HomeMy WebLinkAbout1988-0699.Jewer.90-06-20 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTA RIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
fao DUNDAS STREET WEST, SUITE 2~00, TORONTO, ONTARIO. M5G 1Z$ TELEPHONE/TELEPHONE: (4 ~'8) 326- ~385
180, RUE DUNDAS OUEST, BUREAU 2t00j TORONTO [ONTARIO), M5G 1..?.8 FACSIMILE/TELd. COPIE .' [4~6) 326-1396
699/88
IN THE NATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN:
OPSEU (Jewer)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
- and -
'BEFORE: M.R. Gorsky .Vice-Chairperson I. Thomson Member
M. O'Toole ~Member
FOR THE R. Wells
GRIEVOR: Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR TBE A. Rae
EMPLOYER: Counsel
Winkler, Filion and Wakely
Barristers & Solicitors
HEA/{INGS: December 20, 1989
March 19, 1990
DECISION
The Grievor, Fred Jewer, filed a grievance (Exhibit #1), on
the 10th of August, 1988, in which he claimed to have been
improperly classified as an Engineering Services Officer III and
requested reclassification as an Engineering Services Officer IV
(atypical). The Grievor argued that it is prima facie
inappropriate to classify an employee as atypical within a
classification, in the alternative, it was argued that if it is
appropriate to so classify an employee, the designation of the
Grievor to the Engineering Services Officer III classification
was.inappropriate and reliance was had on a usage argument
claiming that the Grievor performed essentially the same work as
a Maintenance Operation Review Officer, who is classified as an
Engineering Services. Officer IV (atypical). After some evidence
had been adduced with respect to this submission, counsel for the
Grievor informed us that it was being abandoned.
In the further alternative, it was submitted that this Board
ought to issue a Berr~ order, on the grounds that it is not
possible to find a more suitable classification for the Grievor
within an existing class standard.
It was the position of the Employer that the Grievor was
properly classified as an Engineering Services Officer III
(atypical), as this represented the best fit possible in the
light of his duties and responsibilities.
2
It was the further position of the Employer that the
atypical classification had long been recognized by the Board and
that the assignment of an employee to an ~atypical classification
was not pe~ s~e inappropriate.
The Grievor has been.employed by the Ministry of Transport
since 1965, and has been with the Maintenance Branch since 1971,
and currently holds the position title of Operations Analyst,
which position he has held since June 25, 1984. He reports to
Brian Gaston, the Maintenance Operations Analysis Engineer, who,
in turn, reports to Ken~Kirchner, Manager, Maintenance Operations
office.
The classification which the Grievor seeks had two
incumbents at the time the grievance was filed. -The Grievor and
the ESO 4 (atypical) incumbents 'are stationed at the Ministry of
Transport Complex at 1201 Wilson Avenue, Toronto, Ontario and
work in the same open concept office. The Grievor testified that
he has regular contact on a day-to-day basis with the two
Maintenance Operations Review Officers and is aware of their
duties and responsibilities as he has worked with them since the
positions were filled in 1987.
The relevant portions of the Grievor's position
specification (Exhibit #2) are as follows:
3
"2. Purpose of position (why does this position exist?)
To provide support to the Maintenance Operations
Analysis Engineer to ensure that maintenance operations
throughout the Province are carried out in an efficient
and effective manner and in accordance with established
policy and procedures.
3. Duties and related tasks (what is employee required to
do, how and why? Indicate percentage of time spent on
each duty)
30% Recommends solutions to specific technical and/or
procedural maintenance p~oblems requiring liaison with
one or any'combination of the following; Districts,
Regions, Head Offices, other Ministries or Agencies.
15% Ensures that maintenance operations throughout the
Province are carried out in an efficient and effective
manner by performing duties such as:
monitors maintenance operations and adherence to
standards and policies by reviewing available
databases such as; Maintenance Management System
report outputs, Equipment Complement Agreements,
sand and salt usage reports, etc. and by meeting
with District and Regional staff on an as required
basis.
identifies problem areas requiring changes to
field or other procedures and/or changes in
documented policy or procedures.
develops, in whole or in part, alternative
solutions considering various inputs,
recommendations and requirements of Districts,
Regions and Head Office, the results of field
trials and investigations and legislation which
may affect policies and procedures.
plays a major role in analyzing and recommending
efficient and cost effective solutions considering
the potential results, benefits and potential
problems resulting from proposed new or revised
policies and procedures.
reviews the policies with appropriate ministry
staff and upon approval, plays a major role in
facilitating the implementation of new or improved._
procedures and/or initiating or revising the
appropriate Provincial maintenance quality
standards and/or operating instructions or Head
office directives.
