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HomeMy WebLinkAbout1991-1485.O'Brien.93-01-11 :;..:~ .' ?..;.-'. ,, t, :' .J% ~.- ONTARIO EMPLOYES DE LA COURONNE ,,~?-~'~,:~:~-~-;,:~=- t~: : :': CROWN EMPLOYEES DE L ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT Ri:GLEMENT BOARD DES GRIEFS TSO DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO· MSG lZ8 TELEPHONE/TELEPHONE,. f4 ;6) 326-I388 180, RUE DUNDAS OUEST, BUREAU 2 tO0, TORONTO (ONTARIO). MSG IZ8 FACSI~ILE,'T~L~COPfE .- {4 16) 226- 139~ 1485/91 IN THE MATTER OF AN P. RB~TI~TION Under THE CROWN EMPLOYEES COLLECTIVE B~RG~INING ~CT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (O'Brien) Grlevor The Crown in Right of Ontario (Ministry of the Solicitor General) .Employer ' BEFORE: R. Verity Vice-Chairperson P. Klym Member M. O'Toole Member FOR TH~ M. Doyle UNION Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE B. Christen ~MPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING June 25, 1992 August 31, 1992 September 28, 1992 November 12, 1992 2 DECISION In this matter, Matt 0'Brien filed two separate grievances involving a number of issues' (G.S.B. ~1~85/91 and %1921/91). At the outset of the hearing, the parties agreed that the panel would proceed to determine the classif, ication grievance and remain seized of the other issues. Matt O'Brien is currently classified as Security Officer 3. In May 1991, the Security Officer class standard was revised.. Subsequently', the grievor, together with some 142 Ministry patrol officers, was reclassified from Security Office~ 2 to Security Officer 3. The grievor's pQsition is entitled Crime Prevention/Ministry Liaison Officer, a position within the provincial government which is acknowledged to be unique. The grievor alleges that he is improperly classified in the Security Officer series. In effect, he seeks a Berry order requiring the Employer to create a proper classification, in the absence of any other suitable class standard, retroactive to 20 days prior to the filing'of the grievance. The Ministry maintains that the grievor is currently properly classified. The matter proceeded solely under the class standards approach; namely, the measurement of the grievor's duties and responsibilities against the applicable class standard. The relevant class standard reads as follows: 3 SECURITY OFFICER 1 - 4 The Security Officer series covers positions of employees involved in the protection of a variety of government facilities and in the conduct of such checks necessary to ensure the ongoing safety and security of the buildings, grounds, contents and persons at these facilities. The nature, likelihood and frequency 0f security problems vary according to work location. Some positions in this series may require the incumbents to be appointed as Special Constables pursuant to the Police Services Act. Responsibilities may include: - patrolling facilities/grounds to perform safety/security checks, e.g. checking for unlocked doors, unauthorized persons, fire equipment; - working at assigned posts to control access and/or monitor alarm panels/closed circuit t.v. and/or operating other security equipment; - enforcing safety/security regulations by communicating rules to facility users and detaining those who violate regulations/laws; - responding to and assessing complaints/calls for assistance, e.g. reports of disturbance, vandalism, 'duress alarms; -. implementing emergency response 'procedures during evacuations, fires, bomb threats; - administering emergency first aid and/or C.P.R. as necessary; - securing buildings by locking and unlocking doors; - writing reports on shift activities and occurrences; - investigating reports of theft, assault and other alleged illegal activities on premises; -- liaising with law enforcement officials, i.e. municipal/provincial police, where criminal activities are involved; - pursuant to their .status as Special Constables, exercising the powers of detention and/or arrest, as required; 4 - testifying as a witness in court or at inquiries; - directing or controlling vehicular traffic. Exclusions Excluded from this series are any positions in which the primary duties and responsibilities are included in the definition of another class series and to which the position can be more appropriately allocated, e.g. maintenance/cleaning services, law enforcement, information and direction. Allocation Criteria The following elements are common to all positions in this series: - knowledge of legislation which establishes relative power and authority of security officers such as Criminal Code of Canada, Trespass to Property Act, Liquor License Act, the Mental Health Act, and of relevant sections of legislation ~elat~d to the activities of the work location; - knowledge of .generally-accepted safety and security' techniques, e.g. fire procedures, personal protection methods and first aid; - knowledge of location-specific safety and security policies, procedures and regulations; - report writing skill to record basic details of shift activities in notebooks, standard occurrence forms and/or shift reports; - judgement to assess situations quickly and determine appropriate courses of action; - accountability for providing security services at government installations without infringing on the legitimate use of the facility by clients and employees. The allocation of positions to the four levels is based on evaluation of the following compensable factors. 