to special occasion permits is found in section 37 of .Regulations 581. The distinguishing characteristic of a special occasion permit is that re'lares to one occasion. The following provisions set out vari0us situations: Sunday hours (s.38); advancement of charitable, educational or religious works or to serve community needs (s.39); community festival approved by the local council, of the municipality (s.40); a social attended by participants'of a. grouD 3 or associations with invited ~uests, no advertising permitted (s.41); and speCial events of municipal, provincial or international significance; a common room event mn a condominium, or a wine course [etc.] (s.42); and there are other specified situations. Although there is detail set outin these regulations and there are Board directives to, assist the PAC, it was Mrs. Flaherty's testimony that frequently situations arise which are not covered by the directives or policies and indeed, every few weeks a situation not covered by the regulations arises. The majority of applications come directly to the special permit unit; others are made at the Liquor Stores. In the permit zone for which Mrs. Flaherty is responsible there are 46 issuing stores. The stores daily contact her unit for assistance. The routine inquiries are handled by the APAC. In some stores, the manager calls; in other stores, the persons responsible are on a rotating basis and call. The applications which are'received directly by the unit first gO to the cashier and then the zone 3 applications are sent to Mrs. Flaherty's desk. The APAC then records.any information relating to the application from the "premise manual" which the Unit maintains. If the application is routine the APAC would handle the application and Mrs. Flaherty would review the work. More complex applications such as community festivals and outdoor events are handled by the grievor directly or also if it has some other unusual aspect to it, as for example in the case of fund raising 4. events where the organization concerned does not have a charitable tax number. In the latter case, the grievor herself would begin inquiring for details about the organization and if she is able to fit it into a slot, she will let it go forward. She does not have the actual authority to re3ect an application but she may advise the applicant that it is not eligible. In the case of a community festival with which there is a problem,' she would take the matter to her supervisor and a special handling form is filled out by her. The supervisor initials that form and it goes on to a Board Director and then to the Board itself for a decision. Mrs. 'Flaherty testified that only once did her supervisor suggest that she change a Special Handling and that was solely with respect to its style. The special handlings were started as a procedure in the spring of 1988. Prior to that, the permits section was separate from ~censing and the manager handled special handling reports. Similarly, with respect to Community Festivals, prior to 1988, there was a Clerk 5 (Special Projects Officer) who was responsible for. them. The PAC only processed them. Mrs. Flaherty testified that now she would not refer even on~ out of 50 applications to her supervisor and her discussions with her wouldtake less than a half hour a week. Even in those cases, Mrs. Flaherty will have. already decided herself how the matter should be handled and her consultation is mainly just to inform MrS. Del Genio. Perhaps once a week, she would approach her supervisor without an answer in 5 mind.. Mrs. Flaherty testified that it was in 1987 that her job changed substantially. Prior to that, the PAC did not deal with any difficult applications and went to the supervisor two or three times a day for decisions; the supervisor would be given the whole file and usually the PAC would not make any recommendations. The grievor makes decisions on whether an application meets requirements; for example, shopping plazas'cannot get a permit "in an enclosed shopping mall during the hours when stores are open for business". Mrs. Flaherty decided tat if the owner of the mall and the'store manager provided a letter that the store would b~ closed and the event is by invitation only, a permit~'could be issued. Counsel referred Mrs. Flaherty to the Decision Making/Complexity part of the Classification Guide (Ex 3 & 3A). For the Clerk 5, it provides: "Decision 'making is required in the interpretation and application, of policy or administrative rules, where existing instructions do not relate to the specific case under consideration. Exercises initiative and judgment in adapting procedures to meet unusual situations, participates in making, or makes independent decisions involving the planning, organizing and scheduling of work; exercises Judgment in establishing priorities and making changes in work methods and systems. Mrs. Flaherty testified that she did perform the first sentence of that. Typical Duties (Clerk 5) .Duties.may include preparation of statistical and narrative reports and records on the basis of