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HomeMy WebLinkAbout1990-1246.Komendat et al.91-06-26 ~, \ ---- -""\ Í¥, . i I ''\ ~ ONTARIO EMPLOYÉS DE LA COURONNE .'J CROWN EMPLOYEES DE L 'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT ~ REGLEMENT ,,~ BOARD DES GRIEFS . 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARfO. M5G IZ8 TELEPHONE/TELEPHONE: (4 ¡6) J26- ¡ J88 :80, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G lZ8 FACSIMILE /TELECOPIE' (416) 326~ /396 1246/90, 1247/90, 1248/90 IN THE HATTER OF AN ARBITRATXON Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT - Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Komendat et al) Grievor -'and - The Crown in Right of ontario (Ministry of Housing) Employer BEFORE: N. bissanayake Vice-Chairperson J. Carruthers Member' H. Roberts Member FOR THE C. Dassios GRIEVOR Counsel Gowling, Strathy & Henderson Barrister & Solicitors FOR THE P. Young EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING: February 18, 1991 May 22, 1991 . ~ , -- ~ 2 DECISION . The grievors, Michael Komendat, Gerald McDermot and Robert Warner are employed as Construction Inspectors at ·the Ministry of Housing Eastern Region Office. since December 1, 1988, their positions have been classified as Service Supervisor I Atypical (It ss I"). By grievances dated June 11, 1990, they claim that their positions are improperly . classified' and seek a "Berry order" that the positions be properly classified or in the al~ernative that the positions be reclassified as Service Supervisor II. It is common ground that the cla.ssification of the grievors' positions as SS I effective December 1, 1988, came about as a result of grievances they filed on December 16, 1988. Prior to that their positions were classified as Construction Superintendent II. In their 1988 grievances they claimed that their duties and responsibilities were equal to those of contract inspectors at the Ministry of Government Services ( tlMGS It ) and sought parity in classification and pay with the MGS inspectors. The employer allowed the grievance and retroactive to December 1, 1988, the grievors' positions were accorded the same classificatiori as the MGS inspectors, namely, 5S I. . . I -. \ /-" -~" '\' ..., '. 3 The evidence indicates that subsequent to the settlement of the grievors' 1988 grievances, the MG5 contract inspectors themselves successfully grieved that their positions were improperly classified as SS I, and obtained a "Berry order" that they be properly classified. The present grievances, as initially filed claimed retroactivity beyond the normal 20 days prior to the date of the grievances. However, at the commencement of the hearing, counsel for the grievor advised the Board that the grievors were limiting their claim of retroactivity to the usual 20 days. Preliminary. Issue In light of the foregoing background, the Board was faced with a preliminary issue raised by counsel for the Employer. Counsel pointed out that in their 1988 grievances the grievors claimed that they were improperly classified and claimed by way of redress a classification equal to that of the contract inspectors at MGS. By way of settlement of those grievances, they received. the exact remedy they requested, namely, reclassification as 55 1. In the circumstances, counsel submits that it must be deemed that following the 'reclassification to 55 I the grievorsl positions were properly classified. Since the grievors do not claim that their duties .--- -~ .- - :; 4 and responsibilities had changed subsequent to that settlement, counsel submits that the grievors should not be allowed to grieve that the classification granted at their own request is improper. Counsel argues that what the grievors are attempting to do is to grieve the very same dispute that was.settled in 1988. Counsel relies on He city of Sudbury (1965), 15 L.A.C. 403 (Reville) as supporting the employer's position that the grievors should not be allowed in effect to resurrect the grievances they settled in 1988. Counsel for the union concedes that the grievors' duties have not changed since the settlement: of their 1988 grievances. Nevertheless, counsel argues that the grievors are entitled to grieve because their classification. grievances are of a continu~ng nature. He submits that: by settling their prior grievances the grievors did not make any undertaking to accept the S5 I classification as proper for eternity. since they have dropped their claim to retroactivity, counsel points . out that there is no detriment to the employer. counsel submits further that by seekinq and accepting the SS I classification in settlement of the 1988 grievances and then subsequently grieving that the 55 I classification was improper, the grievors are not engaging' in an abuse of process. He points out that what the grievors sought in the 1988 grievances was parity with the MGS inspectors. At that /\ . - \ ~ 5 time the MGS inspectors were classified as SS I and therefore the grievors also settled for that. However since then, it has been found that the MGS inspectors themselves were improperly classified and they have obtained a Berry order to be properly classified. Therefore the grievors no longer enjoy parity, which they thought they had attained by settling the 1988 grievances. Considering that classification . grievances are continuing grievances, and considering further that section 18(2) (a) of the Crown Employees Collective Barqaining Act expressly confers on employees a statutory right to grieve classification grievances, counsel submits that this Board should seize jurisdiction to hear and determine these grievances. Counsel for the employer did not specificall~ rely on the doctrine of estoppel in support of his position. In any event we do not find that the ingredients of estoppel are present here. It cannot be said, that the settlement of a'continuing grievance per se is a representation that the grievors will . not grieve in the future under any circumstances. Nor do we· find anything that amounts to detrimental reliance. Re City of Sudbury (supra) stands for the proposition - that a Board of Arbitration has no jurisdiction to consider a grievance "which is identical to a former grievance filed by the grievor and either withdrawn, abandoned or settled .