HomeMy WebLinkAbout1989-0085.Kuntz.89-09-20 · ' . ONTARIO EMPI. OYI~$ DE LA COURONNE 1
CROWN EMPLOYEES DE L 'ONTARIO
:' GRIEYANCE C,OMMISSlON DE
SETTLEMENT REGLEMENT ·
BOARD DES GRIEFS
180 DUNDAS STREET WEST~ TORONTO, ONTARIO, MSG 1Z8-SUITE 2100 TELEPHONE/T~-'LI~'PHONE
180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8 * BUREA L12100 (416) 598-0688
'-' 85/89
IN THE ~ATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE G~IEVANCE SETTLEMENT BOARD
Between:
OPSEU (Kuntz)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Housing)
Employer
Before:
R.L. Verity Vice-Chairperson
M. Vorster Member
G. Milley Member
For the Grievor: I. Roland
·Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
For the Employer: C. Slater
Senior'Counsel
Human Resources Secretariat ..
Ministry of Housing
Hearing: July 25, 1989
DECISION
In .this matter,_Peter Kuntz claims that he is misclassified as
Services Supervisor 2, atypical. At the hearing, the remedy requested was an
Order that the grievor be properly classified. This case differs from the usual
classification matter because of the atypical allocation.
The grievor has worked for approximately five years in the position of
"roofing specialist" with the Technical Support Branch, Social Housing Divisiqn of
the Ministry of Housing. The purpose of the position, as described in the most
recent position specification form (Exhibit 2), is "to provide technical
consulting expertise and direct the activities of consultants for major
maintenance , upgrading, conservation and Dew construction work involving roofing
systems and, as required, to resolve installation, or maintenance problems for the
Regional Housing O~fices', Local Housing Authorities' and Non-Profit corporations'
staff throughout the Pr6vince."
The parties agree that Mr. Kuntz is the Ministry expert on roofing
matters. In fact, the employer candidly acknowledged that the grievor's position
is unique in that it was unaware of any similiar job within the Ontario Public
Service.
The grievor's current classification as Services SuperviSor 2, reads
as follows:
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CLASS STANDARD:
SERVICES SUPERVISDR 2
This class covers positions of employees who are
responsible for ensuring the technical implementation and execution of
projects concerned with the imstallation, maintenance and improvement
of either electrical or mechanical systems and equipment in
Government-owned buildings in an assigned region of the Ministry of
Government Services. These employees operate either as regional
co-ordinators of minor capital, maintenance, and improvement projects
in alt but the largest region of the Ministry, or as regional
inspectors of major capital projects.
This class also covers the positions of the senior
electrical or mechanical inspectors in districts in the Central Region
where the Manager position is classified at the -Buildings Manager 5
level.
As regional co~ordinators~ they provided technical
advice to district electrical or mechanical supervisors and staff.
They personally prepare instructions, estimates and contract documents
On the larger more complex projects. When necessary, they conduct
inspections of large complex contracts and carry out investigations of
the more difficult problems, providing advice and guidance to district
Staff. They are responsible' for the implementation, operation,
updating and co-ordination of the Preventative Maintenance Program
covering electrical or mechanical equipment in Government buildings,,
arranging contract maintnenace where required. They work closelywith
district electrical or mechanical supervisors in the preparation of
annual budget estimates.
As regional inspectors, they are responsible for
ensuring that electrical or mechancial systems and equipment for major
capital projects are installed in accordance with designs and
specifications, They inspect work in progress, reporting on any
deficiencies, interference, site problems and other conditions. They
instruct contractors on Governement pnpcedures and co-operate with
them in resolving problems, They estimate labour and material costs
to ensure the validity of'progress billings and change orders. They
conduct final inspection of completed work to ensure the. proper
functioning of the installation. :
SKILLS AND KNOWLEDGE:
Skill in an appropriate electrical or mechanical trade;
supervisory, instructional and administrative ability; ability to
estimate costs and prepare work assignments from plans and
specifications; thorough knowledge of statutes, regulations and
by-laws governing electrical or mechanical installations.'
