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HomeMy WebLinkAbout1990-1360.Campbell, Dance et al.95-05-13 ... -- '0. '~"~""',' 'f~,u,.~" .,.'"'~~;- :."J~ i ( '," ."< ONTARIO EMPlO'tES DE UI COURONNE \ ,- CROWN EMPLOYEES DE l.ONT....RIO 1111 GRIEVANCE COMMISSION DE I SETTLEMENT REGLEMENT , I BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2 f 00. TORONTO ON M5G 118 I TELEPHONEJTELEPHONE (416) 326-1388 ......--...- faD. RUE DUNc;iAS OOES1"QEAU 2100. TORONTO (ON) M5G 118 FACSIMILE/TELECOPJE \ (416) 326-1396 1'";";, .... ~ lIP'" I , , ",""\'1 ;.~. , 1.,., ''''..,1 .' ,,. ~ . : I i I i GSB# 1360/90, 2737/91 I MAR 1 4 1995 I OPSEU# 90D192-90D210, i 92B433-92B451 t, _-c,........., Qt:.:.M\tlCE. i APPEAL BOARDS \ IN THE MATTER OF AN ARBITRATION --, Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT .. Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Campbell/Da~ce et al) Grievor - and - The Crown in Right ,of ontario (Ministry of Community & social Services) Employer ~EFORB : N Dissanayake Vice-Chairperson JC. Laniel Member D. Halpert Member FOR THE R. Anand GRIEVOR Counsel Scott & Aylen Barristers & solicitors FOR THE S. Mason EMPLOYER Counsel Legal Services Branch Ministry of Community & Social services HEARING July 12, 1994 -" . 2 DECISION , This decision deals with a claim by the union that the , employer has failed to comply with a "Berry order" the Board issued in a decision dated April 15, 1993 - That decision dealt with two groups of classification ~ grievances. The first group consisted of grievances of 15 ". ,.. grievors who held the position of Specialized Training and Education Program Instructor (STEP Instructor) . They claimed that their positions were improperly classified as Counsellor 2, Residential Life (RC2) . The second group consisted of grievances of 4 grievors who held the position of Specialized Training and Education Instructor (STEI Instructor)_ _They claimed that their position, were improperly classified as Instructor 2, Recreation and Crafts (RCI 2).' 0 During the relevant period, all of the grievors worked in the Special Training and Educational Programs Dept. (STEP Dept.) of the Rideau Regional Centre in Smith Falls, Ontario. At page 4 of its decision the Board described the manner in which the STEP Dept. came into existence: The evidence indicates that in 1979 the RRC undertook a major restructuring of its services. As part of that, management decided to draw together all of the employees who did programming in the various units and to form a separate programming department. committees were formed with a mandate to prepare curriculum for training in a number of skill areas After the findings of .. 3 the committees were approved, in 1981 a new off- ward programming department Was established and narned the Special Training and Educational programmes Department (STEP). This de:partment came under its own Director Under the Director, there were 3 STEP supervisors, who had respc,nsibility for some 30 programming staff The prc:>granuners who came from the various units continued to be classified as RC2 in their positions in the STEP Department The Board heard that in 1982, a number of ,~ employees from the Occupational 'I'herapy Dept. joined the STEP department as programmers and did the same duties as the programmers who came from the residential units However at the time they did not possess the Developmental Service Worker (DSW) designation Instead the~y held the designation of Occupational Therapy Assistant (OTA) In the occupational Therapy Dept. their positions were classified as RCI2. Upon their I transfer to the STEP Dept. their positions I I continued to be so classified. The group of grievors holding the position of STEP instructor were the ones drawn from the res idential units into . the STEP Dept. The group of 4 grievors holding the position of STEI came to the STEP Dept. from the Occupational Therapy Dept. For reasons set out in its decision, 'the Board concluded that the positions of the 15 grievors holding the position of STEP Instructor were properly classified as RC2 Therefore those grievances were dismissed. With regard to the 4 STEI Instructors who had grieved, the Board observed at p 20 as follows: ::- 4 . Four of the grievors hold the position of Special Training & Education Instructor, which is classified as Instructor 2, Re9reation and Crafts (RCI2) . The evidence shows that despite holding positions differently titled, .all of the programming staff in the STEP department perform almost identical duties and under similar working conditions and procedures. The only reason these grievors' positions are not classified as RC2 is because that class standard requires