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HomeMy WebLinkAbout1977-0079.Dalrymple.82-05-04IN THE.XATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINI.NG ACT THE GR Between : (~LBEU Before EVANCE SETTLEMENT BOARD P. Dalrymple Grievor, and The Ci~own 'in Right of Ontario (Liquor Control Board of Ontario) Employer. Before: Professor R. J. Delisle - Vice-Chairman S. D. Kaufman - Member E. A. McLean - Member For the Grievor: Guy Beaulieu, Consultant l'.."~ Union Consulting.Services ~.. For the Employer: M. Patrick Moran , Counsel Hicks Morley Ham ilton and Storey Barristers si Sol icitors Hearings: October 26, 1981 December 7, 1981 February 2, 1982 . -2- The grievor is employed with the Liquor, Control Board of Ontario at a level of Clerk, Grade 4 in Inventory Control, Department No. 915. She grieves that her position is improperly classified and seeks herein to be reclassified to the level of Clerk, Grade 5. The qrievor has occupied her present position since September, 1975. When taking this position, which entai1ed.a promotion to Clerk, Grade 4, she was advised by her Supervisor, Downer, that should she improve her abilities within the job she would eventually be promoted to a Clerk, Grade 5. In December, 1976 the Supervisor, Downer, did in fact recommend the promotion. The evidence of Downer was that there had been no change in the griever’s job duties but that her performance, work effort and attendance were such that, she deserved a higher salary and that a promotion was the only way to achieve the same. It was the Supervisor’s evidence that he believed that the system for classifying employees was designed to reward the .good employee who has put’ forward a good effort and that “if you w’ere around long enough you would reach Clerk 5”. In January, 1977 Gail Chapman, Job Analyst, interviewed the grievor, prepared a job description, secured the grievor’s agreement that the same reflected her job, classified the job pursuant to the classification system then in use within the guidelines then being used by the Civil Service Commission, and reported to the Salary Committee that the griever’s job was properly classified as within the Clerk, Grade 4 class definition. The Job Analyst noted .1 -3- however that three other clerks within the same Department performing comparable work to the griever were classified at the Clerk, Grade, 5 level and accordingly the Job Analyst suggested that the grievo r’s position be reclassified to Clerk, Grades 5. The Salary Committee did not follow this suggestion and as a result this grievance was filed. It is the fact that others within the griever’s Department are performing identical duties to the grievor and yet have a higher classification that has given rise to the grievance. In the grievance filed February 16, 1977 the grievor notes: “I am grieving the Board’s decision based on the following facts: 1. There are other ‘$ersonn&l employed in this department who are doing similar type work who are classified as clerk grade 5. 2. The person who held this position. prior to ‘my. taking the position was classified as a clerk grade 5, and I felt that since I have held this position more responsibilities have been add,ed. to the job. 3. Y r. . L. Downer who is my supervisor recommended this change in my classificat~ion, and I feel that he (Mr. Downer) is in a much better position to judge the facts than those people sitting on the salary committe,e.” During the hearing of the grievance as well., the griever’s position substantially hinged on th.is nonuniform class- ification. The griever did, as an alte.rndtive argument; . . _.. -4- suggest-that her present’ position better fit the Class Definition for Clerk, Grade 5 but this position was not st~ressed with any great vigor. Nor could the ~facts here truly support such an argument. It seems plain on the evidence that the duties described in the griever’s Tab .~^ Description better fit the class definition for Clerk Zrade 4 than for Clerk, Grade 5 and the opinion of the Job Analyst that such is so was not shaken. Further, in late 1977, the ‘Liquor Control Soard of Ontario hired outside consultants, the firm of Price, Waterhouse Associates, to do a study of the 3200 positions within their Department and to recommend classifications. The evidence showed that as part of this 1 study the consultants gained their basic information by means of a questionnaire to each of the 3200 employees who were asked to descri’be their position; in each instance the employee’s Supervisor would review the same prior to remitting the questionnaire to the consultant. Based on this information the consultants reviewed the- uniformity of the existing classification throughout the 32011 member bargaining unit, and .with the aid