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HomeMy WebLinkAbout1991-1336.Alani&Chirstopher.92-07-08 ONTABIO FMRLOY~.S DE LA COURONNE CROWN EMPL 0 YEES DE J.'ONTARfO GRIEYANCE CpMMISSlON DE SETTLEMENT. REGLEMENT BOARD DES GRIEFS 'I80 DUNDAS STREET'WEST, SUITE,2100, TORONTO. ONTARIO. M5G ?Z8 TELEPHONE/TESL~PHOIVE: C4r, E,~ $26-t38E 180, RUE DUNDAS OUEST, BUREAU 2~00, TORONTO (ONTARIO). M5G IZ8 ~AC$I,".41LE/T~L~COPIE , {,~.[6) 326-t396 1336/91 IN THE I~TTER OF Under THE CRO~q F,~PLOYEEB COLLECTIVE B~GAINING ~CT Before ~ GRTEVA~C~ 8~.?~L~.~EI~ BOA.RD BETWEEN OPSEU (Alani/Christopher) Grievor - a~d - The Crown in Right of Ontario (Ministry of Revenue) Employer _BEFORE: H. Finley Vice-Chairperson P. Klym Member F. Collict Member FOR THE N. Luczay GRIEVOR Grievance Officer Ontario Public Service Employees Union · OR TH1~ K. Cribbie EMPLOYER Labour Relations officer Ministry of Revenue HEARING February 3, 1992 March 2, 1992 DECISION The Grievors, Mr. Nawaz Alani and Mr. Ed Christopher are auditors with the Corporations Tax Branch of the Ministry of Revenue. They both currently occupy positions as Senior Auditor (Desk). This position has a Tax Auditor 3 (TA 3) classification. The Grievors have grieved that the Ministry Iisi in violation of Item 5 D of the Memorandum of Settlement Agreement of March 11, 91, between the Ministry and the Ontario Public Service Employees Union and ask to be reclassified to Financial Officer 4 in accordance with Item 5 P of the Memorandum of Settlement Agreement of March 11,91 between the Ministry and the Ontario Public Service Employees Union, plus interest. The following excerpts from various sources are relevant to the issue at hand. [Emphasis added]. The Public Service Act, R.S.O., 1980 as amended, assigns the duty of classification of positions and salary range establishment to the Civil Service Commission as follows: Section 4, The Commission shall, (a) evaluate and classify each position in the ~]as~ifi.ed service and determine the qualifications therefor; (b) recommend to the Lieutenant Governor in Council the s~]ary range f~r each classification, except a .previously established classification for which a salary range is ~]etermined through bargaining pursuant to the Crown Employees Collectiv~ Bargaining A. ct~ and Section 24 authorizes delegation of these duties: The Commission may authorize a deputy minister to exercise and perform any of the powers or functions of the Commission in relation to the recruitment of qualified persons for the civil service and to the evaluation and classification of positions in the classified service .that are designated by the Commission. The Crown Employees Collective Bargaining Act, R.S.O., 1980, as amended, Provides that the Employer has the right to determine the classification of positions and that this process shall not be the subject of collective bargaining or come within the jurisdiction of a board. The provision reads as follows: 18.-(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 procedures, kinds and locations of equipment and classification of positions. (b) merit system, training and development, appraisal and superannuation, . ARTICLE 5 - PAY ADMINISTRATION 5.1.1. Promotion occurs when the incumbent of a classified position is assigned to another position in a class with a higher maximum salary than the class of his former position. 5.1.2 An employee who is promoted shall .receive that rate of pay in the salary range of the new classification which is the next higher to his present rate of pay, except that: - where such a change results in an increase of less than three percent (3%), he shall receive the next higher salary rate again, which amount will be considered as a one-step increase; 2 - a promotional increase shall not result in the employee's new salary rate exceeding the maximum of the new salary range except where permitted by salary note. 5.1.3 Where an employee (a) at the maximum rate of a salary range is promoted, a new ~anniversary date is established Dased upon the date of promotion: (b) ... The Underfill Assignment is defined and its application set down in the ontario Manual of Administration, Policy on Staffing, Assignments in the Classified Service, (See Appendix A for the complete underfill policy). An underfill assignment occurs where a person, lacking the full qualifications for a .position is assigned, · is not required to perform the full range and/or level of duties of the position; and . is paid at a classification level lower than that established for the position. The level of assignment is addressed as follows: An underfill assignment ought, normally, to be approved at one level, and in no case more than two levels, below the classification of the position to which the person is assigned, EXCEPT in special cases: · where prior approval of the Recruitment Branch, Civil Service Commissio~ has been received; and . where the ministry can demonstrate the existence of a formal training program. Its removal occurs under the following circumstances: Where the ministry determines that the employee has ,met the requirements of the positio~ either before the termination of the agreed length of the underfill, or upon its expiry: · the status of underfill shall be remove, d; and . documentation of this action recorded. Salary treatment is referred to thus: 3 For salary treatment on assignment to a position on an underfill basis, see "PAY ADMINISTRATION" at Section 9 of this volume. The Memorandum of Settlement between.the parties, which was subsequently made into an order of the Grievance Settlement Board, was signed by most of the individual grievors and the union and ministry representatives. Mr. Christopher and Mr. Alani signed On November 14, 1990 and November 15, 1990 respectiYely, the union representative on November 15, 1990 and the ministry representative on March 11, 1991. The time between November and March was spent obtaining individual signatures. A copy of this Memorandum of Settlement, now an order of the Board, is attached as Appendix B, as is the Ancillary Memorandum, which on request and consent exempted certain individuals from the scope of Item 5 P of the Memorandum of Settlement. At the hearing, the parties agreed that they accepted the validity of the Memorandum of Settlement, that they would not challenge it on the technicality of dates of signature, and that this Board had jurisdiction to hear this grievance. They also agreed that the fact situations of the two Grievors were identical on all relevant details, that the evidence could be applied to the situation' of both Grievors and that the Board should consider them as identical. The origins of this grievance date from 1986. Between 1986 and 1989 eight classification grievances involving the reclassification of positions from the Ministry of Revenue Tax Auditor stream to the Ministry of Revenue Financial Officer stream were filed by both individuals and groups. During this period, the assignment of individual grievors changed due to circumstances other than the grievance procedure and further grievances were filed so that the new situations would be reflected. The Memorandum of Settlement dated March 11, 1991, became an order of the Grievance Settlement Board on April 26, 1991. Classification of positions and retroactivity were important aspects of this settlement/order. 