Loading...
HomeMy WebLinkAbout1975-0013.Vukoje.76-11-10I ,. ,. I~ ‘&t&h EMPLOYEE: 416/964 6426 GRIEVANCE SwrLmEwr .I BOARD r #13/75 Suite 405, 77 Btoor sikmet West " TOROiVTO, Ontorio. MS lM2 . . -, IN ,THE'-MATTER OF AN ARBITRATION. . Under.The '! ,; ' CROWN'EMPLOYEES COLLECTIVE BARGAfNING ACT Before THE GRIEVANCE SETTLEMENT BOARD _ I I -Mrs. R. Vukoje -. c. And . (The Grievor) :Ontario Housing Corporation (The Employer) ~ Before: D. M. Beatty -'Chairman -. 'Mary Gibb -2 Member ," t. - :. S,R. Hennessy - Member For the Grievor Mr. Maurice A. Green, Golden-Levinson ,Torpnto, Ontario For the Employer Mr. A. 3. Tarasuk,.Central. Ontario Industrial Relations Institute, Toronto, Ontario Hearinos 'Westbury Hotel,"Toronto, February 27i.1976 Westbury Hotel,Toronto, June-J, 1976 Suite 405, 77 Bloor St. W., Toronto, October 18, 1976 .' In the grievance that has been brought before this Board, Mrs. R. Vukoje claims that as a Clerk Typist 3 in the Corporation's Hamilton Housing Authority, she has been improperly classified. It is her contention that she should more properly be classified in the position of Clerk 3. At the initial hearing into her grievance Mr. Tarasuk, for the employer, argued by way of preliminary objection, that Mrs. Vukoje and the union were now estopped from raising such a complaint before this Board in that her classification of Clerk Typist 3 had been the subject of direct negotiations between the parties on the occasion of the settling of the first collective agreement between them. Indeed, this initial objection to our hearing the merits of Mrs. Vukoje's grievance consumed the enttre duration of the first day of our hearings into this matter and after receiving evidence and hearing argument with respect to it, this Board ruled that the employer's objection was without foundation and agreed upon the release of our final award to incorporate our reasons for so holding in that award. Essentially the bases upon which this Board ruled against the Corporation's objection as to the arbitrability of Mrs. Vukoje's grievance were two fold in nature. In the first place, it is our opinion, for the reasons that we have set out more fully in our Re Joyce 21/76 award, that even if the union and the employer did agree in direct negotiations that Mrs. Vukoje was properly classified as a Clerk Typist 3 and would remain so classified until such time as her duties changed or a -3- new agreement was signed, such an agreement between the parties could simply~not,raise an estoppel against Mrs. Vukoje. That ! '-~~ I MrsYVukoje herself at no time made any representations to :her employer'as to the propriety of her classification is, from -_. .(,. record, manifest;‘ Moreover, and even'if the union did in fact r make such a representation to the Corporation with respect to i i. -. her classification we'simply are unable, in light of the legislative framework under which this-grievance arises, to . :I , ,,,,: conceive how such a representation could bind Mrs. Vukoje. That . is to say, it is our~reading of ss. 6 and 17 of the Crown Employees _, Y .‘. Collective,iargalnlngAct that in matters pertaining to an employee's ~.'classification the union and the emoloyer.are simply nOi Competent to bargain over, agree to or in any way affect an.employee's . . right to grieve as to the propriety~ of her classification, Sect!ons I 6 and 17 of the Act provide: 6.~Upon being granted representation rights, the employee organization is autimrized to bargain with the employer on terms and conditions of employment except as to matters that are exclusively the function of the employer under subsection 1 of section 17, and, without limiting the generality of the foregoing, including rates of remuneration, hours of work, OVertinie and Other.preUtium allowance for work performed, the mileage rate payable to an employee for mfles'travelled when he.is reguired. to use his ownautOmobile on the employer's business, benefits pertaining to time net worked by employees including paid~holidays, paid vacations, group life insurancer health insurance and long-term income protection insurance, .promotions, demotions, transfers, lay-offs, or reappointments of employees, the procedures applicable to the processing of grievances, the classification and job evaluation system, and the conditions applicable to leaves of absence for other than any elective public office.pr plii$caJ actiyities or training and development. 17.-(l) Every collective agreement shall be deemed to provide that it is the exclusive function of the ei?plojer to manage, which function, without limiting the generality of the foregbn9, includes the right to determine, -4- (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions; and (b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. (2) In addition to any other rights of griebance under a collective agreement, an employee claiming, (a) that his position bs been improperly classified; (b) that he has been appraised contrary to the governing principles and standards; or Cc) that he has been disciplined or dismissed or suspended from his employment witbut just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in ac- cerdance with the procedure for final determination ap- plicable under section 18. From those sections it appears to this Board,and indeed from the evidence it would appear that the employer'concurred in this view throughout the negotiations, that while the "classification and ,joh evaluation s),stem" (emphasis added) is properly a matter for negotiation between the parties and is within the competence of a board of arbitratlon,nevertheless by virtue of s. 17(l) the actual "classification of positions" is within the exclusive prerogative of the employer and such a matter can "not be the subject of collective bargaining nor come within the jurisdiction of a board". Indeed, if the legislation had concluded at that point, it could be argued that the employer's right to classify <’ .’ -5- .'.. positions would be absolute,:unfettered and beyond challenge in -any forum. ,However and precisely because the legislature recognized.that in an organization, as vast and pervasive as the public service.the employer could innocently and in good faith improperly classify: a person on'the basis of the operative system, it provided the employees with the right, independent of / collective bargaining.and collective agreements, to challenge .' such a classification: -Indeed it js..preci’seiy becake the .~ ~, classification of.position is,: by virtue of s. 17(l) of the Act ‘7 beyond‘the competence-.of colle&ve.bargaining~ and boards of :1 arbitration, that the right to challenge the classification of one's position must.necessarily have, been given to the employee. ., In-the result, and-against such a legislative framework, it is I , a.: '. ; wee believe, simply notiwithin the competence or authority of the union to make representations about a-matter which,except 1: for the employee's 'personal right'of. grievance,falls within the - ..I . . employer's exclusive"pr&og*ative, Necessarily then, and even if the union had:made a representation on the propriety of Mrs.,~Vukoj~‘S present.,classification th&'representation would, '. in light of s. 17(l) simply have no force or effect and could not have induced the employer to act to its detriment nor, in light :. ofs. 1?(2),.could it‘have~ deFiedthe grievor any rights which the , _- I .~ legislature had be&wed upon her $ersonally. Re Joyce 21176. .z However, and even if we are wrong in our analyses of the ,legislative framework with respect to the matter of classification, there is, to this Board a second and equally fundamental flaw in the employer's argument as to the arbitrability of the grievance. Specifically. and onthe evidence adduced before this Board we are -6- requisite elements of an estoppel have been made out agatnst the union. The doctrine of promissory or equitable estoppel has been consistently applied by boards ,of arbitration 4n the private sector and has recently been the subject of a thorough review by one board of arbitration which observed: The doctrine of promissory estoppel, or rare properly on the facts of the case before us, estoppel by conduct, has as it mdern source the judgmsnt of Denning, J., in Central London Property Trust Ltd. v. Rfgh Trees Rouse Ltd. 0947jX. B. 130. This doctrine AS subsequently developed and elaborated by Denning, L.J. in the case of Combe v. Con&e 0953 1 All E.R. 767, 770, .'olds that: "The principle, as I understand it, is that where one party has, by h&s words or conduct,made to the other a promiseor assurance which was intended to affect the legal relations between them and to be acted on acmrdingly, thea, once the other perty Jns taken Nmat Ns uzrdandected on it, the one who gave the promise or Assurance cdaaot afterwards be allowed torevert to the previous legal relations AS if no such promise or assurance had been made by him, but he must accept thefr legal relations subject to the qualifications ,which he himself has so introduced, even though it is not supported in point of lAW by any consideration, but only by his vord." More specifically as elaborated fn an extrajudicia.2 exposition, Dennfng, L. J. explained that the doctrine is only applicable in those circumstances (i) where the parties have already entered into a definite and legal contractual !or analagous relationship (but see Watson v. Canada Pernnnent Trust Co. (19721, 27 D.L.R. -’ 7- (3d&i3S1 (B.C.'s.C.) and generally Jackson; d. "Estoppel as a Snvrd" (X35), %3x L.,Q'. Rev. 84); (ii) that there must be scmt~~nduct or promfse ,!'which. induces t+e other party to &dfeye.that the.strict legal rights under the contract !.will not be enforced,or will be kept in suspsnse"'i and ~, (iii). th+ "having.r&ard to the dealfngs.which,bave taken place between the. parties" it.would be inequitable to.allow-that party to enforce their strict legal rights. With respect to this last condition Dennfng, LA7. has written:; i '. ..' ,; "But where the &ty has made %J promise, ,C erRress~or-implied; and all that~canbe &aid ., ,. ..,_, again~t,h.h~is that he by Ns conducthas- - -induced the*:other-to believe that the btrfct . . rights ,under the contract will not be enforced .or~ kept fn suspen&e; then the positioh,'fs ?- : different because~,there.fs no qixestion of good faith--no queStion of a man keeping his .woqd.-.