20% Contacts manufacturers and suppliers and organizes
and directs trials and studies of new maintenance
procedures, materials and equipment. Makes
recommendations and upon approval plays a lead role in
achieving their incorporation into the. documented
Provincial standards and field procedures.
10% Provides advice concerning maintenance operating
policies and procedures, quality standards and
operating instructions and their interpretation to all
levels of District, Regional and Head Office staff as
well as other Ministries and Agencies, as required.
'10% Ensures that the computerized databases in the
Maintenance Operations Analysis Section for equipment &
complement, sand and salt usage, etc. are kept
up-to-date and readily accessible.
5% . Provides support for maintenance training by ~
aiding in the identification of training needs and the
preparation of resource material used to train
maintenance staff throughout the Province, as required,
in the proper use of the quality standards and
operating instructions.
5% Aids in the review and recommendations for the
maintenance equipment complement requirements for each
District.
5% Represents Maintenance Operations Analysis
Engineer, as required, at various regular and special
committee meetings to ensure that maintenance
operations' needs are dealt with in a satisfactory
manner.
4. Skills and knowledge required to perform job at full
working level. (Indicate mandatory credentials or
licences, if applicable).
good knowledge of Ministerial policies,
procedures, directives, standards, specifications
and administrative procedures pertaining to
maintenance practices.
knowledge of District maintenance operations
knowledge of materials and equipment used in
roadway maintenance operations
5
knowledge of the Maintenance Management System
must possess tact and discretion in carrying out
duties
must have initiative and be able to work with a
considerable independence
ability to communicate effectively in oral and
written form
ability to analyze technicaland/or procedural
maintenance issues with demonstrated analytical
ability
ability to prepare reports suitable for
circulation to all levels both within the Ministry
and to other Ministries and Agencies
good knowledge of scientific experimental and
review techniques including productivity reviews
The Grievor receives his assignments from Mr. Gaston, who,
in turn, receives them from Mr. Kirchner. The way in which work
is assigned to the Grievor is the same as the way it is assigned
to the Maintenance Operations Review Officers.
As might be expected, the Highway Operations and Maintenance
Division, where the Grievor and the Maintenance Operations Review
Officers are stationed, is concerned with the maintenance of
highways and deals with difficulties encountered in pavement
repairs. The Division is also concerned with health, safety and
environmental issues. Approximately 80% of the problems
addressed by the Grievor and the Maintenance Operations Review
officers are received from personnel in the districts. The data
base employed by the Grievor and the Maintenance Operations
Review Officers is the "Maintenance Management System Report
6
Outputs" which deals with all of the highwa~ operations in the
province, with information as to how much of the work has been
completed, with further information as to unit costs including
the cost of manpower, labour and materials. The~Grievor'
periodically reviews this data base.
The Grievor stated that many of the problems requiring
solution are communicated .by telephone. The Grievor and each of
the MORO's has a direct,line and the secretary or other person
answering the phone directs the call to either the Grievor or any
of the MORO's. According to the Grievor, there is no directive
requiring that a particular kind of Caller With a particular~kind
of problem is to be directed to the Grievor or to the MORO's.
According to the Grievor, Mr. Gaston assigns approximately
80% of the problems for solution and there does not appear to be
any differentiation between the Grievor and the MORO's as far as
determining which problems go to which persons. The criterion
for assignment appears to be which person was presently working
in that area or had worked there before or would be expected to
be working there in the future.
The Grievor stated that he had no perception of a difference
in complexity between the problems that he dealt with and the
problems dealt with by the MORO's. Each of them starts their
tasks by identifying and defining the Droblem and requesting
input from persons in the districts, regions and'at head office,
and they make their recommendations in the same way.
7
The Grievor stated that he could not find any difference
between his function in developing cost effective solutions and
that carried out by the MORO's. He stated that this part of the
work was jointly developed between himself and the MORO's.
The Grievor also testified that he did not feel that there
Was any difference in the role of the MORO's and himself as far
as reviewing policies with appropriate Ministry staff and
facilitating the implementation of new or.improved procedures.
It was at this point in the evidence that the Grievor,
through his counsel, indicated that the usage argument outlined
in the opening statement was being abandoned and his further
evidence focused on his remaining submisions. With the following
exceptions, he agreed that he performed the duties and related
tasks there outlined. He testified that he was unaware of the
computerized data bases in the Maintenance operations Analysis
Section referred'to in the class standards and believed that it
did not exist.
In referring to the provision of support for maintenance
training, he stated that his greatest involvement was in winter
maintenance training for personnel on patrols so that they would
understand their duties. These would include night patrol
persons, equipment operators and contract maintenance staff.
