HomeMy WebLinkAbout1989-1330.Quan.91-02-12 ONTARIO EMPL 0 Y~$ DE £A COURONNE
CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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1330/89
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN OPSEU (Quan)
GrieVor
- and -
The Crown in Right of Ontario (Ministry of Labour)
Employer
BEFORE: P. KnOpf Vice-Chairperson J. Carruthers Member
A. G. Stapleton Member
FOR THE N. Coleman
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR. THE I. Werker
EMPLOYER Counsel
Fraser & Beatty
Barristers & Solicitors
HEARING: May 9, 1990
August 10, 1990
December 5, 1990
January 4, 1991
DECISION
This is a classification case. The Griever is
classified as a scientist 2 and Seeks reclassification to the
level of Scientist 3. The Union bases its claim both on a
class standards argumemt and on a claim of "usage". The
Griever works in the Research and Development Section of the
Ministry's Radiation Protection Service. The purpose of the
Service is to sample, test and analyze radioactivity in
materials submitted for analysis. The focus.of the Research
and Developmen~ Section is to carry out analyses on
non-routine samples received and to research and develop
methods amd techniques of analysis ~hat can be utilized by
this Section as well as the Surveillance Section which
conducts tests'on routinely received samplesl
To focus the evidence and argument, ~t is helpful to
begin with the.lbasic differences between a S~ientist 2 and
Scientist 3 classification. The Scientist classification
series and definitions are appended hereto a§ Appendix A to
this decision..: However, at this stage, the distinction
between the two levels can be seen by the foilowing extracts
from the Class lDefinitions.
Scientist 2
This class covers scientific work performed under
general supervision in a provincial government
laboratory. Employees conduct moderate.ly complex
tests, analyses and examinations, with some
latitude for independent work decisions~ They are
responsible for producing accurate results, plan
technical 'details for their own work, selecting,
using and .;;adapting appropriate techniques. Their
work is evaluated by the accuracy and reliability
of results, and may be reviewed on completion ...
General supervision is received from sehior
laboratory personnel.
Scientist 3
This is responsible scientific work performed in a
provincial government laboratory. Employees
personally conduct a variety of complex tests,
analyses and examinations or they may supervise a
group of subordinate'scientists and technicians
performin9 a large volume of standard analyses of
moderate complexity ... General supervision is
received from a senior laboratory scientist.
The differences between the two levels will be explored and
resolved later in the Award. But at this stage it is helpful
to keep in.kind that ~he critical differences between the two
ratings are that a Scientist 2 conducts "moderately complex
tests, analyses and examinations" whereas a Scientist 3
conducts "a variety of complex tests, analyses and
examinations." Secondly, the Scientist 2 has his/her work
evaluated by the accuracy and reliability of results and it
may be reviewed on completion. However, the Scientist 3
receives only general supervision from a senior laboratory
scientist.
With these basic distinctions in mind, we can now
turn to the evidence. The Grievor, Ms. Quan, is an extremely
intelligent and accomplished person. She holds two Masters
degrees from the University of Toronto, one in Applied
Science and the other in Engineering. She has taken numerous
post-graduate courses in Chemistry and has also pursued
specialized computer training.
The Grievor's work in the Research and Development
Laboratory was detailed to the Board in examination-in-chief
and cross-examination. Further, witnesses for both parties
explained the sophisticated chemistry and computer skills
required of the position and the Grievor's co-workers.. The
Board makes no attempt to relate all that detailed evidence
back in this /~ward, nor is it necessary to do so. However,
the following ~findings of facts do recall the relevant and
determining factors that 'emerge from the extensive evidence
received ·
The Radiation Protection Service is divided into. two
sections, thos'e being Surveillance and Research and
Development. :: A Chief Scientist, Mr. J. Tai-Pow, oversees
the Service and a supervisor, Mr. Lee, oversees each Section.
