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HomeMy WebLinkAbout1988-0684.Butans & Easson.90-08-28 ~. ONTARIO EMPLOY~-S DE LA COURONNE . CROWN EMPLOYEES DE L'OM TARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M~G 1Z8- SUITE 2100 TELEPHONE/T£L~'PHONE 180, RUE DUNDAS OUEST. TORONTO, (ONTARIO) M5G 1Z8- BUREAU 2100 (416) 598-0688 0684/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Butans/Easson) Grlevor - and - The Crown in Right of Ontario (Ministry of Labour) 'Employer - and'- T. Wilson Vice-Chairperson I. Thomson Member A. Stapleton Member - FOR THE R. Blair GRIEVOR Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors FOR THE S. Sapin EMPLOYER Staff Relations Officer Ministry of Labour HEARING: May 15, 1989 June 5, 1989 August 24, 1989 DECISION The grievors are classified as Employment Standards Auditors and seek a Carol Berry order that they be given a proper classification. They do however accept that they do not fit the Employment Standards Auditor 2 level. There are two grfevors, Donna Butans who is in the St. Catharine's office and Jody Easson who is in the Hamilton office. Ms. 8utans has been an Auditor 1 since July 23, 1984 and Ms. Easson has been an Auditor 1 since November, 1983. It is useful first of all to reproduce relevant provisions of the Class Standards. It is interesting to note that these were issued as recently as October 1, 1986. The Union did not challenge the appropriateness of the series. Category Group PREAMBLE ADMINISTRATIVE SERVICE AD 05D INVESTIGATION Series Class Code EMPLOYMENT STANDARDS AUDITOR 05520 to 05522 EMPLOYMENT STANDARDS AUDITOR This series covers positions of employees in which the primary duties and responsibilities are directed to the administration and enforcement of legislation in the area of employment standards, and as such, includes a range of the following tasks: - dealing with the initial complaint from members of the public and providing advice and information with respect to the meaning of legislation/regulations, as well as to the information which must be included with the claim; - initiating and/or conducting investigations of alleged violations; - auditing case files which require further action and/or have been closed; - Preparing reports on cases and following up individual case resolution, e.g. establishing amounts owed, collection procedures,· ensuring terms of settlement are observed; - developing specialized investigative methods, conducting specialized investigations; - addressing public groups on aspects~or administration and/or rendering interpretations on request. Positions in which the primary duties and responsibilities, are included in the definition of another class series should .be allocated to that series. Allocation Factors: The allocation of a particular position to one of the two levels within the series is based on an evaluation using the compensable factors "Skills and Knowledge" and "Judgement and Accountability". The following criteria are used to differentiate levels of the factors: Skills and Knowledge: - the·extent of knowledge of legislation required; - the extent of knowledge of branch policy, procedure, court requirements, hearing decisions· required; - the amount of other knowledge required, such as of business practices, record-keeping systems; - the level of communication skills required, and the level and nature of contacts; - the depth of analytical skill·required; - the extent of negotiating skills required.· ud e-ent Accountabilit~ - the number and complexity of variables to be considered in selecting a course of action and the relative compexity of work responsibilities; - the relative impact of decisions and recommendations made; - the extent of supervision received; - the extent of guidance available from staff; policy directives or guidelines, manuals; - the expectations of quality of completed work and extent or degree of completion towards which work is taken; - the degrees of thoroughness and accuracy required; - the relative likelihood of errors being detected and corrected with/without serious consequences. Levels: There are two levels of work within the series, as follows: Level 1 Employees in positions at this level are generally responsible for claim intake and public information work. Although they conduct certain preliminary or straightforward investigations, usually by telephone, they do not handle more complicated claims and/or those requiring personal investigation on employers' premises. LeVel 2 Employees in positions at this level perform employment standards legislation administration and enforcement work, primarily through claim investigation, they are required to bring claims to resolution. This level also includes positions which provide certain advisory and administrative services related to legislation enforcement. Series Class C°de~ EMPLOYMENT STANDARDS AUDITOR 05520 EMPLOYMENT STANDARDS AUDITOR 1 This class covers the positions of employees whose primary duties and responsibilities involve provision of claims intake services and the provision of standard information and limited investigation services in support of the employment standards program. Characteristic Duties: These employees respond to telephone, letter and in-person enquiries and complaints from the public concerning Employment Standards, related legislation, redirecting matters more properly addressed byother agencies. They review claim forms to determine need for assignment to a more senior administrative level, referring upwards cases which a~pear to require interpretation or on-site investigation which relate to equal pay or which involve a number of claiments or violations. In more straightforward or routine cases, they explain the~leglslative provisions which relate to the claimed violations and contact employers, by telephone,' in order to obtain and/Or verify information and, where possible, settle the claim and arrange for the payment of wage arrears.. They examine file documentation