HomeMy WebLinkAbout1978-0221.Beaton.81-06-08u . ..$
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ONTARIO
CROWN EMP‘O”EES
GRIEVANCE
SETTLEMENT
BOARD
IN THE MATTER OF AK ARBITMTION
Under The
CROWN ENPLOYEES COLLECTIVE ~BARGdINI!~G .ACT
Before
TRE GRIEVANCE SETTLEMENT B0.4RD
Between : --
Before:
,For the Grievor:
James D. Beaton Grieror
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The Groan in Right of Oxar-iG
(Ministry of the Solicitor
'General) Employer
E. B. Jolliffe, Q.C. Vice Chairman
A. G. Stapleton Meniber
I. J. Thomson :,!ember
x. LUczay, Classification Officer
Ontario Public Service Fmployees Union
For the Employer: D.S.Nagel: Senior Staff iielations Officer Civil Service Commission
Hearings: March 18 and 20, 1981
',, The circumstances giving rise to.this case are
set out in ~a statement initialled by representatives of
the parties and filed as Exhibit 2 ,at the outset of .the
hearing by this Board. It is as follows:
3.
4.
5.
The GPiQVancQ Setttement Board has
jurisdiction in t,his matter, as set
out in Article 5.1.2 of the Working
conditions, AgPQQmQnt.
The Working Conditions Agreement dated
April. 26, 1978, bQtL,eQ~n the Crown in
Right of Ontario, represented by Manage-
ment Board of Cabinet, and the Ontario
Tvblic Service Employees Un?on was in
effect at alt times mataria to the
grievance.
The griever, Mr. James Beaton, was
employed from April 1, 1978 to March 7,
1980, in the position of FO~Q~S<C
Radio.grapher (48-85.00-10’1, in the
Forensic Pathotogy Branch of the
Ministry of the Solicitor General.
This position-was and is ctass<fied
as Technician 1 (b.l, X-Ray. .,
The attached position specification
accurately reflects the major respons-
ibilities,of the position of Forensic
Radiographer. Rowever, the parties
reserve the right to adduce further
QVidQnCQ in respect of the duties and
responsibilities set 0ut.ii-1 the SpQCi-
fication.
On October 25, 1978, the griever filed a
grievance (attached), cla,iming that his
position *as improperly classified as
Technician 1 (bl, X-Ray and claiming that~
it would be proper!y classified as ForQn-
sic Analyst’ 2.
There was some axguinent regarding two changes
.in the Union's position during the period of 26 months
from the date of the grievance to the arbitration hear-
ing. In December, 1978, the Union's Classification
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.Officer, Mr. Luczay, wrote to 41s. J. E. D'Andrea of the
MiniStry.of the Solicitor General:
As a result of the meeting between the
Union and Management at Stage 2 of the
gri.evance procedures t-e: the above
grievance,, we wish-to modify the settle,-
ment, requzred. Based on the excha,nge of
information, we’ fee2 that the classifica-
tion, Technician X-Ray Supervisor, best
suits the ~job performed by Mr. Beaton:
However,
on March 16, 1980, two days before the arbitra-
tion hearing, Mr. Luczay notified Mr. T. A. Thomson of
the Uinistry that the relief sought or "settlement re-
,quired" was.as'stated in the original grievance, i.e. to
~be~.reclassified Forensic Analyst 2, effective April 1, 1978
By letter to the Registrar, dated March.16
(Exhibit 4) and again when the hearing Opened~on'March 18,
Ms. Nagel objected vigorously that “it would be inappropri-
ate for the aoard to permit the Unibn to modify the griev- ._
ame,, at this time". The Board undertook to give reasons
for deciding that the hearing on the merits should proceed.