& those~ cfkumstances it may be necessary -for the other party to show mt only that he acted, butalso that'he acted to Ns detAment,'inthe belief that the * strict rights would not be enforced. This is what is necessary fn the case of an !,:':, estoppel and there is no good reason why it shuld not be'necessary here." 1 mMing, A. J., "Recent LWmlopments in the Doctrine of,Consideration", (1952)~ 15 Mod. L. Rev. 1, 5. .! .' ",;.; ,i &m.the~aLvve and as has been recognized in earlier erbitral awards (Re Westroc Industries Ltd. and United Cement, Lime's apsum workers, Local'366 119?3), 3 L.A.C. (2d) 102, 110 (Reatty)) it i.s mnifest then that even when all of the conditions stipulated by Lmning, L. J. have been met, the doctrine of promissory estoppel merely suspends rather than extinguishes legal rights unless the promise is absolute and irrevocable by its terms or unless the -a- party to whom the respresentation was nmde cannot resume their original positfon. That is to say, perceived as an aberration to or derogation of the doctrine of consideration, courts have generally recognized that such promises or conduct which is cOnstrued as tant- amount to a promise, unsupported by consideration generally could not be enforced in the same manner or in the same fashion as d promise which was supported by consideration. Rather, as the case law has.developed, courts have expressed the view that where the prty to whom the representation, whether by words or conduct, was made can revert to its original position, the party against whom the estoppel is asserted may bring it to an end either on reasonable notice or when the conditions which supported the estoppel have come to an end. Tool Metal~kkfacturlng Co: Ltd. and Tungsten Electric Co. Ltd. (1955) 1 W.L.R. 761 (H. L.); Central London Property Trust Ltd; v. High Trees Rouse Ltd. (SuDral . Indeed it has been held that the notice which may-be given to bring the promise or representation to an end need not be formal notice so long as the party to whom the representation was made had a reasonable opportunity of reverting to its original position; Ajayi v. R. T. Briscoe (Nigeria) Ltd. (1964) 1 W.L.R. 1326 (J.C.P.C.). And see 9'enerally J. F. Wilson “A Reappraisal of Quasi-Estippel" (1965) Camb. L.J. 93. Re Genera? Concrete of Canada Ltd. (1976) 11 L.A.C. (Zd) 187, ZOO-201 @catty) Applying those principles to the facts of this case it is apparent, at the outset, that, because the alleged representations made by the -9- union was made, if at.all, during the course of negotiations between the parties, at a time when the parties had not entered into "a definite and legalcontractual or analagous relationship",that the , first and fundamental:&iterion of the doctrine~has not and can not be sa,tisfied. 'Itide$1to clothe's <<presentation made during the cuurse~of~negotiations'$th the force of'-a contractual right . would be to undo, in one.stroke, years of common law jurisprudence which requires for such representations to'have legal effect, that.' they be supported~ by legal consideration. Very simply, unless such a representation,made during the context of negotiations, ' found its way into the terms of the:agreement, it would not be enforceable . either as a cqntractual right,or asan equitable estoppel. . Although such an analysis effectively precludes the employer from relying.on the d0ctrin.e of .promissory estoppel, the Corporation directed our attention to certain passages in an award of a board ,of arbitrdtion chaired by, His.ho,nour Judge Anderson, which ultimately . .culminated in the signing of a collective agreement, which it claimed embraced the reeresentation allegedly made by the union. However, on a clo~se reading of that award and'of~ the agreement we find no support for the employer's contention. Indeed, and in any' event, ,before-considering those passages, it is important to I: recognize that even'if such a representationwere included in the <agreement, one would be enforcing it, not by way of an estoppel, as contended by the employer, but rather as simply part cf an agreement which had been settled by the parties. The particular passage referred to by the employer reads as~follows: - 10 - The Board understands that there is a range of rate5 which covers all full tim clerical employees in the various classifications. In most instances, ft is the Board's understanding that in addition to th8 lowest or Starting rate, the employee ~118~s he/she is not a satisfactory emplOyee, mO”8S up through four ranges - the second range being generally aldut 4% higher than the first range. the third range being qenarally about 4% higher than the second range. the fourth range being qenerally about 4% higher than the thlrd range. th8 fifth rang8 being generally a&Ut 4% higher than the fourth range. and that an employee mves through the range on an annual basis unless J&she is not wnsldered to be a satisfactory employee. Tbut, a cl8ricN employee buu.Zd arrive at the highest step Fn the ranqe aft8r fOut years Of 8mp~OyIWnt Wh8r8 there dr8 fOIU steps in the range in addition t&the starting rate. Where there are Only three steps in the ranqe in addition to the Startli?q tat8 the 8SIp1Oyw vould likewise woe through th8 range of rates and up to the highest step in the range after tht88 years Of 8IDp~O~t~ It shell be part ofthd award thdt employees be placed in the range of rates in th8ir pmper classification and progress through the range of rates in dCWrdwC8 With the fOr8gOing. According to Mr. F. Harrison, who.at the time was employed as a Senior Advisor, Staff Relations and who participated in both the direct negotiations and in the sessions conducted by His Honour -‘ll - 5 Judge Anderson, that passage inthe award, ultimately reflected itself ., in Article 14 of the agreement. 