of Chapman prepared an anomalies list of improperly class.ified jobs. The anomalies list suggested that some-~97 jobs within the bargaining unit were improperly classified: G jobs. were improperly classified low, 55 jobs were classified’hiqh, and 36 jobs were in an inappropriate occupational group. On their analysis the qrievor’s job, class~ifi.ed at Clerk 4, was classified too high and her job should have been classified at the Clerk, Grade 3 level. The griever’s evidence was that her’ job did not change in the interim and this study then confirms that the qrievor’s alternative argument, that her position better fits the Class Definition for Clerk, Grade 5, has no merit. The grievor’s principal argument before the Board lies not with the assertion that her job comes within the words of the higher class standard which she seeks but rather because her duties are the same as those of employees who do have the higher classification sought. Previous decisions of this Board (Re Lynch, 43/77; Re Rounding, 18/75; Re Wheeler, 166/78) support this as an alternative approach but it must be remembered that evidence of others in a higher classification doing substantially the same~ work as th,e.:grievor his only impor,tant when it is seen to reflect .,,. :. the actual practice of the employer. The actual classification practices of the employer may not truly be evidenced in the documents describing the classification s’ystem and if that is the case the grievor is, of course, entitled to be measured against the actual practices as opposed to any mythical practices which have since been abandoned (see Re Montague, 110/78 and Re wright, 248/81!. It is snot enough for the qrievor to demonstrate that others are classified~ at a higher level and pe$orminq the identical duties. As noted in Re Vukoje, 13/75; “However and to refer again- to our earlier Rounding award in determining whether Mrs. Vukoje should properly be classified as-a . . .I ,, i I -6- 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 the employee agree are properly classified as Clerk 3’s.“(emphasis added) Within the grievor’s Department there are two employees, Lorenz and Donofrio, who are classed at the Clerk, Grade 5 level. It seems apparent that Lorenz and Donofrio were classified at that l.evel at a point in time when the actual classification system used by the employer was modified by some managers who believed in the elevating of employees as a reward for good performance. It is obvious that such a subjective approach over any period of time could nullify any classification system as the objective criteria of job duties is abandoned. This would lead to great inequalities throughout the bargaining unit as classification would be dependent on individual assessments without any overall concern for uniformity. When the committee, including the-outside consultants, reviewed the 3200 employees within the bargaining unit in its entirety we see that within their anomalies list are Lorenz and Donofrio who they would regard as better fit.ting the level of Clerk, Grade 3. The employer according to the evidence has adop.ted a policy that it will not reclassify people down and that while they recognize both Lorenz and Donofrio as being classified at too high a level they prefer to deal with this problem through attrition. This may appear as unfair to t!le . . t -7- grievor who admittedly performs the identical duties, and according to the employer performs them very well, but to reclassify. the grievor to Clerk, Grade 5 would be to exacerbate the lack of fairness between employees .within this Department and other employees within the bargaining unit who are performing the same duties and who are not similarly classified. The main purposes of a job classification system, to promote uniformity and equality, would be frustrated if fairness to one individual necessitated the abandonment of the system. The tail would then wag the dog’. The grievor advances an argu,ment based on the doctrine of promissory estoppel. The grievor was .led to believe in the fall of 1975when she applied for her present position that when she had gained experience within the job and improved her abilities to carry out the same she would receive a promotion to Clerk, Grade 5. ‘Her testimony was that between the. Fall of 1975 and January 1977, a period of some 16 months, she did not bid on other jobs for promotion as she believed that she was proceeding on the way to a Clerk,~Grade 5 within her present position. The gri-evor relies on an earlier decision of this Board, Re PlacIntosh, 200/78’as authority for this propos>tion. Differences between that case and this case are striking: in that case the griever was relying’on the doctrine as a shield against a demotion whereas here