The objection appears to have been founded on the
premise.that the employee, through~ his representative, had
“abandoned the claim of Forensic AnaZyst 2 in December,,
1978, and in fact withdrew that grievance”. The Employer,
by letter, went on to argue that “the new claim, Techni-
&an X-Ray Supervisor, constituted, in fa’ot, a new griev-
ance dated December 7, 1978, which was deatt’with, in
good faith by the Employer”. J
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The reality is that the original grievance was /
never withdrawn or "a~handoned" and no "newgrievance was
ever presented". Under Section 17(Z) of the Crown
Employees ColZedti.~e Bargaining Act, an employee may
process (and, if deemed necessary, take to arbitrationj
a grievance claiming (in the words of the Act) "that his
position has been.improperly classified". That is exactly .
nhat this employee did, and there has been no change what-
ever in that claim a$ any time.~ As the "Settlement Re-
quired", he asked in October, 1978, for recognition as a
'Forensic Analyst 2. Following the exchange of some in-
formation (or perhaps misinformation) at a grievances
meeting, the Union in December, 1978, proposed that the .
classification of Technician X-Ray Supervisor might be
a better match, but'reverted to the original suggestion
two days before the hearing, i.e. inMarch, 1980. The
Employer was not preju~diced thereby, 'having?been fully
familiar more than two years earlier with the original
language. The essential.point is that the substance of
the grievance was the claim that "my position is in the
wrong classification". The Employer's interest in the
case was to defend the‘validity of that classPfication
and Ms. Nagel demonstrated at the hearing that she was ..~
well .prepared to do so.
The most probable cause of this grievance is
that the position occupied by Mr. Beaton was the only
one of,its kind in the sense that no other position in
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the Public Service is exactly the same. This is not .to <
say that no other position is similar. Certainly there
are others of comparable value land usefulness, with.com-
parable compensation. The grievor emphasizes that there ;
is only one Forensic Pathology Branch, it had only one
X-Ray Specialist, and he was it. On the other hand, the
Employer points out that there are other X-F?ay Technicians
serving ins provincial institutions (hospitals and retarda-
tion Centres) who have been given the same classification .
as his, i.e. Technician l(b), X-Ray, to which the grikvor's
reply is that their work is not the same and indeed that
~their position specifications are not the same. .
The grievor was the only witness called by ,
Mr. Luczay: The Employer's witnesses were Dr. J. Hillsdon- .
Smith, Director of the Forensic Pathology Branch, and MS>
Adrienne McMullin,,Senior Classification Officer responsible
for classifying civilian positions in the Ministry of the
Solicitor General.
In considering the evidence of the three wit-
nesses, it must be kept in mind that the exhibits filed
are equally important and perhaps even more significant.
They will be referred to in due course.
It has been said in Hooper, 49/V, at 'page 12 ,
that ,"the griever's own qualifications are irrelevant to
classification". With that general proposition, we .agree.
On the other hand, having regard to the rather peculiar
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functions performed for several years by the grievor in
this case', we cannot help suspecting that it'would have
been difficult to find another technician (or one classi-
fied "Technician l(b), X-Ray" in a hospital ormental
retardation Centre) willing to take the job or possessing
similar qualifications. To that extent his experience and
credentials may have some relevance and will be mentioned.
Mr. Beaton went from high school to the Ryerson
Institute for one year in the business administration course,
which he.did not complete, then was trained in the Toronto
East General School of Radiography, graduating at the top
.of his class in 1970. Thereafter, he wascertified by
the Ontario-Board of Radiological Technicians, joined the
Ontario Society of Radiological Technicians.and also the
corresponding national body.
It‘is significant that before his appointment
to the classified staff on April 1, 1978, the grieyor
was employe'd for 30 months on-contract with the Forensic
Pathology Branch, then in early development. He attended
seminars on X-Ray Pathology held by the Ministry, obtained~
what he called "advanced certification", and joined the
Forensic Science Society, an organization in which physi-
ciahs and others at the Forensic Sciehce Centre are prominent.