information collected from various sources. Some reports might include complicated currency conversions, accounting reconciliations and cost computations. Clerks may lead small work units and' may also represent units, in dealing with other parts of the organization. Mrs. Flaherty stated that she would consider that she writes "narrative reports" of spec/al handling involving difficult situationsrequiring that the Board or a Director make a decision. She also is involved in "evaluating completed documents and forms" as set out in Typical Duties of a Clerk 4, "Cost computations" (Clerk 5). She testified that in community festivals she has to calculate the price of the permit according to the amount of alcohol, with respect to small work units, she stated that if that means coaching and counselling, then she does that with her assistant (Clerk 3) and the summer staff. And she feels that she speaks for her unit in dealing with the rest of the L.L.B.0. Clerk 4 sta=es: "Other related duties may include serving as .lead clerk in coaching junior staff".-But she felt that the language for the Clerk 5 more accurately described her r~le. with respect to Responsibility Level, she testified that her clerical tasks were a "very difficult and comple~ level" rather than of "moderate'complexity". As an example, she alluded to a consumer show presented by the Chamber of Commerce. Such a show is open to the public. And although they did not wish to make a profit, they. did not qualify as a charitable organization. Therefore, they would haveacharitable organization present. This would allow her.to select from another policy to fit the situation. A more complicated situation would be a fund raising.organization and this wou~d have to be arranged so that a charitable organization r~n the show or all the money went to charity.. With respect to ~olic~, she participates with Mrs. Del Genio in planning and organization. As for her own assistant, normally he just goes about his work but if there is a problem she will deal with it. With respect to her. own work, of course there are procedures but she does set her own work load and priorities. The Clerk 4 standard provides: "Decisions requiring major departures from established practices are referred to supervisors." Wherethereare the iitti'eunusual situations, Mrs. Flahertystated she cannot run to her supervisor all the time. If there, were departures from practice before,, she would follow those precedents. In the community festival period,~this happens almost daily and the rest of the time, about once a week. Clerk 5 'Contacts "Positions require demonstrated skills and tact in dealing with sensitive and difficult public relations situations both on the phone and in person~ Contacts are with personnel in LCBO/LLBO and externally with shippers, supplies, and government agencies. May be expected to be a spokesperson when dealing with other units. Mrs. Flaherty frequently has to deal with sensitive and 8 difficult members of the public both over the telephone and over- the-counter. She also has to communicate with the police who may have complaints about abuseof permits or minors present at 'special occasions.' She also has contacts with municipal governments,.: building inspectors, health officers, clerks, and the Fire Marshal's office. She felt that the contacts described for the Clerk 5 were more appropriate because more detailed than for the Clerk 4. Clerk 4 noticeably exempts as follows: "they will not be spokespersons for their group". Supervision Received: (Clerk 4)-Work is performed under general supervision but staff are expected to exercise initiative in recommending solutions to problems. Knowledge of procedures, policies and practices is' assumed so guidance-is only required when matters depart from established policy and procedures. (Clerk 5) Work is assigned in terms of specific objectives. Work is under general direction and receives'broad directives with considerable latitude' for independent' decisions and innovation. Work is subject to general review only for conformity to established policy and standards. Mrs. Flaherty-testified that she makes the decisions when "matters depart from established policy and procedures". And with respect to qualifications, she stated that she has full familiari~ with relevant LCBO/LLBO policies, regulations and procedures as stipulated in Clerk 5 class standard. Mrs. Flaherty reviewed the position.specifications (Exhibit 4) and added to and subtracted. from it consistently with her testimony as given above. She does 9 not for example provide back-fill and relief for the Assistant Licence Officer as she has not been trained in licensing. In her view this document did fully describe her supervision of the APAC or the 'summer staff or her role vis-a-vis store managers or the training she gives. Exhibit 6 is the old. Position .Specification for the positionandMrs. Flaherty testified that a number of their duties are now performed by the Clerk 3 and some by the Liquor Stores. It states with respect to"guidance and direction": "Whenever a major problem