HomeMy WebLinkAbout1988-0677.Munro & Boden.89-09-11 ~:~ ~;" '~:?' ' EMPLO Y£S DE LA COURONNE
J~ ~ ~'..~.~'. - ONTARIO
. ~.,.~. ......... · CROWN EMPLOYEES DEL'ONTARIO
BOARD, DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG IZ8- SUITE 21~ TELEPHONE/T~L~PHONE
I80, RUE OUNDA~ OUES[ TORONTO, (ONTARIO) MSG IZ~ - BUREAU 21~ (416) 598-0~8
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Munro and Boden)
Grievor
- and -
The Crown in Right of .Ontario
(Ministry of Natural Resources)
~mployer
Before:
D. Fraser Vice-Chairperson
G. Nabi Member
H. Roberts Member
For the Grievor: A. Ryder
Counsel
Ryder, Whitaker, Wright and Chapman
Barristers & Solicitors
For the Employer: N. Eber
J Couhsel
'Hicks Morley Hamilton
Stewart Storie
Barristers & Solicitors.
Hearings: january 12, 1989
April 21,1989
May 12, 1989
DECISION'
2 '
This matter concerns the grievance of Paul E. Boden and Barbara Jane
Munro, both of whom were classified as Resource Technician 2 (referred to as
RT2 hereafter) at'the time of the grievances, ~lth the posltlon title of
General Resource Technician. Both arelseasonal employees in the unclassified
service, and each has'seniority under Article 3.18 of the collective agreement.
Mr. Boden's grievance is dated June 30th, 1988, and it alleges that RT2
positions are occupied by persons with less seniority than helhas, in breach of
Article 3.20.1 and 3.20.2 of the collective agreement. He requests a position
.to e~tablish his seniority as-of June 18th, 1988.
Ms. Munro's grievance is dated August 26th, 1988, and allegesr the same
breach as found in Mr. Boden's grievance. She requests a position to establish
her Seniority as of April 1st, 1988.
The remedy requested in the grievances was furtherl clarified at the
hearing, and it involves the positron'titles of General Resource Technician
(referred to as GRT), Resource Technician G~psy Moth (R~GM), and Resource
Technician Foreman (RTF), and their relationship pursuant to'Articles 3.20.1
and 3.20.2 of the collective agreement.
Relevant portions of the collective agreement include the following:
3.18 The probationary period for a
seasonal employee shall be two (2)
full periods of seasonal employment
of at least eight (8) consecutive
weeks each, worked in cons. ecutive
years in the same position in the
same ministry.
3.20.1 Seasonal employees who have completed
their probationary period.~ shall be
offered employment in their former
positiors in the following season on
the basis of seniority.
3.20.2 .Where the Employer reduces the number'
of seasonal employees prior to the
expiry date of employment sPecified
'. in the contracts of employment,
seasonal employees in the same
position shall be laid off in reverse
order of seniority.
It is Specifically alleged that 'the grievors, by virtue of their
seniority and the operation of Articles 3.20.1 and 3.25.2, have priority for
work done as Resource Technician Gypsy Moth and Resource Technician Fore,ran in
the summer of'1988. These claims involve the interpretation of several parts
of those sub-articles, including the phrase "their former positions" in Article
3.20.1 and "in the same position" in Article 3.20.2.
The grievance in brief concerns a situation both grievors found
themselves in, in the summer.of 1988, when each vas given an eleven week
Contract as a General Resource Technician. 'On the completion of'their'
contracts, work Was continued to be done by'employees with less seniority in
the positions of Resource Technician Gypsy Moth, and ResoUrce Technician
Foreman. The grievors claim an entitlement to that continuing work under
Articles'3.20.1 and 3.20.2,~on the ground that it' is included in the position
of GRT where positions'or position is referred to in those articles.
Before reviewing the evidence in any detail, or considering further the
grievors' claims and the employer's responses,~ we will look at some of the .
content of those two sub-articles, as any review of the evidence, must be placed
in the context of the notion of season, found in Article 3.20.1.