- . ! , ~ . 6 " While that general principle is well entrenched. ~n . . . . arbitral jurisprudence, in our view it has no application 'to continuing grievances such as those before us where the grievors are exercising an explicit statutory right to grieve improper classifications. (See, Re Maring 866/84 (Palmer) where the Board comments that a grievoJ::' may withdraw a classification grievance and file another similar grievance - subject only to a reduction in his wage claim.) section 18 (2) (a) of the Crown Employees Collective Bargaining Act expressly confers on employees, the right :to grieve "that his position has been improperly classified". In our view, considering that classificatton grievances are of a continuing nature, the statutory right should only be denied in extreme circumstances. We would have been prepared to bar the grievors if either the grievors could be said to be (a) estopped or (b) engaging in an abuse of process. We find neither here. We have already concluded that estoppel does not apply in these circumstances. We are equally satisfied that there is no abuse of process. There can be no doubt that the grievors settled their 1988 grievances in g60d faith believing that the appropriate classification for them was 55 I, because tha twas the classification enjoyed at the time by the MGS inspectors, who they felt were performing the same job duties . . ~~ f -~, -, I~ I 7 and responsibilities. Events following the 1988 settlement convinced the grievors that 55 I was not a' proper I classification for them because it was found to be not appropriate for the MGS inspectors. In the absence of any estoppel or abuse of process, the Board was unanimously of the opinion that it had jurisdiction to determine these continuing grievances and we so ruled at the h~aring. Merits The SS I class standard reads as follows: CLASS CODE: 93140 CLASS STANDARD: . SERVICES SUPERVISOR 1 This class covers positions of employees in the Ministry of Government Services who arrange, inspect, and supervise the installation and repair of either electrical or mechanical systems and equipment in Government-owned buildings in all districts except those in the Central Region where the Manager position is ,classified at the Buildings Manager 5 level. \,. These employees estimate job costs, arrange for contractors, inspect and assess the work of contractors, and recommend acceptance or rejection of claims in excess of tender. They supervise and assign work to foremen or in some districts directly , to day labour forces. They may also be required to personally supervise the ongoing preventive maintenance program of the electrical or mechanical services within the area, including coordination between areas of trade specialization. ;- ~ 8 In all districts, these emploYI:es prepare annual budget estimates based on their assessment of requirements for ne~ mechanical or electrical installations and replacements. In some districts, they may also be required to provide budget estimates for the total operation and maintenance program. SKILLS AND KNOWLEDGE: Skill in an appropriate electrical or mechanical trade; supervisory and instructional ability; ability to layout work assiqnments from plans and specifications; ability to estimate costs of materials and labour; abilit:y to prepare reports; a good knowledge of statutes, regulations, and by- laws governing electrical or mechanical installations. Revised March 1. 1972 The grievors' position specification contains the following notation. "position is atypical recognizing that the classification standard was designed to cover positions where the primary function involved mechanical or electrical systems/equipment. However scope of duties and responsibilities are other wise considered equal". It is well established now that this Board has a mandate to remedy a grievance where it concludes that a position is wrongly class if ied. (Re OPSEU and Berry vs. Ministry of Community and social Services, decision datHd March 13, 1986, Onto Div. ct). Nevertheless the Board has recognized that the ßerry decision did not altogether preclude atypical class I . I -t 1 .... \ -~ 9 allocations. See, Re Kuntz 85/89 (Verity) . Despite this continuing recognition of atyp'ical class allocations, the Board has 'held that the core duties of a position must comfortably fit within a class standard. In Re Kelusky et aI, 1098/86 (Wilson) the Board stated: I am of the opinion that while the Berrv decision may not have invalidated atypical classifications, this Board, given its clear mandate to direct that a new claĊĦsification be established when it is satisfied that a grievor is improperly classified, must insist that an atypical classification not vary widely in its core features from the archetype of the classification. In our case, on the evidence it is clear that the grievors do an entirely different job from that described in the class definition. The Board proceeded to render a Berry order. See also, Re McCauley and Truchon, 93/88 (Epstein) . The Board heard extensive evidence from Mr. Michael Komendat, one of the grievors, about his duties and responsibilities. The parties agreed that his evidence is representative of all of the grievors. It is true that the grievbrs performed duties that encompass the words "arrange, inspect and supervise the installatio"n and repairlt as described in the SS I class. standard. They may also be said to "estimate job costs, arrange for contactors, inspect and assess the work of contractors and recommend acceptance or rejection of claims in excess of tE?nder" and "prepare annual budget estimates" as contemplated in that class standard. ;, . ", ,t,.