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HomeMy WebLinkAbout1988-0551.Cooper.89-04-28 ONTARIO EM~ OYeS DE LA COURONNE GRIEVANCE COMMISSION DE SE~LEMENT REGL~ENT BOARD DES GRIEFS I80 O~O4S ~TREET WE~T, ~NTO. ~TA~O USG 1Z8 . SUITE 21~ rELEPHONE/TgL~PHONE ~ ~UE DUNDAS OUES~ ~R~TO. (ONTARIO) ML~ IN THE MATTER OF AN ARBITRATION Under TH~ CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE ~RIEVANCE SETTLEMENT ~OARD Between: OLBEU {CooDer) - and - Grlevor The crown in Right of Ontario {Llquor Control Board of Ontario) F~nployer ~efore: N.R. Gorsky Vice-Chairperson F, Tay~o~ Me~ber I. Cowan Member APPEARING FOR Elizabeth Mitchell THE~ GRIEVOR: Counsel Koskle and Mtnsk¥ Barristers & Solicitors APPEARING FOR Lynn Thomson ~ P24PLOYER: Counsel Hicks Morley Hamilton Stewart Barristers & Solicitors Hea~nq: March 6, 1989 DRAFT AWARD There is no significant dispute between the parties as to the facts of this classification grievance, It was agreed that the grievor, Anne Cooper, was, at ali material times, a Clerk Grade z/("Clerk #") with the L.C.B.O. ("Employer"), Her Position Title, at ail material times, was that of Advising Clerk, in the Distribution Division, Traffic and Customer Department, Traffic Operations Section. In order to arrive at the precise issue presented by the parties, it is necessary to refer to some of the specific facts, many. of which m'e not in issue, and the positions of the parties based on those facts. Hertz/, Rott, is also employed tn the Traffic Operations Section, · a~d was, at the date of grievance (May 2zi, 19t!8), performing the same duties and'carrying out the same responsibilities as Ms. Cooper and they continued to perform the same duties and carry out the same responsibilities at all materiel times. She also had the same Position Title and was also an Advising Clerk in the Distribution Division, Traffic and Custom Department. At the time of the grievance, Ms, Rott was classified as a Clerk Grade 5 ("Clerk $"). Miss Rott's position was reclassified by the Employer to that of Clerk ~ in December of 1988, and her Position was then red-circled. The position taken off behalf of Ms, Cooper is that she Is entitled to the same classification as Ms. Rott [Clerk 5) as they performed the same duties ar~ had the same responsibilities as at the date.' of the grievance and that it was, for the purpose of this arbitration, Irrelevant that Ms. Rott's position was reclassified to Clerk ~ subsequent to the filing of the grievance. Ms. Mitchell, Counsel for the Union, relied on the case of Ontario Public Service Eml~lo,(ees Union v. The Queen In ric[ht of .Ontario et al. (1982), qO O.Ro (2d) Iq2° There, the Ontario Divisional Court stated, referring to S.18 (2:)(al of the Cro_wn Employees Collective _B ar~atnincL Act, R.S.O. ! 980, C. 108 ["the ^ct"L st ated (at p. ! aS): "On a classification grievance the 8oard is generally mandated to consider two matters, namely, whether or not the grlevor's job measured against the relevant class standard comes within a higher classification which he seeks, and even if he fails to fit within the higher class stanclards, whether there are employees performing the same duties in a higher, more senior classification."L There was no issue with respect to the first test, sometimes referred to as the rlbest fit" test: it did not apply in this case as it was not being urged by the Union that the job being performed by Ms. Cooper at the date of the grievance came within the higher class standard. Rather, the Union argued that the second (usage) test (referred toby Ms. Thomson, Counsel for the Employer, as the "me too" test) applied, because, at the date of the grievance, MS. Rott, who was performing the same job as MS. Cooper, who was classified as a Clerk $. Ms. MJtcheU relied on Re McCourt 198/78, which is consistent with the O.P.S.E.U. case, where the second rule.was enunciated [at p. 8): "...[l]f the Grievor's work was identical (or virtually identical) to the work of another employee who was class|fled at a higher level, notwithstanding that the Grievor's work did riot come within the higher documented classification standard, the grievance wilt also succeed. In' the latter case, the Grievor's Job is measured against the actual classification practices of the Employer, which may differ from the documented standard." Ms. Mltchell also relied on Re McTamney 1553/8S. in that case the same Pule was enunciated in relation to the usage test. Ms. Mitchell, while arguing that Ms. Cooper should be reclassified as a Clerk 5 as of the date the grievance was filed (May 2q, 1988), merely sought equality with Ms. Rott. This, she submitted, could be achieved by awarding Ms. Cooper her reclassification to clerk 5, from May 2~, 1988 to the date in December of 1988 when Ms. Rott was red-circled. Jn this way, the requirements of the.O.P.S.E.U, case (above) could be followed, at the same time achieving the necessary equality that i~ required by that case, which would be achieved by the red-circling of Ms. Cooper. Ms. Thomson