Reporting to Mr. Lee is Ms. Josephine Bitanga, who is a
Scientist 4 an~ to whom the Grievor reports ~directly. Also
reporting direCtly to Mr. Lee is Ms. E. Gawtowska, a
Scientist 3. Tho usago argument is based on m comparison of
the Grievor's work and responsibilities to those of
Ms. Gawlowska .i
The Grlievor receives her assignments directly from
Ms. Bitanga. These assignments typically inlvolve the Grievor
being asked to'. conduct experiments which are integral parts
of larger research projects undertaken by the Research and
Development Section. At times these assignments may involve
detailed written instructions on exactly whi:ch experiment is
to be done and:i how it is to be conducted. At other times the
instr'uctions may simply be a verbal indication from
Ms. Bitanga that an item needs investigating and the Grievor
is then entruslted to identify the appropriate method of
analysis on he'r own and to conduct the appropriate tests.
For the 'researbh and development part of her work, the
Grievor studie~ the scientific literature to. gain a
theoretical understanding of the project and to determine
alternate methods. She then will prepare a sample of the
material for anlysis. She conducts the appropriate tests.
She analyzes and' interprets the results achieved utilizing
the computer and the statistical concepts available within
the laboratoryI. She identifies and attempts to solve any
problems that have been encountered with the~ me~hodology
under investigation. She may recommend an alternative
solution or approach and will describe all her results in
reports which she submits to Ms. Bitanga. These reports will
include the results of any methods she has undertaken on her
own initiative. The reports will also include the results of
her analysis and any recommendations arising from her work.
In addition to all this, she has done some editing or
reviewing of scientific reports that have been prepared by
the Section. This aspect of her research and development
work .accounts for approximately 50 percent of her entire
responsibilities.
Another 25 percent of her responsibilities involves
what the Ministry's 3ob specification describes as follows:
Analyzes radioactivity in unusual non routine and
problem samples i.e. not analyzed on a
regular/volume basis, in emergency situations e.g.
Chernobyl, or requiring lengthy and complex
analysis e.g. plutonium, polonium associated with
various radiological monitoring programs by:
- preparing samples for analysis using established
methods to determine the desired radionuclides;
- analyzing and reporting results, making ,
recommendations for modifying or refining
methods as necessary;
- entering results on lab sample registration
system.
We have concluded from the evidence of'Ms. Quan and
Ms. Bitanga that this ~xtract from the job specification is
an accurate reflection of the sample analysis portion of the
· Griever's work.
The remainder of the Griever's work involves
participating in external/internal quality control prog~ammes
and adhering to quality assurance procedures to improve the
accuracy in the laboratory. There are other related dutieS.
Specifically, Ms. Bitanga describes how she ~lso undertakes
and has been assigned work to support the reseach and quality
control functions of the laboratory by developing computer
programmes and spread shoets and devising applications of
commercial software packages for usage within the Section.
This includes designing database files for data compilation
and using word processing software to prepar9 the. reports.
We were given a specific example of the Griegor's work
developing a c6mputerized equasion and a spread sheet by
using commercial computer software and applyling it to the
needs' of the laboratory in order to save time for processes
Which had previously required tedious manual calculations.
The Board was taken through the documentation
supporting several experiments conducted by Ms. Quan. The
documentation illustrates the kinds of instructions which are
written by Ms,"Bitanga. It illustrates samples of the
Grievor's initiative where she has identified and tried
different meth6ds or materials than have been suggested and
then reported On the results to Ms. Bitan~a,~ Ms. Bitanga
testified how she utilizes and highly values, these reports
and recommendations in her own reports dealing with the
projects as a whole. She has either used the information as
a consideration in her own analysis or has adopted Ms. Quan's~
recommendations completely.