It is also significant that the contract signed
by the‘grievor (and approved by "authorized officials")
in September, 1975, designated the position as "Technician
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X-Ray";,at a.salary of $12,500 per annum; but similar
contracts,.signed in September, 1976 (at a salary of
'$13,913) and another in December, 1977 (at a salary of
$15,276). designated the position as that of's "Technician
X-Ray Supervisor" 2 one level above that of, a "Technician
l(b), X-Ray". Finally, the contract signed March 30, 1978,
provided for work,until Bay 31, 1978 (not March 31, 1978,
as the agreed statement of fact suggests) at a salary of
$16,345 per annum, with the position again designated as
"Technician X-Ray Supervis'oi', and compensated accordingly.
However, some.weeks earlier, the "Position Specification
and Class Allocation Form", signed by Dr. J. Hillsdon-
Smith,'Director, and Mr. J. W. Evans, Administrator, on
March.,9, 1978, .and by Ms. A.J.McMullin, Senior Classifi-
cation Officer, on March 22, classified the position as
"Technician l(b), X-R&y", and from the time of his appoint-
ment to the classified staff, Mr. Beaton was treated
accordingly.'.
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The discrepancy revealed by the curious chronology
set out, above, whereby the position suddenly dropped to the
level of "Technician l(b), X-Ray" after being considered
for at least 18 months (from September, 1976) as a "Tech-
nician X-Ray~Supervisor" (albeit on contract ratherthan
under the classified system) appears plainly on the face
of the Exhibits produced, specifically, Exhibits 3, 8 and
11, all forming part of the Employer's records. The
griever's representative did not make a point of the dis-
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crepancy and the employer's representative did not
mentionor explain its. The Board is of the opinion
that an explanation ought to have been given. The
Board can only speculate that pe~rhaps there was no at-
tempt to classify the position during the period when it
was officially outside the classified*service and it may
have been thought necessary to offer a Supervisor's rate
of pay to retain on contract a Technician with Mr. Beaton's
qualifications.
~The record referred to above is inconsistent
with.'the Employer's apparent certainty - at this time -
that the position was correctly classified in 1978 as
':Technician ,1(b), X-Ray". The Board' is not fully satisfied
that either party has gone into~the matter in sufficient
depth --- in 1978 or 1981. Clearly, 'there was some con-
fusion or doubt in March, 1978, as to whether the position
should be at the level of a "Technician X-Ray Supervisor"
or a "Technician l(b),X-Ray", or perhaps on a level with
some other more appropriate classification.
Confusion and doubt are also revealed by a
significant alteration made during the process of classi-
fication in March, 1978. In order to arrive at the appropri-
ate'classi_fication, there must be an objective and strictly,
accurate "position specification" -- in other words a job
description. When Mr. Beaton's job was being described,'
someone made a change which must be analysed.
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Exhibit 3, is a photostatic copy of the
"Position Classification and Class Allocation Form" on
which the Employer relies. It is dated by Director
Hillsdon-Smith and Administrator Evans March 9, 1978,
and dated by Ms. Adrienne McMullin, Senior.Classifica-
tion Officer, March 22, 1978. Among the .job "duties
and responsibilities" in paragraph l(i) the following
words appear:
“providing fact evidence in Court of
Law, as required, i.e. to justify
technique used to produce exhibit. . .
'It is apparent on,the face of the typing that
the word "fact" above~ has replaced a longer word. There
is an abnormal amount of space before and after the word
"fact", and the word itself is not properly aligned withy
the preceding and following words, which suggests that
after a longer word had been erased, the four-letter
word "fact" was substituted.
Exhibit 11, relied on by the Union, appears to
be's carbon copy (on yellow paper) of the same "Position
Specification and Class Allocation Form". The dates
are the same. Director Hillsdon-Smith's signature does
not appear, but those of Mr. Evans and Ms. McMullin do.
appear, and they seem to be originals, signed with pens. '
With three exceptions,,Exhibits 3,and 11 are the same.
The most important difference is that the word "opinion"
appears in Exhibit 11, but in Exhibit 3 it has been re-
placed by the word "fact"; In the first version, Exhibit
11, the clause was:
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providiig bhinion kzvi~dence in Court of
I- Law, as required i.e. to justify tech-
'nique used.to.produce ..erhibit . . .