the employee is seekinq to use the doctrine to secure a benefit; in that case the qriavor was ------I - 8 - being demoted from a position that he had held for some 14 years whereas here ke have reliance for a matter of months; in that case the employer had actually promoted the grievor and maintained him in that position for some 14 years leading the grievor to a firm understanding of his position whereas here the grievor was advised by her individual Supervisor who was speaking in opposition to the actual classification system in effect. There is simply not sufficient evidence of reliance by the qrievor and detriment suffered nor a firm commitment or holding out by the employer to justify the operation of tie doctrine of promissory estoppel in this case. In the result the grievance is dismissed. We ‘~ appreciate the frustration that the qrievor must feel which frustration is a direct result of the lapse in the application of the employer’s classification system. 1982, DATED at Kingston, this 9th day ‘of February, &C/V: VT .+Ty--- .G- ilo.naU’ J. Delisle, Vice-Chairman I dissent (see. attached) S. D. Kaufman. Member I concUt- F A. . . ,?lcLean, Member DISSENT I have reviewed the Vice-Chairman's decision and respectfully .disagree with his appreciation of the evidence and his resultant award. The award does not clarify the actual reclassification practises . of the employer at the time the grievance aro.se, places undue emphasis and weight on the ex oost facto conclusions of an outside --- management study., completed some 10 - 12 months after the grievance arose, and fails to consider inter alia the cumulative effect -- of the course of conduct of management's representatives, the grievor's supervisor and department head, the Job rinalyst and a Staff Relations Officer in its considerationof the applicability of promissory estoppel. The Griever', Patricl'a Dalrymple started her employment with the Liquor Control Board of Ontario in April of 1968 in Depart- ment 915, Inventory Control. In May of 1975 the Bond Receiving ? Job,~ which she presently occupies, was internally posted at the '. level of Clerk, Grade 4, and applications were invited for the position. MS. Dalrymple's evidence was that Mr. Downer, her supervisor, before she applied told her she could take the job and work up to a Clerk,Grade 5 over the years. When she answered the posting, Shea understood the classification system to be based just on the recommenda,tion of the supervisor. The position had been vacated by- a Mr. Bond/who had held the position as a Clerk,Grade 5. xz . Downer advised Ns. Dalrymple before she answered the pc%tinq,that -2- working up to a 5 was eventual, and no one explained to Ms. Dalryml why~the position was posted as a Clerk, Grade 4. Mr. Downer's evidence was that he understood the classificatic to be Gased on an employee's performance, work record, attendance, and the recommendation of the supervisor. He was not aware of any “caps I’ on certain positions. Mr. Lorenz and Mr. D'Onofrio, who also worked in Department 915 under Mr. Downer's~ supervision, had been recommended in the past by Mr. Downer for reclassification upwards as Clerks, Grade 5. Initially the salary committee had refused to reclassify them, but they were each reclassified at some level in the grievance procedure. Ms. Dalrymple was offered the Bond Receiving Job and started it in September of 19.75. She worked In Inventory Control with Mr. Lorenz and Mr. D'Onofrio. Mr. D'Onofrio was already a Clerk, Grade 5 when Ms. Dalrymple started in the Bond Receiving Job, and Mr. Lorenz was reclassified as a Clerk,Grade 5 in January,1976, while Ms. Dalrymple was in this job, following 1%. Downer's " sys tern" . In June of 1976 an Annual ISalary/PromotionT Rating Report was prepared re Ms. Dalrymple. The report indicated she had ..~ assumed added responsibilities and recommended that she be granted a double step increase, which would raise her to the maximum of her present classification, Clerk,Grade 1. The Report was siqned by Nr. Downer and Iys. Dalrymple, and Yr -3- Morrow, the Department Bead/Director of warehouses, indicated above his signature that he concurred with the recommendation and comments. Mr. Downer's evidence was that outside storage warehouse duties were added on tb the job duties formerly performed by Mr. Bond and this was a major change. Ms. Dalrymple's evidence was that taking care of "bad labels" was added on. In any event it would appear that there was some major change in her job duties after she commenced them in September 1975 and before the qrievance arose in 1977. 