took the position that the Union could not succeed Oll its usage argument by relying only on a single case for comparison {Ms. Rott)o She referred to Re Montaque 110/78 [Swinton) at pp. "The task of this Board in cla~slfication grievances is to assess whether the position has been improperly classified according to the class standards established by the govern- ment's classification system. In deciding such grievances, the Board considers not only whether the grievor's job comes in within the words of the higher class standard which he or she seeks, but also whether the grievor's duties ace the same as those of an employee within the more senior classification sought (Re L_~ ~43/77; Re Roundin~ I8/75; Re Wheeler, 166/78). A recent a~vard by another panel of this Board elaborated on this Second line of enquiry in McCourt and-M_inistry of the Attorney General, 198178. If another employee doing work identical to the grievor is classified at a higher grade, it may.indicate that the employer's actual classification practices differ from the written classi- fication standards. It should be noted, however, that the concern is with the proper application of the employer's classification .system. Therefore, it may not be conclusive for a grievor to show that ~on~. employee in a higher classi- fication performs the same tasks, for It may be that such an employee has been improperly classified." I do not disagree with this statement that the result "may iv not be conclus e. Other employees may also be performing the same tasks and be classified at the same lave! as a grievor. There, the fact that only one employee, also performing the same tasks, was given a higher classification could not be conclusive. This statement was made in o_bl.t_er, being unnecessary for the award. MS. Thomson also relied on Re CarvaJho laSZ;/8~;, where it was said, at pp. 16-20: "Turning to the class usage argument, this brought into question application of the recent decision of the Divisional Court in Re Lowman and Ministry of Transportation and Communications. Unpublished Reasons for Judgment (November 15, 198~). Prior to this decision, it was the position of the Grievance Settlement Board that in order to succeed on class usage, it was necessary for the Union to show that in practice, the employer had varied the written Class. Standard in such a way as to encompass the work of the grievor. The Board took the position that there "must be a consistent practice of varying the Class Stanclard," Re Lowman and MTC (198a), # ! 3/82 (Saltman). Indeed, in line with this requirement, the Board in Lowman. supra, decided against the grievors on the ground that the "practice" requirement was not satisfied by showing that only one employee in a higher classification.performed the same work. Upon judicial review, the Divisional Court quashed the decision of the Board in Lowman, stating,'.in pertinent part: Having found that there was an employee performing substantially the same duties as the grlevors and that such employee had been deliberately classified by the respondent in a higher classification, the Board acted... without jurisdiction In failing to find that the grievor would be properly classiflecl in the higher classification. The higher classified employee and the four grievors are the only persons in the public service performing the function of remote sensory supervision. In the circumstances we are of the opinion that it does not assist the respondent tu argue that the senior employee may have been improperly classified....(Divisional Court Decision, supra, at p. 1) The matter was remitted to the Board for further proceedings. Counsel for the Union submitted that the foregoing decision ought to be interpreted as an indication that it was sufficient to establish a prima facle case for the grlevor to show that at least one person who performed the same work was classified at a higher level. This, it was submitted, would obligate the Ministry to ieee evidence showing that it had not, In fact, departed from its classification practices. Because no such evidence was led by the Ministry, the argument concluded, the decision of thls Board on class .usage must go in favour of the grievor. While this was an Intriguing argument, It must be concluded that it would stretch matters too far for the Board to accept it. Reading the decision of the DiviSional Court in Re Lowmen as a whole, we are led to conclude that the Divisional Court did not intend to rejec! the general rule of this Board that in order to succeed on a class usage argument the Union must show the existence of. a consistent practice of varying the Class Standard. Absent special circumstances, it does not satisfy this "practice" requirement to show that only one employee in a higher classification performed the same work as the grievor. The Lowman case, ~ was an example of special circumstances which brought the case outside the ambit of the general rule. As the Divisional Court noted in its decision, It would have been impossible