In referring to his role in the'review and recommendations
for maintenance equipment complement requirements, the Grievor
stated that he is responsible for certain specialized types of
equipment.
8
In referring to the representation of the Maintenance
Operations Analysis Engineer at various regular and special
committee meetings to ensure that maintenance operations' needs
are dealt with in a'satisfactory manner, he mentioned that he is
a member of the Ontario Association of Engineering Technicians
and Technologists.
The class standard with respect to the ESO 3 and ESO 4
classifications are as follows:
"Engineering Services Officer 3
F~r Content of Class Standard
Refer to
1'2044 · Engineer 3
For technical Content Only
Positions which require registration with the
Association of Professional Engineers of
Ontario and/or meet the criteria for
exclusion from the bargaining unit as laid
down under Section l(1)(m) of the Crown
Employees Collective Bargaining Act~ shall
not be allocated to this class."
CLASS DEPINITION:
Employees in this class perform responsible
and difficult professional engineering work
in connection with investigation, location,
construction and maintenance projects in the
field, drafting or design work in an office,
or scientific experimental work in a
laboratory. Assignments usually define the
scope of the projects leaving the employee to
plan the details, to approve variations from
plans, and to make technical decisions on the
work in progress. The employee may be a
"Resident" Engineer supervising several
contracts or in charge of one major and
difficult project requiring constant
supervision. Or he may be in charge of the
design and specifications for construction
9
projects of moderate complexity. Or he may
supervise the allocation of grants to
municipal authorities in a district of
relatively minor importance. He will usually
play an important part in the training
programme for Junior Engineers, assigning
projects and reviewing results. His work is
subject to final review by an engineering
superior.
CHARACTERISTIC DUTIES:
Conducts or supervises the conduct of field
survey parties for obtaining technical
information; supervises and lays out the work
of two or more survey parties.
As 'Resident' Engineer, supervises the
construction of a major project or two or
more minor projects, directing the work of
subordinate inspectional and construction
staff°
Performs difficult laboratory tests on
construction and maintenance materials, and
supervises a number of junior engineers and
technicians engaged thereon.
Designs a variety of engineering projects and
supervises office employees in preparation of
completed plans including quantities, costs,
and specifications.
Takes charge of engineering administration in a
small district or community under direction of ~the
Division Engineer, or carries out assigned liaison
duties with respect to municipal engineering
officials, making reports and recommendations in
connection with provincial grants to
municipalities.
Performs other engineering work of a similar
level as assigned.
QUALIFICATIONS:
1. An Engineering degree from a
university of recognised standing
With at least four years'
subsequent experience and training.
Registration with the Professional
Engineers' Association.
10
2. At least four years' acceptable
experience of a progressively
responsible nature in engineering
work.
~3. Supervisory ability; skill in
calculations and design of
difficult engineering projects;
ability to conduct engineering
research and to write technical
reports; initiative; integrity;
good judgment; good physical
condition."
"Engineering Services Officer 4
For Content of Class Standard
Refer to
12046 Engineer 4
For technical Content Only
Positions which require registration with the
Association of Professional Engineers of Ontario
and/or meet the criteria for exclusion from the
bargaining unit as laid down under Section 1(1) (m)
of the Crown Employees Collective Bargaining Act,
shall not be allocated to this class.
CLASS DEFINITION: .~..
This class covers engineering work Of a
responsible and advanced nature with
considerable latitude for independent action
and decision, and usually ehtails the
supervision of a number of engineering and
technical employees. The employee may be in
charge of all construction or maintenance
work carried out in the district, or in
charge of a minor engineering subdivision.
He may supervise the preparation of plans for
installation of services for large public
buildings and the organizing of other
important engineering projects. He may be
the district liaison official between
municipal authorities and the. Provincial
Government, approving plans, giving advice
and passing expenditures for provincial
grants in-aid. The work is usually carried
11
out under direction of a district engineer Or
the assistant to the Branch Head and it is
reviewed occasionally for general progress
and conformity to Departmental policy.
CHARACTERISTIC DUTIES:
As Construction or Maintenance Engineer:
directs, assigns and supervises the
construction of all highway and road
development projects in the district, or all
the maintenance, repair, resurfacing and
upkeep of Provincial highways and road
development projects in the district.
As District Municipal Engineer: co-operate
with municipal councils in the planning and
assignment of work done under Road
Expenditure by-law; co-operates with duly
elected Road Commissioners according to the
provisions of the Highway Improvement Act;
plans and supe~rvises work on designated
Development Roads in the municipal district;
gives advice on and promotes road development
in unorganized areas.
