HomeMy WebLinkAbout1990-0504.Thomas.92-01-12
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r(' ONTARIO EMPLOYES DE LA COURONNE I
CROWN EMPLOYEES DEL 'ONTARIO
1111 GRIEVANCE COMMISSION DE
,
SETILEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO. MSG IZ8 TetEPHONEITeU:PHONf! (4161 326-1388
180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIOI MSG lZ8 FACSIMILE ITeUiCOPIE (416) 326- 1396
504/90
IN THE MATTER OF AN ARBITRATION
Onder
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Thomas)
Grievor
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The Crown in Right of ontario
(Ministry of Municipal Affairs)
Employer
BEFORE: R. Verity Vice-Chairperson
L. Robbins Member
D Halpert Member
FOR THE K Whitaker
GRIEVOR Counsel
Ryder, Whitaker, Wright & Chapman I
Barristers & Solicitors I
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FOR TBB P. Murray I
EMPLOYER Counsel I
Hicks, Morley, Hamilton, stewart & Storie
Barristers & Solicitors I
HEARING November 29, 1990 I
June 14, 26, 1991 I
July 18, 1991
October 8, 1991
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DEe I S ION
On February 12, 1990 Everton Thomas filed a grievance alleging
improper classification as Drafter 2 He had previously raised the
issue with his supervisor in a memorandum dated November 24, 1989 !
Mr Thomas claims reclassification as Systems Officer 3 with
retroactivity to 20 working days prior to the November 24
memorandum Apparently the grievor left his employment with the I
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Ministry at the end of March, 1990 I
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The grievor's claim for reclassification proceeded solely
under the "class standards approach" , namely, the measurement of
the grievor's duties and responsibilities against the relevant
class standards
This is an unusual case in which there is a serious factual
dispute between the parties as to the nature of the grievor's
duties for a period in excess of two years - from the fall of 1987
to the date of the filing of the grievance in February, 1990
The grievor has worked as a drafter with the Ministry of
Municipal Affairs in the cartography and drafting unit, Program
Services Branch, now located at 777 Bay street in Toronto This
grievance arises in the context of the Ministry's decision to
introduce a computer system in the drafting unit, as a pilot
project - the Geographic Information System (G I S ) The purpose
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of the proje.ct was to evaluate the feasibility of computer
technology to assist in the manual production of drafter's work
The grievor commenced work in the Ministry's cartography and
drafting unit in January, 1974 and was classified initially as
Junior Drafter and thereafter as Drafter 1 He attained the
classification of Drafter 2 in September, 1987 There was no
dispute that the grievor worked as a drafter between 1974 and the
fall of 1987 The grievor's duties in the classification of
Drafter 2 are accurately set out in the relevant position
specification form which reads, in material parts, as follows
2 Purpose of Position
To prepare a variety of complex ink drawings, maps,
charts and illustrative material by the use of graphic
aids To produce colour maps, charts and illustrative
material through cartographic processes To provide
graphic drafting (Art) for Publications
3 Summary of Duties and Responsibilities
1 Prepares graphic drawings, a variety of maps,
charts and graphs for publications, display
material, reports, etc , by performing tasks such
as
- reviewing jobs to determine most appropriate
scale, layout, symbols, line sizes, colour
\ use, best production methods, type, etc ;
65% - completing jobs using common and professional
drafting tools with a high level of technical
skills,
- checking complex source data to establish the
users requirements to be included in ink maps
and producing the initial map for cartographic
work,
- preparing overlays, scribe and peel coats,
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adding stick on type and Letraset as required,
- checking jobs to assure accuracy of produ~tion
and completeness of detail
2 Maintains professional cartographic skills by
performing tasks such as
- keeping self aware of new processes and
materials of the trade.