4
· .Article 3.20.1 provides a right to seasonal employees (who have
completed their probationary period, which is the case here) to be offered
employment "in their former positions in the following season on the basis of
the
seniority". As right arises "in'the following.season", the meaning of that
phrase must be determined in the content 'of this case. Article 3.17 provides
in part that a seasonal~employee is appointed for at least eight consecutive
weeks to an annually recurringrfull-time position, which provides an indication
of the minimum length of a season. Mr. Bod~n's evidence indicated that with
the exception of 1985; when his contract commenced on May ist, he normally
started work as a GRT at the beginning of April or early that month. Such
contracts could be short, or could last into the following calendar year. A
season therefore normally Commences in April of any year (or perhaps a bit
later), and'when it starts, it is the "following season" in respect of any
prior emplOyment for the purposes of Article 3.20.1. Furthermore, where
Article 3.20.2 requires that lay-offs "prior to the expiry date of employment"
'shall be made in reverse order of seniority, there is nothing in.that article
providing any right accruing "in the following season".
Thus the right to employment in Article 3.20,1 in a following season 'is
based on seniority, and lay-offs during the currency of a contract are based on
reverse seniority, but the language Provides no right arising from a lay-off
one season to be linked to-an offer of employment in a 'following season. Their
common element is that they are both based on seniority.
We Will now review the events surrounding these grievances in more
detail.
5 '
.Mr. Boden has been a GRT in the T~eed district of the employer since
1985. ~In that year, his contract ran from May 1st to December 20th, where he
worked in timber. In that job', he supervised·tree making projects, and
boundary line projects. That work included equipment maintenance and filed
supervision of other resource technicia~. In 1986, his contract ran from
April 1st, to the-end of December. During that contract, he looked after the
tree barn, and collected information respecting forest stands. In the fall of
that year, he did work for the gypsy moth control program in the Katadar area.
That included gathering information for egg mass surveys for about a month,
which included counting egg masses and determining if they were new or old
ones. The data were recorded and maps were drawn to locate the plots. His
training for this work was a half day s~minar given by a federal forestry ·
group. He also assisted conservation officers in the deer hunt period.
In 1987, his contract started on April 1st, and was t° run for .eleven
months, terminating at the end'of February,· 1988. He did various duties,
looking after trees, putting out tenders for site preparation, supervising
bulldozer operations for some months, and doing tree marking and data
collection for about six weeks.
Ms. Munro's employment ~ith the Ministry began in 1984 in the position Of
Resource Technician Foreman,~when she worked in the Tweed district. In 1985,
she was given a contract as a General Resource Technician (which has·the class
allocation of Resource Technician 2), during which time she worked, among other
things for a ~eekend at a fair at a booth for the purpose of advising the
public of the impact.of the gypsy moth as a pest, and of the action to be taken
by the government to counteract that.
Article 3.18'of the collective agreement (shown above) provides in part
for a probationary period of two seasons employment "in the same position" in
the same ministry. Ms. Munro's 1984 employment as a Resource Technician
Foreman, and her 1985 employment'as a General Resource Technician, were treated
by the employer as comprising two.~easons employment "in the same position",
for the purpose of that Article, and her seniority accumulated thereafter.
Starting on April 1st, 1986, she was employed as a Resource Technician Private
Land (under the class allocation of Resource Technician 2). The evidence
indicates that the designation "Private Land" in the position title is not
material for.the purposes of her grievance, as it relates to similar work and
duties done on private lands, to that done by other General Resource
TechniciaDm on public lands. She worked a nine-month contract in 1986, in this
capacity, and ~as given another contract at the start of 1987-88 season, in
April, 1987. During' that latter,, contract, she started doing private lands
work, and was transferred in mid-April to th~ Gypsy Moth Spray Program at
Irvine Lake, where she organized and supervised the equipment for the program.
Throughout the term of that'contract, she moved back and forth between
gypsy moth work and private lands work, doing a gypsy moth egg mass survey for
one month in September. She returned to private lands work, and was doing that
on February 5th, 1988, when'she was laid off Just prior to the expiry of ~er
contract term, which would ba~e been the end of February.