Under general suDervision designs and
prepares specifications for large engineering
projects such as bridges, dams, additions to
public buildings, etc.
Supervises and directs traffic and safety
programmes.
Gives professional supervision to a large
drafting office, correlating the production
of plans and maps of important engineering
projects.
Performs other engineering work on a similar
level, as assigned.
OUALIFICATIONS:
1. Acceptable professional engineering
standing resulting from the
Engineering degree and subsequent
specialized training in the work of
the department.
2. At least six to eight years'
progressively responsible
engineering experience preferably
in the specialized field.
3. Supervisory and administrative
ability. Ability to perform
'difficult technical research and to
make comprehensive recommendations
on.engineering problems; skill in
the design of highways, steel and
reinforced concrete structures, and
.in preparing complete plans and
specifications. Initiative,
integrity and good judgment."
In referring to the class definition of the ESO 3
classification, the Grievor testified that he does not work in
the field, does no drafting or design work and does no
experimental work in a laboratory. The Grievor stated that he
does not work from plans~' treating plans as construction plans
and field survey layout plans. Such technical decisions as he is
involved with on work in progress are not related to Construction
plans or field survey layout plans.
The Grievor is not a "resident" engineer, as that term is
defined in the ESO 3 class definition.
The Grievor is not in charge of the design and
specifications for construction projects, nor'does he supervise
the allocation of grants to municipal authorities in a district
of relatively minor importance. And he is not involved in any
training program.for junior engineers and he does not assign
projects and review results.
His work is subject to final review by Mr. Gaston who is an
engineer.
13
In testifying as to the characteristic duties, the Grievor
testified that he performs none of the characteristic duties of
the ESO 3, as' above set out.
The Grievor described the essential quality of the work
which he performed as relating to the development of procedures
and standards.
The Grievor viewed the major component of his job as,
"proceduraI maintenance." He stated that he writes up
procedures, revises procedures, revises policy directives, writes
up new directives, writes up quality standards and revises
quality standards.
TT~e Grievor did not regard the conduct of trials in the
field as being similar to "scientific experimental work in the
laboratory" as referred to in the class definition for the ESO 3.
The trials in the field were for the purpose of seeing if the
equipment tested has an application to maintenance in the field.
The Grievor is also involved in trials of maintenance material in
the field and in the testing of materials relating to
maintenance.
Elizabeth Wadas testified on behalf of the Employer. She is
a Human Resources Consultant employed by the Ministry of
Transportation and has had training in classification procedures,
specifically in government classifications both in the management
and bargaining unit areas. She has a diploma in Human Resources
Management and a certificate in Personnel Management.
14
She described the atypical classification as being used when-
an employee is allocated to a particular class standard on a best
fit basis, where there is a difference in the function performed
by the employee or in the skill or knowledge component. She
compared this with an employee who is not classified as atypical,
whose duties and responsibilities, skills and abilities fit the
particular classification "without exception". She referred to
the latter classification as representing a "perfect fit."
Ms. Wadas stated that there, were 14 ESO 3s classified as · ·
being atypical, of whom eight had similar core functions to that
of the~Grievor.
Ms~ Wadas described the core functions referred to as being:
"project .officer" type of work where incumbents are asked to
analyse-a subject or problem and, in doing so, to conduct an
investigation, sometimes involving field work. In the course of
car.rying out the functions, the incumbent is required to consult
with ·such persons as may possess information on the subject.
After reviewing all of the input, the incumbent is required to
make recommendations for solving the problem including the
provision of alternative solutions. The incumbents frequently
provide technical advice regarding the operation of the area
where they function, including the possibility of furnishing
policy.input. The recommendations forthcoming, where
implemented, could contribute to change in the policy of the area
serviced, as well as revisions to manuals employed.
15
Recommendations could also contribute to identifying training
needs.
Ms. Wadas referred to Exhibit #7, which is made up of the
position specification and class allocation form with respect to
the eight other ESO 3s classified as atypical. Ms. Wadas
testified that the reasons supporting the atypical classification
for these eight positions were similar to those supporting the
atypical classification of the Grievor.
Ms. Wadas also referred to Exhibit #8 which is a position
specification and class allocation form with respect to another
employee classified as an ESO 3 (atypical). She differentiated
the latter case from %hose of. the Grievor and those employees
covered in Exhibit #7 because the employee covered by Exhibit #8
has duties and responsibilities which she stated have a different
focus and deal with safety policies and procedures., while the
others deal with highway operations and maintenance.