Revised January l, 1981
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The Employer submitted that the grievor's position was ~llocated as
atypical because"the class standard for Services Supervisor was designed for
employees in the Ministry of Government Services who work in electrical or
mechanical disciplines. The Union disputes the validity of atypical allocation in
the post Berry era,
Following the filing of the grievance on February 15, lgSg, ~he.
Ministry prepared a position specification and class allocation form dated March
tO, 1989 (Exhibit 2). Under the heading "Duties and related tasks", the position
specification form reads:
3. Duties and related tasks
40% 1. In a section responsible for the provision of technical
services, provides policy direction and acts as
technical expert on roofing for the.Ministry by:
- Undertaking comprehensive and Complex research 'and
development studies to review, analyze- and evaluate
existing and newly developed flat roofing isystems and
materials.
- P~eParing technical articles and reports suitable for
publication and circulation within the Ministry, as
well as externally to the r. oofing industry.
- As in-house roofing expert, representing and acting
on behalfI of the Ministry on matters pertaining to
roofing; participating in roofing committees.
_i Providing expert technical advisory ser.vices on
roofing related matters as requesters- by other
provincial or federal Ministry divisions, such as the
Buildings' Branch, Government Services, Public Works,
etc.
Establishing comprehensive minimum performance and
design criteria, system standards and other
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improvements at head office necessary to achieving
optimum roof service life and to realize maximum cost
benefit.
- D.evetoping, reviewing and updating preventative
maintenance standards and policies with respect to
mm ' roofing and advising client groups of 'importance and
necessity of regular periodic maintenance.
- Reviewing, deve.loping and ~ecommending revisions to
Ministry technical guidelines and standards to take
advantage of new roofing methods, materials and systems
as well.as increase roof system service life, reduce
long term maintenance costs or increase energy
efficiency.
- Assisting in arbitration or legal disputes with
contractors on behalf of the Ministry.
40% 2, Provides head office co-ordination 'and liaison for.
roofing design consulting services, technical suport
and assistance to various Ministry client groups by:
- Performing comprehensive i~vestigations and analysis
of major and complex roof installations to identify, and
assess system defects and problems; determining need
for replacement, repair or system rmodifications on
behalf of RHPO (regional, LHA (local and Non-Profit ·
client groups (as ~equested).
~ Developing and 'delivering periodic specialized
roofing seminars for Ministry and LHA staff on all
facets of design, specifications, inspection and
maintenance or roofing systems.
- Preparing detailed tender documents for major,.
complex or innovative ro'of replacements on behalf of
RHPO, LHA or Non-Profit groups as requested.
- Examining and reviewing proposals, tender documents
or investigative reports for technical and design
accuracy prepared by consultants on behalf of. RHPOs,
LHAs and Non-Profit groups. .
- Providing terms of reference, co-ordination,
direction and technical guidance to RHPO and LHA as
well as externally engaged consultants in the
preparation of tender documents, investigations and
reports.for major and complex roof related matters,
including the examination of~ consultant claims and
payments as requested.
- Advising client groups of non-destructive
..... investigative techniques, including advantages and
disadvantages, as well as analysing consultants'
" reports which in~oporate results of infrared
thermographic scanning, nuclear moisture metering or
electrical capacitance metering.
- Providing technical assistance to manager, energy
systems, regional manager and housing authority
managers, by evaluating insulating value of existing
roofs; determining most advantageous manner in which
roofing insulation can be upgraded during major roof
replacements.
15% 3. Develops and maintains expertise in roofing related
matters by:
- Maintaining close liaison with manufacturers and
distributors of roofing prodcuts and roof insulations
to be cognizant of innovations, revised or discontinued
products and application methods essential in the
determination an.d selection of state-of-the-'art roofing
systems.
- Establishing and maintaining an up-to-date library of
roofing product and systems catalogues, industry
technical bulletins, publications and periodicals;
roof association manuals and regulatory agency and code
standards p~rticular to r~ofing.
- Establishing and maintaining liaison with other
experts in the public and private s~ctors.
- Maintaining liaison with or membership in the various
roofing and trade associations.