arises, guidance and direction is given, guidance and direction is [sic] given". Mrs. Flaherty explained that at that time there were many unwritten policies and that therefore they would go to their manager more often. It states that three, to six month training while the grievor believes that now it could take six months 'to a year with current responsibilities. Mrs. Del Genio as the Licensing and Permits Officer was Mrs. Flaherty's immediate superior. She testified that the Assistant Licensing Officer has separate procedures to follow from those used by the Permit Approval Clerk and that 'they are more routine than those used by the PAC. In the case of the PAC's, most of what they do requires instant opinions and judgment calls. She also stated that she had to provide more supervision to the Assistant Licensing Officer than to the Permit Approval Clerk. In the latter case, she in fact was in a learning position since only the recent merger' had brought the special occasion permits under 10 her authority. With respect to special handlings, Mrs. Del Genio stated that she would rely on Mrs. Flaherty's judgment for 95% and could not recall ever over-turning one of her recommendations. In her opinion, Mrs.-Flaherty performs tasks of a "difficult~ and complex nature", although she would delete the word "very" from Clerk 5 language in order to apply. Mrs. Del Genio agreed wit/% Ministry Counsel's position that the responsibilities of the Assistant Licence Officer and the Permit Approval Clerk were quite different .from each other. Irene French,. one of the grievors, is the Permit Approval Clerk from Northern Ontario and since June 1988 has been an acting Assistant Licensing~ Officer. In her opinion and based on her experience in both positions the Permit Approval Clerk makes more judgments and gives more supervision to subordinate staff than does the Assistant Licensing Officer and also receives less supervision than the AL0. ~' .Judy Kroon is a senior consultant in the general compensation diviDion of Sibson & Company where she has been employed since 1988. Prior to that,~ she was with the Human Resources Secretariat of Management Board for six years and prior to that had been psychometrist with the Ministry of Health. Her expertise is in the area of the development of compensation systems. She was retained on contract by the LLBO as an independent consultant to do an audit. of the Permit Approval Clerk position. She was briefed by Mr. 11 Harmor, the Manager of' Personnel for the LLBO. To interview the grievors, she assumed that the position specification was acceptable to the employees and based her questionnaires on it. She started with the current position description and devised an audit .questionnaire which she designed to Collect additional descriptive information about the duties and responsibilities on the position description, She arranged interviews with the grievors about one and a half hours each for them. They indicated in the interviews that it did not reflect the volume of telephone calls they handled but Ms. Kroon did not consider that significant. She also interviewed two of the Licensing and Permit Oficers (including Mrs. Del Genio). She then wrote a composite of the responses which represents Part 1 of her Report (Exhibit 13). Ms. Kroon Concluded in her Report as follows at page 18: "On a best fit basis, the Permit Approval Clerk is appropriately classified at the Level of.Clerk Grade 4, insofar as it does not have the degree of accountability, latitude and independence of action which is necessary for positions at the Clerk Grade 5 to fully carryout their duties and responsibilities. Should such a degree of accountability ~and latitude ever be vested in the Permit Approval Clerk position, there is no question but that it would fully meet the requirements of the Clerk 5 level. The impact of accountability is clearly a telling one, and provides the basis for supporting the current classification level. The 'degree to which the Permit Approval Clerk fell either beyond the scope of the Clerk 4 standard or between the Clerk 4 and Clerk 5 standards, strongly suggests that consideration be given to a review of the existing class standards. A. · .follow-up recommendation to this effect follows: Because of the degree of discrepancy between the Permit Approval Clerk and the Clerk 4 standard, even though it is the most appropriate level on a "best fit" basis, the Clerk series should be revised to up-date the grade descriptions to reflect current levels of duties and responsibilities. Further, there is evidence to suggest' that there may be a level falling between Clerk 4 and 5 ... a level which involves more complexity, judgment and contacts then the current Clerk 4, but which does not have the full accountability and latitude of the Clerk 5." Central to Ms. Kroon's analysis is the issue of accounta- bility. As became clear in cross-examination, the fact that the Permit 'Approval Clerk did not report directly to the Manager but rather to the Permit and Licensing Officer establishes to a great extent to