1MS . Dalrymple's job Is one that does not lend itself to supervision. The incumbent acqulres~ the skills to carry the functions out competently and efficiently over time.. Ms. Dalrymple maintains that her job is more important than that of Mr. Lorenz and Mr. D'Onofrlo as she deals with'customs con- siderations, traffic CroutingT and has a cons~iderable amount of contact with the warehouses. No one else in the department carries out these functions. In the-Annual (Salary/PromotionJ Rating -Report dated December,1976 [Exhibit 7 ) Mr. Downer stated she is presently )I... performing the same duties or more than the other clerks in the section who are graded Clerk 5." The Annual CSalary/Promotion) Rating Report of December,1076 recommended in this context that Ms. Dalrymple be reclassifiec? to a Clerk,Grade 5. The Report indicated the recommendation was ” . -4- previously discussed among R. Norrow, Director of Warehouses, Mr. R. M. McDougall, Staff Relations Officer and Mr. Downer, who all felt the reclassification was justified. L&W. Downer and,Ms. Dalrymple signed the report and Mr. Yorrow, Director of ??arehouses signed as Department Head under a line reading "I strongly suppor,t the above recomendation." Gail Chapman, Job Analyst, gave evidence that she became involved with this matter in December of 1976 at about the time the reclassification was recommended. She had 6een employed in this pos~ition since January of 1975 and she alleged that when she began there was no system for the reclassification of jobs. ~The supervisor recommended reclassification based not on duties but rather on the employee, she stated. Her evidence was that C.S.C. guidelines were "In us-e" "some time" after she started in January,1975 but could not state when they came into use, nor did she identify any manqement directive or other formal statement indicating when they were to be "in use". Her evidence was that in 1977 it was possible both systems were still in use. She alleged that manaqement was aware of the C.S.C. system of reclas~sification by January 1977, notwith- standing Annual (~.Salary/PromotionYRating Reports re Ns. Dalrymple as' late as July 1978 (Exhibits 12 and 13). signed By Xr. Morrow's successor, Mr. Ross, and by, Mr. Downer supporting Ms. Dalrymple's reclassification. Her evidence was that awareness was one thing, but agreeing with it was something else. Nevertheless her evidence was that although she had discussed Ms. Dalrymple's .I .,, -5- reclassification with Mr. Downer in December 1976, she did not discuss the changes in the classification system with him, and did not discuss Ms. Dalrymple's reclassificationwith Mr. McDougall or.Mr. Morrow. Her evidence was that she had a list Of over or incorrectly classified jobs in 1976 - 1977 and she alleged m. Lorenz's and Mr.,D'Onofrio's jobs were overclassified at that time. Thus, while she alleged that the C.S.C. quidelines were in use at the time of IMr. Downer's recommendation for re- classification, and althouqh~ she alleged Mr. Lorenz and Mr. D'Onofrio were incorrectly or over-classified, and alt‘nough she classified Ms. Dalrymple's- joS as a Clerk,Grade 4 in January 1977 (Exhibit 16, Nemo to Salary Committee):.; she too, at that time, recommended reclassification of Ms. Dalrymple's position along with Mr. Downer, Mr. Morrow- and Pk. McDougall. While she stated she had done so "to be fair", her recommendation suggests that the C.S.C. guidelines were not the sole system in use. Significantly, Mr. McDougall, who was consulted with by Nr. Downer, and who'supported Mr. Downer's recommendation, was a member of the Salary Committee, and Ms. Chapman's recommendation of reclassification suggests at best the L.C.B.O. was still in a state of transition with respect to the adoption of the C.S.C. guidelines. The Salary Committee rejected the recommendation in January; or February of 1977 and Ms. Dalrymple grieved. Nr . Downer ' 5 evidence was that he'was surprised, as he felt his recommendation -6- was warranted. No member of the S~alary Committee was called to give evidence. The evidence before the Board suqqests that only after the completion of the Price FJaterhouse classification study, some 10 - 12 months after the grievance arose, did the actual practice of the employer become crystallized and management thereafter resolved to apply the ^.S.C. guidelines an2 apply certain policies for the elimination of anomalies or misclassifications. Thus, at-the time of the grievance t!ie "old system" was still in force and MS. Dalrymple's grievance must be considered in view of that system. The evi‘dence suggests the old classification system was comprised of some combination of what may be described as tie Downer system of supervisory recommendation and what.are described as C.S.C:. guidelines. The evidence, including ExhiEL't 9:cJob description by G. Chapman, dated 20 January 19771, Exhibit ll(Position Identification Questionnaire) and Exhibit 17 [Job summaryr But especially the evidence of the Grievor and her own detailed job description, (Fxhibit 8). suggest her job is an anomaly, eluding a clearcut placement in any C.S.C. quideline for Clerks 3 - 5. While the Grievor was unable to discharqe the onus of placinq herself squarely wi:thin the quidelrhes~ of a particular job cla$sification, i.e. Clerk, Grade 5, the evidence LFiat others in the :unit who have the higher classification 2iQ doinq the same !