The importance of the difference between
"fact" and "opinion" isthat 'a Forensic Analyst 2 (the
classification to which Mr. Beaton aspired) may be re-
quired to give "opinibn evidence" in Court --- in other
words, 'as exbressly stated in Exhibit 6 (a thumbnai,l
,description which falls far short of being a position
specification) a Forensic Analyst 2 "will be required
to present evidence in Court as an expert witness".
Thus, .by amending the specifications to elimin-
ate the word "opinion", substituting the word "fact",
the Employer, or someone acting on the Employer's behalf,
contrived to create a distinction between the require-
ments of Mrr Beaton's position and those of a Forensic
Analyst 2 in the Forensic Science Centre.
The distinction is somewhat artificial, be-
cause'it is for the Court (and not a classification
officer or a Branch Director) to decide who is to be
recognized as an "expert witness" competent to give
opinion evidence. A Court may or may not decide that a
ballistics specialist or a paint specialist is qualified
to give opinion evidence as an expert witness, depending
not only on his qualifications but also on the circumstances
and the purpose for which an opinion is sought. Similarly, .
an X-Ray Technician may or may not be asked for certain
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purposes within the range of his training,function and
experience to give an'opinion as an expert witness, and
such recognition is entirely for the Court to decide.
The notion that only degree-holders may be expert wit-
nesses is fallacious. Recognition depends on the specific
area of expertise in which opinion evidence is needed and
the qualifications of the witness in that particular area.
Be that as it may, during the course of several
years with the Forensic Pathology Branch, Mr. Beaton was
never called uponto give opinion evidence or to inter-
pret in Court any of the X-Rays he'did on numerous cada-
ve,rs . Such evidence, the Board has beentold; was given
by Pathologists and others. Whether Pathologists or
Anatomists are really qualified to interpret X-Rays is
a problem for the Courts, and not an easy one. There
are also of.dourse Radiologists Andy those experts often
used for the identification of cadavers by study of
dental x-rays on record; a need which can arise at in-
quests and in homicide cases.
The second.alteration as between Exhibits 11
and 3, also appeared to downgrade the importance of the
job.
In Exhibit 11, p. 2, the following is listed
among the incumbent's duties and responsibilities:
~ - estimating radiography ,budget for
Branch;
In Exhibit 3, the above phrase was re-written
to read as follows:
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(f) ensuring x-ray unit expenditures
are within budget allotment;
The third alteration is not significant. In
Exhibit 3, the letter (a) in brackets and the appropriate
alphabetical letter thereafter has been placed to the
left of each item, proceeding from the letter (a) to
the letter (1) in paragraph 1 and from the letter (a) to
the letter (g) in paragraph 2. This appears to have been
done by hand, in pen and ink.
In notes made by Mr. Beaton prior to the 1978
classification (Exhibit 9) his "Duties" were .summarized
as follows:
Genera2 Radiography: skeletal surveys -’
identification - homicides 7
sui‘cides - industrial deaths.
Xeroradiographic Techniques: to ccmple-
mgnt general surveys and in expe-
rimental work.
Fluoroscopic Examinations: particularly
in decohposed, mutilated, incine-
rated, partiaZ and skeZetaZiaed
remains.
Industrial ‘Examinations: fine detail exams
- mainly ,572 experiments.
Other Examinations: examining specimens '
from police, forensic science
departments, out of metro organ-
isations.
. . ExperimentaZ Examinations: inczudes the
useage of all available radiation
3ource8.
Leo tures a’n’d Tours : participation in
conducting tours of department
facilities, lecturing interested
professionals in forensic radic-
graphy techniques.
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As "Additional Activities" 31r. Beaton,'in
Exhibit 9, also listed the following:
-, organizing of radiographic room and
darkroom.~
- impZementation of routines.
- participation in purchasing bf equip-
ment and disposab2e.s. .