4 The particular situation of the Grievors is as follows. They were assigned to Tax Auditor (Desk) positions (TA 2) in 1989 as the result of a competition, and on August 16, 1989, filed a grievance alleging improper classification of these positions. They sought to have the positions reclassified to Financial Officer 2. Between June 15, 1990' and June 29, 1990, both Grievors applied for the posted position of Senior Auditor- Desk, in the Tax Auditor 3 classification, Schedule A. The posting had the following note: Candidates with lesser qualifications may be considered on an underfill basis. Each grievor received the following letter dated August 21, 1990. [Emphasis added] RE: File' No. RE-064. Senior Tax Auditor (Desk) This will confirm your successful candidacy for the position of Senior Tax Auditor (Desk) with the Cor/~or~ations Tax Branch. effective Monday. August 20, 1990. The Position is classified at the level of Tax Auditor 3 with a salary range of $788.26 to $946.40 per week. Since you do not meet the full requirements of the position at the present time, you will be classified at the underfill level, of Tax Auditor 2 with a salary range of $653.09 to $763.89 per week. As you are currently classified at the Tax Auditor 2 level, there will be no change in your salary or anniversary date. This underfill appointment will be for a period of nine months. Removal of the underfill will be conditional upon satisfactory performance and progression through the training plan. Co]lgratulations on your success in this competition and best wishes for continued success in the Branch. Sincerely yours, [ s i gned ] Helen Ecker (Mrs.) Personnel Administrator Personnel Services Branch On September 6, 1990, each Grievor individually entered into the following Training Plan Agreement: [Emphasis added] CORPORATIONS TAX ~RANCH DESK AUDIT SECTION - AUDIT CENTRE TRAINING PLAN POSITION: Tax Auditor 3 Underfill EMPLOYEE NAME: Nawaz Alani/Ed Christopher [Identical] PERIOD OF TRAINING: 9 months, from August 20, 1990 to May 17, 1991, with provision for an extension for an additional 3 months, at management's option. The employee will revert to his previous position of Tax Auditor 2~ if the expectations as set out hereunder are not fulfilled. PURPOSE: To provide additional experience in tax auditing in the Audit Centre. To provide additional experience and exposure in auditing taxpayers' books and records on-site at taxpayers' premises. STRUCTURE: The entire period of this training plan is "on the Job training", during which the auditor will perform audits under the guidance and training of a supervisor. The auditor will initially perform audits of less complex companies with gross revenues .less than $12 million, applying previous experience and knowledge obtained. As the auditor progresses, consideration will be given to assigning larger, more complex files. Audit files will be assigned, and follow-up reviews performed by the supervisor. During the' conduct of all audits assigned during this period, the auditor is responsible for making the appropriate communication and visit arrangements with taxpayers. The auditor is also responsible for performing the necessary preparatory work for the identification of audit issues requiring further investigation, the organization of on-site audit work, the examination of taxpayers' books and records for evidence appropriate for the resolution of tax issues, and for the completion of working papers, including the preparation of re-assessments, as applicable. At the completion of each assignment, the supervisor will discuss with the auditor an assessment of the auditor's performance on that assignment. Overall evaluations of performance will be completed after the first 6 months of the period, and at the end of the period for the purpose of promotion to Tax Auditor 3. EXPECTATIONS: At the end of the training period the auditor will be expected to: * effectively deal with taxpayers and their representatives on a face-to- face basis; * display sound auditing skills by effectively applying audit procedures, both in the office and at taxpayers' premises, in obtaining necessary documentation and supporting evidence; * prepare good quality working papers; * perform all out-of-office work independently; * to have completed on average 2 to 3 audits per month. [Emphasis added] I have read and understand the contents of this training plan. (SiGned) N. Alani 90.09.06 (Signed) E. Christopher ********** EMPLOYEE DATE 7 (Si~ned) I. Wau~h 90.09.06 AUDIT SUPERVISOR, AUDIT CENTRE DATE (Signed) Lee Frankland Sept. 6. 