'Article 14, begtns by providing: : %., ARTICLE 14 - WAGE RATES ' , 14.01 The wages df'all ekplo$ees cvminq wf& the barg&inq 'I. unft, SbalJ be a,? fc+lows: (full time,employeesl GROUP 1 - ADMINISTRATIVE ENPLOYEES,,~ whose wdqes,.are 8XpreSS8d On a y8ariy basis CLASSIFICATION .Y ., 2nd 3rd 4th 5th and continues by listing, by classification,,;the range of wage rates that are appended to.each of them, ,_ ,."i On their face,.and standing alone this Board is simply unable -~to acceptthe'employer's contention that the passage cited above and Article.14 in any way kh-ess themselves to the issue of where each of the BOO~to 1,000 employees &$loyed'by the Corporation are to be placed in the classification scheme. In the first place, as we noted earlier, such an hssuinption:by the Board, would have directly,offended s.' 17(I) of the Act': Moreover, on its plain terms, and as'it is reflected in Article 14~, the passage in " Judge Anderson's~award, on our reading, sim$y purports to confirm, in general or global terms, that employees are to be placed in their proper classification"at ttie'prope'r rate in accordance with the procedure described in that passage';. That is, and very simply, the award itself purports to do no more;thanestablish the principles of the range of rates that are to'be appended to'each classification and the,timthod'by which employees dare to tie allocated to and progress through.those ranges:~ Succinctly, the award and the agreement direct-themselves only to the issue of how-employees generally are to be classified,and not kh6 is to be positioned in each clas. sification. Indeed if that were not the case, there would have been no -12- need for the board to have added in the concluding sentence of the quoted passage that employees were to be placed in their "proper" classification. Infact, by including that word in his award, we believe that His Honour Judge Anderson clearly understood the limits of his authori, pressly preserving an employee's rfghts as expressed in 5.1 Act to grieve an improper placement. ty and was ex- 7(Z) of the Ue belleve that both the award and the agreement are clear on their face and do not admit of any ambiguity or interpretation that the board was ordering the actual placement of some BOO employees in aP- proximately thirty classifications. In the result we'd0 not believe it necessary or proper for this Board to admit extrinsic evidence to explain what we perceive to be the plain meaning of those documents. However and to the extent extrinsic evidence was adduced at the hearing, even if it were admissible, we believe that it confirms our reading of the award and the agreement. In the first place, as Mr. Harrison himself admitted, at no time did the union or any of its agents actually raise the name of this grievor and confirm that her proper classification was that of a Clerk Typist 3. Moreover, and although the classification of certain _' employees in other parts of the province was raised by the union as being described incorrectly on certain documents submitted to the board of arbitration, that fact standing alone simply does not reflect the kind of clear representation that is required to support an alleged estoppel. Thus, according to the union's evidence, their queries with respect to the classification shown by the employer for certain employees employed elsewhere in the province were intended to do no more than demonstrate the inaccuracy of,the material the employer had filed with the board and did not represent, nor were intended to represent an agreement as to the classification shown ; - 13 - ,’ by the employer for all oftheother, 800 employees in the unit. ..Mo,reover .~and ~if, as the empl,oyer,argued, boththe passage in the award noted above . 'and Article 14, had as.thpir source a question posed by the board to the parties, again we are s!mply~unabl,e to comprehend how one can argue that ~1.. :the questioning of the~classfffcation of one ortwo employees,whfch was in- dicated'on documenfs,~:pre,pared by the employer can ;be,,said.to be a<re- ,presentatfon by ,the unjon that all of the other. employees,were properly classified. That question, as posed by the board and as primarily directed 'to the employer askech . *, -_ .;-; ',, t. 20. Row sre the various employees piaced~ in the different da&-ifications? : However, and as manifested in the,letter.sent by the board, it fs Llear ,that in asking that question the,,board was not attempting to piace each employee in the unit in a partjcu;.& classification, but rather v& simply ,, L attempting to work out some fair and equitable system of wage apportion- ment between the classificatfons ,and.perhaps as well to ascertain, the ap- ,. proximate cost of its ultimate awarp. Thus, !n addition to Question 20, the board also asked: ' : - I I.. ~.Re: CLERICAL EHPLOYEES~ 18. What are the actual hours of work of clerical employees who work: 35 hrs. per week; 36% hrs. per week: 37% hrs. per week; 40 hours per week? : - ._ IL> 19.. In the cage where the hours differ, islthe rate~of pay,determined by the hourly rate or by the yearly rate? 21. Are the& overlapping responsidilities in the different cl&sifications? . .