- Attending seminars, conferences'and keeping abreast
of external developments and practices in related
industrial roofing technology applications.
5% 4. As directed. "
The parties agreed that Exhibit 2 accurately reflected the grievor's
current duties and responsibilities with the following factual addition: "He
provides cost estimates for roofing systems, 'materials and related specialties
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pertaining to new roof installations, re-roofing, partial replacements as well- as
repairs and maintenance work for Ministry, Regional Housing Program Offices, Loca!
Housing Authorities and Non-Profit client groups as requested".
This grievance proceeded exclusively under the "standards approach" -
the measurement of the grievor's job against the wording of the current class
standard.
Mr. Kuntz was the only witness called upon to testify. He described
his duties as set fo~'~ in the position speci, fication and illustrated those
duties, in part, by the submission of some.20 exhibits. No useful purpose can be
served by repeating that~ evidence, Suffice it to say that the grievor iS
recognized as the Ministry expert, if hot the Government expert, on roofing
systems in Ontario.
The Employer submitted several extracts from the Ontario Manual of
Administration which cOntains the following relevant definitions:
"Class" or
"Grade"
A distinct level and type of work with:
· the compexity, skill and re&ponsibility ~emplified
as a class standard; and
. a specific pay range.
"Atypical
Allocation"
The allocation to a class of a position that in general
fits that class better than any. other, but is
significantly different from other positions in the
class with respect to the:
, function(s} carried out; or
, skills and knowledge required.
The arguments can be briefly summarized. The Union argued that an
"atypical allocation" is a pre Berr~ concept which in itself is an employer
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 enc'ompassed in
the cur~nt class standard under the atypical designation.
The central issue is whether or not the grievor is improperly
classified as Services Supervisor 2.
Despite Mr. Roland's able argument, the Board cannot accept the
Union's first submission that an atypical allocation i~ inappropriate per se,
following the judicial review in Berry. 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
-9-
to properly classify that employee.
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 Berry as confirming that employees who
come under the Crown Employee~lective Bargaining Act have a
statutory right ~--~-Fieve classlfication apart from -the---~-ollective
agreement and that the collective agreement cannot restrict that
right. That being the case, the ~cope of thelBoard'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 131of 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. I8(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 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, r think
it had that power. Its authority under s. 19 of the Ac~ is
untrammelled. It 'shill 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 8oard. The ~Board'~ 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
anyth'ing with regard to these'basic obligations ot]i'6-F--~han to remove
the remedial limitations which were placed on the Board by Article
5.1.2 of the collective agreement.
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Under. s. 1811)(al of.the Crown Employees Collective Bargaining 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(1) 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 me~hods employed. At
present time, the atypical allocation is an integral part of the employer's
classification .system. tn the result, the Board is obliged to consider the merits
of an atypical classification on a case by case basis.
In the instant, matter, the Board finds that the grievor is
misclassified in his current classification. On the evidence adduced, the
grievor's actual duties and responsibiqities greatly exceed those contemplated in
the Services Supervisor 2 class standard. Clearly, Mr. Kuntz has no direct i
involvement in either the'mechanical or electrical disciplines. He performs as
the roof systems expert for the Ministry - a position that appears to be unique
within the Ontario Public Service. His territorial jurisdiction is Provincial in
scope and his expertise is far broader and effects a.di~ferent constli~uency than
contemplated by the current class standard. In addition, a substantial component
-ll-
of the ~rievor"~s' job is associated with research and development duties - a fact
which is simply not reflected in the present classification.
In the result, this grievance is allowed on a finding that the griever.'
is currently misclassified. The Beard orders the employer to properly classify
the §rievor by creating a classification which adequately reflects his current
unique duties and responsibilities. The employer shall be given 90 days to
reclassify the griever. The Board shall retain jurisdiction pending the
implementation of this decision, including entitlement to retroactivity and
interest.
DATED AT Brantford, Ontario, this 20 day of September, A. D., 1989.
R' [. ~E~!~¥, Vice-Chairperson
M. VORSTER- Member
G. MILLEY- ' ..... Member