her the de~ree of accountability. For these reasons, she would not agree for example that the PAC and the APAC and summer staff constituted a separate small work unit. Similarly, since in her view the distribution of work to the APAC and summer staff was on the basis of its routine quality it was not in her view an assignment of work and did not involve selecting on the basis of "capabilities and time priorities." Again in her view they do not interpret directives. If there is ambiquity, they.must go to their supervisor throu~h.a special handling. However, she did agree that they were required to analyze the facts and then look to see if' there is a guideline that applies to the facts. However, She had not asked the grievors directly the question of whether they "interpreted the ~uidelines." t 13 Gilbert Harmer has been the Regional Personnal Manager for the Ministry of Health since December 5, 1988. He was Personnel Manager.at the LLBO from April 1985. Before that he had extensive experience in personnel matters. He described the Permit Approval Clerk function and the Assistant Licensing Officer as different from .each' other:, the PAC issues special permits for a short duration; the ALO performs a support function for the Board in preRaring a mass of' documents for a licence to be issued which covers years' and establishments. See Appendices A and B respectively. In his opinion the ALO should be classified at the Clerk 4 level. Mr. Harmer testified that when he arrived at the LLBO in 1985, he. was in fact brought in to bring government processes to the Board. The union had already proposed to have certain positions which were at that time extuded form. the bargaining unit transferred into the- bargaining 'unit. One of those excluded~ positions was the ALO which was classified as an Administrative Management Position B5. A number of positions, it was decided, should be moved into the bargaining, unit. In cooperation with the union, management took time. abolishing such positions and transferring others to the bargaining unit 'as employees were promoted or left. They did a classification review of the ALO position and quickly saw that it should be a Clerk 4 position but to so down- 14 classify it would have represented a $3,500 slippage from the maximum for the B§ classifications. As a result, they classified it as a. Clerk 5. Reorganization is c~ntinuing and they may add responsibilities tot he ALO to fill uD the classification. Another factor delaying the process is that· there is .an outstanding application to bring the LLBO under the Public Service Act~which would bring iht he OAG classification system. As a result of these factors a memorandum was sent to the employees and on October 1, 1987, the classification change to Clerk 5 took place. The Union relied, in argument on a comparison between the grievors (PAC's) and the ALO. It argued that they do essentially the same job while the ALO is classified as a Clerk 5 and the PAC's are still classified as Clerk 4. If that is literally true then obviously this Board would have to examine its decision in Bahl and Ministry of Attorney-General GSB 891/85 and the Divisional Court's decision of April 22, 1985 in Lowman (GSB 13/82). In Bahl, Vice- Chairperson Samuels wrote at page 12: " It is clear from 'the review of the jurisprudence we have · conducted here, and from the decision of the Ontario Divisional Court in the Lowman case, that there is no requirement that the Union go beyond showing that one employee in a higher classificaiton performs the same work ·as the grievor. This is enough to succeed in the claim for reclassification unless perhaps it can be shown that the comparison employee, is wrongly classified. And we have already said that this exception does not apply in our case." 15 Of cuur~e, the one.employee aspect of Bahl is not the issue here since there are many ALO'S in Ontario. Further on Mr. Samuels applies "substantially the same work'' as the test. Counsel for the Union argues that the responsibilities of the PAC are in fact higher than those of the AL0. And the expert Witness for the employer tes~.ifie~ that the grievors were in fact not clerk 4's although Mr. ~armerfurther testified that in his'opinion the AL0's would more properly be classified as Clerk. 4'~. Yet nothing further has been done to bring the ALO's and PAC's into proper alignment with- each other. In Mr. Heisey's submission for the Union, the LLBO is now estopped from denying that 'the classification system has been modified. With r~ to accountability, Mr. Heisey emphasizes that in fact, the grievors do make the decisions except in the case of special handlings which go beyond their supervisors up to the Board itself.. Furthermore,~he submitted that they do in fact review the Assistant Permit Approval Clerks which he feels falls within the supervision described for Clerk 5's. And indeed there'~ was no evidence suggesting that the Licensing and Permit Officers ever have any dealings with the APAC's. So far as "best fit" is concerned that should be applied narrowly now as a result