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Home My WebLink About1990-0446.Grossi.92-06-23 i ,r" , '~.- '\~ ONTARIO EMPL0 YÉSDE LA COURONNE :4 CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD ' DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, M5G IZB TELEPHONE ITÉLËPHONE: (~16) 326-' 388 180, RUE DUNDAS OUEST, BUREAU 2T0:J, TORONTO (ONTARIO), M5G IZ8 FACSIMILE ITELECOPIE : (~'6¡ 326-13915 446/90 IN TBB MATTER OF AN ARBITRATION UDder TD CROWJf BXPLODES COLLBCTIVB BAltGAI1UNG ACT Before THE GRIEVANCE SBTTLBKEHT BOARD BJ¡;TWBEN OPSEU (Grossi) Grievor - and - The Crown in Right of ontario (Ministry of Housing) Employer BEFORE: B. Fisher Vice-Chairperson H. O'Regan Member D. Walkinshaw Member FOR THE B. Rutherford GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & solicitors FOR THE J. Knight EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors 'HEARING October 19, 1990 June 5, 20, 1991 August 7, 1991 September 23, 1991 November 25, 1991 "- , ..r " GROSSI This is a classification case in which the Grlevor, who is presently classified as a Designer 2 seeks to be reclassified by way of a Berry order. The applicable class standard is set out In the attached exhibit. The Grlevor Is employed by the Ministry of Housing, Corporate Resources Division, Facilities and Services Branch, as a Senior Designer. The Board heard extensive evidence on the duties and responsibilities exercised by the Grievor. However, it appears that the most relevant component of the evidence related to the character of the supervision of the Grievor by her direct supervisor, D.R. ~ruzzese, Co-ordinator. The Class Standard for Designer 2 contains the following sentence in relation to supervision: 'SlIpervisiol is exercised 01 tll.. IOlitioll by . divisional supervisor or other profeuional staff WilD provides profllliolalllUldalel and co-ordiaata various phaUl 01 tll. design activity aid checu file COllpl8lecl work 'Dr fechaical compelelel.· The Grievor and the group which she led was responsible for preparing very detailed design drawings and specifications relating to the interior of buildings. These drawings included location of walls, room design, millwork, location of electrical fixtures, furniture specifications and the like. The Grievor's technical training consisted of a three year interior design programme in a community college. She Is a member of the Association of Registered Interior Designers of I, . . ;'1 -- ;t.. 2 Ontario. It is clear from the evidence that the Grievor supervises her staff for technical competence. The real question, however, is to what degree the Grievor's supervisor, Mr. Bruzzese, checks the Grievor's work for technical competence. 'Mr. Bruzzese has an impressive background in Accommodation Services but has no formal training and little practical experience in the area of interior design. His own testimony reveals that he has done only simple drafting and design wor" himself. A"hough he reviews the drawings submitted to him by the Grievor and approves them, he candidly admitted that he doesn't have the expertise to examine the details of the drawings, rather he gives it a general overview. This Is further illustrated from the evidence which showed that Mr. Bruzzese rarely, If ever, commented to the Grievor on the technical a.spects of her drawings. Although Mr. Bruzzese indicated that the reason for this was that the Grievor was very technically competent and therefore required no comment, it seems that more likely that he simply relied on the technical competence of the Grievor as he was unable to determine, other than in a general way, whether or not the work was in fact technically competent. Interior design is not a black and white endeavour, with clearly right