-- . ~ ~ 10 However, the relationship between the grievors' positions and the 55 I class standard'ends with those general descriptions. The class standard clearly envisages that the positions covered by it will perform those functions with regard to either electrical or mechanical systems and equipment ~n government owned buildings. The grievors :h.ave nothing to do with any of that. While the class standard for 55 I focuses on electrical and mechanical systems, the evidence is clear that the grievor' s expertise and job functic:ms, are in the area of structural and architectural work. The electrical and mechanical trades are highly skilled provincially certificated trades, which are totally different from the grievors' trade skills. They have no duties in those areas at all. A multitude of government employees may be involved in inspecting and supervising of installations and repairs of - various sorts and in estimating job costs and preparing budget estimates for various types of ~ork project:;. However, no one will suggest that all those employees fi1: within the 55 I classification. That class standard focuses on a particular area of expertise (electrical or mechanica 1) . To draw an analogy", if a class standard for a government lawyer states that the positions involve "researching, advising and preparJ.ng reports on leg~Ü matters II , not every government employee engaged in researching, advising and preparation of . 1 .- " , 'J . 11 r'eports of any kind can be said to fit within the lawyers' class standard. Only those who perform those functions with regard to legal matters will be encompassed by that class standard. Similarly, since, the focus of the grievors' positions is total1y different than that contemplated by the ss I class standard, it cannot be reasonably said that the class standard covers their positions. ~ Similarly, the SS I class standard focuses on "government-owned buildings". The eVldence is that 60 percent of the grievors' work 'is· in relation to projects undertaken by non-profit organizations, and a further 30 percent in relation to projects undertaken by local housing authorities. The former projects are owned by private non-profit I organizations and the latter bya crown corporation. While the government has some financial involvement in both cases, the government does not own the projects and has_no day-to- day responsibilities for their operation. In the circumstances, it cannot be said that those duties pertain to "government o~ned bulldings". See, Re Ausec, 1589/89 (Low) . It is clear that the class standard for 55 I is designed to apply specifically to the electrical or mechanical trades and work involving government-owned buildings. < Where the projects involve government buildings, the government will be in full control of the whole project. The architect and other -' . t· ~ 12 professionals on the project will be hired and directed by the government. Then necessarily the role played by the inspectors will be more proactive. The grievors on the other hand play a more reactive role and have a significant administrative function which is not contemplated by the 55 I class standard. The SS I class standard c:ommences with the phrase "This class covers positions of employees ~n the Ministry of Government Services II What is contemplated . . . . . is MGS inspectors inspecting and supervisin9 etc. the work of other government employees working on gov·ernment owned projects. The grievors are not employees of that Ministry, and do not fit that description. In the circumstances, the conclusion is inescapable that the positions contemplated by the SS I class standard are significantly different in the core functions than those held by the grievors. Despite the "atypical" a~location, the Boa~d must conclude that the positions are impropE!rly classified as ss r. See, Re Alexander et a~, 803/88 (Verity) . For the same reasons, we find that the next higher classification in the Services Supervisor class series, the 58 II classification, is equally improper for the grievors' positions. Like the SS I class standard, the S8 II class standard also focuses on electrical or mechanical work and ., . -. J. (, ' " --- 13 government buildings. Therefore it fits no better than the 55 I clas~ standard. In the circumstances, a Berry order is appropriate. The employer is hereby directed to properly classify the grievors' \ positions within 120 d~ys of the issuance of this award. The grievors shall be compensated retroactive to 20 days prior to the filing of their respective grievances. They are entitled to interest in accordance with the formula established in Rg Hallowel House Ltd.. (1980) OLRB Rep Jan. 35. This Board remains seized of any matters involving implementation of this award including compensation. Dated at Hamilton, Ontario this 26th .day of June , 1991 Nimal V. Dissanayake vice-Chairperson ~~ -.,;) Jim Carruthers Member I . ~( ,~,- ~ \' ,. "'6 '" ""~""., Harry oberts . Member~