of the Berry decision. Employer's counsel submitted that for the grievors to fit into the higher classification, the position must involve all the 16 compen~ible features required. For that proposition, he referred the Board to Sears and the Ministry of Community and Social Services, GSB 446/86 at page 5 which quotes from Leworthy and Ministry;of Transportation and Communications 26/80 at page 7. In Leworthy, Professor Roberts wrote: "At the hearing, there appeared to be little dispute between the parties as to the principles of law that apply to a case such as the one at hand. AS to the Class Standard for the Clerk Supply Series, both parties appear to agree under that settled law, a position ought to be accorded the classification in which the duties to be performed in that position meet the compensable factors differentiating that classification from the one immediately below it. The parties, however, differed markedly in their application of the Class Standard for Clerk 3 Supply to the facts of the case." Further on at the-bottom of that page the Vice-Chai~erson wrote: " in order to fit within this paragraph [2nd paragraph of the class standard] the position of the grievor must involve all of the compensable features required, by it and that the one compensable feature that is not accorded the position.of the grievor is that the grievor be "in sole charge", with responsibility for "security of the stockroom .... " · Continuing on page 8 in dealing with the usage argument, the vice-chairperson states: "In order to succeed on such an argument, it was necessary for the grievor to show that the core of his duties were identical to the core of duties performed by the higher classified clerk. This he has failed to do .... " 17 After citing Leworthy with approval vice-chairperson Barrett in Sears wrote: "In order for the grievor to fit within paragraphs one or two ~f the Clerk 3 Supply class definition, his position must involve all of the compensable features required by it, and ~me of the compensable features is that the grievor be "in s~Ie charge" or must "alone maintain"'a stockroom." S~e then went on to find that the grievor was a "close'fit" with the Clerk 2 and therefore refused a Berry order. Needless to say if the grievors were a close fit with the Clerk 2, they could not he performing the core duties of the Clerk 3. It does not seem on the facts of either of these cases that they were in anyway different from the usual classification cases or that there could have been any intention to depart from the long accepted rules of this ~oard's review in classification cases, namely whether the grievors' duties fall within the core or ambit of the duties of the classification which they claim: see switzer and Ministry of Transportation and Communications (GSB 804/84) p 12; Flood and Ministry of the Environment (GSB 0881/85) p 11; see also Levere and Ministry of Transportation (GSB 1141/86) at pages 20 and 22. That word formulation states in a practical form a rule which a Board of Arbitration can apply in an area where practical Judgment is required. I would be reluctant to apply a standard that was either on the one hand too rigid in its requirements or on the other hand too abstract and theoretical to be of any relevance. Jobs or positions exist; classifications are schemata devised to provide rationality and equity to the comparison and ranking of those 3obs or positions ultimately reflecting itself in the rates of pay. Furthermore the issue, of "best fit" or "close fit" reflects that long running practical sense. The major other factor is the Berry rule which mandates this Board to order the Ministry to do a reclassification where it is satisfied tha~ the 9rievor is wrongly classifiedbut where it does not find on the evidence that the .grievor's duties fit another existing classification placed before it. The issue before us was simply whether the grievors are Clerk 4's, or Clerk 5's or whether a Berry order was needed. The Ministry also argued that with respect to the Union's usage argument that even if the PAC and ALO did do the same work which it.strenuously disputed, then the ALO was wrongly classified. The evidence in my opinion clearly shows that the ALO and the PAC do not do the same work, or even Substantially the same work. And the Bahl rule clearly does not apply. The issue then becomes that the classification system is not functioning properly because the ALO, a different position, has been placed in a higher classifi- cation than the grievors when it should not be. But this Board has not yet found this type of situation is in itself sufficient reason to order reclassification of a grievor's position. I might add however that it certainly should be a matter of alarm to the employer that the actual classification of its various positions are out of order and accordingly disfunctional. 