25% - being proficient in the use of scribe coat,
peel coat, stick on type, letraset, acetates,
letrafilrn, cronaflex, zipatone, etc , by
varying methods to obtain optimum results,
working with mosaics and air photo
interpretation
3 Performs a variety of associated tasks such as
- checking subdivision plottings on land use
maps for Ontario,
10% - preparing identification signs, colour
overhead projection slides, etc ,
- resolving minor discrepancies on the job and
discussing major discrepancies with
supervisor,
- handling special projects,
- supervising in the absence of the Supervisor,
- as assigned
4 Skills and Knowledge Required to Perform the Work
Thorough knowledge of cartography drafting aids and
techniques and proficiency in the manipulation of
drafting tools normally acquired through completion of
related community college program plus a number of years
cartographic and drafting experience, ability to organize
and work under the pressure of deadlines, some knowledge
of planning terms and requlrements
The preamble to the Drafter Class Series describes the type of
work contemplated
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KIND OF WORK COVERED
In general, employee work assignments in this Series
require the exercise of manual skill in the manipulation of
drafting tools, and, the utilization of knowledge of technical
procedures, engineering practices and mathematics in order to
complete clear accurate plans
Such work involves the preparation of various engineering
and survey plans, planimetric maps, engineering design
drawings, computations related to surveying and basic
engineering, illustrative drafting for publication and office
use, and the supervision of drafting functions
EXCLUSIONS FROM THE DRAFTING SERIES
1 Positions in which the primary emphasis is on the
calculation of quantities from engineering plans should
be considered for allocation to the Engineerts Assistant
Series
2 Positions with considerable illustrative work of a
graphic and artistic nature may be more properly
classified in the Commercial Artist Series
3 posi tions which consist of predominately clerical duties,
but which require some minor and incidental drafting,
should be carefully analyzed for possible allocation to
the Clerical Series
ALLOCATION FACTORS IN THE DRAFTSMAN SERIES
The allocation factors pertinent to the Draftsman Series
may vary considerably from position to position However, the
following are the more common and important factors
1 Ability to do mathematics, with the knowledge required
ranging from elementary algebra and geometry to elements
of Grade 13 mathematics It is important to know the
scope and variety of mathematics required, and the
availability of specific guidelines.
2. The drafting skill level required in a position Three
grades of drafting skill exist, trainee, competent and
accomplished Above Draftsman 1, skill level is normally
significant only in combination with other factors
3 Specialized knowledge of pertinent legislation, survey
practice, basic engineering principles, and knowledge of
departmental standards, procedures and policies It is
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important to analyze carefully the essential nature and
extent of these requirements before their significance
can be assessed
4 The nature and extent of supervisory control exercised
over the position by a higher authority, although in the
field of drafting, the normal pattern is for all
completed work to be reviewed for accuracy regardless of
the level at which it was performed
5 Supervisory responsibility including the scope,
complexity and importance of the drafting function
supervised, the number and level of those positions
supervised, the degree of responsibility assumed for
completed work and for the training of junior staff It
must be emphasized that the size of the drafting group
supervised is meaningful only in combination with the
position's overall duties and responsibilities In some
areas, the specialized nature and complexity of the work
supervised is a more significant factor than the size of
the groups
TRACER CLASS
This class is limited to positions where the primary duty
is skilled tracing work Simple plotting and computing may be
a subsidiary function Differing from similar work performed
at the Junior Draftsman level, the tracing work of this class
if of a higher quality, and is carried out under less
supervision
GENERAL NOTE
1 The Characteristic Duties outlined in these
specifications mainly reflect the drafting functions of
the Departments of Highways, Lands and Forests and Public
Works A general reference to the drafting activities in
other Departments has been made, both in the Class
Definition and Characteristic duties
2 It is very important whensubmi tting Nominations for
Promotion in this Series to support such recommendations
by outlininq clearly the changes in the position's duties
and responsibilities
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The Class Standard for Drafter 2 reads
CLASS DEFINITION
This class covers complex drafting work, involving plans
with intricate details, difficult mathematical calculation,
extensive survey interpretation, basic engineering and
architectural principles and a variety of reference data In
some positions, under a professional engineer or designer,
they perform drafting work involving considerable minor
design These employees may supervise a small group of
draftsmen performing moderately complex drafting work They
work under the general supervision of senior drafting staff
with considerable latitude for initiative regarding the
drafting techniques used They are expected to complete work
assignments with a minimum of review
CHARACTERISTIC DUTIES