It is not easy to define the type of'supervision or
review that the Grievor receives on the basis of ~he evidence
presented to uS. Ms. Quan testified that Ms'. Bitanga does
not check for the accuracy of the work. Yet! Ms. Quan
concedes that She and Ms. Bitanga discuss th~ work on a
continual basis and Ms. Bitanoa offers suggestions or
solutions to problems with the work, Ms. Qugn described this ·
as a professional "information exchange". It is clear from
Ms. Bitanga's evidence that she was regularly in contact with
the Grievor and her work. The facts ~eveal that the Section
has a small number of pr~)fessional employees who clearly
respect each other and their work. Thus Ms. Bitanga may not
have exercised detailed supervisory ~control over Ms. Quan.
Yet it is equally clear that Ms. Bitanga watched, reviewed
and discussed all Ms. Quan's work with her. For example,
Ms. Bitanga would review Ms. Quan's reports and make comments
seeking clarification or revision where· necessary. These'
reports were then forwarded to Mr. Lee and/or incorported in
Ms. Bitanga's roports on the .process as a whole.
We now turn to the position of Ms. Gawlowska. She is
the Scientist 3 that the Union asserts to be the basis for
the Grievor's claim for reclassification on 'the grounds of
"usage".~ Ms. Gawlowska accepts as accurate the Ministry's
Position Specification for her job. It is appended as
Appendix B. She too works in the Research and Development
Section along with the Grievor. It appears that
Ms. Gawlowska's work with non-routine hazardous samples is
virtually the same as the Grievor's. However, there are
differences in her duties in terms of the way she works and
with her research and development work. Ms. Gawlowska
reports directly to Mr. Lee and receives her instructions
from him. Mr. Lee would initiate the Droject and give her an
idea for.an approach. Thereafter, she is left to do the
project. He does not give her "step-by-step instructions".
He simply assigns the projects to her. She then submits a
final report to him. Her wore also involves supervision of
the Laboratory Technician by assigning du·ties, assisting in
the Technician's work and reviewing that work. She has
contact with a number of people outside the laboratory
including "colleagues from Occupational Health and Safety,"
other labs at·the University of Toronto o~ Hamilton and
suppliers of the laboratory's instrumentation. None of these
latter aspectsl:, of Ms. Gawlowska's work is pa. rt of the
Grievor's job
On~ last aspect of the evidence mustl be mentioned.
The Ministry sought to introduce the evidenc~e of Ms. Keele
from the Ministry to "present the rationale behind the
decision to classify,, the Grievor as a Scien~tist 3 and to
describe "the relationship of the standards,, one to another."
Counsel for the Ministry argued that this evidence would
assist the Board and would be different than the kind of
evidence offered to. the Board in Lefebvre-Thiessen, GSB File
1487/89 (Samuels) wherein it was said:
However, it appeared finally that the Employer
wished to' introduce the evidence as some sort of
expert evidence concerning classification. We
remarked that, once a classification grievance
reaches this Board, the Board must make~, its ruling
based on the evidence we hear concerning the
position and our interpretation of the class
standards~ The witness called by the Employer was
in fact the decision-maker at first instance in
this clas§ification. Her position was akin to the
trial judge in a law suit. We act as a "court of
appeal" with respect to classification decisions,
and the trial judge in a matter doesn't appear as
an expert witness before the "court of appeal".
This panel of the Board agrees with the Unioh's objection to
the evidence being offered by the Ministry. ~We see no
meaningful distinction in this situation from the situation
in Lefebvre-Thiessen, supra. Moreover, the !'rationale behind
the decision tO classify" itself cannot be a defence for a
classificationi~grievance. The decision regarding a
classification'is either correct or not and the motivation
for that decision is irrelevant. The "relationship" of the
standards is a"factor for this Board to determine in our
"interpretation of the class standards, utilizing the
assistance of counsel's arguments based on the documentation
of the standards themselves. In other words, th-e standards
- 8 -
speak for themselves and a Ministry witness cannot be offered
as someone who would undertake the Board's function of
interpreting the relationship of the standards. This would
be akin to having a legislative draftsperson offered to a
court to interpret the statutes under consideration in a
case. Further, the evidence proffered would seem to contain
nothing further than one would expect to hear by way of
argument by counsel at the conclusion of the case. Thus, the
evidence offered through Ms. Keele was ruled to be irrelevant
and inadmissible.