-. 22. DO employees, exc&pt in'exceptiod circumstanties, only perform work within their own-job descriptions? . Thus and as Mr. Harrison himself confirmed amongst the primary purposes lying behind the board's posing of Question 20 was its attempt 'to strike some - 14 - equitable system of wage rates for comparable classifications, and to determine whether the differential in the job duties of the classifications was sufficiently clear. In short then, and in that context, it was we bel~ieve not reasonable for the employer to conclude that in challenging the classification ascribed by the employer to one or two employees in one part of the province. it was tacitly confirming the classifications ascribed by the employer to all other employees in the unit. To the contrary, and more reasonably we believe, the union's marginal discussion of particular classifications was intended, and reasonably should have been perceived, as fan attempt by it to challenge the accuracy and worth of the employer's data that was submitted to the Board. Very simply, and in the context of what we believe, and the parties basically confirmed, was es- sentially an assessment and determination of appropriate rates for comparable classifications, we do not perceive the union's actions and. representations to be so clear and unequivocal or so singular in purpose that they could give rise to an estoppel. Indeed in the complete absence' of any detailed discussion between the parties or by the board as to the particular clas- sification of the employees, we would conclude that it was unreasonable and umrarranted for the employer to have assumed that the union or fndeed the board was making any representations as to the propriety of the clas- sification of some 800 employees in the unit. In short, and in the context descr'ibed we'would find as a fact that the union did not make any re- presentation which was so clear unequivocal and singular in purpose that the employer should have relied upon it as revealing a conman intention of the parties as to the individual classification of all of the employees in the unit. I / I * ( i - 15 - .~ ‘. . . In the result and having determined that thi' embloyer had failed to prove the requisite elements of an estoppel agai~hst the griever', the board :: '. reconvened the hearing on Juno 3, 1976 and again'on 'Cctober.l8,'1976 to receive evidence and argument with respect to the merits of Mrs.' Vukoje's ,.. complaint. tiohever and prior to the introductionof any evidence, the employer challenged.the,presence at the hearing of Mrs. C. A. ,Cox, another employee.of the Hamilton Housing Authoritylwhose grievance was filed,together with Mrs. Vukoje's and had, on the,agreement of the parties, beenset down to be heard by the same panel of.-this board immediately fo!lowing the conclusion of Mrs. ,Vukoje's case. After enter- tafningsubmfssionsfrom both counsel, this Board, having been offered no legal basfs on whfch.Mrs, Cox,could be ,excluded, denied thelemployer's request. Very simply, and although this Board was apprised that the employer had denied.Mrs. Cox the permission to attend~at the Board, we expressed the view that regardless of whether Mrs..Cox could properly be disciplined for attending at.the hearing on June 3,,1976,that was,in the first instance, a matter for the employer,to decide and ultimately,should Mrs. Cox grieve ..any_su~ch dfscfpline, for another panel of this Board to pass on. Until.those eventualities transpired howev&'such a determination would obviously be premature and beyond the competence of this ,Board. however, and in advising the employer that it was not within the competence - or inclination of-this Board to order Mrs~;.Cox to return to work, it was noted that it.was our understanding that Mrs. Cox's grievance was scheduled to-be heard by this same panel of the Board inmediately following the con- clusfon of the hearf~ng into Mrs. Vukoje's grievance, and,that if we con-' eluded her grievance at a reasonable hour, it was the Board's expectation .~ to proceed forthwith with Mrs. Cox's case. It wds, moreover~, the Board's i - 16 - opfnfon that the employer and indeed ultimately this Board might well consider the manner in which these two grievances were scheduled by the Board in determining whether it was proper for the employer to prohibit her from attending at this hearing and for threatening her with disciplinary sanctions for her failure to conform to their instructions. Those protracted and at time acrimonious preliminary matters aside, the evidence adduced at the latter two hearings, while detailed and lengthy, was, for the most part,straightfotward and not a matter of dispute between the parties. In the first place, and as described by the grievor, 1 Ms. West, and her supervisor Ms. fedford. Mrs. Vukoje's job duties throughout the period from March-April 1973,when she was classified as a Clerk Typist 2,until the date she filed her grievance. remafned unchanged and for the mOst part consisted of certain posting, cashiering and'typing duties. More specifically. and as reflected in a Duty Roster' jointly prepared by the employer and Mrs. Vukoje. the latter's job which was entitled "O.H.C. Postings and Assistant Cashier" included the, following duties: 1. P&form Assistant Cashie.r functions as required. To use Cashier "C" ( button on N.C.R. wchine on alternate days with C. Fazsari. 