Compile, plot and draft the more difficult and important
survey plans, drawings and planimetric maps Correlate and
interpret varied, reference plans and material, plot and check
detailed survey plans from field notes, check asimuth
calculations, calculate difficult compound and reverse curves,
formulate information derived from survey field notes to be
calculated on electronic computer for the purpose of
determining description ties, metes and bounds, and areas of
land
When required, check ownership of property by reference
to Land Titles, Registry, Crown Lands, Patents and Municipal
offices Interpret survey conflictions, resolving minor
discrepancies and outlining the nature of major conflictions
to superiors Make a thorough and independent check of
difficult survey plans in accordance with departmental
specifications and pertinent legislation prior to registration
in Land Titles or Registry Offices. This checking function is
reviewed solely in terms of results
May be required to instruct others in the plotting,
computing and checking of survey plans
Working under the general supervision of a professional
engineer or more senior draftsman, prepare final bridge design
drawings from engineering notes, sketches and instructions
Assist in the design of simpler parts of complex bridge
structures Prepare all necessary detail drawings, place
reinforcing steel in accordance with engineering instructions,
prepare steel schedules and quantity estimates, prepare and
interpret in-put data for electronic computer; may be required
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to instruct more junior staff members
Under the general supervision of a designer or
professional engineer, prepare final working drawings and
plans related to electrical, mechanical, structural,
architectural or sanitary engineering
At this level, the draftsmen handle a complete drafting
project with a minimum of direction, and are responsible for
considerable minor design Work is reviewed on completion
May be required to instruct junior drafting staff For
example, in the electrical engineering field, prepare complex
electrical layout drawings pertaining to large buildings,
electrical vaults, power houses, and outdoor sub-stations
Under direction, design or revise electrical layouts on small
projects; OR in the architectural drafting field, prepare
sectional views, detail, elevation and finished working
drawings for institutional, residential, office and industr ial
types of buildings Responsible for indicating requirements
and preparing detail drawings on minor structural components
such as expansion joints, coping details, fittings, drains,
washroom facilities, mirrors, shelves, cupboards, cabinets,
windows, doors and stairways In minor supervisory positions,
correlate and compile reference material, assign work and
outline instructions; supply technical guidance, contact
engineering and departmental officials for information and
clarification, make a detailed check of completed drafting
work and calculations prior to a general review by a senior
staff member
QUALIFICATIONS
I Grade 12 Secondary Education, preferably Grade 13
1 Mathematics, or an equivalent combination of education
and experience
2 Five years as Draftsman 1, or three years and successful
completion of examinations approved by the Civil Service
Commission In Sections where examinations are used they
must be passed
3. Thorough knowledge of drafting techniques and work
procedures, where applicable, sound knowledge of
mathematics, broad understanding of survey practice, good
knowledge of pertinent provincial and federal statutes
and departmental specifications, some supervisory
ability, initiative
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The pilot project in the drafting unit was introduced to
assess the feasibility of the use of computer technology and, in
particular, to assist in the preparation of maps which in the past
have been manually produced Once the equipment was installed, the
plan was to have the three unit draftsmen become familiar with the
system as a drafting tool. Due to an unusual chain of events, the
pilot project appears to have been unsuccessful
Lief Wadhvana, a systems officer with the Ministry, was
assigned the task of system design including the installation of
the hardware and software and subsequently the day to day
management Mr Wadhvana remained with the project from the fall
of 1987 to February of 1989 The grievor was asked to design a
separate room in the drafting unit to accommodate the computer
technology The room was completed in the late fall of 1987. At
that time the hardware was installed - a computer, a "Compaq 386"
machine, a digitizer, a plotter and a second computer unit, a
"Comtern 286" In early 1988, the software package, "Esri
Arcinfo" , arrived which was loaded into the computer A second set
of software was delivered in the spring of 1988 A GIS steering
committee was established to monitor the project Committee
members included Mr. Wadhvana, Ron Ryner, Supervisor of the
cartography and drafting unit, Director Les Fincham and the
grievor
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It was agreed that the grievor, on his own initiative and
without instruction to do so, left his drafting table in the fall
of 1987 and moved into the computer room According to the
grievor's evidence between the fall of 1987 and November, 1989 he
returned to his drafting table "a maximum of 14 hours" The
grievor maintains that, commencing in the fall of 1987 until the
filing of the grievance, he spent his time in the computer room
adapting the computer system to the needs of the unit
The grievor acknowledged that he has no formal computer