She stated that there were a total of 14 persons classified
as ESO 3 atypical in the Ministry, which she said represented a
"minuscule" number in relation to the total number of ESO 3
positions within the Ministry. Her recommendation that the
Grievor be classified as an ESO 3 (atypical) resulted from.her
being unable to find a more appropriate classification for him.
Ms. Wadas described the process that she follows in
reviewing a classification or in deciding, in the first instance,
what the proper classification should be. She stated that one of
the first things she does is look through the class standards in
16
order to find a possible fit. She stated that the fit does not
have to be perfect. What she looked for was a fit between the
core duties of the position and the core duties described in the
class standard. She also examines the skills requirements and
knowledge required by the class standard and the skills and
knowledge, in relation to the skills and knowledge possessed by
the employee. She examines the duties and responsibilities
performed and compares them to the duties and responsibilities
required in the class standard.
Ms. Wadas then examines the divisions within the
classification into which the position could properly fit. She
stated that an atypical designation occurs when she concludes
that the position fits within the classification but where the
functions of the position might be different or the skills and
knowledge requirement might be different. She summarized her
view of the atypical designation as being appropriate where there
is no proper fit between the duties, responsibilities, Skill and
knowledge of the position and those described in the class
standard but where the fit is a better one than could be achieved
in any other classification. This descript%on was put to her in
cross-examination and she described it, from her perspective, as:
"a fair description."
Ms. Wadas referred to the class standards with respect to
the ESO 3 . She acknowledged that the class definition did not
describe what the Grievor does. In accordance with her view of
17
the classification process, she deleted the word professional
.from:
"Employees in this class perform responsible and
difficult professional engineering work in connection
with investigation, location, construction and
maintenance projects in the field, drafting or design
work in an office, or scientific experimental work in a'
laboratory."
She relied on the words "investigation" and "maintenance" as
supporting her view, as well as the fact that this work is
conducted "in the field." When asked whether this was a field
position, because of the fact that the words investigation a~d
maintenance are linked to "projects in the field," she responded
that this was not necessarily so. I have some difficulty in
accepting Ms. Wadas' view of the meaning of the words in the
class definition, as each of the words "investigation" and
"maintenance" are linked to projects in the field, and this
juxtaposition leads me to the conclusion that these are intended
to be field positions. That is where the work is engineering
work relating to "investigation ... and maintenance projects in
the field ...".
Ms. Wadas also viewed the word "projects" as.being the
equivalent of the assignments that are given to the Grievor.
Again, I have some difficulty in accepting her view as the
natural meaning of the word "project", in the context of the
class definition of the ESO 3, is broader and would encompass
more than individual assignments which might be relatedto.the
completion of a larger project.
18
Although Ms. Wadas stated'that the position involved some
drafting or design work, the evidence did not disclose this to be
the case. She acknowledged that the Grievor was not involved in
any scientific experimental work in a laboratory. She
acknowledged that the second sentence in the class definition
could apply to any position involving projects and that there
could be hundreds of other similar statements in other class
standards.
Referring to the third sentence in the class definition, Ms.
Wadas acknowledged that the Grievor did not supervise contracts
nor was he in charge of one major and difficult project requiring
constant supervision.
She acknowledges he does no supervision.
One of the bases for deciding upon the atypical
classification, wa~ Ms. Wadas' view that there was a fit between
what the Grievor did and the language of the class definition:
"or he may be in charge of the design and specifications for
construction projects of moderate complexity." She achieved this
result by deleting the word "construction". Once again she
viewed project as any assignment given to the Grievor.
She acknowledged that the Grievor did not supervise the
allocation of grants, as is provided for in the fifth sentence of
the class definition.
She acknowledged that the Grievor was not assigned projects
nor did he review results as those terms are used in the
penultimate sentence of the class definition.
19
While the Grievor has some training function, the sentence
referred to indicates that the important function of an incumbent
in the training program, is "for Junior Engineers" and that this
is in the context of, "assigning projects, reviewing results." I
am, therefore, unable to agree with her conclusions.
In referring to the characteristic duties of the Grievor,
Ms. Wadas acknowledged that the first paragraph does not apply to
the Grievor.
She. acknowledged that the second paragraph did not apply to
the. Grievor and that this sentence referred to a field position.
She acknowledged that the third sentence'did not apply to
the Grievor.
She stated that, in her view, the fourth sentence did apply
to the Grievor, although she acknowledged that the Grievor does
not supervise anyone. She read the words: '!Designs a variety of
engineering projects" by treating projects as being equivalent of
the assignment of problems with respect to maintenance in the
field to the Grievor.
She acknowledged that the fifth sentence did not apply to
the Grievor.
