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HomeMy WebLinkAbout1991-2392.Thomas.92-12-17 '~' ONTARIO EMPI. OY~-5; DE LA COURONNE CROWN EMP~. OYEE$ DE L'ONTARIO GRIEVANCE C~OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS t$O DUNOA$ STREET WEST. SUITE 2100, TORONTO, OhITARIO. MSG 1Z8 TELEPHoN~/TELEP~ONE: [4~6] 326-~388 ~80, RUE DUNDAS OUEST, BUREAL{ 2~00, TORONTO [ONTARIO}. MSc~ IZE FACSIMiLE/TELC-iCOP~E : f416l 325-~396 2392/91 1:N THE MATTEE DE AN ARBZTRATZON Under THE CROWN EMPLOYEE8 COLLECTIVE BARGJ[INING ~CT Befoz'e THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Thomas) ~rievor - and - The Crown in Right of Ontario (Ministry of Education) . Emil Dyer BEFORE: H. Wai~glass Vice-Chairperson I. Thomson Member R. Scott Member FOR THB G. Richards ~ Senior Grievance Officer · Ontario Public Service Employees Union FOR ~ E. Johnson EMPDOYER Staff Relations Officer Management Board of Cabinet October 26, 1992 2 DECISION lames Thomos's grievance is dated November 22, 1991 and claims that his "position is improperly classified os an Audiological Services Technician". He asks ~that my position be property classified" .and "that I be compensated with Futt retroactivity plus interest~. The Union submits that there is no other existing classification that might be appropriate, because of the unique character of the job. Consequently, it asks the Board to issue o Berry-type order requiring the Employer to create o new classification for the purpose of classifying the grievor properly. The Union's counsel submits that certain core functions have been added to the position over the past ten years which were not ,contemplated at the time the Class Standard was established; and further, that the most 'significant changes, taken separately or together, are substantial enough to justify the conclusion that those new duties or requirements do not fait squarely ~ithin the Class Standard, Therefore, the classification is no longer appropriate.' Mr. Richards identified the Following as the most significant new core duties and requirements nhich have been added to the grievor's position and ~hich were not contemplated to be included in the Class Standard at the time it originally established: [1] the grievor's nevw duties and responsibilities for making eormold impressions, for preparing instructions to the manufacturer, and for inspecting and Fitting the earmotd, to assure o satisfactory custom-made product to serve the individual requirements of teachers and students, os well os children from under five years of age; [2] the grievor h~s satisfied the ne~ requirement, introduced about two years ago, by obtaining the hearing aid dispenser certificate issued by the Ministry of Health, ~htch qualifies him to serve os the sole licensed dispenser to meet the needs of oil students and teachers at the school; [~] the grievor hos satisfied o new requirement ~hich is no~ i~ his ne~ position description and ~hich is not one of the requirements of the Class Standard: "demonstrated ability to use the manual con~unicotion method {sign language) at the leve! indicated in the provincial policy"; and 3 [4] he now performs his duties with o high degree of autonomy, with o minimum of general supervision {from the Program Director, Resource}, and without the s~gni.ftcontly higher level of supervision and training which he received previously from 'o professional audiologist to whom he reported in the first several years in this job. ~ Counsel for the Employer submits that the current class standard encompasses all of the core duties of the grievor's position and therefore o Berry-type order is inappropriate. Mr. 3ohhson or§ues that the core duties ore not changed, or they hove not changed significantly. Me acknowledges there hove been changes in the knowledge and skills required in order to carry out the core duties, brought about by the technological innovations which hove produced'much more effective and efficient hearing aids, but that the core duties themselves have remained unchanged. He submits also that such changes os may have occurred in the grievor's duties ore of such o nature that they do not in any way affect the core duties, that they do not change the essence 6F the ]ob, and that they do not change the pith and substance of his position os on Audiology Services Technician. Mr. Johnson submits that the Class Standard contemplates.changes in technology, in the knowledge and skills required for the performance of the core duties, and in the way in which the core duties ore performed. He argues thot~those changes identified by Mr. Richards do not involve significant changes in the core.duties, nor do they introduce new or different core duties. The Employer cloim$ that the Class'Standard endures and encoptures o w~de range of variances that could occur in a position specification from time to time, and from one location to another; and that those variances'which are identified in this instant case ore such that fall within that contemplated and acceptable range of variances. I agree with the Employer's submission that the Class Standard anticipates technological changes affecting the knowledge and skill requirements for carrying out the core duties, which in themselves may rem~in constant and unchanged. However, we are mindful of the enormous scientific and technologtcot odvonces of the post few decodes which hove creoted numerous new lobs thot did not prevtousty exist, ond which hove substontt~tty tronsformed numerous other ]obs. The impoct of such chonges on the essenttol n~ture or chorocter of o ]ob coutd vory from sttuotton to sttuotion. In other words, we do not exctude the posstbttities thor chonges tn the technotogy ~nd in the store of the or~' for moking ond servicing heortng olds, For serving the needs of the heQrtng-impoired chiIdren ot the Drury Schoot, could hove, hypotheticotty, o profound or substontiol tmpoct upon the core duties of the Audtotog'~cot Services Technician. For our burposes, however, the octuot noture ond extent of the impoct upon the grievor's job, if any, is determined by the evidence submitted by the porttes. ~e must took to the evidence to determine whether or not ony signtFicQnt new core duties hove been odded to the position, such thor ore not tnctuded in the estobttshed Cross Stondord. We heord one witness, the grtevor, who testified on his own behotf. The grtevor has been employed For i6 ye~rs os on Audtotogicol Services Techntcton ot the E.C Drury Schoot tn Mklton. There ore onty three such techntcions tn the Ontorio PubItc Service, one ot eoch o¢ three provinctot schooIs for the deof. Before entering this position the gr~evor wos o TV techntcton for 19 yeors. It is ogre.ed Foct thot the description of his duties ond responsibilities os stored tn the Position Speciftcotton doted October 28, 1991 [Exhibit 1] ts reosonobty occurote. It is ogreed Foci oIso thor there hove been considerobIe chonges tn the technology of heoring oids used tn thmDrury SchooI since the present closs Standord was estobttshed tn June, 1964, and porticulorty s~nce the grievor contnenced his empIoyment there. It ts otso ogreed foci thor the Position Speciftcotton includes oft the duties set forth in the Cross Definition except one: the grievor does not ~osstst" his "professtonot supervisor in the oudtometrtc evotuotion of preschool children". He has not had a professional supervisor for the post several years. He now 'provides for himself the supervision previously provided by the audiologist who had also trained him. His position description stilt specifies, consistent with the Class Standard, that he ~when required, assists the ouOtotogists with'team testing of young children"; and also he has ~to assist a professtonallaudiotogist where requested in .the.testing of hard of hearing or deaf children". It is agreed fact that now, as before, his ~a)or core dutles, to ~nstatt, repatr, replace and m6i~tain group hearing aid systems for at1 teach[ag oreos", are not significantly different from the requirements of.the Class Standard. This ts'so in spite of the fact that the technology for making such group hearing aids has changed profoundly, and the gr~evor had to acquire ne~ knowledge and skills ~or these duties.. It is fact also that ~he present position ~ncludes th~s ne~ duty that ts not ~n the Class Standard: ~'Conducts and motntotns On ongoing physical inventory of att hearing aids, ?mplification and testing equipment..." Union counsel agreed~ however, that this'duty; by itself, ts not a sufficient departure fr~m the core duties to j~stiFy o declaration that he ts tmproperly classified. In 1975, about the time the grievor started work, the students at the Drur~ Schoo! used tndividu61 hearing aids based on a ~hard wire" system~ They ore no longer in use. They were gradually replaced, starting tn Z978, by the FN w~reless system. The grievor has been;required to adopt his knowledge and sk~lts to the significant technological changes. It may be argued that the 1964 Class Standard contemplmtes that incumbents tn positions covered by it ~ilt be advancing their knowledge and skit,s with advances tn the technology a'nd the state of the art forI audiological equipment. Insomuch as those changes in sktl~s and knowledge relate to core duties which tn themselves remain relatively constant 'the employee's classificotion is unaffected. 6 The core duties which are defined by the Class StandQrd for the grtevor's position ~re essentially the tasks or ~ctivt~es of evotuottn§, testing, r6poirtng and maintaining audiological and electronic equipment. Zt does not include the task of making o hearing old or making o part for o hearing aid. So long os the requirements for improved skills and knowledge ore limited to such activities or core duties which are specified tn the Class Standard, there may be no significant change tn, or addition to, the core duties. We find, however, that ~here ts on important distinction to be made between his work on ~thi.ngs" and his work on and with ~peo~te", particularly the deaf students and the the deaf teachers. The activit~es or tasks oF repairing and motntoining which ore specified in the Class Stondard relate only to work on the hearing aids and other electronic equipment [things], but the activities of testing and evaluating relate to children as well as to hearing aids and other electronic equipment. The Class Standard, however, mokes o significant distinction for such activities ~tth children, which clearly does not apply to the testine and evaluatino of hearing oids. Testing'end evaluatkna of children are not done independently'by employees in this class, but only as oss~stonts to ~ professional audiologist or professiona! supervisor. Zn the wordSof the Closs Standard: ~assist a professional audiologist in the testing oF handicapped children" and ~assist their professkono! supervisor in the audtometr~c evaluation of preschool children". ' In other words, there ts nothing ~n the Class Standard that calls for incumbents to provide direct services to children tn any manner other than as on asststont to Q professionot. Also, there is nothing in the Standard that