training but maintains that he acquired sufficient expertise to
justify the classification sought Mr Thomas testified that he,
and not Mr Wadhvana, did most of the assembling of the hardware
Similarly, the grievor maintains that he reloaded the first
delivery of software that had been improperly installed by Mr
Wadhvana Further, the grievor maintains that he loaded the second
delivery of software on his own According to the grievor's
evidence, supervisor Ryner "stopped assigning manual drafting
projects" when the grievor moved into the computer room in 1987
Briefly stated, the grievor maintains that he co-ordinated the
systems implementation, installed the hardware and software,
configured the systems hardware and software, wrote programs to
convert Ministry of Natural Resources information for use on the
Parkway Belt Project and the Greater Toronto Area project, provided
demonstrations on demand and maintained both the system and the
data base
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The grievor claims entitlement to reclassification as Systems
Officer 3 It is helpful to set out the opening paragraphs of the
preamble to the Class Series
This series includes positions engaged in systems
analysis, design, implementation, maintenance and technical
support, and related standards and project administration,
consulting, marketing and training functions for computer or
other automated systems, or for manual systems
These positions require knowledge and skills in such
areas as computer programming, computer software and hardware,
data base technology, data communications, automated office
equipment, and records and forms management methods and
standards, and all positions are required to keep up-to-date
with rapid developments in data processing or office and
communications technology Computer systems design has a
somewhat higher requirement for skills dealing with abstract
concepts, whereas at corresponding levels, manual systems
analysts will require stronger consulting skills, as well as
a more thorough understanding of the client environment This
is also an important consideration in establishing comparable
levels of complexity between the more abstract technology-
oriented programming and software speCialist positions, and
those which require a stronger client and business orientation
to carry out the applications systems analysis and design
functions
The Class Standard of Systems Officer 3 reads
This class covers positions of working level computer
systems analysts responsible for the analysis and development
of detailed design and for associated systems support
activities, or senior programmers who provide technical
leadership to programming staff, or who design, develop and
maintain very large or complex computer programs, ie using a
large number of files and performing a large variety of
computations, and capable of generating many different output
reports for a large and diverse user group
Assignments are performed under the general direction of
a project leader or supervisor On a large project, where
business/functional design is a major component, a general
design specification will be prepared by others, on a smaller
project criteria for the detailed programming or systems
design phase may be obtained direct from the client
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Completed work is expected to be technically accurate and
operationally efficient, with review occurring only at
scheduled project checkpoints to ensure that client
requirements are met These employees are accountable for the
quali ty and practicality of design of detailed system or
programming structures and logic to meet user requirements
criteria, including the selection, adaptation and integration
of software into the design, for exercising project control
over assigned project phases, and for overseeing testing and
installation of computer programs and procedures Design
errors could cause serious set-backs or dollar losses in
installing systems, and inefficiency in design or lack of
sensitivity to the user environment could result in functional
problems with the system and in higher operating costs
Knowledge and skills required include a sound knowledge
of standard large-scale data processing programming
applications, and full competence in standard and specialized
languages for such applications, and in all phases of
programming from design through installation and maintenance
of programs, including selecting, adapting and integrating
software into a system, and/or sound practical knowledge and
competence in detailed systems design techniques and processes
as applicable to computer, automated and manual systems,
including development of user and machine procedures and
forms A sound knowledge of data storage and retrieval
methods and an understanding of data base concepts is required
to analyze data requirements, develop and implement methods
for collection, organization and storage of data, and to
implement standards and procedures for data management A
practical understanding of mini-computer and large computer
hardware and software capabilities is required to design and
implement systems or computer functions appropriate to the
environment A sound knowledge of current computer
programming methodologies and standards, and leadership skills
are employed in coordinating activities of assigned staff and
ensuring proper programming time and cost estimates, project
scheduling and control Consulting and report writing skills
are also needed, and some positions require skills in
marketing systems and facilities
There is frequent and regular contact with users and line
management to discuss and advise on detailed system and