5 Skills and Knowledge The following elements in this factor are used to differentiate levels; - range and level of communication and interpersonal skills required to deal with a variety of contracts; - level of physical skill required to'perform duties; - group leadership skills. Judgement The following elements in this factor are used to differentiate levels; - the degree of independent judgement exercised; - the variety and complexity of decision making situations encountered. Accountability The following elements in this factor are used to differentiate levels: - area of responsibility; - impact of decisions and errors; - responsibility for group leadership. SECURITY OFFICER 3 This level covers positions which provide security services, from an assigned post or on scheduled rounds, at ~a government facility or office building or off-site locations such as courts or inquiries where volatile and unpredictable situations regularly arise, given the political, police, criminal investigative and/or psychiatric activities housed within an open access environment. This level also covers positions providing group leadership to Security Officers at level 2. 6 Skills and Knowledge: - communication and interpersonal skills to interact regularly with a variety of contacts such as the general public, employees, politicians, dignitaries, clinical staff and patients when responding to potentially sensitive/volatile situations, e.g..press interest in an issue, irate demonstrators, disoriented patients or visitors; - physical skill required to use restraint procedures on a regular basis, to arrest or detain using equipment such as handcuffs and batons, e.g. patients, demonstrators; - some employees at this level may be required to complete firearm training and be assigned to carry a firearm while on duty; and/or - group leadership skills to co-ordinate work assignments and provide guidance to assigned staff performing work at Security Officer 2 level. Judqement: - decisions are made within well-defined procedures/practices where employees are required to assess situations. Employees select from' alternatives the most appropriate means of resolving a problem, before' contacting supervisor or other authoritative staff, e.g.. what intervention to use in a volatile situation - physical or interpersonal, when to arrest or detain, when to initiate a CPIC check; - employees at this level encounter decision making situations which affect the safety of individuals and necessitate an immediacy of action not required at the lower levels, e.g. attempted suicide; and/or - as group leaders, employees exercise judgement in acting as a resource~for employees at Security Officer 2 level. Accountability: - responsible for providing security services for buildings, contents and grounds and for protecting the safety of users at a location where volatile and unpredictable security threats regularly arise; may include assisting in the search for' and return of patients who are absent without leave from a ~acility; - decisions at this level are more likely to impact on the physical safety of the officers and others, e.g. demonstrations, arrests, restraining individuals; - the high profile of these settings and the nature of the incidents subject the decisions and actions of the security officers to review and scrutiny, often in-a public context, e.g. press gallery in Legislative Assembly; and/or - as group leaders, employees are accountable for providing training and for ensuring all work assigned Staff working at the Security Officer 2 level is completed in accordance with standards. The grievor commenced employment with the Ministry in September 1979, in the position of patrol officer assigned to the Ontario Government Protective Servic~ (O.G.P.S.), Queen's Park Services. O.G.P.S. is administered and operated by the Ontario Provincial Police to provide on-going safety and security of provincial government buildings and personnel. Ministry patrol officers are Special Constables pursuant to the Police Services In December 1986, the grievor was selected "on a trial basis" to institute pro-active measures to deal with daily operational problems such as theft, primarily within the Macdonald Complex. To initiate the program, Inspector W.J.M. Ambeau, Deputy Director Security Branch, circulated a memorandum to all members of the 8 O.P.G.S. The memorandum, dated December 30, 1986, read in part as follows: ...permission has been granted to designate a member 'of the Service to assist in a crime prevention programme and act as a Ministry liaison officer. The program objectives are to enhance the image of the O.G.P.S. with all Ministry employees within government buildings, the public using these buildings and the Metropolitan Toronto Police Force, in particular %52 Division thereby improving the security mandate. To meet these objectives patrolman M. O'Brien has been selected on a trial basis to perform designated duties that hopefully will achieve the desired results. Initially, the grievor was told that he would be known as "Community Services Officer" However, according to his evidence, within a two week period he was given ~the title, "Crime Prevention/Ministry Liaison Officer". The grievor has performed the duties of crime prevention/ministry liaison officer since December, 1986; however, it was not until after the grievance was filed on July 25, 1991, that the Ministry prepared a position specification and class allocation form. The parties agreed that the position specification form for Crime Prevention/Ministry Liaison Officer, dated October 1, 1991, - be made an exhibit at the hearing {Exhibit 9). It reads, in relevant parts, as follows: Purpose of position To promote crime awareness and crime prevention methods on behalf of the Ontario Government Protective Services, among 9 the Ministries at Area Command, under the supervision of the Area Commander. Duties and related tasks 1. Promotes crime awareness a'nd the use of security measures by: - receiving occurrence reports from Patrol Officers, analyzing to determine patterns of criminal activity such as thefts, vandalism; - visiting areas of criminal occurrences, inspecting security arrangements, making recommendations to supervisor of affected area regarding improved methods of security; - conducting regular inspections of buildings in complex to identify potentially insecure or vulnerable areas, liaising with Buildings Managers to make recommendations regarding methods to improve security; - distributing circulars, bulletins. and crime prevention literature to