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HomeMy WebLinkAbout1976-0005.Schmidt.76-06-02Ontarlo 5/76 I ‘, CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 416/965/1410 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. G. H. Schmidt (The Grievor) And The Ministry of Environment Queen’s Path Taronlo. ontsrio M?A 125 (The Employer) Before: D. M. Beatty G. K. Griffin H. E. Weisbach For the Grievor - Chairman - Member - Member Mr. W. Lokay - Ontario Public Service Employees Union For the Employer Mr. M. C. Joakim - Ministry of Environment Hearing Westbury Hotel, Toronto, Ontario, June lst, 1976 2. In the grievance brought before this Board Mr. G. H. Schmidt complains that from,the period between January 1, 1975 until December 1, 1975 he was improperly classified as an Environmental Technician 3. More specifically it is Mr. Schmidt's contention that duri.ng that period he should have been classified as an Environmental Technician 4. That is, and recognizing that on December 1, 1975 Mr. Schmidt was ultimately and,continues to be classified at the level of Environmental Technician 4, the issue between the parties is the / relatively narrow one of ascertaining the date on which that reclas- i sification should properly have been made. Indeed, having characterized the issue before us in such a manner, it is the opinion of this Board that once it is established, as we believe it has, that Mr. Schmidt's duties of employment have not materially changed from the period even before January 1, 1975 until today, that certain conclusions must necessarily follow which render superfluous much of the evidence adduced by the parties at the hearing before us. Although the employer argued, at the outset of the hearing, that Mr. Schmidt's duties had in fact changed on or about December 1, 1975, i.~. the evidence of all of the witnesses,including his Supervisor Mr. Bartkiw, attests to the contrary. More specifically, it was Mr. Schmidt's evidence that his present duties had, regardless of his classification, essentially remained unchanged for the entire period from April 1974 until the present. As well, Mr. Wood,who is one of the engineers with whom the grievor works, confirmed that he had not noticed any change in the grievorls duties after the latter was promoted to the position of Environmental Technician 4 on December 1, 1975, while 1 3. i' Mr. Gallacher, who as an Environmental Technician 4, co-ordinates the activities of the other Environmental Technician 3's testified that the change which transpired on the grievor's promotion was purely a formal one and did not involve any alteration in his duties or working relation- ships in the section. Indeed although Mr. Bartkiw, the grievor's ,,-‘~ :.:. : .,,” (‘i’, Supervisor, testified that after the grievor's promotion he intended to use him more frequently on certain more specialized and complex assiqn- ments within his section, he also conceded that all of the specialized assignments which had arisen since the spring of 1974 and which required an Environmental Technician to gather data from and prepare reports on particularly complex pollution problems, which cut across all of the areas in the Toronto West District, had in fact been allocated exclusively to Mr. Schmidt. Put very simply then Mr. Bartkiw's own evidence is consistent with that proffered by the other witnesses to the effect that while Mr. Schmidt's promotion to the position of Environmental Technician 4 resulted in his receiving a new classification title and an increase in pay, it did not and has not yet resulted in any change either in his job functions or in his work relationships. Against that evidence it necessaril,y follows from the grievor's present classification, unless he was being tested or trained during the period in question, that he was performing the duties of an Environmental Technician 4 throughout the period from January until December 1975 and accordingly should have been classified at that level from the comnence- ment of that year. That is to say, once it is conceded, as the employer has, that Mr. Schmidt was, on the duties he was then performing, properly clas- sified as an Environmental Technician 4 on December 1,1975, and havinp establishe c 4. that after his promotion his duties did not materially change from what they had been throughout the preceding year, it simply does not lie in the employer's mouth to now suggest that he was in fact only performing the duties of an Environmental Technician 3 throughout the preceding year. Very simply, if that were the case it would necessarily follow that Mr. Schmidt should still be classified at the Environmental Technician 3 level. However, having recognized on December 1, 1975 that Mr. Schmidt's duties and functions were properly classified at the level of Environmental Technician 4, it is simply too late in the day for the employer to argue that he was only performing at an Environmental Technician 3 level, when he was performing exactly the same duties and discharging the same responsibilities throughout the period prior to his promotion. In short, having satisfied ourselves that his duties and respon- sibilities throughout the period from January until December 1975 did not change after he was classified at the Environmental Technician 4 level, we must find, as a matter of logic and equity, that the employer can not now argue that his duties prior to his promotion only met the class standard and specification of an Environmental Technician 3. However, as we noted above such a conclusion might not follow where it was established that some one, such as the qrievor, had been performing the higher rated tasks prior to his reclassification as part of a programme during which the employer tested and assessed whether he was capable of performing at the higher level and whether his per- formance warranted his