Jim Thompson, who is the Head of Capital Needs and Planning
for the Ministry of Transport, testified on behalf of the
Employer. He had previously been the Maintenance Operations
Analysis Engineer from 1986 to July of 1988, and was in this
position when the grievance was filed. The Grievor reported to
Mr. Thompson and Mr. Thompson drafted the position specification
2O
and class all~cation form relating to the Grievor, with the
Grievor's assistance. There were some differences between them
as to the percentage allocation of time spent with respect to
certain duties, but these are not material.
Mr. Thompson described the Grievor's core function, within
the Maintenance Operations'Analysis Office, as being with respect
to the setting of operational policy for maintenance activities
in the Ministry of Transport. The Grievor was responsible for
matters relating to problems encountered in the area of
maintenance and he developed procedures to deal with these
problems originating from the field or from the regional offices.
There are five regions and eighteen.districts.
Mr. Thompson described the maintenance activities carried
out by district staff as also involving the plowing of snow and
the salting of roads.
The Grievor's function involved the regular monitoring of
available data bases to look for ways of coping with problems.
An example given by him was the monitoring of the use of salt.
Mr. Thompson described data bases as representing any
material used by the Grievor, including computer data bases as
well as hand written and other hard copy.
Mr. Thompson stated that in the majority of cases the
Grievor developed solutions with a great deal of input from
supervisors and that solutions are frequently jointly arrived at.
He described the Grievor's. major role in drafting operation
21
instructions or procedures to field staff Which were approved of
by his supervisors.
He stated that the Grievor receives a great deal of material
from manufacturers, an example being for heaters used to heat
bumps in roads prior to removing the bump. The Grievor contacts
manufacturers and arranges for a time and place for a trial of
the equipment, such as the heater referred to.
When questioned about the extent of field trials in
which the Grievor was involved, Mr. Thompson acknowledged .that
the Grievor was rarely involved in the field trial for more than
three days a year, but stated that there Was more time spent in
the office setting up and documenting the trials. I am satisfied
that the Grievor's involvement in field trials was quite minor in
relation to his other duties.
Because of the change in position taken on behalf of the
Grievor, the issues before us are, as follows:
1. Whether the Grievor can be classified as atypical? Counsel
for the Grievor stated that it was his position that there
was no statutory provision for an atypical classification.
2. Counsel for the Grievor stated that if we found that he
failed in his first submission, then it was his position
that the atypical classification was improper in this case
and that we should issue a Berry order, ordering the
Ministry to properly classify the Grievor.
The Employer referred to Kuntz 85/89 (Verity) dated
September 20, 1989. In that case, the Grievor claimed that he
22
had been misclassified as a Services Supervisor II (atypical).
The Board noted, at p.2 that: "This· case differs from the Usual
claSsification matter because of the atypical allocations." The
Grievor was in the position of "Routing Specialist" with the
Technical Support Branch, Social Housing Division of the Ministry
of Housing. The purpose of the position ~was described, at
"to provide technical consulting expertise and direct
the activities of consultants for major maintenance,
upgrading, conservation and new construction work
involving roofing systems and, as required, to resolve
installation or maintenance problems for the Regional
Housing Offices', Local Housing'Authorities' and Non-
Profit corporations' staff throughout the Province."
The Grievor in Kuntz case was the Ministry expert on roofing
matters. His position was unique in the Ontario Public' Service.
In the Kuntz case (p.4), the Employer submitted that the
grievor's position was allocated as atypical: "because the class
standard for the Services Supervisor was designed for employees
in the Ministry of Government Services who work in electrical or
mechanical disciplines." The union took the position that: "
... in the post Berry_ era", the atypical allocation was no longer
valid.
In Kuntz case the·: "... the grievance'proceeded
exclusively~under the 'standards approach' - the measurement of
the grievor's job against the wording of the current class
standard." (p.7).
At p.$ of the Kuntz case, the arguments of the parties were
briefly summarized:
"The Union argued that an 'atypical allocation'· is a
pre Berry concept which in itself is an employer
23
acknowledgement of misclassification. In the
alternative, the grievor's current duties and
responsibilities are not encompassed in the Services
Supervisor 2 class standard, in the absence of any
reference to the research and development component of
the job.
The employer contends that an atypical allocation is an
integral part of the employer's classification system
and that the Board is without jurisdiction to consider
the methods used in classification. The.thrust of the
employer's argument was that the significant elements
of the grievor's job are encompassed in the current
class standard under the atypical designation."