2. Post O.R.C. payments, edjusmnts and maintenance charges as required. (Office Overload assistmce at first of month) 3. When adjustments are wde in rent, type new rent on card and file second copy of lease amendment in Lease Amendment Completed file. 4. Assist in posting O.H.C. tent charges at 8th working day before end of month. 5. 'Mark payments off Rental Arrears List first thing &ch morning. 6. To perform any other duties as required during the month. Moreover. and while it is difficult, from the evidence, to ascribe exact i - 17 - '~, percentages to-each component of her work, it'was 'the .grievor's evidence, : ~. which was not seriously challenged by the'employer,.that.at no time did , .' she spend 30% of her time on‘typing'duties. Put somewhat"differently. 'even when she hadthe assistance of a casual employeq,to.post the O.H.C. .payments and tharges,,:it is clear from the evidence that.the firs& duties described in ,the Duty-Roster were.her'primary functions and,would, over the course of a week or.month,always account for at~least fifty percent of her tfme. .In short and throughout thfs perfod,it would, as .: Mr. Challoner inferred(kxhibit‘6) and as Mr..Harris~on in effectconceded in his..evidence; be,fairto zonclude that it was the typing function and not the cashi.er.~or‘posting"duties which assumed a secondary role in her .< :, . . job. ‘* : .’ _, _, ‘. ;: : ~.., : .., ‘: ,. ., _ ,~.~-oy.e -‘: ..,. ~ ~~ Apart, from~these~quantitative,~estimates &to the amount of time a,. L. : spent on the various duties described.above, the parties were also in - substantial accord-as to the'qualitat.&e'nature of each,of these functions. Thus and with respect to her, cashiering duties,~both the grievor and 2 .!!,. .: .' _.. Ms. .ledford confirmed that'her work, although on a relief basis, conformed .' ..'..' i L'.. ./,, , In all respects,to that performed by‘Ms. Batchelor and'Ms. Gross who were < the regular full time cashiers. Furthermore, and with respect to her :, : posting duties it was conceded by all, that these were limited in scope, ,' were not related to the gene&i ledger, did not require her to perform a-_.' .~ , such bookkeeping,functions as reconciliations or trial balances',and in ',1 I all respects were more simplified and routine than the bookkeeping and - I ,, .~ accounting functions performed by Ms. West. Finally,and with'respect ~. c ,. . . ~to her typing assignments,it appears.from the evidence that the vast ., :,‘ I 1 1.. , ,:' majority of those duties were related to 'the work of the Accounting Section .T'~. ^ ')- "1 3 and would include such standardized-and routine tasks &typing new leases and lease amendments on the tenant cards, N.S.F. letters, rent arrears - 18 - I conceded by both parties. In no sense could her typing duties be characterized as working on "specialized assignments involving considerable length, complexity and variety of subject matter". In making a determination as to whether a particular employee has been properly classified, this Board has expressed the view that our inquiry will proceed essentially under two different heads. Specifically. and as we have noted in our Re Rounding award 18/75 (p.4): I I \ . . . . . . . . . . . . . . . . . . . . . ..when faced with a claim that a position is improperly classified, and assuming those classifications conform to the general law of this jurisdiction, this Board is limited h the express provisions of legislation to deter- mining whsther or not on the system employed and the clas- sifications struck, the employee in question is actually performing the duties assigned to that &wsition or evfm assuming that to be the awe, whether that employee is nevertheless being reguired to perform virtually the identical duties which, the class standard notwithstandixig, are being performed by employees whose position has been included in soak? other xw.? senior classification.. In short, it would, under the present statutory scheme, only be in. those or analagous instances that an employee's grievance under s.l7(2)(.3) would be entftled to succeed. Applying those principles to the cfrcumstances of Mrs. Vukoje's grievance. and notwithstanding that on the duties described it is not, to this Board, inmediately self-evident precisely which of the various possible classifications most closely conform to the grievor's job, nevertheless it is, to this Board, beyond dispute that the grievor should not have.been classified as a Clerk Typist 3. This latter conclusion we believe can be supported on a number of different grounds. In the first place, and most critically, on the dutfes described, it is manifest that the grievor simply does not perform those tasks which are integral and essential to the Clerk Typist 3 Job Standard. That Standard, which like all the Job Standards is a global and composite one, covering a range of ., =. - 19 - f tasks and duti,es' performed by persons so.classified .acioss the province, calls for:"a significant partem (over ‘30%) of their time @ be] spent on typing spdc.ialiied assi&ents involving considerable ,length, complexity ,. and variety of-subject hatterl'.