The Argument
Counsel for the Union argued that the Griever ought
to be reclassified to the level of Scientist 3 or, in the
alternative, that a "Berry Order" ought to be issued. It was
submitted that the difference between a Scientist 2 and a
Scientist 3 "boils down" to the difference between scientific
work that is "moderately complex" or "comp'lex". To
understand or to give meaning to th~ difference between
complex and moderately complex, counsel invited the Board to
turn to the Preamble of the Scientist Class Series which
includes:
Well-established techniques and procedures
governing the work in laboratories handling a large
volume of standard analyses ordinarily result in
the allocation of many positions to the Laboratory
Technician series, and to the Scientist 1 and 2 '
classes.
Higher class levels usually involve considerable
supervisory responsibilities; require individual
initiative and originality in the selection,
modification and application of analytical methods
and procedures; involve a large variety of
different kinds of complex specimens to be analyzed
and reported on; regular appearance in courts of
law to give evidence as a scientific expert of
recognized standing and reputation; consultant and
advisory services to other agencies; other duties
and rsponsibilities of a similar nature and level.
It was argued that the preamble of the series makes it clear
that a Scientist 2 is onQ who deals with well established
techniques in"standard analysis. On the other hand, the
higher class levels are assigned where individual initiative
is required and where there is a large variety of different
kinds of complex specimens to be analyzed and reported on.
It was said that these latter functions are integral to the
work of the Grievor and thus she would be improperly
classified asila Scientist 2 and ought to be'reclassified as a
Scientist 3. ~'We were-reminded of the evidence showing how
the Griovor is left to work on her own initiative to develop
techniques and that she analyzes non-routine samples
25 percent of.her time. Further, the Griev0r's work with the
computer was Said to be "complex" and again to bring her
within the Scientist 3 classification.
With regard to the usage argument, it was stressed
that the evidence should establish that the'Grievor and
Ms. Gawlowska ~co'uld do "practically" the sa~e work. Further,
it was said that they use the same equipment, conduct the
same experiments and do essentially the same work with regard
to the analys~s of samples. Finally, it was a£gued that the
computer work iof the Grievor is of such a c6mplex nature that
it ought to justify a reclassification to a~Scientist 3 level
or in the altelrnative, it is significant enough that it takes
the Grievor out of the Scientist 2 level and would justify a
reclassificatii°n by the Ministry throUgh a '!Berry Order".
Reference was :made to the following cases: Beals and Cain and
the Ministry o'f Community & Social Services; (Fisher), GSB
File No. 30/79:!, Beach and Ministry of the Environment,
(Fisher), GSB ~File No. 816/86 (Fisher) and Bahl et al and
Ministry of th:e Attorney General, (Samuels)~ GSB File ~;o.
891/85.
The Mi:nistry argued that the eviden6e does not
succeed in fulfilling the Union's onus of establishing that a
Scientist 2 classification is not the "best fit" for the
Griever. It was argued that the degree of supervision, the
Griever's contacts within and without the section and her
personal responsibilities are completely consistent with that
of a Scientist 2. Referring to the Preamble of the Scientist
Class Series, it was stressed that the allocation of
positions will usually depend on not only the technical
complexity of the assigned work but on the level of authority
at which the work is carried out. It was said that the
evidence does not establish that the Griever has a sufficient
degree of authority to fit within a Scientist 3
classification. Further, it was said that the evidence does
not support that the Griever conducts the "complex tests"
which are necessary for a Scientist 3. It was said that the
evidence establishes only that the Griever carries out
experiments, whereas a Scientist 3 is expected to carry out
applied research projects. Further, it was stressed that the
Griever submits only draft reports to Ms. Bitanga which are
then reviewed. These reports are not considered the kind of
independent reports which would be required of a Scientist 3.