programming requirements and to provide user training. There
is ongoing contact with co-workers and data centre staff to
exchange information, discuss and resolve problems, and to
provide technical guidance and review
OR
This class also includes positions of technical software
of hardware analysts or systems programmers with
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responsipility for maintaining key service components of the
operating system, such as control programs and language
interfaces with data base management systems, network and
terminal configurations, or operating systems' compilers
Work is performed under the general direction of a
software or technical services manager or senior analyst
Assignments typically provide a specific terms of reference,
or arise from a need for software maintenance Completed work
is expected to be technically accurate and operationally
efficient, with review occurrJ.ng only through scheduled
validation procedures and checkpoints, to ensure that testing
and client acceptability standards are met These employees
are accountable for ensuring that software maintenance is of
a high quality in order to provide adequate and practical
support to clients of the system, analyzing and evaluating new
systems software features, and adapting and integrating
software and utilities for operating system subcomponents, and
designing conditions and programs to generate testing of new
systems software and developing user and machine procedures
Technical errors would be detected through systems testing,
but inefficiencies in implementing systems/software changes
could result in slow service and higher data processing costs
for users
Knowledge and skills required include thorough
competence in standard software programming languages, and
good conceptual knqwledge of the special features and
characteristics of key systems software or hardware components
for large computer hardware and utilities, mini-computers,
terminals and utilities, computer security devices and
detection equipment, teleprocessing equipment, network
architecture and telecommunications protocols A sound
knowledge of data storage and retrieval methods, and a sound
knowledg~ of current computer programming methodologies and
standards, and skills in estimating implementation time and
costs for new systems software, consulting and report writing
are also needed.
There is ongoing contact with co-workers and data centre
staff to exchange information, discuss and resolve problems,
and to provide technical guidance and review There is
regular contact with users to discuss and advise on detailed
programming requirements and to provide user training
OR
This class also applies to positions of systems analysts
who coordinate and design complex administrative and office
systems for multi-clients or involving EDP systems interfaces,
such as information retrieval and transmittal through the use
of computer-based office and communications equipment
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Work is performed under the general direction of a
project leader or administrative systems manager, working from
general specifications or user design concepts Completed
work is expected to be technically accurate and operationally
efficient, with review only at regular project checkpoints to
ensure that client requirements are met These employees are
accountable for the quality and practicality of their
analysis and design to meet client/end user requirements,
including assessment of facilities provided by automated
equipment for improved office efficiency and access and
retrieval of information from computer files or networks, and
cost/benefit estimates of various automated and manual systems
al ternati ves, exercising proj ect control functions in relation
to own or assigned project staff activities, overseeing system
installation, and providing strong client support throughout
the project Errors would not be detected quickly and could
result in serious delays in systems implementation and much
higher equipment costs, lack of sensitivity to the user
environment could result in functional problems with the
system
Knowledge and skills required include a wide knowledge
and competence in administrative systems processes combined
with project management skills, and a good knowledge and
understanding of sound organizational design and management
principles, a thorough knowledge of modern office practices,
and of the technologies associated with modern automated
office equipment, integrated systems for word processing,
electronic information storage, retrieval and transmittal, the
ability to assess management objectives, establish priorities
and objectives for projects, systems costs and benefits and to
determine whether projects are conforming to the schedules and
budget, skills in conducting preliminary office systems
surveys and feasibility studies, in coordinating projects and
providing technical supervision to assigned staff; and in
developing operational procedures and providing user training
A thorough knowledge of related government policies and
procedures and a good understanding of ministry organization
and legislation is essential, as are good consultative and
report writing skills
There is frequent and regular contact with clients and
other line management to discuss and define systems
requirements and costs, and to provide advice and consultation
on system high cost equipment There is frequent contact with
users to provide training and assistance on systems and
procedures, and ongoing contact with project staff to provide
technical guidance and project coordination. There is regular
contact with external organizations to negotiate for services
and supplies.