During this period, some changes occurred to the operation of the gypsy
moth Program at T%'eed. In the spring of 1986, an entomologist by the name of
Margaret Lucianl was hired to provide professional entomological services for
the program, which included research, the biology and management of the gypsy
moth extension services, public relations, and technical advisory services. At
that time, most of the work on the program was done.byTweed district.
personnel, with eight to ten technicians working on technical preparation, some
of Whom were GRT's. In the 1987-88·season, Ms. Luciani was assisted in.the
gypsy moth work by Peter Joyce and Ann Campbell, two GRT's with less seniority
than the grievors, and. two summer students. At some point during that season,
it was decided that a ne~ position of Resource Technician Gypsy Moth would be
appropriate for those assisting Ms. Luciani in the future, and a position
specification for that new position ~Ith the class allocation of Resource
Technician 2 was completed Early in 1988.
Both Mr. Boden and Ms. Munro had been advised during this time that the
gypsy moth work would no longer be available for them to do as part of their
contract work, as it was going to a new position. A competition was duly
posted for the new positlon~ with a closing date of March 4, 1988. Neither
grievor applied for the position, as they considered it was not a new position,·
'but contained in their Resource Technician 2 position. They felt as a result
that they had recall rights to any work included in the Resource Technician
.Gypsy.Moth position, which eventually resulted .in the present grle~ances.
Both grievors' contracts for the 1987-88 season were to run to the end of
FebrUary, 1988, and each contract was terminated in early February, prior to ...
its expiry, date. At that time the gypsy moth work had not been completed, and
one GRT,. who was not the most senior, was given it to complete. There.were
complaints about this situation, and the most senior was compensated. At this
time, the new RTGM position had not been filled.
Peter Joyce and Ann Campbell, who had worked for Ms. Lu¢iani before,
applied for the new RTGM position and were successful. They were then each
8
given new contracts in that position for the 1988-89 season, for 11 months
commencihg April 15th, 1958..
Mr. Boden was also given a contract for that seas'oni commencing on April
1st, 1988, for an eleven week period. Ms. Munro was not offered a contract.
She grieved, and a settlement of her grievance without prejudice or.precedent
~esulted in her being given an eleven week contract starting on June 23rd, and
ending on September 19th. '~
Each grievor worked their contracts out to the end of their respective
terms. At that time, the new Resource Technicians Gypsy Moth, Joyce and
Campbell, continuin9 doing the 9ypsy moth work, as they each had eleven month
contracts, and some Resource Technician Foreman's work continued to bedone by
an employee ·by the name ofRichard Rosenblath.
Joyce, Campbell and Rosenblath are all junior in terms of seniority in
the Resource Technlc~·an 2 position to both grievors, and it is the continuing
work those three did in the summer, and fall of 1988 that the grievors lay claim·
to, under the provisions of Articles 3.20.1 and 3.20.2.
We will first consider these claims in the context of the 1987-88.season,
which began in April, 1987. Both grievors were laid off in February,' 1988,
prior to the expiry date of their contracts. At that time, employees were let
off in reverse seniority, or at the same time, except~for one technician who
continued to do gypsy moth work for two more weeks. He was not-the most senior
employee available for ·that work, which caused a problem. As a result, the
more senior employee ~as compensated (presumably pursuan~ to the provisions of
Article' 3.20.2) for the two·week period.
9
The evidence respecting the grievors' status with respect to this
adjustment is unclear, but it does not indicate that they claimed a breach of
Article 3.20.2 in respect of ~heir seniority at that time, and we must conclude
in the absence of further evidence that the adjustment and compensation that
took place at that time, cured the problem that had arisen.
.In view 'of that, and in vieW.of the fact that the claims for settlemeht
in each present grievance, speak to remedies as of April 1st, 1988 (in the case
of Munro} and June 18th, 1988 (in the case of Boden) both of which essentially
relate to the availability of Resource Technician Gypsy Moth, and Resource
Technician Foreman work done in the 1988-89'season (the following season to
1987-88), we ~find no breach of Article 3.20.2 for the 1987=88 season.
Neither does the situation in February, 1988, directly assist us in
reviewing the events in April, 1988, with respect to any alleged breach of
Article 3.20.2 ih the 1988r89 season, as those latter events occurred in the
"following season", which that article does not address. Finally, on this
aspect, the contracts for both grievors (short as they were), ran their full
· terms of eleven weeks in the 1988-89 season commencin9 in April. There is no
question of termination prior to the "expiry date of employment" as required to
bring Article 3.20.2 into effect for the 1988-89 season, and it does ~not apply.