promotion to that position, In such circumstances we believe, as the employer argued, that it is and would be perfectly proper for a supervisor to assign an employee to tasks of a higher classification on a temporary or short term basis in order to assess his merit and potential for promotion to that level without having to immediately 6 c 5. promote him on the occasion of the first assignment of the more complex tasks. To the contrary we believe, as the employer contended, that such initial assignments may properly be made, over some finite and relatively short period of time as a valid and legitimate mode of appraising that employee's capabilities while the employee remains in the lower classification. However and notwithstanding our agreement with the employer's general hypothesis, on the facts before us there is not a scintilla of evidence to support the conclusion that the period between January and December 1975 was, for Mr. Schmidt, a trial, testing or training period. To the contrary, as we noted above, all of the evidence before this Board attests to the fact that Mr. Schmidt performed sub- stantially the same quality, quantity and variety of work, in precisely the same position during that period as he had prior to January 1975 and as he still does today. Neither Mr. Wood nor Mr. Gallacher who worked closely with Mr. Schmidt were aware of any training or trial programme that had been established for him nor that his assignments and work relation- ships differed in any way from what they had been in the past. In addition from the grievor's and indeed Mr. Bartkiw's own evidence it is clear that Mr. Schmidt was never formally advised that he was being assigned particular tasks in order to establish his qualifications to perform at the Environmental Technician 4 level. Moreover no close or particular super- vision or training programme unique to the grievor was ever provided during this period. To the contrary,as we have noted,from all of the testimony adduced at the hearing it is simply beyond dispute that the grievor continued to perform the same complex and special investigations during the period from January until December 1975 that he had during the . 5 6. previous year and that he has continued to perform since his promotion. Indeed as we have noted above on Mr. Bartkiw's own evidence it is apparent that, while not frequent in number, each of the special in- vestigations that has been required to be carried out across the entire District has since the spring of 1974, been assigned to Mr. Schmidt. That is to say in the past two years not one of the other Environmental Technician 3's under Mr. Bartkiw's supervision has been assigned comparable investigations. Against all of that evidence we simply can not accept the ._ , employer's characterization of the period in question as a testing or training period. In the first place, and most obviously to do so would be to deny the evidence of Messrs. Gallacher, Wood and would ignore the evidence of the grievor that he had been performing precisely those same tasks for over a year and a half to the apparent satisfaction of his Supervisor. More critically perhaps, such a characterization would necessarily lead to the conclusion that when,in the latter part of October 1975,the Environmental Technician series was first introduced, and was made retroactive to January 1, 1975, Mr. Schmidt had not then i demonstrated his capabilities to perform at the Class 4 level of that \ L series but that within a further period of some four or five weeks, (specifically on December 1, 1975), he had in fact done so. That is to say, given that the employer ultimately recognized onDecember 1, 1975 that Mr. Schmidt should.properly be classified as an Environmental Technician 4, unless his duties were substantially altered or he suddenly manifested or confirmed his actual potential, that same assessment could and indeed properly should have been made upon the occasion of the introduction of the Environmental Technician series in the latter part of October 1975. 7. However on the evidence adduced before this Board there was not even the remotest suggestion that it was only after the introduction of the Environmental Technician series that Mr. Schmidt was able to demonstrate or confirm his ability to work at the class 4 level. To the contrary, when all of the employees were reclassified in the latter part of October 1975 and throughout the interval until his promotion, Mr. Schmidt was, as we have noted, performing and continued to carry out both his regular and specialized assignments.in exactly the same manner as he had for the previous year and a half and as he has continued to do since his promotion to the position of Environmental Technician 4. In short there is simply no evidence before this Board which would either support the characterization of the period in question as a training or testing period or which would explain why the assessment which was ultimately made on December 1, 1975 could not and indeed should not have been made upon the introduction of the new ,Environmental Technician series in October 1975 and, as with all of the other employees, made retroactive to January 1, 1975. Accordingly, given that the nature and quality of the grievor's work has remained constant and uniform from April 1974 until the present, and against the employer's ultimate recognition on December 1, 1975 that Mr. Schmidt was properly classified as an Environmental Technician 4, it must necessarily follow and we would hold that his present classification must also be made effective as of January 1, 1975, being the date to which this new series was made retroactive. In the result and for all of these reasons Mr. Schmidt's 8. grievance must succeed. Dated at Toronto this 2nd day of June, 1976. m 4 - D. M. Beatty Chairman G. K. Griffin Member I concur H. E. Weisbach Member