Ministries, contacting various Ministry personnel to publicize the security service, promote interest and secure co- operation~ 80% - liaising with OPP and other police agencies' Community Service Departments to gather information regarding crime prevention techniques, literature and other'pertinent information; - researching and collecting pertinent information to use in lectures and seminars; - contacting Managers to arrange the attendance of employees from various ministries at lectures; - preparing and delivering lectures to Ontario Public Service employees in the complex, to promote an increased awareness of personal safety and security, the security of property, and general crime prevention; - preparing reports and maintaining comprehensive files such as statistical data on occurrences, the analysis of criminal occurrences to detect trends, patterns, re-occurrences etc.; - maintaining constant and up to date awareness of policies, regulations and activities in the Crime Prevention Field by attending courses and seminars; - submitting detailed weekly reports of activities and monthly statistical reports. 2. Performs related security duties by: - maintaining order and orderly movement within the.~ confines of the buildings on the premises by observing behaviour, directing fire department and attempting to keep demonstrators outside, etc.; - providing in a courteous manner, information and direction to visitors i.e. re city, transportation, etc. as required; 20% . - working in co-operation and conjunction with OPP and Metro Police Forces in the area of Crowd Control, particularly in the handling of demonstrations on national holidays, etc. held on the grounds and in the buildings; - rendering first aid in accordance with training; - operating radio equipment, - auxiliary duties as assigned. 4. Skills and knowledge required to perform job at full working level Written communication skills to prepare reports on criminal occurrences and to complete detailed reports of activities. Analytical skill to analyze occurrence reports to detect trends in criminal activity. 0fa1 communication skill to lecture various groups of 0PS employeeS, and to liaise with various police agencies to gather crime prevention information. Knowledge of relevant sections of the Criminal Code, Trespass to Property Act, and Public Works Protection A~t, OGPS' manual to perform security functions, and of crime preven'tion and security techniques to provide advice. The grievor was the sole witness called upon to testify. He described his duties and responsibilities at the time of the filing of the grievance in minute detail. We make no attempt to repeat that evidence except in some salient respects. The grievor acknowledged that duty ~1 contained in the position specification form accurateIy described the tasks he performed. However, he maintained that he did not perform "related security rduties" specified in duty 2, with the exception of occasional assistance during demonstrations, and in his words, the requirement "common to all employees" to provide information and direction to'the general 11 public in a courteous manner. According to t~e grievor's evidence, the essence of his position is pro-active crime prevention activities, and liaison for that purpose with government ministries primarily in the Macdonald Complex. The thrust of his evidence was that the position requires effective communication with Ontario Government employees within the Macdonald Complex to increase awareness of crime in the workplace and the availability of practical crime prevention techniques. The grievor readily acknowledged his lack of formal training in crime prevention'at the time ~e assumed his new responsibilities in December 1986. However, he has subsequen{ly obtained cer'tificates from the Ontario Provincial Police and the Canadian Police College upon successful 'completion of at least three courses, including "Community Problem Analysis and Program Management" and "Public Information Officer Training" Briefly stated, the grievor's evidence as to the core duties of his position was to this effect: that h~ researches techniques of crime prevention and prepares material for distribution to government employees; that h~ develops,, assembles and implements programs such as "Workplace Watch" (Exhibit 14) and "Emergency Procedures Manual" (Exhibit 26); that he conducts "follow-up investigations" based on occurrence reports in which he interviews 12 the victim, the victim's supervisor and co-workers in 'order to make recommendations and to provide them with crime prevention information ~nd material; that he collects and analyzes statistical data to determine patterns of criminal activity; that he conducts a series of seminars, lectures and workshops for government employees on a variety of topics such as protection of confidential information, computer ~ecurity, protection of government assets, protection of personal property, personal safety, dealing with disturbed persons, telephone threats, obscene calls, bomb threats and harassment; that he is in regular contact with the government press to provide relevant information on crime prevention, issues; that he liaises with government personnel and with the Ontario Provincial' Police; that he participates 'in seminars on crime prevention presented by the police and by prfvate agencies; that he works from an office in area command with access to a secretary under minimal supervision of O.P.P. Inspector R.J. Arbour. The grievor testified that in the 1991 financial.year he performed some 400-450 follow-up investigations, and conducted approximately 200 lectures, seminars or workshops involving some 5,000 people. The grievor maintains that he has not performed the regular duties of a patrol officer since December 1986, that he does not provide security services from an assigned post or on scheduled 13 rounds, that he normally does not file occurrence reports, and that, in effect, he does not perform any 'of the responsibilities specified in