W~ conclude therefore that there 'has been no breach of Article 3.20.2 of the
collective agreement.
The'recall rights based on seniority and found in Article 3.20.1, remain
to' be considered. The 1988-89 season, cdmmencing in April, 1988, is the
following season for the employment of both grievors which ended in February,
10 ~
1988, and they are entitled to be recalled in that April, according to that
article to "their former positions" and "on the basis of seniority".
If seniority is to have any meaning at all in such a context, where most
employees are re-hired at approximately the same start date, it must relate to
the length of contracts offered (in the same position). Thus, for the same
position, the most senior employee must be offered the longest term, all other
things being equal, and so on down the seniority list. The protection for
seniority ~ound in Article 3.20.1 would be stripped of its meaning, if, for
example, on one day, the most senior employee were recalled to an eight week
position commencing on April ist, and then the next Senior were recalled'(to
the same or similar position) to an eight month positioncommencing on April
2nd.
Therefore, if the positions are the same or similar (and we will consider
further the meaningof "former positions" betow),'.both grievors had an
entitlement under Article 3.20.1 to be recalled in April, 1988, to either of
the longer term positions of Resource Technician Gypsy Moth, or Resource
Technician Foreman, provided such positions are included in the notion of the
grie~prs' "former positions",.which was that of General Resource Technician or
Resource Technician 2. That is the issue before this board, and we have
finally arrived at.the fundamental question put by Mr. Ryder at the outset of
this hearing, which is whether the Resource Technician GYPSY Moth, or ResOurce
Technician Foreman isa "former position" in the context of Article 3.20,1.
There was little dispute between counsel about the standard of review we~
are required to apRly in this respect.
11 '
First, the ans'wer to the question posed is not to be found in the class
alloCation. A classification is broader, may include'a number of Positions,
and is accordingly not determinative of the issue (see, for example, Smith,
(2315/87). Neither~is the posit~on title definitive. A title is Just a title,
and the issue is "whether or not the substance of the Job and the nature of the
duties are Sufficiently similar to be considered the same position" (see
Furniss, (602/86), at p.ll). Another way to put the same issue is to ask
whether the duties~ of the two positions compared,'are "substantially similar"
(see, for example, Saunders, (275/86), and Nielsen, (1985/87)). The.question
is one accordingly of fact, and the test is one of substantial or sufficient
similarity. ~
The base Job, or "former position" is that of General Resource
Technician, and we must determine whether the Resource Technician Gypsy Moth or
the Resource Technician Foreman jobs are substantially similgr.~ To do that, we
will consider both the'relevant position specifications, and the work done
under each as described by'various witnesses.
The.position specification for General Resource Technician became
effective January lst~ 1986, with a class allocation of Resource Technician 2.
The purpose of the position is:
To perform a variety of forest management duties under
the supervision of the Resource Technician Group'Leader
on Crown Land in the T~eed District.
~e duties are as follows:
1. Top erform the following timber duties: -
- carrying out and/or supervising tree
n~rking projects by following the pre=cut
data provided
- completing boundary line projects using the
best available survey data
- supervising and maintaining high
performance standards by providing cost and
production reports on site preparation-
.projects, tree planting, pest control,
, tending and harvesting. This may include
supervision of up to 15 people.
- other duties as assigned or required by
his/her supervisor~
2. Performs auxiliary duties: -
- assisting in private land program with
tours, & W.I.A. field days
- other duties as required including
temporary assignments to other services
i.e.'fire, Wildlife.
The skillsand knowledge required are: '.
b~Yaduatlor~ f~om an approved course in Resource TechnOlogy
or e~ivglent related e~erience. Demonstrated
experience In tree ~k~rklng and tl~er cruising,
C~rti£i¢~t~ Course and ~¢'aling course would te an asset,
General knowledge of tree silvlcs and silvicultural
techniques. Working knowledge of the Crown Timber Act,
A Valid M.T.C. Driver's Licence. Pesticides Licence and
be familiar with the Occupation Health and Safety Act.