for completeness and-process required forms. Skills and Knowledge: The performance of this work requires a good working knowledge of employment standards - related legislation and regulations, the ability to apply rules and regulations .derived from statutes to relatively straightforward cases, developed telephone, personal and written communiciation skills, a basic understanding of work place operations and business practices, and a general knowledge of other employer/employee regulatory agencies to which referrals should be made. Judcr~ent and Rccountability: Working under general supervision, employees are accountable for exercising 3udgement in the application of standard procedures related to the initiation of claims, deciding whether additional information must be obtained, case must be referred and, if so, to which agency or official. Employees also are accountable for initiating and conducting telephone investigations on straightforward or routine claims and for the exercise of Judgement in deciding how to conduct these investigations. In addition, employees are accountable for responding appropriately to telephone, letter and walk-in enquiries, and for the exercise of Judgment in explaining the applicability of legislation or the reasons for referral to either higher investigative levels or other agencies. Errors or delays in documentating and/or redirecting enquiries, inappropriate initiation of a telephone investigation or. fa/lure to provide sufficient, appropriate and/or correct information, could'result in delays or future difficulties in investigation, ..or could ~esult in employees not receiving their legal entitlement. Following is the Position Specification & Class Allocation for Ms. Butans: Purpose of position (why does this positions exist?), To ,handle all telephone, written and in-person complaints and general inquiries to the Regional Office. Duties and related tasks (what is employee required to do, who and why? Indicate percentage of times spend on each duty). 1. -Handles telephone inquiries from a.variety of sources i.e. employees, employers, union representatives, MP's, MPP's, lawyers, accountants, receivers, .and .general public, using extensive knowledge of the Employment Standards Act, Regulations and other material, by performing such tasks as: - providing immediate authora~ive decisions on the applicability of the Act and Regulations to specific inquiries/situations by interpreting the Act and providing detailed information in order to prevent the filing of complaints, consulting with manager for unusual matters; - receiving incoming calls, some of which may be hostile, concerning a wide variety of Employment Standards issued, determining 'the nature of inquiry and providing information e.g. vacation pay, maternity leave, statutory holiday, minimum · wage, overtime pe~,~its, etc., maintaining a log on the number of enquiries to keep track of workflow; - providing assistance and advice to callers, informing employees of protection provided by legislation e.g. maximum number of hours which may be worked before overtime is payable, advising employer of penalties which may be imposed for contravention to assist the disputing parties in resolving matters themselves; - attempting to resolve problems or enquiries over the telephone by contacting the appropriate or affected parties and advising as to obligations under the Act; - discussing with new employers their requirements under the Act and Regulations, e.g..necessity of providing employees with statement of earnings, detailing period of time, rate of pay, gross amount, details of deductions, net amount payable, guiding employers on how to calculate benefits required by the Act, forwarding letters advising as to penalties for non- compliance; - receiving inquiries concerning matters not covered by Employment Standards legislation, and re-directing to appropriate personnel, branch or agency, e.g. Human 'Rights, W.C.B., C.P.P., Income Tax, Consumer Protection Bureau, etc., or providing basic information, and assistance in completing forms; - dealing with inquiries regarding filed claims, by reviewing files and advising on status, conferring with Supervisor on difficult problems, i.e. hostile individuals, questions for officer; - receiving requests from complainants regarding lost or delayed cheques, making inquiries with appropriate branch as to status; - assisting employers either by phone or in person in relation to the writing or revision~of company policies by providing advice and information to ensure compliance with Employment Standards legislation;. 7 - providing detailed information to callers on plant closures, mass layoffs and severance pay, or, in the case of large layoffs, redirecting to appropriate branch; ~ reviewing Collective Agreements with employees or union representatives and advising as to the protection provided by the Act. 2. Process all inquiries' received by mail based on knowledge.of the Employment Standards Act by performing such tasks as: 35% - responding directly, by letter, to a variety of inquiries received from employees, employers, unions, MP's, MPP's, lawyers, etc.; - receiving claims and obtaining further information or clarification of claim data either in person, by telephone or in writing; - examining all claims received and attempting to resolve by telephone or in writing, by either arranging settlement or recommending field investigation, following up to ensure that the employer has complied with the settlement; - directing employers to pay employees when there is an obvious violation of the Act either by having cheques sent directly to the employee or by receiving cheques payable to employees and issuing receipt to employer, sending money transmittal to Finance; - preparing.necessary correspondence, both routine and non- routine, to close file, and forwarding cheque, providing explanations of what has been done, etc.; 3. Conducts personal interviews with employees in