HomeMy WebLinkAbout1989-1775.Union.90-10-11,.~ ONTARIO EMPL O~/[~'S DE LA COURONNE
' ,. CEO WN EMPLOYEE$ DE L 'ONTA RIO
GRIEVANCE C,OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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1775/89
ZN THE MATTER OF ~ AI~B~TRATION
Unde~
THE CROWN EMPLOYEES COLLECTIVE B~RGAIN/NG ACT
Befo~s
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Union Grievance)
Grievor
The Crown in Right of Ontario
(Ministry of Community & Social Services)
Employer
BEFORE:r B. Kirkwood Vice-Chairperson
P. Klym Member
D. Clark Member
FOR THE R. Healey
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE W. Emerson
EMPLOYER Employee Relations Officer
Human Resources Branch
Ministry of Community & Social
Services
HEARING May 29, 1990
Page 2
DECISION
This grievance involved the 'operation of the Income
Maintenance Department at the Sautt Ste. Marie Office. The
Income Maintenance Department is responsible for determining
the eligibility of persons for Family and Welfare benefits.
The Income Maintenance Officer (IMO) interviews clients,
obtains the required data, inputs the data into the
Comprehensive Income Maintenance System (CIMS), which, is a
computerized system used to administer, the payments, and
follows-up with interviews in the homes of the clients.
The U~ion alleged that in October 1989, the
Ministry created a new position, in the department, which was
labelled a CIMS Co-ordinator which was responsible for CIMS
and subsequently other special projects, and that the
Ministry filled the position without posting the job contrary
to article 4 of the collective agreement.
The Ministry's counsel argued that the Ministry had
reallocated the work of an Income Maintenance Officer, and
may have changed the percentage of. time required to do
various duties, but did not make any fundamental changes to
the duties of the IMO, who was performing the work of the
CIMS Co-ordinator. The Ministry's counsel therefore
submitted that no new position was created.
There was only one material difference in the
evidence of the parties, which will be referred to 'later.
The CIMS program began as a pilDt project in
Hamilton and in Sault Ste. Marie in 1985. From 1985, all the
IMOs inputted data on each of their own client.s into CIMS.
As the computerized system was in a formative stage, the
Page 3
system was not well understood and many errors were made by
the IMO's when using the system. As a result, the Ministry
asked for a volunteer from the IMO's within the office to
take on the additional responsibility of resolving problems
with CIMS, while continuing to be responsible for the usual
duties.
Mary Lynn Matheson volunteered.
Up to September 1988, Mary Lynn Matheson had been
responsible for a caseload, which was composed of many cases
but was identified as unit %122. After. volunteering, from
September 1988 to 1989 her responsibilitie.s during the
morning, were to resolve the problems that arose from CIMS,
and in the afternoon, to continue with her former tasks.
A year later, in September 1989, another change
occurred in the department. The government provi'ded
additional funding for a person to be hired for F~ench
language training and the department offered its employees
the opportunity to improve their French language skills
through courses. As some of the IMO'S took advantage of
courses which were given, and which continue' to be given
during working hours, there was less time available to handle
the various caseloads administered by the IMO'S in the
office.
As a result, the Ministry hired an additional IMO,
Wanda Coussineau. For a periDd of three, weeks -Wanda
Coussineau was a floater and provided support to the
remaining IMOS.
The only material dispute on the facts arose over
the source of Wanda Coussineau's work. The Ministry claimed
that her work came from all the /MO's, while Mary Lynn
Page 4
Matheson testified that Wanda Coussineau received her
caseload in its entirety.
We accept the Union's position. At the request of
the IMOs, at the conclusion of three weeks and almost
simultaneously with the hiring of another employee
responsible for French language training, Wanda Coussineau
took over Mary Lynn Matheson's caseload. Luella De Grazio,
who was the IMO supervisor at the time testified that the
Ministry had to decide whetk~r it would give Mary Lynn
Matheson a full caseload and redistribute her other functions
to other case workers or would it centralize CIMS with Mary
Lynn Matheson and reassign her caseload to others. The
Ministry opted for the latter. A memorandum dated October 5,
1989, reflected the distribution of caseload #122 to Wanda
Coussineau and the direction to Mary Lynn Matheson to monitor
CIMS system function.
From October 1989 the CIMS work was Centralized and
Mary Lynn Matheson became the CIMS Co-ordinator. As a CIMS
Co-ordinator, she was responsible for working out the
problems that the IMO's were having with the system. If she
was unable to do so she reported the problems Go the
corporation~ She was also responsible for assessing messages
sent from Toronto to the Sault Ste. Marie managers and
terminal operators.
In addition, she became responsible for special
projects, such as the Algoma North Project, the ORFUS Project
and for the File Management Project.