The reasons for the class allocation are:
A. Employee performs a variety of skiiled and/or
technical production oriented.duties in performing
forest management.duties on Cro~n land in the Tweed
District.
B. Incuafoent required to take charge of casual
employees in such activities as tree planting and
marking, pest control, etc. ~
C. Incumbent requires a working knowledge of tree
silvics and silvicultural techniques; the Crown
Timber Act; Occupational Health and Safety Act.
The position specification for Resource Technician - Gypsy Moth became'
effective on February 4th, 1988, with the class allocation Of Resource
Technician 2.
The purpose of the position is:
To assist Gypsy Moth entomologist in research on the
biology and management of the Gypsy Moth and extension
duties.
The duties are as follows:
1. Field Duties
(A) establishes research, plots, and Collects
data for Studies on the biology and
management of the gypsy moth
(B) collects insects for the preparation of a
timber insect collection
(C) participates in the prespray and postspray
assessment of gypsy moth program including
monitoring of insect and host development,
aerial and ground defoliation estimates
(D) participates in district and regional egg
mass surveys
(E) assists'in training summer staff
2. Laboratory Duties
(A) rears gypsy moth larvae on artificial diet'
for the collection of parasites
(B) mounts and identifies insects for
preparation of timber insect collection
(C) prepares parasites for shipment to federal
authorities ~or identification
(D) performs general laboratory duties such as
use of dissecting microscope and
preparation of artificial diet
3. Public Relations/CommuniCations Duties
(A) responds t0-reguests for information about
the gypsy moth from the public and other
government agencies i.e., extension calls,
forwarding information
(B) prepares, updates news releases,' various
reports and overheads
(C) gives presentations to special interest
groups
(D) conducts workshops and training sessions
4. Miscellaneous Duties
(A) prepares, various maps, i.e. defoliation
project descriptions
(B) organizes and maintains, resource material,
such as slide catalogue and reprint library
(C) compiles and summarizes data from studies
on biology and management of the gypsy'
14
moth, often involving data entry on a
computer·
5. Other duties as assigned.
The skills and knowledge required are:
Graduation from 2 year course in resource management from
community college, basic knowledge of entomology,
experience in reading maps, use of compass, operation of
· outboard motors, dissecting microscope. Oral and written
communications skills. Kno~ledge~of occupational health
and safety act, valid MTC driver's licence.
The reasons for the class allocation are:
Position of an employee responsible for performing a
variety of skilled and technical, production oriented '
duties in connection with the research on the biology and
management of the Gypsy Moth program.
Duties contain some latitude for decision-making such as
technical laboratory and field work.
The position specffication for Resource Technician Foreman became
effective on January 1st, 1986,·with the class allocation of Resource
Techniclan~2.
The purpose of the Position is:
To act as a forest 'management project foreman under the
supervision of a permanent staff supervisor in the Tweed
distr Jct.
The duties are as follows:
Supervises a crew of $ - 10 manual workers on
silvicultural tending projects.
Maintains high performance'standards by following forest
management prescriptions for each project.
Provides progress reports, final cost and production
reports for each project. Provides on the Job.safety
training and maintains safety standards..
Other duties as assigned.
The skills and knowledge required are:
Graduation from an approYed course in technology or
equivalent related experience.
Holder of an MTC & MNR driver's licence, Pesticide
licence and Current First Aid Certificate.
Experience in foremanship and silvicultural treatments,
Knowledge of the Occupational Health and Safety Act.
The reasons for the class allocation are:
A. Employee perforl~ a variety of skilled and/or
technical production oriented duties in carrying
out forest management duties in the Tweed district.
B. Incumbent required to supervise casual employees on
silvicultural tending projects.
C. Incumbent requires a working knowledge of ~he
Occupational Health and Safety Act and those
regulations which apply to the work supervised.
We.will first consider whether the position of Resource Technician -
Gypsy Moth, is substantially similar to that of General Resource Technician.