1990 SENIOR SUPERVISOR, AUDZT CENTRE DATE On April 2, 1991 N. Waugh, the Grievors' Supervisor directed memoranda to L. Frankland, Senior Supervisor. The subjects were N. Alani's 6 Month Underfill and Field Visit Program. Review E. Christopher's 6 Month Underfl/1 and Field Visit PrOgram Review. The memoranda discussed in detail, areas of accomplishment and progress, and areas to be improved. They referred to Mr. Alani's "appointment as a TA 3 underfill", it was clear from the reviews that both individuals were working exclusively in the position of Senior Tax Auditor (Desk) which was at the time classified as Tax Auditor 3. There was no indication they were working in the Tax Auditor (Desk) which was at the time classified as Tax Auditor 2. The details of their progress are not relevant to the issue, suffice it to say that both satisfied the requirements of the training program within the nine-month period. Later in the autumn of 1990 as part of a new initiative, the Grievors participated in the Performance Management and Career Planning (PMCP) process in which the Key Job Requirements are defined and discussed with the employee by the supervisor.. This was carrieO out by Mr. Waugh, as the current Supervisor, and acknowledged by the Grievors on ~ovember 29, 1990, on the appropriate form. The details of these evaluations are not relevant to the issue at hand. The Memorandum of Settlement became effective on March 11, 1991. On April 11, 1991, Mr. Alani received the first of the retroactive monies due to him under the Memorandum of Settlement. The evidence did not show on which date Mr. Christopher received his, nor did it indicate when subsequent payments were made. Mr. Alani, however, gave eviOence that there were numerous 8 inconsistencies in the payout, resulting in considerable confusion. An attempt to arrive at correct salary calculations was subsequently made. On May 22, 1991, the Grievors' performances were evaluated in relation to the key requirements by Mr. Betram Swaby, and the Grievors acknowledged these evaluations on the same day. Mr. Swaby commented that Nawaz has completed more than the average number of files required during the underfill period and Ed has met the minimum requirements of a TA 3. The quantity and quality of his work over the last 2 months has shown improvement. On or about May 17, 1991, Mr. Lee Frankland, the Senior Supervisor of the Audit Centre, now Manager, Desk Audit, recommended to his Manager removal of the underfill status from the two Grievors. It was duly removed, according to Mr. Alani, on May 20, 1991, at which time the Grievors began to be paid according to the Tax Auditor 3 classification salary range. It was Mr. Alani's evidence that for the underfill period, he received the salary of the Tax Auditor 2 classification but considered that for the duration of the underfill he was assigned to a Senior Tax Auditor (Desk) position which had a Tax Auditor 3 classification. It is Mr. Alani's contention, and that of Mr. Christopher, that, at the time the Memorandum of Settlement became effective, that is on March 11, 1991, "they were TA 3s, and they should have become FO4s" since Item 5 D of that Memorandum/Order stipulates that Ail grievors classified as TAIII on the date of this settlement shall be reclassified to the classification of Financial Officer 4. (atypical) as of the date o~ this settlement. It is understood that these grievors will undergo a training period o~ six months from the effective date of settlement during which the amount of field work required in the job will increase progressively from the present 30% to 70%. Further, it is agreed that those grievors without credentials (CMA, 9 CGA, CA) will for the purposes of the implementation of this settlement not require credentials to do field work. ~Emphasis added] They contend that they should not be excluded from this order as they had been successful in the. competition for the Senior Auditor (Desk) position (Tax Auditor 3, classification) as of August 20', 199~ and had not signed the Ancillary Memorandum whic~ was appended to the Memorandum of Settlement. (See Appendix B.) Furthermore, individuals who had not grieved were included in this change. No evidence was produced to indicate that either of the two Grievors had requested early termination of the' underfill, nor that Management had considered an early termination of the underfill status of either Mr. Alani or Mr. Christopher. Mr. Luczay, for the Union, submitted, with reference to the Public Servige act, The Crown Employees Col~ctiv~ Bargaining Act, and the Collective Agreement, all supra, that it is the employee's posit£on which is being classified, not the employee, and that the employee only carries the designation of a classification' and is paid in relation to a classification. The Underfill Policy, of the Employer, is not' in conflict with the classification of positions or with Article 4 - POSTING AND FILLING OF VACANCIES OR NEW POSITIONS in the Collective Agreement which refers to "a vacancy...in the Classified Service for a bargaining unit position or a new classified position...in the bargaining unit". The Union Representative argued that when the Employer posted the position for which the Grievors applied, it did not post one position in the Tax Auditor 3 classification and another one in the Tax Auditor 2 classification. The underfill, according to Mr. Luczay, is an assignment and does not refer to classification and, in the case of the Grievors, they were promoted to the Tax Auditor 3 classification and assigned to a Tax Auditor 3 position on August 20, 1990, and, he maintains, 10 were doing the full duties of this Tax Auditor 3 classified position as of January, 1991, and these duties did not change in May, 1991, when they began to be paid at the Tax Auditor 3 level, nor have they changed since. Mr. Luczay submitted that the underfill policy was unreasonably administered, alleging that the duties undertaken by the Grievors have not changed since January i991, nor was training provided from January, 1991, to the end of the training period, and urged that the underfill designation should have been removed at that time, and had it been, there then would have been no question as to the Grievors being TA 3s on March 11, 1991. Mr. Luczay noted that in the Memorandum of Settlement, Item 5 D, that the reference is to "Ail grievors classified" and not to 'Ail grievors paid'. The Representative for the Union went on to say that pay can change under some classifications; it did retroactively in the change of classification from Tax Auditor 2 to Financial Officer 2. He also observed that a change of classification is not required under the Underfill Policy. He submitted that Management did not wish to use the Tax Auditor series any longer and agreed that those signing the Ancillary Memorandum were the last to remain in the TA series. As a result, he stated, even non-grievors were converted to the FO series after the signing of the Memorandum of Settlement on March 11, 1991. He cites the situation of Mr. Waugh, whose regular position was classified as TA 3 and who was on an AM 18 assignment at the time of signing. The Union Representative questions why the Employer sought out Mr. Waugh for his signature and yet failed