The Algoma North Project came into being in
approximately November 1989. The Sault Ste Marie office
found that it was unable to provide quality set'vice to its
clients living in and around Wawa. Accordingly the office
made an arrangement with the Algoma Office, for the Algoma
Page 5
office to take over the responsibility of the clients in the
Wawa area. From September 1989 to December 1989, Mary Lynn
Matheson was responsible for transferring the files to the
Algoma district in order that the project would be operable.
The ORFUS project is~ the Overpayment Recovery
Follow-up System, which is a system for the recovery of
overpayments to persons who are no longek clients.
Originally the system was administered from Toronto, but as
there was a strong movement to decentralize certain tasks,
about 500 cases under ORFUS were moved to the Sault Ste.
Marie Office. Mary Lynn Matheson became ,responsible for.the
administration of this project.
The File Room Project involves closing file~ when
the client relationship has ended a~d forwarding the files to
Toronto for retention. Mary Lynn Matheson works with her
supervisor, and delegates ta~ks to clerks, to acco.mplish
these tasks.
Therefore the issue is to consider or whether the
Ministry had reorganized the workfoTce as it was entitled to,
under the parameters of section 18 of the Crown Rnlp]oyees
Collective R~rq~ning Act, R,S.O. 1980, C. 108 as amended, or
had a vacancy existed from· the fall 'of 1989, which.the·
Ministry failed to post, 'as ·it was required to, under article
4.1 of the collective agreement.
Section 18(1) of the collective agreement states:
(1) Every collective agreement shall be deemed
to provide that it is the exclusive function of the
employer to manage, which function, without
limiting the generality of the foregoing, includes
the right to determine,
(a) employment, appointment, complement,
organization, assignment, discipline,
dismissal, suspension, work methods and
Page 6
procedures, kin~s and locations of equipment
and classification of positions; and
(b) ...
and such matters will not be the subject of
collective bargaining nor come within the
jurisdiction of a board.
Article 4.1 of the collective agreement states:
4.1 When a vacancy occurs in the Classified
Servic~ for a bargaining 'unit position or a
new classified position is created in the
bargaining unit, it shall be advertised for at
least ten (10) working days prior to the
established closing date when advertised
within a ministry, or it shall be advertised
for at least- fifteen (15). working days prior
to the established closing date when
advertised service-wide. All applications
will be acknowledged. Where practicable,
notice of vacancies shall ~e posted on
bulletin boards.
Under section 18 of the CrQ~R ~mpl oyees'
Co] lecture R~rga~n~ng Act, the Ministry is entitled to
reorganize its workforce, and therefore if it reassigns the
duties that an individual is to do, which remains within the
Job Specification and the Class Standard, there is no
violation of the collective agreement. If on the other hand
it changes the duties which the person performs fundamentally
such that it has little bearing to the job description, the
Ministry will be creating another position. That position
will be subject to the posting and competition requirements
set out in the collective agreement.
Furthermore, if there is so much work that the
Ministry decides that another person is required, there is a
vacancy, which must be filled in accordance to the collective
agreement.
The addition of a ataff member is prima facie
evidence that there had been a vacancy which was filled. The
Page7
Ministry had decided that there was sufficent work for a
person to be employed on a full time basis.
An increase occurred in September 1989, when the
Ministry increased its staff in the Sault Ste. Marie office
by the addition of the French Language Trainer (which is not
relevant to this decision) ahd an IMO. Before the memorandum
of October 5, 1989, there were eight IMO's a.nd eight
caseloads. After the memorandum, there were nine IMO's and
eight caseloads. As we accept the Union's evidence that Wanda .
Coussineau received Mary Lynn's caseload and the other
caseloads w.ere not redistributed, we must then consider the
nature of Mary Lynn Matheson's job.
The question is whether Mary Lynn Matheson was
performing her job as an IMO after October 5, 1989, in which
case, the position which she held was not vacant, or whether
a new position was created, which then had to be posted
subject to the collective agreement.
The Union's counsel said there was no dispute that
the Job Specification accurately described the duties and
responsibilities of an IMO nor that the IMO position fell
within the class of a Welfare Field officer 2.
The class standard of the Welfare Field Officer 2
and the Job Specification of an IMO is attached to tkis
decision as Schedules 1 and Schedules 2 respectively.
The Class Definition of the Welfare Field Worker 2
emphasizes that the work is field work, which involves
obtaining information on the eligibility of the clients for
benefits, carrying, out case work and counselling, when it
states:
Page 8
This is welfare field work carried'out from the
District Offices of the Department of Public
Welfare involving the investigation and obtainng of
information as to the eligibility or continuing
eligibility of applicants for assistance under the
Welfare Allowances programmes and the counselling
and guidance of applicants on financial matters,
job opportunities, rehabilitation, child guidance,
health faciliities, etc. The worker will be
required to develop satisfactory relationships with
applicants and agencies, to carry out the practices
and techniques of case work ~and to maintain
adequate social histories. At least forty percent
of duties must concern counselling and case work.