requires incumbents to produce or make eQrmolds for hearing aids. The evidence, as ~it! be sho~n below, indicates that new core duties evolved for the grievor ove~ the past five years which required him to ~ork directly and independently with students, wtthout supervision, in making earmold impressions and tn fitting earmolds to meet the exact and precise needs for each individual student tn the school. When he was first hired the grievor satisfied the requirements for the ~quottFicotions' of the Cross Standard. He hod prior training and experience. in electron(cs, os wet[ os '~potience~ond understanding in dealing with handicapped children..." He did not hove prior ~experience in oudtometrlc testing and in communi~'ot~on with the deaf". The Class Standard expresse~ o preference for ~some experience." ~n these areas, but such qualifications were clearly not required, The grtevor'.s current Pos~tton Specification now contains the farrowing two important requirements ~htch ore not in the Cross Standard, and which ore cteorty retoted to the'new core duties which hove evotved for the gr~evor tn recent years: [1] ~demonstroted obitity to use the monuot communication method (sign tonguoge) at the tevet ~ndtcated tn the provinciot poticy"; and Ez] ~heoring aid d~spenser certification issued by the Ministry of Hearth of Ontario after oppropriote accreditation". Such demonstrated knowledge and skirls ~s ore indicated by these two new requirements {which ore not mentioned at dtt in the Cross Standard} ore essentioI-to the new core duties. These new duties ore not contained in or contemptated by the CIoss Standard and they Were not among the grtevor's duties during the first Few years he was in his present position. In those First few years he did not need to conm~unicote directIy with the deaf stuOents or deaf teachers kn order to carry out hts' duties os a technician. In those years, there were no deaf teachers. His communicotkons with the students, ~,~hen required, were through the teachers, the professiono~ audiologists, and his supervisor. Later, some time in the 1980's, when "signing" became o requirement at the schoot for communicating with students, he relied on the teachers who were obte to "sign" for his communications with 'students. The grlevor did not experience the need to fearn "signing" un~.il he hod to cc~r~nuntcote with the deaf teachers, when they started to be hired about five years ago. Furthermore, the need to be proficient in ~signing" grew more ~mportont over the post five years when his new core duties evotved in d~spenstng hearing aids and ln'worktng dlrectty w~th the children in producing for them custom-mode earmolds, prepared to meet the specific and speczal needs o~ each individuaL. In more recent years, when these new dispensing and earmotd-moktng duties were extended to serve children tn kindergarten and pre- schoolchildren, the need to learn "signing" and to improve h~s skills in communicating effectively with such students became more compelling. The grievor has learned to sign by taking special courses and by study on his own. Zt was not contemplated by the Class Standor~ that such personalized direct services to students and preschool children, porttcularty the production of custom mode eormotds for them, would evolve in such a way as to become a new, different, or substantially changed core duty. In order to satisfy the recent new requirement for dispenser certification the grievor had to get at least 7~% on a written 200-question exam based on the intensive study of two text books, one on ~Audiology" and the other on ~Hearing Instrument Science and Fitting Practices". He obtained a 76% grade. He was required also to pass the practical exams on making earmotd impressions and on modifying earmolds, as well os on diagnosing faults in hearing aids. He obtained the certificate over a year ago. According to the grievor's testimony, ~It means I will be the dispenser for the school." There are two audiologists at the School who do the diagnostic work and refer deaf students and preschool children to btm to dzspense their prescriptions for hearing aids. Apparently the dispensing function ~ncludes particularly the making of eermold$ to f~t the special end ind~v~J~ needs of the particular student or ~hild. The grievor testified that ~e ~ not work on earmotds in the first two years on the job. Later, at t~mes, he nod to adjust or repair the type of earmold used with ~hord wire" hearing a~s. The work he had to do on those earlier earmolds was very simple and much !ess demanding. Zf he couldn't repair or adjust them easily, they woutd Oe repaired or replaced by the manufacturer. They didn't require the making of specialized individual impressions of the ear which he is now required to make for the wireless aids. 9 The eormolds used with the hard-wire olds d~d not require exact and precise fittings because th~s earlier type of ~d used body packs ~vben~ the equipment, ~nc~uC~ng the m~ke, was stropped to the body, for removed from t~e ear. Consequently they dzd not present difficult problems in sound feed-back if the ptugs did not fit e~oc'tly and prec~sety within the ear conot. What goes Into the ear with the new. wtretess equipment ts rodicotty different. it is only within ~he post f~ve years that the highIy compact FM wlretess equipment started to replace the heavy-wire aids and that is ~hen the grtevor started to learn how to make the spectoltzed eoFmold impressions which was required by the new techn6logy. The new eormotds ~re completely different and much more compIex to make ond to