19 It is clear' to me on this evidence that the PAC is a more responsible position than the ALO. It clearly requires more independence of judgment and the fact that the PAC's actually make the decision to issue the permits in at least 90% of the applications is clearly significant, It is definitely very close to the level described for the Clerk 5. I find Ms. Kroon's analysis of'the difference between "interpretation" and "applying" on these facts extremely thin. It is clear that whatever the grievors need guidance on is not handled by their supervisor but is Of such a contentious or difficult nature that it is determined only at the highest executive level of the Board .in a special handling. Mrs. Del Genio was h0nest and forthwright on that point. She does not second-guess the PAC's. I find the effect of the 1987v88 reorganization of major significance and the real source of the classification issue. I find the~grievors' positions fall just short of the Clerk 5 in terms of "very difficult and complex nature" but well above the Grade 4 "moderate complexity". To some extent they oversee the work of the APAC, but not, on this evidence, of "several junior clerks" even considering the presence of summer students during the' busy periods. With.respect to typical duties, I find the grievors again have some of the Clerk 5 duties and in particular "leading a small work unit". Here again I find Ms. Kroon's characterization of a "small work unit" somewhat rigid. Thre is no doubt in my mind that for example Mrs. Flahertyand her APAC and students are the permit unit for her region and in practice she is responsible for it. Mrs. Del Genio's .testimony supports that. But I do' not find most of the other typical duties of either the Clerk 5 and 4 applicable with the sole exception of some "narrative reports" which probably accurately describes the grievor's role in special handlings. With respect to Decision Making/Complexitywhlle I findsome aspects of the Clerk § levelpresent as earlier stated', the evidence does not show any real participation "in making or makes independent decisions involving the planning, organizing and scheduling of work; exercises ~udgment in establishing priorities and making changes in work methods or systemS". Although the grievors may contribute ideas-for' such things, the wor~ organization and priorities is mainly automatic and there is no evidence of their making changes in work methods or systems. But then the Clerk 4 does not fit here either. With respect to Contacts, the evidence shows that these grievors either function right within the terms of the Clerk 5 or very close to it. Supervision Grievor: The only significant difference between the 4 and 5 levels is essentially the reference to "a small team of Junior staff" and "a small work unit". As ~lready indicated I am satisfied that because the group in which the PAC operates is 21 in effect the "permit section" for which she is the actual senior person; it is in fact a work unit. Furthermore the~ALO does train and teach staff although I do not find that she establishes standards. The Supervision Received described for Clerk 5 seems appropriate save for the first sentence' dealing with '"specific ob~ectives" which just seems i£ievelant to the position regardless of the amount of' supervision the position receives. It is certainly "general direction" rather than "general supervision". The L&P Officer does not provide "supervision" and in terms of the experience and knowledge in fact now required for the PAC position such supervisionwould be redundant if. it did exist. In result, I find that in many respects the PAC has many Clerk' 5 characteristics. Indeed, it is closer to a Clerk 5 in my opinion than to a Clerk 4 . But it is not a close fit. I decline to apply best fit to the Clerk 5 because in my view that approach is modified by the ~erry rule. I find that it is a non-fit so far as the Clerk 4 is concerned but deviates too much from the Clerk 5 to justify ordering it to be speCifically classified as such. Furthermore, I wish to avoid further distorting a classification. System which has long been out of alignment. Therefore, I direct pursuant to the Carol Berry case that the LLBO reclassify the grievors positions appropriately within thr'ee months; this Board wall remain seised of the. matter ~ending its implementation. Since .Position Tttie : I~mit, /~proval Cierk Positton ~ode : ~Pa~n~ : Lt'~ns~ng ~d Pe~its Branch · Reports ~ : L~S~ and Pe~tt Offtcer ~er of inc~~ : Z tn ~ch of 4, zones --~ ~z~ ~se of ~sttton A P P1 E N D ~ X A To co-ordtna~e ~e acZtvtttes ~d ~. ~tctpate In ~e a~proval and p~cesstng of sputa1 occasion pe~t~ and ~ a~ as g~ leader ~ the ~ststant Pe~it Clerk ~d. ~ra~ ~ff for ~ ~stgned mgton of ~e p~vtnce. ~er ~e ~ra]. ~~si~ ~ ~ Ltc~ce ~d Pe~t Officer: - Provides t~hn~ca~ ~i~ ~ s~ ~ ~e Assista~ Pemtt ~]e~ ~'~ ~ra~~ ~aff, ~tting ~o~ti. ~ ~gard ~ ~e ~it ~rkload. - ~signs and mnf~ ~ ~ Assi~ Pemit Cle~ a~ tmpor~~ staff' ~curacy. co~l~i~ md ~Ut~]er ~trtbution explaining ~w procedures' ~ training n~ ~ff; an~r ~esttons and solve ~-ti~ technical or ~tntstrative ~l~ ~la~ ~ ~e ~ of ~e ~ststant Pe~it Cle~' m~ t~pora~ ~. - R~t~s mm ~~ ~l$c~1~s ~ ~mlts (i.e. c~tty festival',. O~door, fu~ rais~ ~) f~' ~ac~, c~et~e~ and compliant; ~t~' ~e ~ ~ ~it~o~ ~ ~e Lt~ Licence ~ ~d Regulations). -~sts~: Su~~ in ~ ~o~ r~t~ p~cess of' staff within ~t sd~cttons. - ~pmves ~e mm ~~ ~pTi~ttons '~at a~ e~tgtble ~d in~tla~ tssut~ of ~~ wi~in es~lish~ guidelines, procedures and ti~ ftys. - Reco~ends ~. L~ce ~d ~t Officer cancellation of ~mits as required ~ for ~f~ff~ ~ f~ ~11~~ for ~asons other ~ ~rel~ an ~erpa~t ~.e. ~, ~1~ ~ent, ~passionate masons, - Calculates_ a~Ti~le pe~t f~' a~ co1~e~' revenue for pemi ts ~' be issued; lnitia~ ~c~s f~ refunding ove~a~n~ m ~re complex appl i cations ~ ~sa~. - ~defl~es o~.