and clearly wrong designs. ,Rather it Is, like most professional endeavours, a question of judgment and creativity. One would normally expect that in a situation where the supervisor has a comparable or superior level of technical competence In comparison to the person being supervised, that there would be a considerable amount ot discussion, commentary and perhaps even disagreement over technical aspects of the subordinate's work. For example, if an artist were to watch a lawyer present a trial, she would likely be unable to discuss the lawyer's performance in any meaningtul way other than one of ~ , . . ." ,,- ~ 3 general impression. On the other hand, she could undoubtedly have a fascinating and lengthy discussion with another artist about the texture, brush strokes, colour use, form, etc. of a painting. The lawyer, on the other hand, would probably look at the same painting and comment ØYhat's a nice picture-, or "What an ugly painting· but be unable to discuss the .technical aspects of the painting with the artist. In cross-examination Mr. Bruzzese admitted that he cannot check the Grievor's work for technical competence in Its totality. It is not necessary in all situations for a supervisor to be able to do the subordinate's job in order to supervise the position, but where the job classifications speaks of a supervisor who ·provides professional guidance- and "checks the completed work for technical competencell it is necessary for the supervisors to have equivalent if not superior technical knowledge and ability as compared to the person they are supervising. As Mr. Bruzzese admitted he has neither the knowledge nor the ability to perform the technical aspects of the Grievor's job, it follows that the Grievor is improperly classified as supervision Is a key component of this class standard. This aspect alone is sufficient to take the Grievor out of the Designer 2 group. The Grievor is also claiming retroactivity prior to the usual date of 20 days prior to the filing of the grievance, which was filed on December 27, 1989. I ~ - " 4 The chronology of events Is as follows: (1) As a result of participating in a time study survey in her department in early . 1988, the Grievor began to have concerns about þer classification. (2) In August, 1988. she discussed these concerns with Mr. Bruzzese. He told her that at the present time he was requesting an additional pO$itlon of Designer 2 which was to report to her. He told her that she would then be , a Supervisor of Design and that she should find a better classification as it would be obvious to the Human Resources Department that a Designer 2 I could not s~pervlse another Designer 2. Mr. Bruzzese told the Grievor that t he felt the reclassification would be automatic. (3) On May 12, 1988, Mr. Bruzzese sent a memo to David Monument, Human Resources Advisor. which contained the following paragraph: , Also, ellclosed¡ is tbe speciflcatiol 'or thl latlrior Desigalr, lor your rlview. Tbis potilloll will report to Ibe Seaior D8lillalr, I revised specilicallol will he 'orwarded to YOII lor rnlew. The øqulvaleat positloa ia Ibe Miaislry 01 GoveraDleat Services Is clanilied IS IA IDlerior Delilloer 2. (4) Then Mr. Bruzzese told the Grievor that Mr. Monument told him that one Designer 2 could not supervise another Designer 2. Mr. Bruzzese told her that before she could be reclassified she had to do a new job description for herseff. At this point in lime she tord Mr. Bruzzese she wanted a ~ 5 management position (AM17) but Mr. Bruzzese said she could not get that classification as she did not supervise a minimum of five full time employees. She then told him she could try for a Specification Officer 3, which paid the same as an AM17. He agreed to