~' On the evidenceFdescribed,.it is clear > that neither the quantity nor quality of typing duties assigned to and & performed by the'grievor'even,remotely 'approximate such a standard. To the contrary on the'grievor's. uncontroverted evidence.,at.no time 'did she perform such a quantity of 'typing and what typing she did, as ~confirmed by Ms. Tedford, related to more standarized and regularized . ! headings, .forms and letters:. Moreover and on the evidence of Ms. Tedford, .!. Ms.. West and the grievor, it.would appear 'that the persons who are and ,have been classified as Clerk Typist 3's did not perform any posting duties and either were assigned exclusively to typing duties as in the case of Ms.. kiacDougal1 and MS. Scottor spent a'~majority of their working time.on such tasks as in the case of Ms. Quinlan. Thus and.even 1, .-, allowing for the global, composite nature of the job standards, against the duties performed by those persons whose classification of Clerk, Typist 3 is apparently not in dispute between the parties, it is manifest that the grievor's normal work performance bears little affinity or c relationship to them. Indeed, when it is appreciated that the grievor was, according to MS. Tedford,'reclassfffed to a Clerk Typist 3 from her . ..' Clerk Typi~st 2 position in January 1974 so as'to ensure she received an equitable rate of pay and not to reflect any change in her duties, which t ,. both the grievor and Ms. Tedford confirmed remained unaltered, it is T self-evident to this Board that the 'griever could not have been properly classified as a Clerk Typist 3. Re Toronto General Hospital L.A.N. July 1976 (Weatherill). In fact, the employer in effect conceded the impropriety of the grlevor's present classification when, on the duties described, Mrs. Tedford claimed and the employer asserted that the grievor was more properly classiffed as a~Clerk Typist 2. Indeed when the duties and responsibilities of the Clerk Typist 2 that are set out in that job standard are reviewed, it is apparent that the grievor's duties do more closely conform to that classification than they do to her present clas- sification. Thus and in addition to.requiring a quality of typing more closely conforming to that performed by the grievor, that Job Standard unlike the Job Standard for the Clerk Typist 3, makes explicit reference to the performance of minor bookkeeping functions and to the handling of cash, the Go functions, which, on the evidence described, amounted to the primary duties of the grlevor. However, on a more careful and closer analyses of the Clerk Typist 2 classification, it Is manifest that on the duties she performs Mrs. Vukoje could not, Ms. Tedford's opinion notnithstandlng, properly be classified as a Clerk Typist 2. In the first place and most critically, the grlevor slmply does not perform the volume of typfng, "at least 30%" , which is anticipated by the Job Standard. As well, and although the grlevor serves with Ms..@inlan as an Assistant Cashier, the Job Standard for the Clerk Typist 2 assumes that such persons will handle cash and provide receipts "usually in smaller offices where no regular cashier is employed". Similarly and although the grievor's posting duties could properly be described as minor bookkeeping functions, such tasks, when performed by a Clerk Typist 2 are done, according to the Job Standard, "usually under : I - 21 - ., I '/ ! the,supervision.of a more senior clerk or Housing &nager". .From the (_< -. evidence of Ms. Tedford and Ms. West it is apparent that the grievor . : ~perfoned the posting duties assigned ,to her without such supervisory .~ control. / c-c .r Having demonstrated that both‘against the Job Standards and against the duties actually performed by,persons 'classified as Clerk Typist'3's that she could not properly be classified either as ,a Clerk Typist 2 or 3, it remains for this:Board to assess Mrs. Vukoje's claim that on the duties she regularly performedfrom the spring of 1973 until the date of her ! grievance she should more properly have been classified as a Clerk 3. In advancing this clalm'the grievor, througti 'her counsel and herown evidence conceded that she did not and never had performed many of the functions and duties described in the Job Standard for~thatposition. As well, she candidly acknowledged that the posting and bookkeeping functions performed by'her did not'coin~are in cumplexity; didnot require the application of diverse'skills, was'not.as voluminous and did not embrace such functions as reconciliations and trial balances that were regularly performed by !?si Westwho,'as'noted, was also classified':& a Clerk 3, Indeed it was essential1 ( on the difference in duties and responsibilities of, MS- West and Mrs. Vukoje that the emdloyer rejected the grievor's characterization of her duties as those of a Clerk 3. . ., / However and.to refer again to our earlier Rounding award in determining whether Mrs. Vukoje should properly be classified as a , Clerk 3, this Board may consider not only whether she'is performing the duties assigned to that position but as well whether she is performing