to seek out the Grievors for theirs. Mr. Luczay referred the Board to an earlier Board decision to illustrate his argument that employees need not be performing 100% of the duties of a position, nor at 100% efficiency in order to have the classification designation of that position: GSB 574/81 OPSEU (Mr. Arthur Duck) and The Crown in the Right of ODtario (Ministry of Revenue), in which the Grievor claimed he should be classified, not as a Property Assessor 2, but as a 11 Property Assessor 5, and in which the Board compared the responsibflities attached to the Grievor's position with those of two other individuals who were assigned to positions in the Property Assessor 3 classification. The Board concluded that the Grievor was assigned to perform the work of a P.A. 3 and should be so classified. In so ruling I make no finding as to 'the quality or quantity of his work performance or whether he failed to follow instructions, which matter, I find, for reasons above set out, are not relevant to the issue before me. In conclusion, Mr. Luczay asked the Board to confirm that the Grievors were in the Tax Auditor 3 classification effective August 20, 1991 and therefore were in that classification on March 11, 1991, or, in the alternative, to remove the underfill · status of the Grievors prior to MarCh 11, 1991. He requested the Board to remain seized of the matter. Mr. Kenneth Cribbie, Representative for the Employer, defined the issue as follows: Did the Ministry of Revenue 'properly carry out the terms of the Memorandum of Settlement with respect to the two Grievors ? The grievance is not, he submits, about the competition for the Senior Tax Auditor (Desk) position, nor about the propriety of use of the Underfill Policy (which he points out has beea ia existence for over 15 years and, this fact, would, he maintains, mean that the Union would be estopped from challenging its use). These last two issues have not, he maintains, been grieved. The Grievors, according to Mr. Cribbie, were offered the reclassification to Financial Officer 2 which they accepted in November, 1990, and which was finally signed off on March 11, 1991. Neither the evidence nor .the intent of the settlement supports the contention that the Grievors "were TA 3s" on March 11, 1991. Rather, he maintains, it shows that they were not promoted "to TA 3s until the training plan was complete". He commented that the Grievors were aware of the facts, made no complaint, gave their tacit approval by signing and participating 12 in the training plan, and during the time the plan was in effect they were not undertaking full duties. The Ministry has, according to Mr. Cribbie, fulfilled its obligations under the Memorandum of Settlement by classifying the Grievors as Financial Officer 2s. The Representative for the Ministry acknowledged that positions rather than people are classified but took the position that in practical terms, both Management and the Union refer to people as being classified and argued that if Mr. Luczay takes the point of view that classification can only refer to positions, the result of that is that the Memorandum of Settlement, Item 5, in particular, 5 D is unenforceable because if you cannot classify people, then you cannot classify grievors. Mr. Luczay's approach, Mr. Cribbie maintains, ignores the reality. Mr. Cribbie acknowledged' that all incumbents were allowed to choose to go to the Financial Officer 4 (atypical) and it would be difficult to discriminate against the two individuals who are grieving if, indeed, they were TA 3s at the date of the settlement. He acknowledged further that, if the Board were to find them to be TA 3s on the date of the settlement, Item 5 D of the Memorandum of Settlement would apply to them. He submitted, however, that the evidence of Mr. Des Kirk, Supervisor of Labour Relations, concerning the application of the Underfill Policy (since 1981) should be accepted in the absence of e¥idence to the contrary. Mr. Cribbie referred to the Underfill as a delayed promotion during which one remains in one's current classification until able to undertake the full duties of the higher classification. If this is not achieved, then one remains where one is~ if one is successful one is confirmed in new the position. The evidence shows, he maintains that the Grievors were not carrying out the full duties of the Senior Auditor (Desk) position on March 11, 1991, and, once they were in May, 1991, the underfill was removed and they were reclassified to TA 3s. In response to Mr. Luczay's argument that the underfill 13 status should have been removed before completion of the nine- month period, Mr. Cribbie submitted that it was open to the Grievors to complain or grieve or to negotiate a different arrangement, nome of which they did. With respect to the Memorandum of Settlement, Mr. Cribbie concedes there was some misunderstanding as to which paragraphs applied to the Grievors, but submits that the evidence of Mr. Kirk left no doubt that 5 D did not apply. Mr. Cribbie referred the Board to two earlier decisions of the Board, GSB 82/77 Mr. David A. Ross and The Crown in Right of Ontario. Ministry of Community and Social Services and GSB 308/90 OPSEU (Johns) and The Crown in Right of Ontario (M~nistrv of Revenue) to demonstrate that the Union is estopped from challenging the use of the Underfill Policy. Mr. Cribbie asks that the grievances be dismissed. Conclusion The issue which has been placed before the Board for its determination is whether the Grievors come within the scope of Item 5 D of the Memorandum of Settlement (Appendix B) and should therefore have been assigned to FO4 (atypical) positions as a result of the'settlement. Consideration of this is is a two-step process. The Board will consider first, whether or not, the Grievors are excluded from the scope of Item 5 D of the Memorandum of Settlement since they did not grieve as "TA 3s", If the Board determines that they are not excluded, it will then consider the issue of their status at the date of the settlement (March 11, 1991) and whether or not they are covered, by Item 5 D. According to the Memorandum of Settlement, (see Appendix B) the Grievors were party to two grievances: Alani et al "improperly classified as TA 1" N. Alani and E. Christopher "improperly classified as TA 2". They were not part of the group of Grievors who grieved that they were "improperly classified