It was said that the extent that the Griever shows initiative
in her work is credited with the Scientist 2 Class standards
which acknowledge that there is "some latitude-for
independent work decisions". Finally, the Griever's work was
distinguished from that of Pis. Gawlowska's as a rebuttal to
the usage argument. It was stressed that Ms. Gawlowska
spends 10 percent of her time supervising a Technician, that'
she undertakes projects as opposed to experiments, that she
is not given detailed instructions on how to conduct her work
and that she has significant contacts outside of the
laboratory, unlike the Griever. These distinctions were said
to "separate" the two positions and be a defence to the
Union's claim for usage. Reference was made to the following
cases: Tomassoni et al and Ministry of Community & Social
Services, (Verity), GSB File No. 807/86 etc., O'-Kapiec and
Ministry of Transportation, (Gorsky), GSB File No. 198/89
- 11 -
and Irv Kirste~in and Ministry of Community &. Social Services,
(Knopf), GSB F~ile No. 1652/87.
The Decision
We begiln by confessing that we must approach this
case with a de~ree of humility. The highly important and
detailed work ~one-by the Scientists in this. laboratory, and
their involvement with radio-chemistry and c~mputerized
analysis is fa'~ beyond the comprehension of ·this panel.
However, what .this panel is able to do is to conduct the
appropriate enquiry as to whether or not the. nature of the
work performed~ by the Griever is that set oult in the Class
Standard which'ihas been assigned-to her'. Secondly, we can
look to see whether she is performing work which is
substantially Similar to that being performed by another
employee who has been placed in another classification. The
evidence is cogent and sufficient enough for us to be able to
measure the Gr!ievor's work against the Class. Standards
available and against that of Ms. Gawlowska.
It is Clear that the critical distinction between the
Scientist 2 and Scientist 3 levels is whether the employee
conducts the "moderately complex" or complex checks and
analyses. In Order to put meaning to those ~hrases in the
context of the.~ Scientist Class Series, we ag.tee that it is
helpful to look to the Preamble and to the elxtract quoted
above on page 8 which indicate that the Labolratory Technician
and Scientist ~ and 2 classes should be assi.gned to those
positions involved with "standard analysis" and "well
established techniques and procedures." The[ Preamble makes
it clear that higher class levels must be contemplated where
individual initiative and ~originality are exlpected, where
"modification and application of analytical 'methods are~
undertaken" and whore the incumbent must analyze different
kinds of "complex specimens." With this in mind, the
Grievor's position must be recognized as 'involving more than
the analysis of standard samples. By definition, she is
Working in the Research and Development Section. }{er
analysis work involves only the collecting of non-routine
samples. Her research and development work involves the
study necessary to modify and analyze methods and procedures.
This is the very nature of her work. According to the
Preamble, work outside the level that would normally be
assigned to a Scientist 2~ If we then turn to the
Scientist 2 Class Definition it could appear on first blush
to accurately describe the type of work which was related to
us in the evidence. However, it is not completely
appropriate nor does it go far enough.
The Ministry's own Job Specification acknowledges
that the Grievor's work involving the analysis of
radioactivity in non-routine and problem samples requires
"lengthly and complex analysis". The use of the word complex
in the job specification with regard to this critical aspect
of the Grievor's work raises the position beyond what would
be expected of a Scientist 2 who is only expected to conduct
"moderately complex tests." Thus, the evidence.persuades us
that the Scientist 2 Class Definition does not accurately
reflect the work of the Grievor.
We now turn to the question of whether the
Scientist 3 Class Definition would be appropriate for the
Grievor. On the basis of the Standard itself, we do not
conclude that the Scientist 3 classification is appropriate.
While the Grievor's work is beyond that of a Scientist 2, she
does not have sufficient responsibility or the necessary
characterisic duties ~o take her within the Class Definition.