the DSW (or MRC) qualification. These grievors hold the Occupation Therapy Assistant (OTA) designation and worked in the Occupation Therapy Department, prior to the establishment of the STEP Department. While they were employed in the Occupation Therapy Dept., as Occupation Therapy Assistants, their positions ,.. were classified as RCll. upon transfer to the STEP department they continued to have the RCI2 classification, although they were filling a new position in a different department. In concluding that the-STEI positions were improperly classified as RCI2, the Board held as follows at o. 23: We agree with union counsel that the mention that employees may be involved in the instruction in "social graces, personal behaviour and hygiene", is not sufficient to bring the grievors' positions within the RCI2 class standard. While the preamble envisages that employees may as an incidental matter be involved in instruction in certain life skills, the grievors perform programming duties as the core of their jOb. See, Re Anderson 497/85 (Roberts). The core duty of the gr ievors , i.e. programming, is given little or no weight in the class standard series. Accordingly, the Board concludes that the four grievors are improperly classified as RCI2. It is to be noted that it was common ground that STEP Instructors and STEI Instructors performed essentially the same duties ie. programming. Since the Board, in dismissing the grievances of the STEP Instructors, had concluded that . 5 those duties properly fit within the RC2 class standard, it would seem on the face of it that the STEI Instructor positions would also fit properly within the RC2 class standard. However, there was one problHm. The RC2 class standard required the qualification of DSW (or MRC) The 4 STEI Instructors did not possess that designation Instead f they held the designation of Occupational Therapy Assistant (OTA). Therefore, the Board held at p. 2:3: .. We have earlier concluded that the STEP Instructor positions are properly classified as RC2. Therefore it would havejbeen logical for these four employees also to be so classified, because it is common ground that thedr duties are very similar. However, the parties appear to be agreed that the DSW (or MRC) is a mandatory requirement in the RC2 class standard. These grievors do not possess that designation. In the circumstances, the Board has no alternative but to direct that the four grievors' positions be properly classified. In response to the Board's finding th.at the positions in question were improperly classified as RCI2 and its direction to properly classify the positions, the employer reclassified the STEI positions from RCI2 to RC2 (atypical). The union I claims that such action does not constitu.te compliance with the Board's direction to "properly classify". I I Counsel for the union submits that "atypicalfl i classifications are no longer valid in 1:he ontario Public I Service as a result of the Divisional Court decision in I ;;" . 6 O.P.S.E.U. v. Ontario (Minister of Community and Social Services, ( 1985) 15 O. A. C. 15 (D i v. ct.). (liThe Berry Casell) . Reliance was placed on the observations made by the court at paragraphs 24 and 27 of its j'udgement Counsel submits alternatively, that even if atypical classifications are not per se invalid, the employer cannot create an atypical ,~ classification ,in response to a Board order directing that positions be properly classified. Reliance is placed on . '" O.P.S.E.U. v. ontario (Minister of Natural Resources), (1990) 75 O.R. (2d) 212 (Div. ct ). (liThe Anderson case"). The Board has had occasion to deal with atypical classifications and their place in the Ontario Public Service following the Berry Case. A review of that jurisprudence reveals two things. First, that the Board has consistently recognized that the Divisional Court_decision in the Berry Case did not have the effect of invalidating atypical classifications. For example, in Re Kuntz 85/89 (Verity) the Board in rejecting the union's argument that the Berrv decision had that result, observed at pp. 8-9: Despi te Mr, Roland1s able argument, the Board cannot accept the Union's first submission that an atypical allocation is inappropriate per se following the judicial review in Berrv. simply stated, the judgment in Berry stands for the proposition that where an employee is improperly classified, the Board has the remedial authority and indeed the obligation to order the employer to properly classify that employee I ., - 7 In Re King 2028/86 (Roberts) at p 5 the Board observed that "since Berrv, this Board has consistently held that it remained possible for the Ministry atypically to classify