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In July 1989, Elizabeth Lea became Acting Manager of the
Ministry's Program Services Branch In May of that year, there had
been a Ministry reorganization in which Paul Burton had replaced
Les Fincham as Director According to Ms Lea's evidence, when she
became manager "the pilot project had died" in the absence of a
formal evaluation Ms Lea testified that she observed the grievor
I sitting in front of the computer but testified there were "no
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fruits of his labour, no products, and no maps produced" In her
words, the grievor "was unable to show me any evidence of work
completed" Ms Lea met with the grievor on at least two occasions
in the fall of 1989 and told him that he was expected to perform
>-manual drafting assignments and "not computer work" In cross-
examination, Ms Lea acknowledged that the grievor raised the
classification issue at both meetings and expressed concern that he
wasn't being paid enough money Ms Lea testified that although
she was aware of an acrimonious relationship between the grievor
and Supervisor Ryner, she was not prepared to recommend the
imposition of any form of discipline Ms Lea confirmed that
Director Paul Burton had serious concerns about the grievor's
performance and met with the grievor on November 16, 1989 That
meeting was confirmed in writing in the form of a memorandum from
Mr Burton to the grievor entitled "Performance Standards"
This will confirm to-day's conversation in which I indicated
that effective immediately you will be expected to
1) commence work between 7 30 and 9 00 am., the time to be
agreed between you and your supervisor and to be observed
consistently thereafter,
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2 ) observe a minimum of 7 25 working hours per day, with any
overtime to be first approved by your supervisor,
3 ) telephone the office before 9 30 am if you will be absent
because of illness,
4 ) perform all tasks assigned to you in accordance with the
duties and responsibilities as described in the job
specification for your position,
5 ) complete all required time and activity reports by the
deadlines currently in effect
please get back to me should you require any clarification of
these standards
Mr Ryner has been the grievor's direct supervisor since 1974
He testified as to a lengthy history of uncooperative behaviour on
the grievor's part dating back to the mid-1980s In fact, the last
successful goal setting and review of the grievor's work took place
in 1983 or 1984 Since then, the grievor has adopted the position
that the process was futile and would not result in any financial
gain In the fall of 1987, the grievor removed himself from the
drafting area and moved into the computer room From February 1988
onward, the grievor refused all manual drafting assignments.