Person, using knowledge of the EmploYment Standards Act, Regulations and other material, by performing such tasks as: 10% - interviewing all walk-in employees.or former employees to determine the validity and applicability of complaints, obtaining information and either referring to appropriate branch, or agency, or providing assistance in completing forms; maintaining a log of number of claimants interviewed; - questioning complainant concerning possible violation, examining wage statements, employment contracts, separation certificates and other pertinent documents to determine validity and accuracy of 'complaint, obtaining and recording all necessary information; - receiving all complaints and determining -best possible method of settling by discussing complaint with employer, explaining requirements of legislation, attempting to resolve matter quickly and amicably, by'telephone if possible, or recommending field investigation; - meeting with employer representatives and reviewing payroll records to determine/calculate entitlements, benefits, overtime, etc., required under the Act; -issuing an Order to Pay to employers for clear violations of the Act, when necessary; - completing reports for file, e.g. investigation report, narrative report, correspondence, receipts, etc., ensuring all required information is enclosed. 4. Performs other related duties such as: 5% - compiling information on "Red File" cases (for the Minister's attention) for the regional manager; - compiling month-end statistics on the number of telephon~ enquiries made to the office; - conducting public speaking engagements on the Act;I - as assigned. Skills and knowledge required to perform job at full working level. (Indicate mandatory credentials or licences, if applicable). Excellent knowledge of the Employment Standards Act and Regulations, as well as knowledge of current changes to the Act, legal opinions, interpretive circulars and referees decisions to answer a variety of questions from employers, employees, unions, etc., to make a determination as to the validity of a complaint, and what action should be taken. General knowledge of other Branches of the Ministry, their activities and functions (i.e. Human Rights, Industrial ~ealtb and Safety, Workers' Compensation, etc.) as well as other Ministries and agencies within the federal government, and in the community, (U.I.C., Labour Canada, training programs, etc.') to make referrals. Should also have knowledge of the client group and their activities to understand some of the problems encountered by employees. Ability to understand and interpret le~islation, work with minimal supervision and deal with pressure from a constant heavy workflow. Basic knowledge of accountin~ and math to examine payroll records. Excellent oral/written communioation' skills, co6pled with interpersonal skills, to respond to enquiries, to obtain information and' to effectively handle a variety of people, (occasionally in hostile situations). Ability to think quickly and possess negotiating and mediating skills to solve problems between employers and employees relating to employment standards. Knowledge of, and ability to use mini computers and Branch software. Ms. Butans testified that she often explains to persons making inquiries that the office tries first to resolve disputes by telephone or letter and if not successful, then by on-site investigations. Two areas not. handled in the office are mass-lay- off which is referred to the Toronto Head Office, and pay equity which is covered by separate legislation and administered by a separate administration. There is no screening of cases prior to the grievor's contact with the inquirY. Only those requiring'on- site inspection are referred to the Auditor 2. / Jody Easson, the grievor who works in the Hamilton office, testified that there is no mechanism to insure that more complicated inquiries are passed on to an ES Officer 2. She deals at the ~first stage with everything that comes in. She is not in fact required to refer cases upwards requiring further interpretations. As she testified, "we are in a position at all times to interpret the Act on inquiries" That also applies to claims. She also testified that it is not complexity that results in the need for referring claims, but a refusal by an employer to co-operate resulting in the need for an on=site visit by an ES Officer 2. But documentation is usually obtained by facsimile or post from the employer so that she is able to deal with a claim right through to conclusion. She testified that she is able to settle about 2'5-30% of the claims directly herself. She negotiates and mediates settlements and her correspondence and her decisions are not vetted by her supervisor. Beverly Rosser is the Regional Manager for the Hamilton Region (t~e area .from Fort Erie to Hamilton). Her office is located in Hamilton and She visits the St. Catharlnes office 'at least one day a week. She estimated that the St. Catharines office would receive about 100-150 calls a day and about 300 a day in Hamilton. About 65% of~the calls are from employees with difficulties and the rear would be from new employers or unions. Closing files is important with respect to the duties of ES Officer 2's and figures in their evaluations, but in the case of ES Officer l',s, it is not as important, and indeed of course, they do not close the files that they pass on to ES Officer 2's. Mrs. Rosser testified that in her view, severance pay would be the more complex type of issue that an ESO would have to deal with. Another would be pregnancy leave: this requires a field officer to invest%gate but an ESO 1 might decide initially that there was no claim and so close the file. Termination pay would be another complex matter (s 40 a) which'is a new provision. Mrs. Rosser went through a number of files that Ms. Butans had handled in preparation for. the hearing and produced a selection of investigation reports. Most of these were handled