as a TA 3". With respect to these two grievor groups 14 The parties hereto. [agreed], on a without prejudice or precedent basis, to the following terms as full and final settlement of the above captioned grievances. According to the Memorandum of Settlement particular positions were to be reclassified: Assessor to Financial Officer 1 (atypical) (22-3102-44) Junior Auditor-Desk to Financial Officer 1 (atypical) (22-3102-22) Auditor-Desk to Financial Officer 2 (atypical) (22-3102-20) Screener to FinanCial Officer 2 (atypical) Ail grievors affected by the reclassification of the above positions (TA 1 and TA 2 grievors [some individuals belonged to both groups]) were "to be reclassified" as of October 1, 1986, if they were in the position at that time or, if not, at the subsequent date on which they came into the position. As well, they were to receive retroactive salary adjustments. The Grievors in the instant case Were affected by both reclassifications. In the case of the 'TAIII' Grievors the approach, at least in its wording, differed. The positions themselves were not referred to, nor were they considered as reclassified. Rather, the change was with the individuals who occupied them. Three groups of individuals were defined: (A) all 1985 grievors (Ahmed et al) who were still .in the classification of TAIII 'as of the date of settlement (March i1, 1991); and (B) all grievors who had retired since the filing of their original grievances in 1986; and (C) all other grievors classified as TAIII subseauent to October 1, 1986. [Emphasis added] Groups 'A' and 'B' received a lump sum payment, Group 'C', a pro-Fated lump sum payment based on the length of time subsequent 15 to October 1, 1986, "in which they were classified as a TAIII". Item (D) then addressed the reclassification, not of particular positions, but of "Ail ~rievors classified as TAIII on the date of this settlement", to Financial Officer 4 (atypical). It was understood by the parties to the Memorandum of Settlement that "these arievors" would undergo training for the FO4 duties and that "~hose grievors" without credentials would be required to do ffeld work in the FO4 classification. Five individuals were listed as having grieved that they had been "improperly classified as a TA 3": B. Davenport, M. Belgrave, N. Waugh, 8. Mohammed and G. Darling. At least one, M. Belgrave, also grieved improper classification as a TA 1. The Grievors did not belong to Group (A) or '(B). The question arises as to whether or not they fall within the scope of (C) or whether they are excluded by virtue of having not grieved the TAIII status, 'specifically. Group C does not refer to 'all TAIII grievors' but to "atl. other grievors classified as TAIII subsequent to October 1, 1986" which suggests that changes were anticipated. It does not exclude grievors who had previously been in the TA 1 and TA 2 grievor groups. The Union maintains ~that (C) includes all grievors involved in the settlement 'classified as TA 3s' on March 11, 1991, whether or not they grieved the TA 3 classification, and their Representative made the point that incumbents who were not grievors were also included in the result, with the exception of those excluded by request and on consent, pursuant to the Ancillary Memorandum and, Messrs. Alani and Christopher. indeed, following the settlement date of March 11, 1991, the provisions of Item 5 (D) were applied to individuals who had been assigned to positions with a TA 3 classification and who were not grievors. Management maintains that the Memorandum of Settlement with respect to TA 3s should not apply to Messrs. Alani and Christopher whose grievances date from 1989, which is well before they applied for the position of Senior Auditor - Desk (TA 3). Further, Management contends that it was not the intent of the 16 parties that it should apply to them. During this lengthy process some of the grievors were assigned to positi6ns in different classifications. In other words, they changed status between 1986 and March 1t, 1991. In certain cases new grievances were added to reflect this. Mr. Alani and Mr. Christopher filed a second grievance when they moved to positions with a TA 2 classification. They did not do this after they were successful in the competition for the Seniok Auditor - Desk position (TA 3). It was not revealed in evidence why they did not do so. It is worth noting, however, that the date of their being successful in the competition, August 20, 1990, was less than two months prior to the hearing date of October 17, 1990. The Grievors maintain that it was their understanding at the time of signing on November 14/15, 1990, that Item 5 (D) applied to them and that it was only when the retroactive payments came in April or May, that they realized they were not being included. The plain wording of this item refers to "all grievors classified as TAIII on the date of this settlement". Six individuals initially contemplated opting out of the move from TA 3 to FO4 set out in 5 (D). Their' names were N. Waugh, B. Jeronimo, Y. Ahmed, K Weir, J. Arora, G. MacIsaac. When this list is compared with the list of individuals that were grieving improper classification as TA 3s on August 16, 1989 (B. Davenport, M. Belgrave, N. Waugh, S. Mohammad, G. Darling), it is evident that there are individuals whom the parties considered would be covered by Item 5 (D) and who were not grieving improper classification as a TA 3. The only name common to both lists is that of N. Waugh. The name of 8. Jeronimo is not included in the list of individual grievors listed in the introduction to the Memorandum of Settlement. The list of .those covered by Item 5 (D), who initially considered exclusion includes one individual who had grieved improper classification as a TA 3; four who were listed as . grievors but who had not grieved improper classification as a TA 3; and one individual who is not included 17 in the list of individual grievors set out in the introduction. In other words, the reference to "all grievors" in 5 (D) was not restricted by the~ parties to those who grieved improper classification as a TA 3. It was indicated by the Union and not challenged by Management, that the stream change attempted to achieve, as much as possible, an overall shift from the TA Stream to the FO'stream. It is for this reason that individuals who had not been grievors were included in the process. For