According to Mr Ryner, the grievor swore at him on several
occasions, refused to attend a computer software training course,
refused a computer assignment from the previous Director Les
Fincham on the Greater Toronto Area Project and generally became
increasingly uncooperative Mr Ryner's evidence was to the effect
that the computer system has not been used for anything
constructive and that, in his opinion, the grievor has greatly
exaggerated his involvement with the installation of the system and
his subsequent involvement However, Mr Ryner did acknowledge
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that he and the grievor jointly conducted a demonstration of the
project for the benefit of a consultant in November, 1989 Mr
Ryner and the grievor both received written commendations for their
collective effort Mr Ryner acknowledged that he made no attempt
to discipline the grievor and allowed him to continue using the
computer for purposes of "training"
Joanne Hiscock is Manager of Systems Development in the
Ministry of Housing She has formalized training in computer
technology as a result of a three year program at Seneca College
As Manager, Ms. Hiscock is involved in the hiring of systems
officers Ms Hiscock admitted that systems officers are not
required to have credentials but are usually hired on the basis of
ability to perform the work coupled with formal education and
exper ie!nce She testified as to her familiarity with the Arcinfo
System and maintained that the system is designed for computer
users and not technical personnel According to her evidence, it
is impossible to use programming techniques to "alter, change or
modify" the Arcinfo software package She did agree, however, that
packages can be adapted for particular working environments
The Union argues that from the fall of 1987 to the date of the
filing of the grievance, the evidence established that the grievor
did not perform the duties of Drafter 2 Further, in the absence
of any reliable evidence to the contrary, the Union urged us to
find that the grievor performed work at the level of Systems
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Officer 3 Mr Whitaker contended that the Ministry imposed no
discipline on the grievor, was well aware of his activities, and by
its conduct condoned the work the grievor performed Mr Whitaker
contends that the Ministry had an institutional motive in allowing
the grievor to continue performing computer work and would have
allowed him to continue to do so but for the filing of the
grievance In support, the panel was referred to the following
authorities OPSEU (Drew et aU and Ministry of Correctional
Services 1101/87 (Barrett), and OPSEU (D. W. Kelly) and Ministry of
Transportation and Communications 1362/85 (Fisher)
The Employer argues that the grievor cannot obtain the
classification sought based on his own misconduct Ms Murray
contends that the grievor was not a credible witness and that his
description of duties performed and knowledge of computer language
were vague, at best. Significantly she acknowledged, that to a
large extent, the grievor was not performing Drafter 2 duties and
emphasized the fact that he had refused to perform the duties of
his classification. The Employer maintains that the work the
grievor did perform can be properly characterized as "non-
productive work" which was neither assigned nor required by the
Ministry The Employer submitted a number of authorities OPSEU
(Robert Brick et al) and Ministry of Transportation and
Communications 564/80 (Samuels) , OPSEU (Michael Bouchard) and
Ministry of the Environment 467/83 (Roberts) , OPSEU (Jack Sears)
and Ministry of Community and Social Services 446/86 (Barrett), and
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OPSEU (Peter Collins) and Ministry of the Solicitor General 807/85
(Kirkwood) .
The unusual aspect of this case was that much of the evidence
had the flavour of a discipline grievance rather than a dispute
over classification The grievor appears to have been a difficult
employee who became increasingly uncooperative with his supervisor
On a number of occasions he refused to accept regularly assigned
manual drafting tasks to the point that his supervisor stopped
assigning them to him We heard other evidence of conduct
deserving of discipline as well, although most of it was unrelated
to the issue of the grievor's classification. It is difficult to
understand why management, at all levels, allowed this behaviour to
continue We are led to the conclusion that, in these particular
circumstances, management abrogated its responsibility to manage
For whatever reason, management chose not to impose discipline We
must conclude therefore, that the evidence supports a finding that
the grievor's conduct has been condoned by the Employer
However this is not a discipline case, and the issue was not
whether the grievor was a cooperative employee The more important
issue is that Management knowingly allowed the grievor to work at
the computer for a period of some two years This is not simply a
case of condonation in the sense of failure to discipline The
grievor's supervisor, Mr Ryner, was well aware of the grievor's
activities in the computer room, which was only a few feet from his
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office Moreover, the grievor completed daily reports of his work
which were handed in to Mr Ryner on a monthly basis In addition,
Mr Ryner stopped giving the grievor manual drafting assignments,
and allowed him to restrict his activities to the computer
Finally, the Director, Mr Les Fincham, was advised of the
grievor's conduct and chose not to take any action This certainly
does suggest that it suited the Employer in some way to have the
grievor continue working at the computer
On the evidence, we are therefore satisfied that for a period
in excess of two years from the fall of 1987 to the time of the
filing of this grievance in February, 1990, the grievor did not
perform the job of a Drafter 2 In effect, Counsel for the
Employer acknowledged that fact. In the result, we find that the
grievor was not performing the duties and responsibilities of a
Drafter 2, wlth the full knowledge of supervisors at all levels
It is therefore unrealistic to conclude that he was properly
classified at the time of the filing of the grievance
In classification matters, the onus is on the grievor On the
evidence adduced, we are not persuaded that the grievor is entitled
to the classification sought of Systems Officer 3 Through reading
manuals and assisting Mr Wadhvana, the grievor has acquired a
degree of familiarity with computer use. On balance, however, we
find that the grievorts activities fall well short of those
required of a Systems Officer 3 Clearly the grievor has no formal
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training in computer technology and no experience in systems
analysis, design, and computer programming as required by the
Systems Officer series
On the evidence, we find that the grievor was not properly
classified as a Drafter 2 at the time in question However, the
claim to be reclassified as Systems Officer 3 fails In these
circumstances, the normal remedy is to require the Employer to find
or create an appropriate classification in accordance with the
principles in Ontario Public Service Employees' Union and Berry v.