help her try to get a classification as a Specification Officer 3 Atypical. (5) She prepared this job description In October, 1988, and Mr. Bruzzese sent It on to Mr. Monument. At about this time Mr. Bruzzese assured the Grievor that whatever decision was made regarding her reclassification request, if she was reclassified, she would have her new wage applied retroactively. The Grievor claims that Mr. Bruzzese said the retroactivity date would be August 12, 1988, while Mr. Bruzzese denies he mentioned a specific date. (6) Some time later, Mr. Bruzzese told the Grievor that Mr. Monument told him that the job description was inappropriate as it was written in a management format rather than a bargaining unit format and therefore she would have to rewrite it. She raised some concerns about not knowing the proper format so it was agreed Mr. Monument would do it. (7) In late 1988 and early 1989 the Grlevor and Mr. Monument had a series of three meetings to discuss the job description. · '\ I "-, Ib 6 (8) Some time later, Mr. Monument prepared a Job specification and gave It to Mr. Bruzzese who passed it on to the Grievor. The Grievor disagreed with it and after discussing It with Mr. Bruzzese she redrafted it again. She gave it to Mr. Bruzzese who said he would pass It on to ,Mr. Monument, which he did. (9) Eight months later, in August or September, 1989, Mr. Monument got back to the Grievor with another draft job description. Mr. Monument's explanation to the Grievor for the delay was that he had to read It over to the classification experts at the Ministry. . (10) On November 14, 1989, she received a copy of a memo from Mr. Monument to Mr. Bruzzese indicating that the Ministry would not be reclassifying the Grievor. (11 ) ,On December 27, 1989, the Grievor filed the grievance. The criterion in determining when to depart from the 20 day rule are set out in detail In Keluskv (1098/86 Wilson) at pages 11 ·17. Applying the principles of that case to this one, we find that the following facts are important: - ; ~ - 7 (a) The Grlevor's supervisor encouraged and supported the Grievor's attempts to become reclassified. (b) The Griavor's supervisor promised her retroactivity. (c) The Grlevor constantly kept the pressure on both Mr. Bruzzese and Mr. Monument to come to a decision. (d) The Grlevor prepared a number of detailed job descriptions. (e) Mr. Monument himself admitted in his memo of November 14, 1989, that the long delay was his fault, not the Grlevor's. Counsel for the Ministry raised the issue that because the Grlevor indicated that she wanted a management position, there was not sufficient notice of her intention to grieve because the Grievance Settlement Board cannot put some one Into the management group. However, It Is not necessary to decide that issue as the evidence is clear that as early as August or September, 1988, she told Mr. Bruzzese that she would go after the bargaining unit classification of Specifications Officer 3 if she could not get a AM17. Considering the principles set out In the Kelusky case, It Is appropriate that the award be retroactive to when the Grlevor first complained to Mr. Bruzzese, which we find to be ,~ ' ! ,~ I -, -,- i 8 August 12, 1988. We therefore order as follows: ~ \ (1 ) The Ministry Is ordered to properly reclassify the Grlevor within 120 days of this award. (2) The Grievor Is to be compensated from August 12, 1988, including interest from that date In accordance with the decision 'In Hollowel House Ltd.. 1980 OlRB Rep. Jan 35. (3) The Board remains seind of any matters arising from the implementation of this award and the 'calculation of any compensation owing. Daœd at Toronto, this 23rd day of June, 1992. B. Fisher - Vice Chair of {J , -? I . ~ , 0" 'j'-",'J. ""X~ H. 0' Regan . U,'on Nominee ~\¿}~~ 1 \ , / .' ... l) J... -- ,....