While we do not mean to suggest that she must fit within all
the characteristic duties as are set out in the Class
Definition, the evidence does establish that there are
significant aspects to a Scientist 3 ratings which cannot be
found in the drievor's work. One of the significant
differences between a Scientist 2 and Scientist 3 is the
different leve. 1 of responsibility. A Scient, ist 2 works under
general superv~iision, whereas a Scientist 3 is responsible for
the scientific work. The Scientist 3 personally conducts a
variety of tests and analyses. The evidence does not
establish that~ the Griever has been entrusted with this level
of responsibil"ity with regard to her research and development
work. She is :assigned specific tests or examinations to be
done. She is often given detailed instructions on exactly
what ought to be done. Her reports are submitted to
Ms. Bitanga in draft form and are then reviewed by
Ms. Bitanga. i~nly after they are reviewed ~nd revisions made
on the direction of Ms. Bitanga are they forwarded to the
head of the section, being Mr. Lee. In other words, Ms. Quan
is not considered to be directly responsible for the
scientific work. Thus, we cannot conclude that the Griever
has satisfied the onus of showing that the Scientist 3 level
is appropriate to her work.
We now,: turn to the usage argument to determine
whether or not]: she is performing work that ~s substantially
simil'ar to tha!t being performed by Ms. Gawl0wska whose
position has been, rated as a Scientist 3. However, as the
recitation of .the evidence above shows, there are significant
differences be:,tween the work and responsibilities of the two
sicentists. Ms. Gawlowska is not issued th6 detailed type of
i
instructions which are issued to the Griever. Ms. Gawlowska
is entrusted t~ be able to devise the appropriate experiments
on her own. Ms. Gawlowska is expected to conduct projects
whereas the Griever is simply assigned individual experiments
which may become part of a larger project. ,Ms. Gawlowska has
supervisory responsibilities over a Technolo. gist. The
Griever has no'~ such responsibility. Ms. Ga~}lowska has
extensive contacts with individuals outside !of the Section'.
While the Griever has had some such contact, it does not
appear to be part of her regular responsibility to do so. We
acknowledge the fact that the Griever has undertaken
sophisticated computer work which the Union would have us
believe equals the balance of the difference between the type
of work performed by the Griever and Ms. Gawlowska. However
that may be, it is not of assistance in a usage argument.
Simply put, we see far too many differences between the
responsibilities and the work of the Griever as compared to
that of Ms. Gawlowska for us to be satisfied the Union can
succeed in a usage argument.
Thus, the evidence has left this Board in a situation
that we see the position as a classic example of where a
"Berry Order" is appropriate. We have concluded that the
Scientist 2 classification is inadequate to reflect the
duties and responsibilities which are expected of the.
Griever. We are equally persuaded that the Scientist 3
classification goes beyond the evidence of what the Griever
performs and that the Griever has not persuaded us that her
work can be considered to be substantially similar to that of
Ms. Gawlowska's, another Scientist 3. Thus, this is a
sitaution where the Ministry will have to re-evaluate the
position and find an aDpropriate classification and rating
for the Griever and her unusual level of responsibility.
such a re-evaluation will be able to give the Ministry the
opportunity to reflect further upon the computer
responsibilities expected of the Griever as w~ll as the
complexity of the work she performs.
Thus, it is our conclusion and order that the
Ministry must forthwith conduct an analysis of the Griever's
position and devise a new and appropriate classification for
the Griever. The Employer is hereby ordered to reclassify
the Griever within 90 days of the date of this 'Award. Once
the new wage rate is determined, the Griever is 'to be
compensated from the date 20 days prior to the filing of this
grievance and is entitled to interest according to the usual
principles and formula.
The B6ard remains seized with any matters involving
the implementation of this Award and the award of
compensaion. !:
DATED 'at Toronto, Ontario this 12th day of February'
1991.
P 'au hairperson
· ' A. Stap~on £~Member
APPENDIX A
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