the preamble to the Security Officer class standard. The Employer called no oral evidence. The Union acknowledged the broad nature of the class standard which is designed to encompass a multiplicity of positions. However, Ms. Doyle argues that the grievor's actual duties and responsibilities bear little or no relationship to the Security Office~ 3 class standard, and accordingly, that a Berry order is necessary to properly classify the grievor's position. The Employer contends thatr the class standard in question, including the preamble, is ~ufficiently broad to encompass a variety of security positions, including the grievor's duties.both pro-active and reactive, so that he is currently properly classified. In the alternative, Mr. Christen contends that if the crime prevention aspect of the position is found to be outside the standard, the level of responsibility, complexity and qualification required does not exceed the level of those factors in the class standard. In support, the panel was referred to the following authorities: OPSEU (Peter Fenske) and Ministry of ~6vernment Services 494/85 (Verity); QPSEU (Rov) and Ministry of Natural Resources 946/89 (Knopf); OPSEU '(Sahsuvaroqlum) and Ministry of Transportation 286/91 (Waisglass); OPSEU (Evans) and Ministry of 14 Transportation 1531/90 (Samuels); OPSEU (Lintack) and Ministry of Natural Resources 892/90 (Stewart); OPSEU (Grace/Groskoof) and Ministry of TransDortation 2125/91' (Emr~ch); OPSEU (Parker et al) and Ministry of Transportation 1528/88 (Roberts); OPSEU (Dumond) and Ministry of TransDortation 1822/90 (Kaplan); and OPSEU (Booth) and Ministry of Transportation 192/90 (Low). There is no dispute that the relevant class standard, recently revised in May of 1991, was designed to have broad application to a multiplicity of security service positions, as Security Officer 3 class standard states: "at a government facility or office building' or off-site locations such as courts or inquiries where volatile and unpredictable situations' regularly a~ise, given the political, police, criminal investigative and/or 'psychiatric activities housed within an open access environment". The issue for determination is whether or not the grievor's position is contemplated by the current class standard. In the absence of any evidence to the contrary, we accept the grievor's testimony as to the nature and scope of the duties he performed which have been referred to earlier in this decision, We also accept his evidence that duty %1, but not duty %2, of the job specification form accurately reflects the duties performe~. While it is true that the grievor is involved in the general area of security services, the evidence has established that the 15 essence of his job is crime prevention. In effect, what began in late December 1986, as an assignment to perform designated duties on a trial basis~has evolved into a full-time position, separate and apart from the position of patrol officer. We are satisfied that the core features of the position, namely pro-active crime prevention, are not contemplated by the current class standard. In addition, it cannot be said that the grievor "provides security services from an assigned post or on scheduled rounds" as contemplated at the Security Officer 3 level. Accordingly, we must reject the Employer's first argument. The preamble of the Security Officer class standard lists - typical responsibilities contemplated for incumbents in the series. The list, of course, is not exhaustive. In reviewing the list of responsibilities set forth in the preamble, it can be said that the grievor is trained to enforce safety/security regulations, to administer emergency first aid and/or C.P.R. as necessary, and as a Special Constable, to exercise the powers of detention and/or arrest as required. However, in his current position, while he may be trained to perform those duties, he is not required to perform them. However, he does investigate "reports of theft and assault and other alleged illegal activities", not by way of initial investigation, but through follow'up investigations with a particular focus on crime prevention. 16 We adopt the rationale of Vice-Chair Roberts in OPSEU (Parker et al) and Ministry of Transportation, supra, where he states at p. 7: In classifying a job, the "typical duties" set forth in the class standard are not the sole determihants of classification. Consideration also is given to whether a class standard is most appropriate to a job in terms of level of responsibility, complexity and qualifications of incumbents. On the particular facts of this case, it would appear'that, unlike patrol officers, the grievor has exercised creative skills and considerable judgment in the development of a new position' in which he works independently with limited supervision. In our view, the skills, knowledge and judgment exercised by the grievor exceed the criteria specified in the current class standard. Simply stated, we find that there is a substantial variation in the nature and scope of the grievor's duties and responsibilities when measured against the wording of the class standard. Accordingly, we must conclude that the grievor's position is improperly classified and for that reason the grievance is allowed. In the result, the Employer shall find or create a classification within a r~asonable period of time (not to exceed six months) which adequately reflects the grievor'$ duties and responsibilities as Crime Prevention/Ministry Liaison Officer. Compensation shall be retroactive to 20 days'prior to the filing of the grievance. The Board shall retain jurisdiction in the event of 17 any difficulty encountered in the implementation of this decision. In addition, the Registrar of the G.S.B. shall schedule further hearing dates to determine any remaining issues in file numbers 1485/91 and 1921/91 upon the w~itten request of either counsel. DATED at Brantford, Ontario, thisll~h of January, 1993. ~£i,~"~ .................. ,~.~7..~. ~--.~6_ · M. O'TOOLE - ~~ ' '