for the grievors to show that more"Chart one other employee who performed. essentially the same work was classified at the claimed higher level. In the entire Civil Service, there were only five persons performing similar work--the four grievors and the higher classlfed employee with whom they sought to compare themselves. It seems to us that the Divisional Court recognized that to apply the "practice" requirement of the Board in these circumstances would be tantamount to denying the grievors their right to grieve. in the present case, there were not any special circum- stances to render inapplicable the general "practice" requirement. Moreover, it remained the burden of the Union to produce a prima facie case on this aspect of the matter, in line with this, it seems, the Union produced the testimony of Ms. D. McGriskln from the Sherlft~s Office in Whltby and Ms. Barbour from the Sheriflas Office in Newmarket. There also was entered into evidence the job specification for the accounting and jury clerk tn Milton, Considering' the totaUty of the evidence, howe~er, and in particular the evidence of Ms. Grant regarding the foregoing positions, it must be concluded that the requisite divergence In practice was not shown. As we already have found, bookkeeping duties do fail close to the borderline between Clerk 3 and Clerk 4 General, And we accept the evidence of Ms. Grant that the.additional duties beyond bookkeeping which comprised from 20--3096 of the jobs In Newmarket and Milton, were sufficient to bring them to the level of C lark zi General. The only higher classified job which was shown to be substantially to that of the grlevor was that at Whltby. But, as has been indicated, In the absence of special circumstances the existence of one substantially similar job in a higher classification does not show that in.practice, the Ministry varied the written Class Standar(t so as to encompass the work of the 9flavor. As a result, the class usage argument must be resolved In favour of the Ministry." In the Carvalho case, no special circumstances were found to permit a departure from the general side. ("the general ~practice' requirement") The Union relied on the case of only one other employee (Ms. fort), classified at the higher leve~, who performed the same job ~s Ms. Cooper° Failure to depart fr~m t~ praGti~e "would ~ tantamount to Uenyl~ the gHevors ~eir right to ~rieve~' (Ca~val~o, pp. 18- t9) The~e was no sug~stion that the~ were other e~plo~ees, the ~ase ~fore us, ~rforming simil~ work so as to bring in the ~aJ rule. Thee w~e oth~ Cl~k ~s em~oyed by the Employer, ~d I am certain that tf there were any others performing similar work to Ms. Rott, it w~ld have brought ~em to our attention. if the matter had enid here, ! would allow the grievance. However, it d~s not end here, as Ms. Thomson argued that if Rott*s classification was wrong, and that her ~st fit was that of a Clerk ~, then we must ecknowle~e this by denying the grievance. it was argued that while Ms. Rott may have ~en correctly classified ~ a ~ lerk 5 around 1~77, she has ~en inc~ectly classified slnce a~ut 198q, w~n, as she acknowle~ed?er duties and res~nsibilities ~anged In certain im~rtant respects. Around 198q her significant ~cislon making ms~mibilities had ~n assumed by her supervisor, Mr. lan Brand (pla~i~ and ~ganJzation). Ms. Rott t~tJfled that from~pproxlmately 1987, she and Ms. C~er ~rformed the same duties and had the same res~nsibiltties. We were asked to find that Ms. Rott was, at the date of the grievance, functioning at a Clerk a level, even thigh she was still classified,at that ~ime, as a Clerk 5. Ms. Mitchell argued that Ms. Rott"s proper classification on a ~st fit test was ir~levent and that we were only c~cerned with her Insofar as she must ~ ~med to have ~en pro~rly classified as a Clerk 5 on the date of the grievance. We were asked to uphold Ms. MltchelPs objection to the adducing of any evidence of the Employerts actions subsequent to the filing of the grievance, where it red-circled Ms. Rot-t's position, et~fectiveiy re-classifying her to a Clerk ~ in' December of 1988, some seven months after the grievance was filed. We heard the evidence, reserving our ruling on our being able to act upon it, Ms, Thomson argued that the correct classification of Ms. Rott was a matter which we were obliged to rule upon and that if she was incorrectly classified as a Clerk 5, and should have been a Clerk ~ on May 24, ~988, according to a best fit test employing the class standards, then we c~uld not ignore this merely because the · Employer had done nothing more than commence on examination of her classification by May 2Ztth. Ms. Thomson further submitted that we could receive evidence of post-grievance events touching on the proper classification of Ms. Rott at the date of the grievance, in this case, the fact of her reclassification in December of 1988. The O,P,S.E, Uo case did not depart from the jurisprudence developed by the Board under the Act..