- receivi,ng and interviewing sales reps'.
- public relations and co$respondence~
with related professional organizations.
- reading and researching forensic~radio-
graphy techniques.
- organizing visiting student instructi'on
programs.
- participation and attendance of. depart-'
mental teaching seminars.
The 'actual duties and responsibilities of the
position while it was filled by then grievor were described 1
by him in his testimony to much the same effect as in the
notes quoted above. They were aiso~described by Directory
Hillsdon-Smith. There was no disagreement about the
following facts.
Most of the,work involved the identification of
human cadavers,, many in various stages of decay or decom-
position. These were the subject of conventional' x-rays
and also more advanced techniques. Thus the position
specification ~(Exhibit 3) requires that the Technician.
"determine most appropriate method of x-ray examination
from~a variety of radiographic techniques such as general,
Xeroradiographic, fluoroscopic, dental and industrial
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examination, etc.;, utilizing knowledge of physical manifest-
ations of cause of death, condition of material and intended
purposes of x-ray i.e. analysis, identification, evidence,
teaching material, etc...."
The general purpose of the position was stated
as follows: "To provide technical x-ray services to the :
Forensic Pathology Branch in support of enquiries into
complex,sudden 05 unusual deaths and to perform related
duties". Thus the occupant was required to become "fami-
liar with circumstances relat~ed to examination inc,luding
suspected cause and circumstances of death, availability
of a-te-mortem x-rays, etc." Also :
- preparing x-rays for examination and
analysis by Pathologist;
- assistitig with idzntification of persons J using genera2 and dental techniquei to
compare ante-niortem and post-mortem z-rays;
recognizing and duplicating distortion in
original x-ray; request removal of subject’s
jaw as determined appropriate; discussing
applied techniques with PathoZogist’or
OdontoZogist, as required;
- gathering.information for Pathologist:
using fluoroscopic examination over T.V.
monitor or genera2 techniques, employing
most appropriate r-ray method;
- empzoying x-ray techniques for, purpose
other than pathologists examination such
as examining specimens submitted by police,
forensic science, other organizations, etc.
- evaluating quaZity~ and content of x-rays,
determining if more extensive examination
and application of other techniques appropr-i-
ate;
- providing x-rays for use as evidence in
Court of Law;
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- researching .and esp,erimenting with
forensic radiography techniques; keep-
ing up to date with developments in
radiography fie Zd.
In connection with the foregoing paragraph,
Mr. Beaton testified that general x-rays had been done
previously, but it was he who suggested and introduced ,
the use of the fluoroscopic technique. Dr1 Hillsdon-
Smith gave a somewhat different although not entirely
contradictory version, saying: "Be didn't initiate the
choice of equipment. I started Xeroradiography and
Fluoroscopy but he was responsible for surveying what
was available and provided me with choices before the
decision to purchase. 'I decided whether it was useful
for evidentiary or teaching purposes". He agreed that
Mr. Beaton might recommend purchases. What this amounts
to is that important decisions were made by the Director
(as could be expected) whether or not,the~ idea originated
from Mr..Beaton.
The position specification, Exhibit 3, continued
by mentioning the development of x-rays "using a variety
of developers and solutions", as well as "providing ser-
vices during off hours, as required".
The foregoing specifications were said to
constitute 80 percent of job content.
Administrative and other support functions in
paragraph 2 were given 15 percent of job content. These
functions included:
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(a) speaking and giving demonstrations J
on techniques and use of radiography
in Forensic Pathotogy to. audiences of
Patho Zogis ts, Coroners,’ Lawyers,
Police Officers, Community Co Zleges
and Toronto Institute of MedicaZ
Technoldgy students, etc.;
It seems rather unlikely that the function just
specified ---- or any function of like importance -7-
would be expected of a Technician l(b), X-Ray,in an
Ontario Hospital or Mental Retardation Centre, where
routine x-rays commonly involve~the search for fractures
or evidence of a problem in the lungs of living persons.