a position"_ similarly in Re Kelusky, 1098/B6 (wilson) at p 9 the Board stated" "... I take it now as this Boardts position as a bare proposition that "atypical" cla~ssification is not per se invalidll. See also, Re Jaqger, 969/89 (Knopf). Despi te union counsel t s very able sUbmissions, we are not persuaded to depart from the foregoing de<::isions A careful reading of the Berry decision, particularly paragraphs 24 and 27 relied upon by counsel, do not reveal bo us anything which suggests that atypical classifications werE~ unacceptable. The court there finds that the Board has the untrammelled power to remedy a violation by directing that a position be properly classified. There is nothing however to indicate that the proper classification cannot under any circumstances be achieved by an atypical classification. The second principle that emerges fr()m the Boardts post Berry jurisprudence is that while atypical classifications are not per se invalid, for an atypical classification to be a proper classification, the essential or core functions of the position must not significantly vary from the core functions of the archetype of the classification Thus in Re Jagger (supra) at pp 4-5, the Board stated I = ; \ B ~ We also accept the concept ~hat an atypical classification type of designation is necessary in the classif ication scheme of the Government Services. There are far too many jobs involving a wide variety of duties and responsibilities for one to expect or hope for a class definition for each position The Class standards must be general in nature and must be generally enough drafted in order to cover the appropriate number of positions This was recognized in the Keluskv decision, supra, where it'was said: I am of the opinion that while the Berry ~ decision may not have invalidated atypical classifications, this Board given its clear mandate to direct that a " new classification be established when it is satisfied that a grievor is improperly classified must insist that an atypical classification not vary widely in its core features from the archetype of the classification. Thus, while we accept the concept of an atypical classification, and we accept the importance of generalized Class standards, we must ensure that there not be a wide variation in the position in question from the "core features" of the "archetype" of the classification. ~Based on this jurisprudence therefore, the p:t"esent law is that atypical classifications may stili be acceptable, provided that the core functions of the position in question reasonably fits the core features of the archetype of, the classification. Whether that is or is not the case depends on the facts of each case. As the Board observed in Re Kuntz (supra at p lO), "At the present time, the atypical allocation is an integral part of the employer's classification system. In the result, the Board is obliged to , - 9 consider the merits of an atypical classification on a case by case basis.11 Fo110wing from that, the task of the Board in this case would be to consider whether the core functions of the STEI Instructor positions of the 4 grievors reasonably fit within ~ the archetype of the allocated classification, namely the RC2 classification. If any variance in t:ha t regard was not ... significant, the atypical classification would be acceptable. However, the union argues that even if atypical classifications are not per se invalid, an employer cannot comply with a Berry order to "properly classify" by allocating an atypical classification. While counsel filed the Divisional Court decision in the Anderscm Case (supra), the court does not deal with this issue at all. The court decision stands for the proposition that the Board's remedial jurisdiction includes the power to review the content of a class standard created by the employer in purported compliance of a Berry order issued by the Board, and to determine whether that class standard complies with th~~ Board's order to I1properly classify" That issue is not before us because the employer concedes our jurisdiction to r~~view the employer's actions for compliance following our ori9inal decision. l A \ . . I I 10 I I Nor do we read the Board decision in Re Anderson 497/85 I (Roberts) as supporting a general proposition that an atypical I classification cannot constitute proper compliance with a i I Berry order. In that case, in its initial decision the Board I held that the existing classification of Resource Technician (RT3) was no longer appropriate for the grievors positions, I 3 I ~ because the grievors' work duties had changed from technical I and resource management duties (which are reflected in the RT3 ,... I