__.. it merely dectded that that jurisprudence was unaffected by the then recently decided case of Re Metropolitan To~onto Board of Commissioners of' Police and Metropolitan Toronto Police Ass_ociation et al. (1981), 33 O.R. (2dj 476 lC.A), This was, according to Caliaghan J, [at p, 1~5) because: "The issue before the Board was whether or not the grievors has been properly classified. We are of the view that the Metro[~olltan Board of Police Com~missioners case has no application to the case at bar. That decision was premised on a fine, lng of the arbitrator that there was no provision in the collective agreement governing the matters In Issue therein (per Houlden J.A. at p. q79 O.R,). In the instant case not or~ly did the collective agreeement provide a right to grieve (art. S.I.lJ the Act itself provided a clear right to grieve classification under so l'812J[a). The right so given is not restricted to allowing only grievances within a particular series or within a particular facility. To so restrict the right to grieve as the Board did would render such a right largely illusory. Where a right to grieve a particuiar matter is specifically recognized by legislation it ought not to be restricted absent a clear intention on the part of the legislature to do so. The effect of the Board's decision herein Is to restrict the right to grieve classification to levels within a particular series. It denies a grievance for cross- group classification or Cross-series classification. We see nothing in the Act Justifying the limitation Imposed upon the right given by so lll(2j(aJ by the Board herein." The Court, In referring to the usage test, referred to the need t° examine, "whether there are employees performing the same duties in a higher, more senior classification." Ms. Thomson submitted that Ms. Rott, although she was classified as a Clerk 5 at the date 'of the grievance, ought to be considered to have been a Clerk q at that date, because of certain facts, some of which did not transpire until after the grievance was filed. As I also understood Ms. Thomson, the Employer ought not to be bound by the classification of Ms. Rott on May 2q, 1988, if there was an error in that classification. So, if Ms. Rott was, on the basis of the best fit test, not within the Clerk 5 Standard on May 2Z~th, 1988, Ms. Cooper could not claim to be improperly classified as Ms. Rott, notwithstanding appearances on May 2qth, must be considered to ~ have been a Clerk 4 on that date. Ms. ThOmson submitted that the red-circling of Ms. Rott in December of 1988, supported this conclusion and that she had not grieved this action. Ms. Thomson also relied off Ms. Rott's evidence that her job duties and responsibilities had changed some time prior to May 2;4th and argued that her reduced duties and responsibilities correctly placed her within the Clerk 4 classification. As I understood Ms. Thomas, she is relying on two arguments in suport of her submission that Ms. Rott, and hence Ms. Cooper, must be treated as properly being Clerks Grade 4 on May 2;4, ] 988. One, is the fact of Ms. Rott's red-circling in December of 1988, effectively placed her in the Clerk ;4 position. Because Ms. Rott's duties and responsibUities had not varteci between May and December of 1988, she must have been performing at the Clerk q classification at the earlier date, The second submission is that, by her own admission, Ms. Rott had diminished duties and responsibilities in 1988, when compared to those she had in 1976 and 1977, where, it was admitted her increased planning, organizing and supervising responsibilities supported her claim to being then properly classified as a Clerk 5. In fact, Ms. Rott, while acknowledging diminished responsibilities in one area, stated that the introduction of computers had substantially increased her responsibilities in other areas. There were a number of cases rellecl on by Ms. Thomson in support of her submission that it Is not enough for the employee in the junior classification tO show that "there are employees performing the same duties In a higher, more senior classification." That is, that the employee said to be in a higher, more senior classification, must have been properly classified. If that employee was improperly in a higher classification, and should have occupiecl a 'lower .one on an objective analysis employing the class standards, then, even though another lower classified employee was performing the same duties, she could not satisfy the second test. Ms. Thoms6n also relied on Re Woodcock 56zli81, where the Board stated, at p, !4= "We are willing to accept the grievors~ testimony that, in fact, there was virtually no difference between the jobs done by Mr. C and Mrs. Woodcock. However, on behalf, of the Employer, Ms. Baker argued that the real point ts why the Employer classified him as Clerk if the employer was incorrect in what he did, then he was-improperly classified. But the classification was correct, given the description of the job on which the classification was based. I agree with Ms, Baker Jrt