fit, re~u~ring o h{gh degree of exactness and precision. His new duties now require him to moge precise and exact ~mpress~ons of the student's ear, ~nvotving h~m in o mo]or role ~n the monufocture of tndivlduol~sed eormolds. Previously, he did not have any duties and responsibil{ties for making eormolds. His duties did not go beyond evaluating, testing, repairing, ond mointolning hearing o~ds, and replacing those ports that could not be repoired. He did no~ previously make eormotds or eormotd impressions, nor ~s ~here anything in the ClOss Standard to suggest that this ts or' could become'a core duty. : The new and different type of eormolds which he is now required to make for t~e wiretess aids ore precise audio se~ls produced to Fit exactly within the s~ze and shape of the child's ear canal ~n o m~nner ~hich prevents ~ound from leaking out of the ear ond feeding bock into it through the tiny microphone and the compact ompl~fie~ [now located close to the ear] and back to.the transducer [miniature loudspeaker within the eor]. This is completely different from the hard-wire aids. it has now become his duty and responsibility to produce for each student o precise and exact ~it for the eormold, which ts essential in order to prevent o very distressing and disturbing squeal within the ear. It ts on agreed fact that the grievor is required to produce approximately S00 eormold impressions per year. The grlevor testified that it tokes about 20' minutes of work with the student to prepare on eormotd impression, a further twenty minutes to prepare the tmpresszon and the detoL!ed specifications for ship,rent to a specialized manufacturer zn Kitchener, and twenty more minutes checking the cost~ng [about one half inch b'y one eighth inch in size] after it ts received from the manufacturer, and then fitting the earmold exactly into the student's ear, making whatever od]ustme'nts may be necessary. It is not necessary to review here the details of the gr~evor's evidence regarding the procedures he follows ~n checking the ear to assure safety, in the preparations for and in the making of the impression, in preparing the impression for shipment, in checking and testing the casting, and finally tn fkttkng the student with the eormold. It ts sufficient to say that the grievor's new duties regarding the making of eormolds ore substantially different from anything contemplated by the.ClOss Standard, requiring the acquisition and application of new skklls and knowledge which were not previously required or contemplated for employees allocated to this class. The production of 5Q0 emrmolds per year, at about an hour of his working t~me for each one, means that this new duty requires about 500 hours of his time per year. Of this, about 200 to 250 work hours per year are required For direct contact with deaf students and children in making the impressions and fitting the finat castings. It is obvious that this new core duty requires him to co~rnunicate effectivety with the ~eaf children, and therefore requires a level of competency in ~s~gning" which was not required, untit about five years ago, before he was required to make eormold impressions for all deaf students in the schoot. H<s new core duties regarding the making of earmotds, acqutred tn the past five years, require not only "demonstrated ability to use the manual co~nunicotton method", but they require otso certification os ~ ~heortng aid dispenser" by the Ontario Ministry of Health. I find that the grievor's new duties in making earmotd impressions for individuo[ deaf students, together with the associated new. duties and the requirements for certification and ~stgning"~ are substantial and significant departures from the crass standard. These changes have evo[ved over the past five years to become new core duties. These new duties are not marginal or tncidentat to those duties which ~re spec(fred tn the crass standard. RatheF, they are different duties which ore tmportmnt additions to the established duttes~ a:~d they occur frequently, on a regutor or dotty basts, requtqtng a significant portign of the grievor's regular working hours. He have exmmtned the ]ob os o whoie, as weft as tis ma]or components, and we are brought to the conctuston that the core duties viewed ~s a whore are sufetcientty different to succeed tn taking the ]ob out of the crass standard. There.have been ats~ some other changes tn the grtevor's duties. But even tf there were no other changes, these new core duties atone, as they rotate to the making of earmolds, ore sufficient to bring us to the conctusion that the grievor ts not ct~sstfied correctty. For the reasons stated herein the grievance succeeds. ~e dectare that the ghievor ts incorrectly classified. ~e hereby order the Employer to prepare crass standard appropriate for the grievor and that this be done ~tthin a reasonable time. Once the new standard has been estabttshed and the sotary rate for the pos~t~on ~s establ~she~ th accordance w~'th the procedures provided for in the Corrective Agreement, we order that the grtevor short receive compensation so that he wttt have been paid tn accordance ~tth the estobttshed sotary revers fr~ twenty days before the date of the grievance. The grtevor short receive interest on any sum Which ought to hove been paid at a rote of 8% c~pounded onnuotly fr~ the date on which the sum ought to hove been paid to the dote on whLch tt ts paid. ~e shall remain seized to dear with any matters arising out of our orders. DATED AT HAMILTON, ONTARIO, THIS I~Cb DAY OF DECEMBER, 1992 ..~ HARR~AIS~LASS, CHAIR-