Similarly the Job Description describes the purpose
of'the job as to "manage a Family Benefit~ Allowance (F.B.A.)
caseload..." Involvement with clients was an essential part
of the IMO's j6b, and required at least forty percent of the
work to be in the area of counselling and case work.
Mary Lynn Mat~eson's description of her job prior
to October 1989 accorded with the class and job descriptions.
When Mary Lynn Matheson was functioning as an IMO from 1986
to September 1989, she spent one day per week seeing clients
in the office, three days per week visiting clients in their
homes and one day a week doing clerical work. The clerical
work included having to input data into CIMS as it related to
her clients and having to obtain data on her clients from
CIMS, from time to time. However, the use of CIMS was only a
small component of her job and was incidental to meeting
clients and her case work.
As of October 5, 1989, the focus and nature of Mary
Lynn's job changed fundamentally. She was no longer involved.
with clients except in a peripheral way. As Mary Lynn
Matheson was an IMO and had the ability to look after clients
she was called upon from time to time to handle'a client,
when an IMO was not available. However, these occasions were
infrequent and the contact with clients was minimal.
Page 9
Mary Lynn Matheson's job became clerical and
administrative. As a CIMS co-ordinator, she was required to
spend a great deal of time with the computerized system. The
balance of her time was spent on special projects. None of
her work on CIMS, ORFUS, the Algoma North Project nor the
File Management Project involved client contact other ~han by
mail. For the Algoma North Project, Ma~y Lynn updated files
and worked with the supervisor in Algoma to ensure that the
files could be transferred to Algoma and that the-computer in
Algoma could handle the files~ There was no client contact.
For the ORFUS project, Mary Lynn Matheson followed
and continues to follow overpayments through a mailing system
and kas no contact with clients except by mail.
We therefore find that the nature of Mary Lynn
Matheson's job changed substantiallY and a new position was
created. We cannot accept the Ministry's submission that the
preponderance of Mary Lynn Matheson's duties remained
essentially the same. Her job changed from· one which had
been focussed on the client, interviewing the client for
data, providing information to the client and determining
their eligibility to an administrative and clerical job.
Once client contact was removed from the job, the job became
fundamentally dif·ferent and furthermore did not meet the
basic requirement of a Welfare Field Worker 2, as set out in
the Class Standard, to spend at least forty percent of the
time counselling and on case work.
Nor can we accept the Ministry's submission that
Mary Lynn Matheson still retained the duties of the IMO. The
evidence is to the contrary. As of October 1989, Mary Lynh
Matheson was no longer responsible for her caseload, and did
not see clients, except for the occasional on cal-1 situation.
Page 10
Nevertheless, she remained employed on a full-time basis in
the department in an administrative and clerical capacity.
Therefore we find that as of October 5, 1989 the
Ministry created a new position. As the Ministry failed to
post the position, the Ministry violated article 4 of the
collective agreement.
However, we do not find that the remedy sought by
the union in its submission, to repost the position as if it
were available as of October 1989, is to be ordered. Tke
Ministry established the Sault Ste. Marie office as the
initial area of search, when it asked its department for
volunteers. There was no prejudice to any other p~rson in
the department as only Mary Lynn Matheson came forward.
-There may have been some other person somewhere, more
qualified than Mary Lynn Matheson, who may be outside the
office, but there was no evidence that any particular person
was. affected. Therefore although we find that the Ministry
has violated the collective agreement by not posting the
position, we do not order this position to be posted as if
the last two years had not existed.
There was evidence that there was great uncertainty
o~er the Ministry's policy decisions on centralization and
decentralization of job functions. If the Board was to order
the posting of the position on the issuance of the decision,
the Ministry would be locked into a surplus situation if the
addition of another person is not necessary at this time.
Therefore the Ministry is to have 30 days to determine
whether or not Mary Lynn Matheson's job duties and
responsibilities are to continue. If the Ministry determines
that it is necessary to continue to have Mary Lynn'Matheson's
job functions performed by any one in the department, her
position, as previously referred to by'the parties as CIMS
Co-ordinator, shall be posted in accordance with article 4 by
Page 11
no later than 31 days aft'er the issuance of this decision and
the competition shall be held for the position as required by.
the collective agreement.
Due to the exceptional circumstances in this case
the Board has declined to order a job po'sting effective from
the date that the vacancy existed. Because of the nature of
the grievance and therefore the scope of our jurisdiction, we
are not making any finding w~th respect to her classification
nor its effective date.
The board will remain seized on the issue of
whether the position is t6 be posted, in the event that there
is any dispute as to whether the components of Mar~ Lynn
Math~son's position are being maintained.
Dated at Toronto, this llth day of Qctober
1990.
B r Vice-Chairperson
P. KIym, Member
D. Clark, Member