this. Therefore, the similarity with Mr. C is not really relevant." Mr. C, In that case, was the employee said to be in the higher classification.' The Board, in the Woodcock_case, states that it was open to the Employer to show the higher classification employee was improperly classified so as to be able to prevent a grievor from succeeding on an argument based on the the second last. I have read the excerpI from p. ~4 of the Woodcock case, and would not follow it if'it is interpreted to mean that the Employer can de. monstrate that lis own classification of the comparison employee [Ms. Rott, in the case before us) was improper. The statement is unsupported by argument, and, in any event, was unnecessary for the decision, as the Board decided the classification of "Mr. the comparison employee, "was correct." The reason why the comparison with "Mr. C [was] not re/event, was because his classification was. ! correct," given the description of the job on which the ~lassification was based, which included a description of significant additional work not performed by Mrs. Woodcock in the Woodcock case. Ms. Thomson also relied on the case of Re Dalrym~>ie 79/77, at pp, 5-7: '*The grlevoras principal argument before the Board lies not with the assertion that her job comes within the words of the higher class standard which she seeks but rather because her duties are the same as those of employees who do 'have the higher classification sought. Previous decisions of this Board ire Lynch. a3/77;.Re Roundtn~o 1_8_/75: Re Wheeler, 166/78) support this as an alternative approach but it must be remembered that evidence of others in a higher classification doing substantially the same work as the grtevor is only important when it is seen to reflect the actual practice of the employer. The actual classification practices of the employer may not truly be evidenced in the documents describing the classification system and if that is the case the grievor is. of course, entitled to be measured against the actual practices as opposed to any mythical practices which have since been abandoned [see Re Montague, 110/78 and Re Wriq.ht. 2,~8/81). it is not enough for the grievor to demonstrate that others are classified at a higher level and performing the Identical duties. As noted in Re Vukoje. 13~75; #However and to refer again to our earlier Roundinq award in determining whether Mrs. Vukoje should properly be classified as a Clerk 3. this Board may consider not only whether she is performing the duties assigned to that position but as well whether she is performing functions which are virtually identical to those assigned to those employees who both the employer and the employee aclree are i~roperly classified as Clerk $'s.t' (emphasis added) Wi.thin the grlevoF~s Department there are two employees, Lorenz and Donofrio, who are classed at the Clerk, Grade $ level. It seems apparent that Lorenz and Donofrio were classified at that level at a point in time when the actual classification system used by the employer was modified by some managers who believed In the elevating of employees as a reward for good performance. It Is obvious that such a subjective approach over any period of time could nullify any classification system I as the objective criteria of job duties is abanrJonedo This would lead to grea: }nequalitJes throughout the bargaining untt as classification would be dependent on Individual assessments without any overall COncern for uniformity. When the committee, Including the outside " consultants, reviewed the 3200 employees within the barga~ning unit In its entirety we see that within their anomalies list are Lorenz and Donofrio who they would regard as better fittin9 the level of Clerk, Grade 3. The employer according to the evidence has adopted a policy that it will not recJasslfy people down and the while they recognize both Lorenz and Donofrto as being .classified at too high a level they prefer to deal with this problem through attrition, This may appear as unfair to the grievor who admittedly perf~)rms the identical duties, and according to the employer performs them very well, but to reclassify the grievor to Clerk, Grade 5 would be to exacerbate the lack of fairness between employees within this Department and other employees within the bargaining unit who are performing the same duties and who are not similarly classified. The main purposes of a job classification system, to promote uniformity and equality, would be frustrated If fairness to one individual necessitated the abandonment of the system. The tail · would then wag the dog." Ms, Rott's situation is somewhat different from the cases of the comparison employees there (Lorenz and DonofrloJ, who were also mlsclassified as Clerk $'s. The difference was wtth respect to the method used to initially classify Lorenz and Donofrio, which was not the actual classification system but a substituted system based on reward for good performance' developed by managers. in the Dalrymple_ case, it was held, at p. 