~z~ions ~u'~n9 ~0 app~val nu~e~, ~ques~s and doc~en~ ~e~v~ ~ ~cu~ac~. c~e~efless and c~tance w~ leg~s~a~ofl; ~efl~ ~p~val/~n,app~ova] ~ ~e L~cence end Pe~ O~ce~. - Ve~es ~c~ ~Jv~ ~ ~Jse app~vals a~ ~cu~a~e, complete: ~d Pe~ O~fice~. - Checks ~fl~ly S~~ca~ t~ ~pa~e~ b~. ~s~s~an~ Pe~ C~e~k ~ · 'Answer~ a variety of gener&! tnqul~es relattng to the conducting of permit , evers fr~ ~JJ~)~JcJp41. s~ff, inspectors, local ege~Jes ~d ~ ConstJ~ency OffJ~ s~ff. - Ensues ~e Ltce~e ~d Pe~Jt OffJ~r ts ~are of cont~evers~al 'tssues conce~tng pertJcul~ pemJ~-~at m~ ~quJre senior staff Jnvolve~nt. - Provides oral ~d ~Jtten input ~ ~e LJ~ence end Pe~tt Offtcer ~gerdJng polJcJes, p~ocedu~s, fo~ and s~ndards. - P~vJdes beck-fill ~d ~lief ~r Asststent Pe~Jt Cle~k ~d ~e ~ststant LJc~ Officer ~ ~~. - ~er duties ~ R~ulattons; a~ of ~ es~l~ guidelines and procedures relating ~ - ~Jltty ~ provide ~nJcal ~pe~JsJon ~d ~oup leadership ~ asstgned surf. - gell-developed oral ~d written ~n~catfons skills; ~ deal effectively ~ ~lepho~ ~ co~spondence wt~ the public, Supervisors, Senior '~ag~nt, ~lJce, ~tcJpal officials ~d constituency offices. - ~u~g~nt sk~lls sufficient ~ detemJ~ when a pe~Jt/probl~ should be ~ferr~ ~ Supervisor for handling. · ~ ~gan~zation skills; suffJcJent ~ set priorities ~d ~ allocate work according to establlsh~ guJdelJnes. - ~od knowledge of general office pr~edures ~d ~thods ~ ~sure proper use of telephone protocol, efficient use of various reportJ~ tools, efficient ~fe~als to other areas, maintenance of adeauate supplies for un~t, securtty measures available. - ~J.lJty ~ ~rk ~ a ~ ~er ~ mJnJmal supervision. - ~lJty ~ wo~ well under the pressu~ of tight deadlines. - gfllJngness ~ learn ~ use a mJcroco~uter and/or te~fnal. - Artt~etJc skills sufficient to use fractions, decimals and percentages Jn ~e calculatfon of fees and providing assistance ~ applicants ~n detemJning allowable quantities of alcohol. ~ ~L/r" ' -- l ,?-~//l---~ "/~ ' ":'"' ¢ ' ~_Z~ Pemitz~'perations (Zone ~ ~ , ~cence and Pe~it Officer. Llcencing ano ~te Pe~it Operations (Zone ~ / ) a~~,~~cenc, ng a.d ,te/ Pe~t Operat~o~ (Zone ~) i L,Cence a~,e.~f/cer. L, cenc,,g an, ~~' Pem~ t Operat~ OhS (2one ~) O~ ~c~r. an~ Pe~t- Branch ,~ositt. on, l~t'tle · '~ Fost tton Co~e Ot .~ Department ~y~ ~ 0p~att'on.~ ~tton .~.~:~ .~ Eic~nsi;~.m& Pe~tts Br~nch '~" ~'~ ' Repor~ ~, : Licensing a' Pe~its Officer Nu~er of [n~ents., :: ~ (~. per Zone) Purpose of' Position To pr. ovide assistance, to a. ticence and Per,nit Officer for an assigned area of the province, bym co-ordinating and: evaluatin~ c~pliance Uocuments unUer.the Liquor Lice~e ~t ~d. Regulations. ~ To provide general info,orion on the Act anU ~ul~tio~: a.n~ Baa~ policies, ~ licencees, applicants, solicit°rs, municipaT, o'fffciels. ~Tice ~d ~e ~neral ~blic. Under ~e. ~era.1)m supe~ision of ~e Lfc~ce ~d Permit Officer: - [nsmu~s. the corr~ ti~ fr~s. of ~l~l'. ~c~nts ~quire~ for a Liquor Licorice ~plication be con~.ider~; - ProviUes det~i'l:e~. ~vice and instructions on a variety of legislative. requirements an~ ~oa~ policies to li. cence applicants duFing personal - Assesses l:ic~nce ~ocu~ntation and ~ports ~ceived for compliance with the Liquor Lic~ce Act and Board guidelines an~ notifies applicants of outst~,inE ~ i~pte~ info,orion; -Se~ ~, ~main~in app~pria~ p~tic ~ting Files; records and inse~Sm roll ~c~ ~eiv~ f~ a var(ety of ~urces (e.g. ~lice, financial, Supenisor. ~i~ Staff or Boa~ ~ers; - 5ch~ules ~les for Public ~etings ~d ~sures legi,slated 'notification? requi~ts are. met; prepares file sugary for Public Meeting use; - Responds appropriately ~ oral and written complaints/concerns roi the applicants, or solicitors with reference to t~e issuance of licences an6 to infractions o.f ~e ~t or ~lated regulations by licencees; - Verifi~ ~e(pt of appropriate fees and pa~ent of retail sales tax; - Prepares ~n~ly S~tistical Report for submission to data entry; - Ans~ a variety of general inquiries relating to liquor l icencing legilsation,' ~licies and practice~, from applicants, licencees, ~licitors, ~nici~al officials, police and the general public; - L(afses with ~B0 insp~tors on ~e status of licorice a~plications and vertficati~ of info~ation; - Ensures ~e Licence and Pe~it Officer is ~are of issues concerning particular a~plitatiens/establ -'Provides oral and written input to the Licence and Permit Officer regarding policies, procedures, forms and standards; - Assists Board l~embers at Public Meetings as needed, by responding to queries and referrals, interpreting