class standard) to 'almost entirely enforcement duties. In the circumstances the Board held: I Here, virtually the only duties that the I grievors performed - enforcement work - are given little significance in the description of the class standard. They are overwhelmed by technical and I management duties. We believe that in a non- atypical classification such as the one at hand, I the class standard must contain a more significant reference to the work being done before it can be said to embrace virtually the totality of a job. I Accordingly, it is the conclusion of the board that - the grievors are improperly classified in the I classification of Resource Technician 3 In accordance with the decision of the I Divisional court in Ministry of Community and social services and OPSEU (Berry et al.) (unreported samuels) the matter is remitted to the Ministry for purposes of establishing a proper classification for the grievors. The employer's response to the Berry order was simply to tack on an atypical designation to the existing RT3 classification, which the Board had found to be inappropriate. The Board held that it "did not consider the Ministry I s action to satisfy the requirements of our award" \ . . 11 In our view the Anderson decision :is fully consistent with the principles we have elicited from the Board jurisprudence earlier in this decision, and the circumstances there are clearly distinguishaoble from the circumstances before us. In Anderson the Board had found that the core functions of the grievors, the enforcement duties, were given little significance in the RT3 class st.andard. The Board found that the RC3 class standard was "overwhelmed by ~ technical and management duties". In re:sponse to the Berry order, the employer merely allocated a RT3 atypical allocation to the grievor's positions. The Board not surprisingly held that such action did not comply with the ~erry order. We say not surprisingly, because the Board had decided that the RT3 class standard, the archetype of the classification, did not capture the core duties performed by the g:rievors. Therefore - an atypical allocation of the same classification obviously did not remedy the situation. As the Board has consistently held, an "atypical classification must not: vary widely in its core functions from the archetype of the classification". (See, Board decisions cited supra). The facts before us are very differEmt The grievor's positions were classified as RCI2. ThE~ Board found that classification to be improper and made a Berry order to properly classify Unlike in the Anderson case, the employer did not tack on an atypical allocat.ion to the RCI2 ~ ' . \. I 12 ~ classification which had been rejected by the Board Instead, the employer reclassified the pos i tions as RC2, which the Board had found to be properly reflective of the duties the grievors performed. The only problem with the RC2 classification was that it required the DSW designation as a classification The grievor's did not possess that qualification, but instead had the OTA designation In order " to reflect that discrepancy, the employer designated a RC2 ... (atypical) classification to the positions. In the present case, it follows from our decision with respect to the group of ~5 STEP instructors, that the grievors' core duties ie programming properly fit the RC2 class standard. These 4 grievors appear to be an anomaly within the STEP Dept because they were drawn from the Occupational Therapy Dept. when the new central programming system was established, whereas all of the other programming staff came to the new department from the various residential units of RRC. Thus they do not have the DSW designation but possess an alternate designation of OTA This is the only variation from the RC2 class standard. In our view, this is an appropriate situation for an atypical allocation It does not matter whether the atypical allocation was initiated by the employer voluntarily or whether it was done pursuant to a Board order to properly ( 4 , 13 classify. In either case the test is the same. Does the grievor's work significantly vary from the core features of the archetype of the clal;sificaticm, ie. the RC2 classification It is our conclusion that the difference in the professional qualification "the g~ievors possess does not constitute such a significant variance so as to make the atypical allocation inappropriate . ~ In the circumstances, we find that the employer has reasonably complied with the Board's order to properly classify. Dated this 13th day of March. 1995 at Hamilton, ontario /'~~7J~ ~ '-- -- -- ... N. Dissanayake Vice-Chairperson .C Laniel Member j) JlY! 0 Halpert Member I