The first and principal duty in the position specification for General
Resource Technician (GRTi relates to timber duties, and it indicates'that 90%
of the time is spent on those duties. They include such things as tkee marking
projects and boundary line'projects. Pest control is found in those dUt{es,
but it is not prominently placed, and is mentioned'along with such other duties
as site preparation, tree planting, and tending and harvesting..
The skills and. knowledge portion of the specification refer to a
reguiremen~ for a "Pesticides Licences", and familiarity with the Occupational
16 ~
Health and Safety Act~ Both of these relate to pest control,, but they do not
necessarily suggest it is a substantial function.
The evidence indicates that GRT's worked in pest control in the seasons
commencing in 1985,. 1986, and 1987, as part of their general duties. They
moved from duty to duty in most cases during the term of their seasonal
contracts, and in pest control they were involved in a number of processes,
including spray programs and data collection. The GRT's were involved in most
aspects of the spray program, including the preparation and utilisation of
equipment, and in data collection, including egg mass surveys for gypsy moths.
Su6h duties were not limited to gypsy moth, andwould include such things as
pesticide trials for the white pine weevil.
Both Mr. Boden and Ms. Munro were involved in such ~ork from time to time
as GRT's. The evidence sho~s that they had a general competence in pest
control as performed by the GRT's, and that included experience oQ egg mass·
surveys. It can further be concluded that they were qualified to apply for the
Resource Technician - Gypsy Moth position when i% was posted, but that does not
of course make the two positions substantially similar., as such depends on a.
comparison of' the duties. 'Furthermore, their qualifications donor mean that
they could initially perform all of the required duties· in that position, as
that is a question of fact dependihg on the nature of the duties and the
training required.
we will now compare the pest control duties actually done by GRT's,
including the grievors, with the position specification for RT-GM, and with the
description of actual duties performed in that position, as 9~ven in the
employer's evidence.
17
Mr. Boden testified that on the RT-GM position specification, he had not
done duty I(A) relating to 'research plots and data for gypsy moth. Ms. Munro
had performed those funCtions, but not with respect to gypsy moths. Both had
done~egg mass surveys for gypsy moth, which has been separated out as a
specific duty in i(D). Ms. Luciani, the entomologist we have referred to
earlier, who was in charge of the gypsy moth program in 1987-88, gave extensive
evidence of the work involved in duty i(A}. That evidence indicates a
comparatively sophisticated process for establishing the research plots and
collecting data in duty i(A), which we view as going gulte a bit beyond the egg
mass survey function, and which the'grievorg did not do in prior years as
GRT'S. M~. Boden has done duty I(B) relating to a timber insect collection,
as has'Ms. Munro. Mr. Boden has not done duty i(C) relating to pre- and
post-spray assessment of gypsy moth, and neither has Ms. Munro, but she
assisted in pesticide trials for two weeks for the white pine weevil. We are
satisfied she was involved in such a.process generally, but once more Ms.
Luciani gave evidence about the processes she required, which included some
very specific functions, including monitoring of insect and host development
relating to gypsy moth. we would conclude from this evidence that neither
grievor has performed dut~ l(c) to the extent that it involved the basic
techniques of entomological research described by Ms. Luciani, and performed by
the RT-GM under her supervision.
As noted above, the egg ~ass survey field duty in i(D), is one performed
by GRT'.s. Such employees, including the grievors, have also participated in
duty i(E) respecting staff training. However, Ms. Luciani testified with
respect to the type of training in research required by the RT-GM position. It
is involved, and particUlar to that position, and we conclude that neither
grievor nor the GRT's generally were .involved 'in that.
Under part 2, Laboratory Duties, neither grievor has done duty 2(A)
respecting the rearing of gypsy moth larvae. Each has done mounting and insect
identification as found in 2(B). Mr. Boden has not done parasite preparation
for shipment as found in 2(c), a!th~ugh Ms. Munro has, and she said She
practically did it every day.
However, Ms. Lucian! testified that the mounting and~identification found
in 2(B), and the shipment in 2(c), were done ina specific and involved way
that goes beyond what the grievors had been involved in. She identified the
parasite survey· as "our major studies". Such parasites had eventually to be
officially identified by a Systematist at the Bio-Systematics Research Centre·
in Ottawa. For that purpose, a precise procedure for mounting the insects was
required. They had to be pinned or positioned so that their complete
structures, such. as wings, antennae, legs, could be easily observed under a
dissecting microscope, and there·were subsequently further detailed labelling
and shipping requirements. We conclude that these duties go substantially
beyond those normally' performed by GRT's in the past, in order to fulfil the
needs of the major studies.