the above reasons, the Board finds that Messrs. Alani and Christopher are not precluded from the scope of Item.5 (D). We now direct ourselves to the question of the Grievors' status on the date of settlement, March 11, 1991. The Board finds based on the evidence, that the Grievors were at that point in time participating in a mutually agreed upon nine-month training program under the aegis of the Underfill Policy. The Board rejects the Union's suggestion that the Grievors were not receiving training from January, 1991 to May 20, 1991 and therefore ~its argument that the underfill status should be removed at a date prior to March 11, 1991. It notes that no requests were made, nor grievances filed to reduce the nine-month duration. The Collective Agreement does not address "underfill assignments" but the parties have participated in this program for more than fifteen years and consider it mutually beneficial. The Board does not view this grievance as a challenge to the underfill program. Under the Public Servfce Act, supra, the Civil Service Commission is assigned the duty of classifying positions and establishing salary ranges for positions in the classified service. It may also authorize deputy ministers to classify positions which are designated by the Commission. Under this classification system, a group of duties is combined to create a position which is then given a position title and a position code. The position title is usually specified in terms of the person who would hold the position, for example, Auditor - Desk, 15 Financial Officer 2. A 'Position Specification & Class Allocation' is drawn up specifying the number of p~aces, the number and positions to which group leadership is provided, the class allocation and title, as well as th~ class' code and occupational group number. Information is also provided on the title and position code of the immediate supervisor of the position. The purpose of the position is spelled out as are the duties and related tasks, the skills and knowledge required to perform the job at full working level and the reasons for classifying the position as it has been classified and certification that the classification is in accordance with the Civil Service Commission Classification Standards. It has become usual for the class allocation .to be used to described the rank of an individual employee, whereas, strictly speaking, a position is classified and an individual is assigned to a specific classified position. Employees are normally compensated according to a salary Scale which relates to the position which in turn relates to the class allocation. The Grievors were assigned to the position of Auditor- Desk, Position Code 22-3102-21, Class - Tax Auditor 2t Class Code 03302 at the time of their application and carried out the duties and related tasks which constitute this position, a position which they had held for a number of months. Effective August 20, 1990, having been successful in the competition, they left behind the position of Auditor - Desk, classified as Tax Auditor 2, and were then assigned to the position of Senior Auditor - Desk, Position Code 22-3102-18, Class - Tax Auditor 3, Class code, 03304. They began to undertake the duties and related tasks outlined in the Position SpecificatiOn & Class Allocation for this position, albeit not at the full range and/or level. References to their status in the documents, when taken as a whole, present an inconsistent p~cture particularly with respect to language and terminology. [Emphasis added.] The letter dated August 21, 1990 (Ex. ?) states that This will confirm your successful candidacy for the 19 position of Senior Tax Auditor (Desk) with Corporations Tax Branch,'effective Monday August 20j 1990. The position is classified at the level of Tax Auditor ~ .... Since you do not meet the full regulrements of the position 'at the present time,, you will be classified at the underfill level of Tax Auditor 2... ...Removal of the underfill will be conditional upon satisfactory performance... The training plan (Exhibit 8) set out by Management and agreed to by the parties refers to the following: POSITION: Tax Auditor 3 Underfill PERIOD OF TRAINING: ... The employee will revert to his previous position of Tax Auditor 2, .if the expectations as set out hereunder are not fulfilled. Overall evaluations of performance will be completed...for the purpose of promoti6n to Tax Auditor 3. A memorandum from Mr. Waugh to Mr. Frankland concerning SUBJECT: N. Aian/'s 6 Month Underfill and Field Visit Program Review TAX KNOWLEDGE · ..his appointment as a TA 3 underfill. The Grievors were successful in the competition for Senior Auditor - Desk (TA 3) on an underfil~ basis, effective August 20, 1990. At that time they changed positions from Auditor - Desk (TA 2), entered into a training program as part of the underfill assignment,, and assumed a new set of duties. As part of the underfill assignment, it was recognized by both parties to the training agreement that the Grievors would receive appropriate supervision and would not be working at full capacity for several months. The salary they received was related to a level (TA 2) below that of the classification of the position the duties of 2O which they were carrying out. The underfill policy refers to approval at "one level, and in no case more than two levels below the classification to which the person is assigned". It is helpful to consider the case of Mr. David Ross, a decision on which was submitted by the Representative for Management, supra. In that case, the Grievor, Mr. Ross, successfully bid for the posted position of Rehabilitation Counsellor which was classified as Rehabilitation Officer Correctional Services. He received the following letter confirming the Ministry's offer: I am pleased to confirm our offer of the position of Rehabilitation Counsellor with the Lindsay District office, which is classified as a Rehabilitation Officpr 1, Correctional Services. You will be required to underfill the position for a period of two years before proceeding to the Rehabilitation Officer Correctional Officer services level -- the salary range for which is $12,082 to 14,107 per annum. Your appointment is effective June 21, 1976 at a salary of $207.63 per week ($10,834 per annum), which is the third step in the salary range. The full salary range is from $10,024 to $11,272 per annum. You