with phone calls to the employer and were closed in a short period of time. A number of the examples, were complex involving term/nation Day for t-~o claimers involving an issue of continuity of employment. ARGUMENT The un,on arques that the demarcation levels on the Standards and the actual practice or reality are different from each other. The, Standard premises that the demarcation between the two levels ~is that' '~e complex files are referred upward to the higher classification but that is not in fact the case. The grtevors are the front-line ,officers for inquiries. . When a visit to an employer's premises or an audit is required then the file is given to an ESO Officer 2'who has authority to issue orders. But the Standard assuages a hierarchy based on interpretation, multiplicity of claimants, multiplicity of violations, as well as issues of legal complexity. But the grievors testified that they do not refer these upwards. The union also relies on the fact that the level of knowledge set out in the Position Specification is different from that in the Stsndards. This is reflected in the .documentary evidence which shows some cases at the complex level. Also the grievors are asked to deal with inquiries from high levels such as. MPPs amd engage in public speaking to explain employment standards to the public. The employer's position was that most of the work done by the grievors is reasonably routine and not complex. There are few multiple claimants. The Auditors II (ESO 2) close more files'on a regular basis. It is true that 'these particular grievors who testified have years of experience and therefore can answer difficult complex c~ses but they are not required to do so. DECISION In.dealing with the arguments of Counsel, I·wish to turn first to the issue of the complexity of'the work of the grievors. The employer ·drew to the Board's attention the decision Wing and Ministry of Health GSB 484/81. In that. particular case,· Mr. Jolliffe for the Board stated at·page 4: "In considering a dispute about classification, it is the requirements of the position which dictate the result, nor the achievements, qualifications or other merits of the individual holding the position." But in our case, as indeed in Wing itself, the evidence does not indicate that either of the grievors was doing.work that was not the requirement of the position. Furthermore, the Position 13 Specifications state that they "provide authoritative opinions on the ap9licability of the Act [etc.]" and under Skills are required to have "Excellent knowledge of the Employment Standards Act and Regulations". These are both factors which the Preamble of the Standards states are "compensable factors". ~But the Standard then provides that for Level 1 "they do not handle more complicated claims". The evidence is incontestible that the dividing line between Level 1 and Level 2 is not legal or technical complexity and they certainly require more than "a good working knowledge of employment standards". The Union referred the Board to its previous decision in Bo~le and Ministry of Transportation and Communications GSB 675/85. In tha~ case,.Vlce-cha!r Brandt wrote at pages 13-14: '"Does the fact that the grievors were performing some level ~ functions from early Janua~7, 1984 on justify a re- classi~ication of the position as a whole? What about the fact that they were also performin~! functions which clearly are level 3 functions? Is it necessary for us to examine the degree/to which level 3 and level 4 functions were performed and attempt a quantitative analysis? We do not think it is. The key lies in the fact that, while it may be the cae that some of the grievors might actually only be performing level 3 functions, they could at any time be called upon by their employer to perform level 4 functions. ..... [reviews evidence] It is, in our opinion, clear that these 3 employees, having regard to the duties which they actually performed from January 1, 1984 to the time that the job was split, were performing as a Clerk 4. However, we do not stop at basing our conclusion on what the actual assignment may have been. Indeed that would be ludicrous for employees would 'be switching tn and out O~-different classifications depending on which part of the rotatlon they were on. Rather, for~ purposes of dete~mining, whether or not the g~ievors should be classified as Clerk 4, we think it is sufficient that the employer can call upon a Clerk to perform level 4 functions and expect the employee to measure up to the standard expected of that higher level of classiftca~iOno" That is of course obviously correct employment .law - a person must be classified and compensated at the level at which the employer expects him/her to perform. Almost every imaginable position does involve some routine work, but it is the highest level of work performed in the position that determines its classification. If one is only classified to do "routine non- complex work"', one might not to be called upon to do more, or conversely an employee called upon to do some high level work is entitled to the classification for that .high levell The employer adduced records to show that most of the work is routine, but even it shows that the grievers do handle some work which even the management witness characterized as at the complex level. Accordingly, even though the class standard does appear on its face to be of recent vintage (October 1, 1986) it does not reflect the two large issues canvassed here: 1. complexity of some of the matters handled, and 2. extent of knowledge required. These are specifically compensible items and fit within the core duties of the grievers. The grievances are allowed and the Ministry is directed to properly classify the grievers. The reclassification is to be ~5 , completed expediti@usly and the panel will remain seised Dend£ng implementation of this Decision. Dated this 28th day of August, 1990. I. J. Thomson Member : -A. G. St~pletc~n Member