regulations and providing advice; - Acts as Ltcence and Permit Officer durJng Supervisor's absence;' - Other duties, as assigned. Position Requt t'~nt$I o Very good knowledge of the sections of the Liquor Licence Act and Regulations pertaining to licensing, and of the. established guidelines and procedures relating to licensed establishments and new applications; general knowledge' of the policies and pratices relative to special occasion permits. - IVell developed oral and written communications and public relation skills to deal effectively with )icencees, the general public, supervisor and other Board staff. - Jud_~ement skills sufficient to determine when issues should be. referred to Supervisor for handling by the Board.. - Good organization skills; ability to set' priorities and to complete work according to established deadlines. - Good knowledge of general 'office procedures and methods. - Ability to work as a team member with minimal supervision. - Ability to work well under pressure of tight ~eadlines. - Willingness to learn to use a microcomputer.and/or terminal. - Arithmetic skills sufficient to calculate fees and compile statistical data. - Licensing aha ~ermr-cs utrlcer Counsel for the Ministry brought a Motion dUring the course of the hearing that the union be held to be estopped', from proceeding at the hearing on usage argument. Alternatively, the Ministry requested an adjournment to prepare for that case.. Th~ Motion that the. un/on was estopped from a. Usage argument was dism/ssed and the ad3ournment~ was granted. The union did in 'fact oppose the ad3 ournment. Mr. Sh~m~e for the. Employer explained to this board that certain discussions and exchanges of correspondence had occurred between CoUnsel in August to November, 1988. The hearing had originally been scheduled for September 7, 1988. Mr. Shamie stated that. after a phone conversation with Mr. Heisey who had been retained to represent the Union that the Union would proceed on a~ · standards basis. As a result, they agreed to adjourn the September 7 hearing and rescheduled it for November 30 which in fact was the first, date of 'these long proceedings. There was a further discussion about retaining an independent consultant to do an audit. The report was received by the Employer on October 31 and was forwarded to Mr. Heisey on November 28. That report was prepared on the basis that the Union would be proceeding on a standards basis. Until well into the course of The proceedings, Mr. Sh~mie stated he had no idea that the union Would raise a usage argument, namely 'the comparison between the PAC's and the ALO's. Mr. H~isey conceded that he had not so indicated t0 Mr. Shamie. Mr. Shamie had written to Mr. Heisey before the hearing for · paz~icula_--,-m bu~: had not ~m/.~ any. Mr. Shamie argued that because of these events, the Employer had been prejudiced because (I) it had not prepared its case to meet the usage argument;' (2) Ms. Kroon's Report addressed only a Standards issue; and (3) Mrs. Flaherty consequently had not been cross-examined on any usage issues. He referred the Board to Hefferin~ and M/n/stry of Consumer and Commercial Relations GSB 304/80 and Serrao and MinistrF of ~c~lth GSB 1759/86., Mr. Heisey indicated that he believes there was a mis- understanding between Mr. Shamie and himself. Mr. Shamie had said to him that he (the Union) was not relying on the class standards .and Mr. Heisey had replied that you cannot do it Without looking at class standards. He feared that the Employer had previously manoeuvred the Union (before Counsel assumed the case) into not referring to the.class standard which might have exposed the Union to a non-suit. 0nly as the. case proceeded did Mr. Heisey realize that a usage argument might in fact be available to the union. He denies that he even stated that he would not raise a usage argument. Furthermore, Mr. Heisey argued that there can be no estoppel against a statutory right to grieve .in a classification case. The Board ruled that on these facts there was no.estoppel anyway. Furthermore there really was no prejudice that could not be overcome by an adjournment. Mr. Shamie was given the right to delay his cross-examination of witnesses until he prepared his defence on the usage issue and Mrs. Flaherty was to be made available for further cross-examination if Mr. Shamie was so advised. The two cases cited by Mr.-Shamte were not on point. I consider the Heffering case essentially a'Blouin Drywall type case and the Serrao case dealt .with the substantive law area of culminating incident - an issue unrelated to the problems before us. Ail of these issues, having been canvassed, we need not deal at this point with Mr. Heisey's argument with respect to estoppel and a statutory right to grieve classifications. 22 a Berry order has been made, the normal 20 days rule applies with interest (see Berry and Alcamp and MCSS GSB #217/83, ~18/83 p 19 per Vice-Chairperson Verity 21 June 1988). DATED AT TORONTO this 29th .day of June, 1990 Thomas H.~ Wilson Vice-Chairperson ,~S'. U~bain Member ~ I. Cowan Member