functions which are virtually identical to those assigned to those ' employees who both the employer and employee agree are properly classified ( I ,- 22 - ( as Clerk 3's. With respect to the first aspect, that is in comparing the duties performed by the grievor that are described on the Duty Roster with the typical duties delineated in the Job Standard of the Clerk 3 it is, on the evidence noted above, readily apparent that at no time was the grievor called upon to perform many of the duties described therein. However and while it is true for example that Mrs. Vukoje never scheduled i tho:se tasks. Rather and recognizing that such standards are global and composite in nature, reflecting the accumulated skills, responsibilities and duties of persons classified as Clerk 3's throughout the Ontario Housing Corporation, it is expected and recognized that a person may perform only one or two of the duties described therein and still properly be classified as a Clerk 3. Indeed it is only on such a premise that the employer could have classified Ms.West. Ms. Pennance. Ms. Little, Ms. Mulligan, Ms. Thomson, Ms. Batchelor and M~.~Gross. each of whom performs unique and quite distinct tasks, as Clerk 3's. Thus,for example,while Ms.~ West, as described, performs most of the more complex posting and bookkeeping functions, .Ms.,Little apparently administers the payroll function, MS. hlligan calculates the rents, and MS. Batchelor and Ms.Gross act primarily as full-time cashiers. Indeed it is the latter two employees,who were described both by Ms. West and Ms. Tedford as being full-time cashiers, whom the grievor claims and we believe most clearly parallel her situation. That is, and'while the grievor conceded that her cashiering duties are quantitatively less than those performed by Ms. Batchelor and Ms. Gross, nevertheless it is a matter of record that qualitatively their cashiering functions were identical. Moreover visits of Home Visitors, administered the payroll function, reconciled various journals or calculated rents, neither Ms. West nor any of the I other.Clerk 3's in the Hamilton Housing Authority ever performed all of j - . :. - 23 - ! it',is.the conclusion of the Board that as described on her Duty Roster, Mrs. Vukoje's'posting.dutIes would in quantity and quality resemble the cashiering and associated duties performed by Ms. Gross and Ms.~ Batchelor. 'In short,.and while it is true, as MS% Tedford claimed, thqt Mrs. Yukoje's cashiering duties were not full ~time, nevertheless those duties.toget,her with her posting functions closely approximated in quantity and quality the type of work performed by Ms. Batchelor and Ms.~ Gyss. .More specifically it is our ooinion that her primary duties of posting ' and cashiering can'be and most fairly,are equated with those duties assigned to i and performed by; Ms. Batchelortand Ms. West and on that basis we are constrained to hold that she must on the duties described,be classified as a:Clerk..3. .~Very.simply we simply.can not perceive any material difference ~,ln skill, responsibility, or type,of work performed by those two persons ,Ywhom.the employer has cl.a,ssified as Cle,rk 3's and the duties performed by the griever.' To the,cqntrary both the cashiering and posting duties performed.by the grievor can,be characterized as minor bookkeeping functions which would also fairly describe the duties of the full-time cashier. Moreover, and while we share the employer's'view that a distinctjon can be t drawn between the duties performed by tls.. West and the grievor, it must be recognized that such a distinction has not induced the employer to alter the classification of the two full-time cashiers whose duties we have found, in the context of the Hamilton Housing Authority, closely parallel I those performed &the grievor. As well, and in any event it must be recognfzed' that as composite and global Job Standards, the position of Clerk 3 will necessarily embrace a range of tasks and jobs of varying complexity,,-skill and responsibility. Accordingly and simply because . . L - 24 - I the grievor. or others such as the full-time cashiers, have not been assigned, and necessarily have not performed,a full range of the more difficult com- plicated tasks delineated in the Job Standard for the Clerk 3 position can not preclude the grievor from being classified~within that position. if, as here, her primary functions closely resemble in quality and quantity those performed by persons the employer concedes are Clerk 3's and fall naturally wlthin the Job Standard for that position. In the result we must hold that Mrs. Vukoje's grievance must succeed. I Accordingly it is the conclusion of this Board that as of the specific date in the spring of 1!23 when she conanenced to perform the assignments described on her Duty Roster, Mrs. Vukoje must be classified as and 'be paid the rate of a Clerk 3. In the unlikely event the parties should have difficulty implementing this award or detenining the precise caapensation to which the grievor is entitled as a result of this award, we shall remain seised of this matter for thirty days following upon the \ release of this award. Dated at ,Toronto this 10th day November 4 1976. D. M. batty Chalrman Mary Gibb Member I wncur S. R. hennessy Member