At pp.8-10 of the Kuntz case, the Board further stated: ·
"Despite Mr. Roland's able argument, the Board cannot
accept the Union's first submission that an atypical
allocation is inappropriate per se, following the
judicial review in Be_~. Simply stated, the judgment
in Berry stands for the proposition that where an
employer is improperly classified, the Board has the
remedial authority and indeed the obligation to order
the employer
This panel agrees with the rational of Vice-Chairperson
Brent in OPSEU (D. Zinger et al.) and the Ministry of
Correctional Services 4/85 et al. where the following
comments are made at pages 2 and 3.
'We read the Court's decision in ~errw as
confirming that employees who come under the
Crown EmDlovees Collective Bargaining Act
have a .statutory right to grieve
classification apart from the collective
agreement and that.the collective agreement
cannot restrict that right. That being the
case, the scope of the Board's jurisdiction
in classification cases is not limited in any
way by Article 5.1.2. of the collective
agreement between the parties. At pages 12
and 13 of the decision mr. Justice Reid,
writing for the entire court, said:
These decisions make it clear that the
individual's right to grieve conferred by s.
18(2) cannot be restricted by a collective
agreement. That being the law, the majority
was simply wrong in thinking its powers were
limited by Article 5.1.2. The Board is
obliged to follow the law and no question 'of
24
reasonableness arises. The question that
does arise is whether the Board had power to
require the employer to find or create a
classification for grievors. I think it had
that power. Its authority under s. 19 of the
Act is untrammelled. It 'shall decide the
matter'. Simply to dismiss the grievances
when it acknowledges that the grievors are
wrongly classified is to empty the grievance
procedure of any meaning. It is a
commonplace of law that the existence of a
right implies the existence of a remedy.
"We also agree with the Vice-Chairperson's
comments at pages 3 and 4:
'The obligation to classify employees is the
Employer's not the Boards. If the Board
finds that an employee has been improperly
classified, that does not change the
Employer's obligation to classify nor does it
shift that obligation to this Boara. The
Board's obligation once it finds that an
employee's right to be properly classified
has been breached, is to construct an
appropriate remedy for that breach. We do
not consider that the Divisional Court in the
Berry case changed anything with regard to
these basic obligations other than to remove
the remedial limitations which were placed on
the Board by Article 5.1.2 of the collective
agreement.'
"Under s. 18(1)(a) of the Crown Employees Collective
Bar~ainina Act the employer has been given the
exclusive right to determine the classification of
positions subject, of course, to the employee's right
under s. 18 (2) of the Act to grieve that the position
has been improperly classified. The right to classify
gives to the employer the right to determine the
methods employed, in the classification system,
including the designation of an atypical allocation.
S. 18(!) of the Act also specifies that the Board has
no authority to classify positions. Accordingly, the
Board's jurisdiction is with the results of the
employer's classification system and not.with the
methods employed. At the present time, the atypical
allocation is an integral part of the employer's
classification system. In the result, the Board is
obliged to consider the merits of an atypical
classification on a case by case basis."
25
CoUnsel for the Grievor referred Kinq'et al. 2028/86,
2029/86, 2030/86 (R. J. Roberts) dated September 13, 1989. In
that case (at p.1), it is stated:
"That is yet another case testing the impact of the
Divisional Court's decision in Re Berry and Ministry of
Community and Social Services, Case #607/85,
Unpublished Reasons for Judgment (March 13, 1986), upon
classification procedures. Here, the classification
procedure drawn into question is that of giving an
'atypical allocation' to certain positions. An
'atypical allocation'' occurs when a position is
allocated to a particular class even though it is
significantly different from other positions in that
class, the only criterion being that the position
generally fits that class better than any other.
In the Kinq case the grievors were Job Placement Officers,
and claimed that their positions had been improperly allocated to
the class of social Worker II (atypical). They requested that the
Board declare that they were improperly classified and order the
Employer to "find or create a classification for the grievors."
Berry at p.13.
The class standard for Social Worker 2 was for "qualified
social workers who provide professional social work services."
The class standard required that the persons occupying positions
allocated to this class have a "Thorough knowledge of the
principles, techniques, and the methods of social work and the
ability to apply them in the work situation." The Board found
that the grievors were not qualified social workers and that they
did not know or apply principles, techniques and methods of
social work in ~he performance of their duties. Their knowledge
and skills were in the area of job placement of handicapped
clients referred to them by Vocational Rehabilitation
26
Counsellors. The grievors were found to function "more or. less,
a's specialized employment agents for this client group." (p.3)
The Board noted at p.3:
"At the hearing the Ministry took the position that
nevertheless, it was appropriate atypically to allocate
the positions of the grievors to the class of Social
Worker 2 because the grievors functioned in a social
work setting, closely cooperating in the job placement
process not only with the client but also with a
professional social worker, the Vocational
Rehabilitation Service Counsellor. Moreover, it was
submitted, the positions of the grievors in general fit
that class better than any other. As to this, counsel
for the Ministry reviewed the position description of
the grievors against the class standard with a view to
demonstrating that if the word 'vocational' were
substituted for the word 'social' in the class
standard, perhaps other minor adjustments were made,
the functions perform6d by the grievors generally fit
the main duties'set forth in the class standard."