Both grievors had 'used a dissecting microscope as required·in duty 2(D).,
to identify bugs.. The duties of the RT-GM appear to have 9one beyond that
function, as the dissecting microscope was used by those employees for other
-fur~ctions, including dissecting eggs. Neither grievor has prepared the dry
powder mix of artlf]ctal diet for gypsy moths as is ·also found )n duty 2(D),
although GRT's have provided other diets for insects from time to time.-
The block of duties found in Dart 3,. Public Relations/communications
Duties, and part 4, Miscellaneous Dutfes have 'by-and-large. been performed'by
19 '
the grievors and other ~RT's in respect o.f their duties generally. GRT's deal
frequently with-the public, and with requests for information. Mr. ~oden,
however, had not done duties 3(B), (C) or (D} in respect of gypsy moth. Ms.
Munro had not done duties 3(B) or.(D), in respect of gypsy.moth, but had done
duty 3(C) respecting giving presentations, when she worked at a gypsy moth
program presentation given at a fair In 1985. ~Both grievors have performed
almost all of the miscellaneous duties in part 4, but not with respect to gypsy
moth.
Each grievor has received training from time to time in ~various areas,
and particularly in respect to egg mass surveys.' Mr. Boden has had a half-day
seminar in that process, and Ms. Munro has had a 2 hour course.
However, the training given by Ms. Luciani to Peter Joyce and Ann
Campbell in 1987, when the duties in the RT-GM position specification were
first'performed (prior-to its approval), was extensive and thorough, and it~
gives a direct indication of the 'further complexity of the duties performed in
that position. The training was very intensive at the 'start of the season, and
then ongoing throughout the season. We will limit our reference to ~he
training for field and lab duties, which is~sufficient indication of its
complexity.
That training included: lkasic theory in experimental design;
knowledge of insect ecology, and tdegtification; background in natural
mortality of insects pertaining.to parasites; training in sampling techniques;
basic .k~owledge of rearing insects in a controlled environment; and a 'series of
other matters. It was summarised by Ms. Luciant as giving a background in
research~ entomological techniques and theory.
2O
We have omitted a great deal of detail in this description of the
training, but would note that it was intensive, and job-specific to the'
particular duties performed by the RT-GM. The evidence overall indicates that
a General Resource Technician is'qualified to engage in such training, and will
have had training to various degrees in many of the areas noted, but not to the
detailed and Job-specific extent that was r~guired by the RT-GM position.
The evidence has also Shown that there was gypsy-moth work done for years
by General Resource Technicians prior, to the creation of the Resource
Technician -Gypsy Moth position. Furthermore, Ms. Luciani left the employ of
the Ministry in October, 1988, and some gypsy moth work since then is carried
on by technicians under the supervision of an entomologist from the Canadian
Forestry Service. We have little evidence about the content of that latter
work, and the training required. ..i
However, we can conclude from the survey above that the Resource
Technician - Gypsy Moth work done under the position sp~cification with that
title, and under Ms. Luciani's supervision, is notably more complex a~d
involved than the pest control work done by General Resource Technicians
earlier. The RT-GM work is indeed a development~of that earlier work, a~d
involves a number of general processes found in principle in that'earlier wgrk,
but its complexity goes well beyond those earlier processes in several ways
which the evidence has illustrated, both in respect of the duties and the
training required for those d~ties.
For these reason, we find that the Resource Technician - Gypsy Moth
position is not substantially similar to the General Resource Technician
position, and both grievances·must fail in that reSpect.
We would note finally on this matter that our finding 'is of course based
on specific evidence over a specific time period. The'situatlon we have
reviewed resulted in part from a severe gypsy moth infestation< and the
vigorous efforts by a particular entomologist, Ms. Luciani, to do some fairly
sophisticated basic research in response to that threat. That all involved the
creation~of a new position which involved duties and training going bell beyond
that previously done by General Resource Technicians..Ms. Luciani has now
left, and there is not clear and reliable evidence that the RT-GMduties will
be performed in the same way with the same training, as under Ms. Luciani, or
otherwise. Our conclusion is therefore based on the period Under review, and
the specific factual evidence for that period.