will be eligible for annual increases based on merit. I would like to extend congratulations to you your promotion and hope that you enjoy your new duties. Yours truly, (Signed) Phil Branston, Personnel Representative The Board commented as follows at page 12: In this sense, Mr. Bronston's letter of June I6, 1976 was an offer to the grievor that a Rehabilitation Officer 1 position was available to him .... The grievor accepted this offer and in reliance upon it gave up his job as a Correctional Officer 1. Mr. Ross started from a position outside the stream in question, was offered and accepted a position at a classification one level below the position for which he had posted because it was deemed that he would need to undertake the duties of a lower 21 classification on an underfill basis prior to being qualified to move into the posted position. He performed duties at the level below and was paid accordingly. fn the classification system it is the duties whfch determine the classification and an individual should attract the classification of the duties which he or she is performing, not of the salary which he or she is being paid. To say that the individual is paid at a lower level and therefore he or she is assigned to a position with a classification level distinct from. one, whose duties he or she is carrying out, would have the effect of the salary, rather than the duties, determining the classification. In the instant case, Messrs. Alani and Christopher were offered the position of a Senior Auditor (Desk) with the classification of TA 3. They were paid at the TA 2 level but carried out duties at the TA 3 level. Had they been applying for the position of Senior Auditor (Desk) (TA 3) from a position with a TA 1 classification or had they not been competent at a TA 2 level, then the .underfill assignment would, no doubt, have been at the TA 2 level, and they would have undertaken duties appropriate to that classification prior to moving to the Senior Auditor (Desk) (TA 3) position. However, the Grievors had already served several months in the Tax Auditor (Desk) (TA 2) position and there was no mention of their continuing in a TA 2 classified position or undertaking the duties of such a position. Nor were they offered a position with a TA 2 classification. The Board finds, for the above reasons, that the Grievors were not in a position with a TA 2 classification as of March 11, 1991, nor were they, in popular parlance, classified as TA 2s at that point in time. The underfill program places a condition on the participant. The question is, whether this .is a condition precedent or a condition subsequent. That is, must the condition be fulfilled before the individual is promoted to the position or, does the fulfilling of the condition confirm that person in the 22 position to which he or she has already been promoted. Nothing in the policy or elsewhere mandates that it should be one or the other. Each situation is determinative of whether or not it is a condition subsequent or precedent. When the situation of Mr. Ross, cited above, is studied, it is evident that he had to complete the underfill condition of two years as a Rehabilitation Officer 1, before being eligible to assume the duties of a Rehabilitation Counsellor, Rehabilitation Officer 2. Therefore, in his case the underfill requirement was a condition precedent. However the Grievors in the instant case have been appointed to the Senior Auditor - Desk position effective August 20, 1990, and providing they fulfill the conditions, the underfill status or conditional status will be removed, and they will be confirmed in that position at the end of their training period. If they fail to fulfill the conditions they will not be confirmed in the position and will revert to their previous position of Tax Auditor (Desk) (TA 2). Therefore, .in terms of the Grievors' training program the condition was a condition subsequent. For the above reasons, the Board finds that the Grievors were assigned to positions with a TA 3 classification as of August 20, 1990 and were in these positions on the date of settlement, March 11, 1991, and therefore come within the parameters of Item 5 (D). As the Gzievors have fulfilled the condition subsequent, they should therefore be reclassified to Financial Officer 4s (atypical) with appropriate compensation and interest as of the date of the settlement and the Board so orders. Had the Grievors not fulfilled the condition by the end of the training period, or during the possible three-month extension period, the TA 3 classification would have been removed retroactively and they would not, in that case, have been part of the group described as "Ail grievors classified as TAIII on the date of this settlement". Had this been carried out at the time, it would have been appropriate for Management to wait to consider the reclassification until the condition subsequent was fulfilled. 23 The Board will retain ~urisdiction as may be necessary to implement this award. Dated at ?oronto, this~'~h.~lay of ~.J~I~.,. 1992 ~&~n P. Klym, Member " ~Addendum attached F. T. Collict, Member 24 ADDENDUM RE: GSB #1336/91 {ALANI/CHRISTOPHER) In the view of this Member, the main issue in this case is the consideration of SUBSTANCE vs. FORM. The consideration of FORM relates to the .confusing and inconsistent language of the initial memos of appointment of the gdevors to undedill status and the language in'the related training programs. The consideration of SUBSTANCE or, what appeared to have happened, is based upon the intent and conduct of the gdevors themselves, and the Emptoyer throughout and even after the termination of the nine month under/ill training period. In SUBSTANCE, the Employer planned to assign the two grievors (TA2's) at the TA2 classification level on an underfill basis to the TA3 level; and to train them to be competent to be promoted to the TA3 classification level. A training program to accomplish this objective was set up for each of the grievors which they reviewed and signed. At no time throughout the nine month underfill training period did the grievors grieve that they were either being improperly paid or that they were improperly classified at the TA?. level; nor did they grieve that they should have been classified at the TA3 level. Performance appraisals were conducted in order to review the progress of the gdevors through the underfill