<ork and that the Griever does more and iias~ more important duties are to be In addition to the above, up until February of 1977; Ms. Dalrymple was led to belleve; tlirough the consistent conduct of the employer, as evidenced by the assurances of Mr. Downer, her Supervisor, land the actions and recommendations of Hr. Norrow, her department head, and Gail CKapman, the job analyst and of Mr. NcDouqall, the S~taff Relations Officer, that her position would eventually be reclassified as a Clerk, Grade 5. In JUll -7- considered. The Grievor is entitled to be reclassified on this basis, notwithstanding the reasoning on pages 5 and 6 of the majority award in this decision, including the Vukoje reasoning set out therein. i The evidence suggests that as of the.~-date of the grievance, "the actual practices of the Employer seem to be ignoring the specifications and standards", as per the second test in Re Wright, 248/81. There is~ some evidence that a list existed at the time the qrievance arose, identifying IYr. Lorenz and Mr. D'onofrio's positions as mfsclassified, suggesting the Vukoje test would apply to defeat Ms. Dalrymple"s contention based on the presence of 2 others wit6 the ClerR,Gr'ade 5 classification. Notwi:thstanding Vukoje, the lack of clarity as to the actual practices of the employer, and the anomalous nature of the position, and the fact that the Grievor was doing more work and more responsible work than those working alongside.her as Clerks,Grade 5 who had 6een so class-ified with management's implied consent, entitle her to Be reclassified. -8- of 1977 and as late as July of 1978 Mr. Downer was recommending the reclassification, supported by Hr. Ross, the successor department head. There could not be a clearer committment or holding out by the employer, short of a precisely worded written assurance. It was not unreasonable for Ns. Dalrymple to infer from management's conduct and words that a reclassi- fication of her position was eventual. Mr. Lorenz and Mr. D'Onofrio had succeeded to be reclassified on grievances. They were working alongside her as Clerks, Grade 5 ( and continue to do so) . As a consequence of the entirety of the situation, Ms. Dalrymple, relying on the employer's wordsand actions, did not apply for other pos?'tions at the L.C.B.O. or any other Ministry. She, 'as a result, lost the opportunity of advancement to other positions and promot&ns and higher salary-ranges-. The detriment is clear, though the precise loss was not quanti‘fled in evidence. The length of the reliance, here 16 months from the date her employment commenced, to the date of the grievance, and almost 5 years to the July,1978 Annual (Salary/Promotion) Rating Report, the last recommendation for reclas-sfficat2on, is not sufficient, to destroy an estoppel from ari‘sing, as suggested in the majority award.. Ms. Dalrymple 'seeks to apply an estoppel against the refusal to reclassify her position not as a sword, but as a shield against the removal of an assurance, or of a line of advancement. She - -9- seeks to apply estoppel against "capping" of.her position, which "capping" is in effect, a constructive demotion. In view of then cumulative conduct of the employer, as evidenced ins the oral evidence and exhibits, and in view of Ms. Dalrymple's having taken the employer at his word, and having acted on it to her detriment, and in view of the~anomalous nature of the position and the fact that two other persons classified as Clerks, Grade 5 work alongside her performing the substantially same duties while she performs, more duties, and more responsible and important duties, and in view of MS. Dalrymple's having taken the employer at his word and having acted on it to her detriment, I would Rave allowed the grievance and applied the principle in Combe v. CBm.be 19-X 1 All E.R. 767, as it was applied in Re Ma'cIntosh, 200~/78, and reclassified the position to a Clerk Grade 5 as. of the date of the original recommendation, December 14, 1976 .with full compensation for wages and benefits lost in the interim. I would Rave remained seized to determine the issue of compensation or any other matter relating to the implementation of the Award if the parties were unable to agree upon same. DATED this 4th day of May, 1982 SUSAN D. KAUFKWJ