We now turn to a comparison of.the General Resource Technician position
and the Resource Technician Foreman position. The position specifications for
each, and the evidence of actual duties performed in each position, indicate
generally that the work performed in the Foreman position is included in the
General Resource Technician position, but it has neither the scope nor the
required qualifications of that latter position.
The principal-duties in the General Resource Technician position involve
timber duties relating to such projects as tree marking and completing boundary
lines, and it is noted in the position specification that such duties "may
include supervision of up to 15 people". Mr. Boden's evidence, as recounted
earlier, shows quite .clearly that he was involved in such supervision from time
to time. There is little doubt that he is capable of performing, and has
performed, most or all of the specific duties found in the Resource Technician
Foreman's position specification. 'Ms. Munro in fact performed the duties in
that position specification, as she was a Resource Technician. Foreman infhe
· 22
T~eed district during her first year with the Ministry, in the season starting
in 1984. In her second year, she ~as.a General Resource Technician, and those
t~"seasOns were counted~as fulfilling her probationary period under Article
3.1.8, which requires in part, two full periods of seasonal employment in
consecutive years "in the same position". Thus her service as a Resource
Technician Foreman satisfied one season of her two-season probation for General
Resource Technician.
We conclude that the Ministry viewed the two positions as the "same
position" for the purpose of probation under Article 3.18.~ HoweVer, that was
for a specific ·purpose under .a specific article, and we cannot find as. a
consequence that the two positions are substantially similar for the 'purposes
of the application of the phrase "former positions" under Article 3.20.1. That
is a question of fact, dealing with a' separate phrase and a separate ·
entitlement, and .the Ministry's earlier position may consequently only serve as
corroborative evidence should be independently determine the question of fact
in' the grievors' favour under Article 3.20.1,
To sum up at this point, it is quite clear that the Resource Technician
Foreman's duties are included in the General~,Resource Technician's duties, but
that does'not make them substantially the same. There must be some equivalence
between the core or main duties of each position, to reach that conclusion. To
take an extreme example, the General Resource Technician is required td have a
Valid M.T.C. driver's licence, and one may assume that driving Ministry
vehicles is an included duty under "other duties as assigned". One would not
conclude from that, however, that a Job limited to driving Ministry vehicles
was Substantially similar.to a Job of General Resource Technician. The
included function alone is not determinative, and there must be a broader
slmllarltywhen all the core functions are comfared.
.'~'~e two position specifications show no such similarity. There are many
timber duties in the General Resource Technician job not included In the
Foreman's Job. Mr. John McMurray, Forest Operations Manager, T~eed district
gave evidence on this. He noted that of the many timber duties found in Duty
~1 in the GRT position specification, the Foreman would only do the t~nding
duty, which might~also include pest control..In 'the skills section of that
specification, the Foreman does not require demonstrated experience in tree
marking and timber cruising, nor a Timber Certification Course, all of which
the GRT must have. The Foreman only superviSgs projects for which sufficient
directions are given, which replace the more detailed skills and knowledge
required of the GRT. In sum, a GeneraI Resource Technician can do everything a
Resource Technician Foreman can do, but the reverse is not true, because the
GRT position has a number of more complex duties, and requires greater s~ills
and knowledge.
We have little difficulty in concluding on the basis of this evidence
that the principal duties and core content of the General Resource Technician
position are substantially more complex and involved that those of the Resource
Technician Foreman, and the two Jobs are not substantially similar,
notwithstanding the inclus'ion of the functions 'of one Job in the other, and
notwithstanding the acceptability of Ms. Munro's work as a foreman for the
purpose of satisfying the probationary period in Article 3.18.
24
Both grievances must also fail in this remaining respect, and'they are
accordingly dismissed.
Dated at Ottawa,
this llth day of Sept. , 1989
',-~-'~ k.._~"'--~
D. Fraser, Vice-Chair
G. Nabi, Member
H. Roberts,