training period, August 20, 1990 to May 20, 1991. In all respects, the INTENT and CONDUCT of both the grievors and the Employer throughout the under/iii period were consistent with the above plan. The subject grievances were filed June 13, 1991 when the gfievors found that employees who were classified as TA3's as at March 11, 1991 were to be given the opportunity to become FO4's, as per the Memorandum of Settlement finally signed off on March 11, 1991. It was the Employei-'s position that the grievers, as at March 11, 1991, were still on their underfill training program, classified as TA2's. As at June 13, 1991, it was the griever's contention that they were classified at the TA3 level on March 11, 1991 and should have the opportunity along with ail other TA3's on that date to be assigned to the FO4 classification level. (Section 5(D) of Memorandum of Settlement) The subject case clearly turns upon the question of whether' or not the grievers were TA3's on March 11, 1991, the date of signing of the Memorandum of Settlement which provided the opportunity for TA3's to become FO4's. In SUBSTANCE, as per the above plan, it would appear that the grievers-were not TA3's as at March 11, 1991. In FORM, however, it would appear that they were. With reference to FORM, this Member concurs that the award is correct in the finding that the letter of confirmation of assignment to underfill status was confusing and inconsistent inasmuch as, a) It congratulated the gdevors on their "success" in the competition for a position of a TA3; b) It stated that the position for which they competed and in which they were successful, was classified at the TA3 level; c) The letter then indicates that the gdevors will be classified at the underfill level of TA2; d) The training plan states that-the grievers will "revert" to their "13revious" position of TA2, if the expectations of the training plan are not fulfilled - thus implying that they were assigned on underfill status to a position other than the TA2 - that is, the TA3 ~osition. '3' Article 5.1.1 of'the Collective Agreement is as follows: 5.1.1 Promotion occurs when the incumbent of a classified position is assi(3ned to another position in a class with a higher maximum salary than the class of his former ~3osition. (underscoring added) When one puts together the tatters of assignment of the grievors to the undedilt position and Article 5.1.1 of the Collective Agreement, it would appear that, although confused and open to conjecture, the Employer classified the grievors to TA3 positions and so classified them at that level as at August 20, 1990. Had the Emptoyer wished to implement the undedill Activity as per O.P.S. policy and, perhaps, as was intended, the letters of appointment could have been written somewhat as follows: Dear Messrs Alani/Christopher: Re: File No RE-064-90, SR. TAX AUDITOR {DESK) This memo will confirm that you did not meet the requirements for the above-noted position in the recent competition. However, the Ministry is prepared to provide you with training on an underfill basis for a period of nine months. Removal of the underfill status and promotion to the TA3 Senior Tax Auditor (Desk) position will be conditional upon your satisfactory performance and progression through a training plan that will be established for you. Throughout the training period you will be both classified and paid as a Tax Auditor 2. etc. Yours truly, In comparable fashion to the above, the underfill training program must be written to preclude any confusion concerning the status of the grievors throughout the underfill period. With reference to the Memorandum of Settlement which was made an order of the board in GSB #1446/86 et al, in the view of this Member it is completely irrelevant and tells this panel nothina as to the status of the grievors as at March 11, 1991. It's application to this case (Section 5(D)) is relevant solely if it is determined that the grievors were TA3's at March 11, 1991. Which should rule then? - SUBSTANCE or FORM? Obviously it depends upon the circumstances of the particular case. In this particular case, this Member must conclude that, whether intentionally or otherwise, the Employer assigned the grievors to the TA3 position and so classified them at that level as of August 20, 1990. Evidently the above finding was .not the intent of the Employer; for the case has been brought to this panel for review and decision. However, the standard of performance of the Employer should be reasonably clear and shouid not resuit in the seeming confusion that is apparent in this case; notwithstanding the fact that the gdevors at no time dudng the nine month underfill training program either grieved that they were not properly classified or paid at the TA3 level. This fact, alone, would lead one to believe that the grievors had a common understanding of their position and classification status throughout the underfilt pedod that is, at the TA2 level. However, somewhat reluctanfJy and, regardless of the SUBSTANCE of this case, this Member must conclude that in FORM, at least, the gdevors were classified at the TA3 level as at August 20, 1990. With reference to the underfill concept, this Member cannot leave this award without expressing disagreement with the following statement, set out in the award at page 22, as follows: "in the classification system, it is the duties which determine the classification and an individual should attract the classification of the duties which he or she is performing, not of the salary which he or she is being paid. To say that the individual is paid at a lower level and therefore he or she is assigned to a position with a classification level distinct from one, whose duties he or she is carrying out would have the effect of the salary, rather than the duties determining the classification." If one is to pursue the underfill concept it is dear that one will be performing duties of a higher level classification (e.g. TA3 in this case) while one is classified and paid at a lower level (e.g. as TA2 in this case). Accordingly, concurrence with the above position set out in the award would negate the whole concept of under/ill which is not acceptable to this Member and which, dudng the hearing of the case, both parties agreed was a concept beneficial to both employees and the Employer and that it shoutd not be a matter to be questioned by the Board.