Ontario Ministry of Community and Social Services (1985), 15 0 A C
In these circumstances, given that the grievor has now left the
employ of the Employer, and the fact that the very unusual
circumstances described above have come to an end, this approach
may be impractical and cumbersome for the Parties
We therefore remit the matter back to the Parties to determine
what would be an appropriate lump sum to be paid to the grievor in
recognition of the fact that he was working outside of his
classification In this case, this approach recommends itself as
being more practical, and one that will not waste the resources of
the Parties
In the result, the grievance succeeds, and the Board retains
jurisdiction in the event that the Parties are unable to resolve
.
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22
the question of remedy which is being remitted back to them
DATED at Brantford, Ontario, this 12thday of January, 1992
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R L VERITY, Q C - VICE-CHAIRPERSON
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LARR~--; ROB~~N~'" : .- ~ .
III Dissent" ( d is s e n.t. .a t t.a.c.h.e.dJ.
DON HALPERT - MEMBER
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GSB 504/90 (THOMAS)
OISSENT OF D. HALPERT
I have read the award of the majority and, with respect, I must
dissent. .
I offer the following comments in support of my decision:
On page 19, "The grievor appears to have been a difficult employee
who became increasingly uncooperative with his supervisor On a
number of occasions he refused to accept regularly assigned manual
drafting tasks to the point that his supervisor stopped assigning them
to him --- It is difficult to understand why management, at all
levels, allowed this behaviour to continue."
Difficult indeed I Why did a relatively straightforward case of
insubordination get so far out of proportion as to cost the government
five days of arbitration hearing and all the attendant costs and over
two years of unproductive pay while the grievor was refusing to accept
assignments?
This may be gratuitous editorializing, but the circumstances are
extreme. I am very pleased that the majority award makes these
circumstances so clear It should also be clear that when Elizabeth
Lea became acting manager in July 1989, she quickly recognized and
started to deal with this problem left to her by her predecessor
The majority concludes on p 20, "--- for a period in excess of
two years from the fall of 1987 to the time of the filing of this
grievance in February, 1990, the grievor did not perform the job of a
Drafter 2 "
So far, I agree
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However, the award continues, "It is therefore unrealistic to I
conclude that he was properly classified at the time of the filing of
the grievance."
This is the conclusion from which I must dissent I do not
believe that someone who refuses to do their job and is lucky enough
to escape discipline should be able to claim that they were improperly
classified Classification is a separate issue from quality of
performance or quantity of work produced or insubordination
We heard no evidence that the grievor was doing anything which can
be valued as greater than that of a Drafter 2. Even if I agree that
he was working outside his classification, it does not follow that "an
appropriate lump sum to be paid to the grievor in recognition of the
fact that he was working outside of his classification ", is
appropriate. Maybe the work he was doing was of lesser value than a
Drafter 2
I do not believe this grievor should benefit in any way from his
own misconduct, even if such was not properly addressed by Management
I would have denied the grieva~ce.
D HALPERT
Jan 31, 1992
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