-by / . \" vlJ- ~ ' D.' W~lk' shaw - Emp oyer Nominee . . , .....-~ ClTlGOR!; T.c=n~c&l 5."1C.. · CROUP:· ts..·.., En91.."l...S':'r.; cC: 3l.lrv.y :':1; 5l.;;;Cl~": I 1IJ\U5 : c., .".r "'\ ~5 . CLUS COO!: 1.2242 oI..~ - ., .. a."iW:'it:H :: CLÅ~S "F.Fl~TTr~: This \:lau covers the positiOlU o)f employees peri.)r.ftlll~ M!spon51~le ¡rc:hi- tec tur~ 1 pre 1 i1l1:i nary de.i.1j1\ work --'I" stn,¡c tu ra 1, SM ir~r;.·, IIleC:¡&n ll:d or e lee: tn~: eneineerine desi(!'l work under ¡eneral supervui~. A~ _ml'lers oJf tec:hnic:al stdf usicned t~ construction and lII&intllWlce projects, ~hese emøl",·ees an! re~ilonS1ble ,r"r the production ~t complete desicns in their &ft& of søecj~.lu~hQft, inc:ludinl ,ravinIS, ;iraft specifications and I,timuet of COlts. Thes, employees may super- .vise desil1'ers, draftwn ar technicians Ind are quec:ted to ,de"eloÞ And lllilint¿1Jl _ ~ftec:ti'f'e vortcinJ relationships wid! Clthers on the project. Supervisi on is e)lerc:ised \In chese Dositions ~ a divisional superTi~~r ~r ~ther ,ro(UUQnal ......-¡: staff ",*,,,, pr~v.i..:Ies pN(euion~l ~idance and3~-,JrCU1ÅtCS vario,1us pn4ses-5ìeÚ J ,-~ ~esi~ act~Vl:rn~nd"c~eC:ks the c,)IIIfIleted work tor tel:lmic:al ,:,)mpetence. f~;~,~ ~H..\"R.~\.n:R hTT.., .I.:Tn~lj: /, ,. , : :;'{//h As an archirec:tLlral designer, prep." pre~iØlinary sket:hes oi a c,}Iplete project ,~ .:...--z... / to satis!)' the needs o( a departmental chent. /,/ As a sani tary engineerine desicner, prepare drawincs and jra!t specific:ati~ns ror the c~plete sanitary e1\lineerUI projec:u; estilllilu qu,¡ntities ;;I( materials required and arproxillate C:lsts; II\Ir oXc:uj,\}ftall}' supervi ~e the s,¡nitaJ:" engineering design aspe¡;:ts of cons~naction and _inten&nce PNjeCts in the fi.eld. As ,¡ llleeh,¡r: ieal en tinee rinl je s i,"er, P"P_" c1rawin!:s .nd drat't spec: if iea ti .;)ns (or the com;Il.:ce mechanical en;ineerin, proje~t. btll1\o1.U quantities ;;¡f matu'¡¿ls required and ~pproxilllilte costs; may occ&s.i.~ally IUpen'he the mec:hanH:al engineenr.g &spects ~f constructi~ and m&lnte~ce projects in the field. As an electrical en;ineerinc de si¡na" , prepare dr¡,win:;~ o1nd dnft speC:lfic:atJ..Jns for the entire new o)i' Illilintenanee projec:ts; estiNc' quanti tics ,,( llatfruls required and appNximate c:osts: mar occasionall)' supervlSe rn~ electrl.:al ~spen5 of ~on$tru.:tion &nd maintenance pro~t$ in the field. ."s a str".lC :"..1r" 1 en,inee:Oll'l( desi ~er. personally desi ~ stNe turol 1 urec: ts ef cOfIIplete ccnstNc tion projects ~nd prepare dr'll"inr:~ lnd J;'lans; c:hed. and arrro\'e snop dravincs prepared by others; utim te qua" t.:. rie~ ;\nd ':C1S t $ of ~re na:s requi red: If.'" occas ion,¡ Uy sur~rvi n struct\lra 1 phuetli ~f C:QnH rue tl on .tnd maint.enance rrojec:ts in the (ield. .~nLrFT:,\¡T0~f,j: . 1. Cnde 1:. rre(eraHy :.r~duatl.c)M rr~lI\ a teehnlc:\\l s:'n~'>3t 1" Pht ~rrr:ltnate 5ul:'jec': ~j)et:iaJi ~ or an ef1\l i~aJent rom~l Mat It'1I er e~1\1.,;.Hh'" ilnl1 Ur..:-rlence: eood kn~,,,,,led~l! iJf ~ub.íeer ~rec: iaJi tr ,u it re 1.1f~'¡ C,' rl'1C' AnhJ tl!~·tura.l, sanitat"\.· electrieal or ~chanical ,je,¡icn a~rec:t!l cf con~rl"'':fion and - . maintenance. Z. Three year~ a~ "esl:ner !. , £!!. ~. ,\ laÍnilllJIII or rwel\"e,)"eC\r~' pro.:res!li\'cfy re~ron!Cil\le ,irllfrl"l: ,'nJ dl:~i~ exrerie~ee in the ~ree ia J i ty i ndiC'&'ed. 3. r.er.!,,"s~rate~ .'ll-ili~y t.o ':4r". ~tirrí("ulr constnlt:til)n ,lnd l:Iotil1r~nan\,"e desi!.':" prQ~le~s ':0 c:olllpLef.h1n: initi.\tq in ,:ll"~C\ni:lnt ,"crl( rr,:¡:::r:lIn~ ~Id .tl'llit~· to ",ork e.:-C'r<,r:t''''f.!ly "'·¡l':h re~h..~aL Ha,(f; .ll'ilir~· r~' cxt'reis\! s,)Imd juJ.!:lIICl1t. n~,· e"'!-C'r . ~.