The-majority of the Board stated:
"On the evidence, we accept that while the positions of
the grievors are significantly different from those of
professional social workers, they in general fit the
class of Social Worker 2 better than any other class
presently in'existence. We also accept that according
to the pre-Berry practice of the Employer this would
have been regarded as sufficient justification for
allocating the grievors' positions to that class. We
further recognize that pre-Berry, the burden on the
grievors would have been'to show that there was a
better fit for their positions in some other existing
class."
The majority of the Board viewed the post-BerrZ situation as
follows at (p.4):
"The Union submitted that post-Berry all of this has
changed. For under Berry, this Board was empowered to
direct the Ministry to create new classifications. The
Divisional Court said, 'The question that does arise is
whether the Board had power to require the employer to
find or create a classification for grievors. I thine
it had that power.'" ~. at p.13.
The Board dealt with the Union submission that it should
27
direct the Ministry to create a proper classification for
atypically-classified positions such as those of the grievors
because:
" .. They are, in short, misfits. Such misfits, it
wal submitted, could not be permitted to remain without
a proper classification. As to this, it was said, it
was irrelevant that management attempted to minimize
the misfit by 'atypically' allocating them to the class
which they fit better than any other."
The majority of the Board concluded, at p.5:
"Since Berry, this Board has consistently held that it
remained possible for the'MinistrY atypically to
classify a position. See Re Berry and Alcampo and
Ministry of Community and Social Services (1988),
G.S.B. #217/83, 218/83, at p.16 (Verity); Re Union
Grievance and Ministry of Transportation and
Communications (1989), G.S.B. #1642/85 (v), at p.22
(Verity). In other words, the Board recognizes that
its power to require the MinistrY to create a
classification must be exercised reasonably and, in
certain circumstances, it may be reasonable to refuse
to direct the Employer to create a classification for
some positions.
We.can imagine that it might be reasonable to allow an
atypical~allocation to stand where'the position in
question is unusual~ in the sense of being occupied by
only a few incumbents. It might well be unreasonable
to expect the Ministry to proliferate classifications
for such individuals like. so many rabbits in a warren.
It, indeed, would be unreasonable to make an order
which would have the effect of "gridlock~ng" what might
seem to be an already overburdened classification
system."
The Board concluded at pp.5-6:
"But that, of course, is not the present case. Here,
we see no reason why we should not issue an order
directing the Employer to find or create a proper
classification for the position occupied by the
grievors. We agree with the submission of the Union ,
that it is irrelevant whether among existing
classifications, the classification of Social Worker 2
is the "best fit." It is still a misfit, and a misfit
by a significant margin. Accordingly, we declare that
28
the grievors are improperly classified and we direct
the Ministry to create a proper classification for
them."
As in the K_iD_~ case, the classification of the grievor as an
ESO 3 atypical is not only a misfit but "a misfit by a
significant margin." The attempt to "shoe horn" the grievor into
the ESO 3 classification was, to say the least, a tortured One.
Having examined his duties and responsibilities in the light of
the ESO 3 class standard, it is too far off the mark to permit an
'atypical classification, as might be the case in those situations
identified in the Kinq case. It is easy to understand why the
Employer wishes to avoid a proliferation of classifications, but
there must be a greater relationship between the duties and
responsibilities of the grievor and the class standard to enable
us to conclude that the Employer's actions were possible. We
have to weigh the natural interest of the Employer in wishing to
avoid a result that: "Would have the effect 'gridlocking'" what
might seem to be an already overburdened classification system."
(King p.3) , when to allow this would create: "... a misfit by
a significant margin." Here, we have sucha misfit.
Accordingly, and for the above reasons, the grievance
succeeds and we declare that the Grievor is improperly classified
and direct the Ministry to create a proper classification for
him. The Employer shall be given 90 days to reclassify the
Grievor. The Board shall retain jurisdiction pending the
implementation of this Decision, including entitlement to
retroactivity and interest.
~&
29
DATED AT Toronto, Ontario
this 20th day of June 1990.
M. R. Oorsk]f- Vice-Chairperson
I. Thomson - Member
,~ =~ .
M. OtToolo - Member