6, that such a subjective system would n. ulltfy the classification system as the ""objective criteria of job duties is abandoned." The Board:s concern in the Dalryms~le case was that in tile trade-off between fairness to a grievor who was performing the same Job as a higher classified [but improperly so) employee and the integrity of the classification system, "the tail [couid not] wag the dog." Here, there Is no challenge to the classification system, there being no suggestion that it was being subverted. The portion from pp. 13-14 of the Re Lynch case 43/77, relied on by Ms. Thomson, deals with the possible shift in the evidential burden: "Having reviewed this evidence in considerable detail,. we have come to the conclusion that Mrs. Alexander and the grievor perform almost identical job duties. This evidence therefore supports the grievorfs claim that she has been improperly classified. In our view this evidence shiftecl the evidential onus to the ethployer to establish affirmatively that, having regard to different organizational structures of the two hospitals or to the different management styles of the directors Involved, the difference in classification between the grievor and Mrs. Alexander is supportable,f~ Ms. Thomson relied on this statement to argue that It' is possible for the Employer to show that Ms. Rott was improperly classified. I interp~;et the L~nch case to have decided that there were other job related factors which could enable the Employer to establish a reason for maintaining the difference in classification: organizational structures, different styles of supervisors. Here, no such analysis is available. Ms. Cooper and Ms. Rott perform the same job with the same duties and responsibilities in the same work environment. No such distinction can be drawn here. Ms. Thomson also spent some time 'dealing with the question of onus. if she was suggesting that the evidence had not established a prima faci.__.e case, i disagree. If she is suggesting that the Employer has satisfied the evidential burden, I also disagree. Unles~ we are faced wlth a Dalr,vmple situation (above), we ought not to go behind the classification of the comparison employee at the date of the grievance. It is not our responsibility to perform a best fit test' in Ms, Rott's case. It was open to the Employer, as - it did in December of $988, to re-classify Ms. Rott. We are not here to cleat with the situation in December of 1988. Unle~ we are wrong arid are required to perform a best fit test in Ms. Rott's case to ascertain whether she was properly classified as a C lark 5 on May 2Zlth, 1988, we must treat her, on the facts of this case, to be properly classified as a Clerk 5 as at the date of the grievance, The evidence agreed to is that the grievor's and Ms. Rott's job duties and responsibilities were identical on May 24, 1988, We must treat this as a case where the actual classification practices of the Employer substantially modified the documented standards relied upon. if we had accepted the EmployePs submission and treated ' Ms. Rott's classification as being Incorrect, we would be creating a new rule. We would not defer to'the actual classification practices of the employer where they modified the documented standards, but would require, In ali_ cases, that the best fit test be applied to the comparison employee. Events occurring subsequent to the grievance , may ~how that the classification of the comparison emptoyee was* wrong in the light of the standards; it does not show the objective classification standards were abandoned. This award does not challenge the integrity of the Employer's classification system itself or the pay assigned to a job once cia ssifled. -16- The Employer can always re-classify'where an employee no longer fits the classification based or the objective system, if the Employer's submission was to prevail, success would often depend on when the grievance was heard by the Board, Untl! a re-classification is effected, there is no reason to question the actual, as opposed to the documented standards. What this means for Ms. Cooper is that her grievance succeeds and she is entitled to be classified as a Clerk $ as at the date of the grievance and to be paid at the appropriate rate from that date to the date Ms. Rott was red-circled, from which date she, too, will be red-circled. It was not suggested that this relief was inappropriate should the grievance succeed. The intention behind the comparison test is to treat like cases alike. We will retain jurisdlctio.n with respect to compensation. Should theparties be unable to determine the precise monies owing, will entertain a request from either party to determine the issue. We would like to thank both counsel for their excellent presentation of the evidence and argument. Classification cases frequently give rise to novel situations and we were greatly assisted by counsel in dealing with them. Dated at Toronto, Ontario this 2~th day of April, 1989. N.R. Gorsky, Vice-Chairperson I. Co.an, Hember