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