Other, additional functions were:
conducting tours and exp Zaining ,3ranch’
operation, upon request ;
preparing x-rays for teaching purposes;
researching, seZecting and ordering
supp Zies , and equipment, interuieoing
saZes representatives; drawing up
specificatipns prior to purchasing,
as required;
setting up radiographic room and dark-
room, assuming responsibi Zity for maintenance of equipment; mixing and
storing chemicals used in film processing;
ensuring r-ray unit expenditures are
within budget allotment;
dealing with outside professiona
organizations on technica and adminis-
trative matters of mutua2 interest.
The remaining five percent of job content was
described by the usual catch-all phrase: "Performs
related duties as assigned".
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In a capsule summary at the foot of page 1 in
the Position Specification, it was said:
Incumbent performs skiZZed technicaz work
tn the operation of x-ray..equipment.
Is in sole charge of r-ray unit: prepares
budget estimates., requisitions supplies
and equpment; performs a pariety of adminis-
trative and other support functions.
Works under genera2 supervision of a medica
superior.
It should be kept in mind that all of the language
quoted above was certified correct by Dr. Hillsdon-Smith,
Mr. J.M. Evans and the "authorized evaluator", Ms. Adrienne
~McMullu~. It is not, however, consistent in all respects
.with the testimony given at the Board's hearing by the
Director and by Ms. McMullin, who manifested a certain
tendency to down-play the importance of the position.
For example, the Director strongly emphasized c
that.the incumbent was not called upon to give expert
evidence or to 'Xnterpret" x-rays, which was undoubtedly
true in the strict sense, but does not tell us what Weight
was naturally given to his opinions by the Pathologists or
Radiographers with whom he Worked. The Pathologists in
particular needed all the information they could get from
him before proceeding with an autopsy. It is not always
easy to draw the line between useful information and
opinion or advice.
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The Director also remarked, only half in jest,
that an important requirement of the job was "a strong
stomach", which seems to minimize the responsibilities
set out in the "Position Specification". He further im-
plied that the job could be filled by x-ray technicians
from general hospitals. Whether such institutions do much
work in such a.highly specialized area as that occupied by
the Forensic Pathology Branch is, to. say the least, rather
doubtful, and whether they have technicians capable of
giving lectures-to Pathologists, Coroners and others is
even moreVquestionable. Probably for this reason, the
Director spoke of qualifications and knowledge being
"acquired on the job". He may have been referring,to the
30-month period in which Mr. Beaton was employed on con-
tract, but during that same period,--- or most of it ---
the contract mentioned .a higher c,lassification than that
eventually allocated to the position, and Mr. Beaton was r
paid compensation corresponding to that higher level, as
was speicifically stated in his last contract. It is
noteworthy that the .first contract (under "Reason for
Request") included the words "Initiation of Programme".
It is clear from Section 17(l) of the Crown
Employees Collective Bargaining Act (as well as Article 5
of the applicable collective agreement) that the classifi-
cation of positions remains "the exclusive function of the
employer", but an employee is given by Section 17(2) of'the
Act the right to grieve "that his position has been im- \.
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properly classified", In other words: that the position
I has not been classifi& in accordance with the Standards.
and Procedures established by the .Employer, Reference
must now be made to,the testimony of the Senior Classifi-
cation Officer, Ms. McMullin, and the exhibits she
explained.
Exhibit 5 consists of extracts from the Ontario
Manual of Administration, setting out policy in "Position
Administration".
It defines "Position Analysis" as "the process
of determining the duties and responsibilities of a posi- ..
tionincluding the knowledge and skills required of an.
incumbent".
"Position Evaluation" is defined as "a compari-
son and assessment of the position against the appropriate
Standards". ~ 1
"Classification" is said to be "the process of'
allocating a position to a class".
"Atypical Allocation" is "the allocation, to a
class of a position which in general fits this class better
than any other, but is significantly different from other
positions in the,class with respect to:
the fu&ion(el,carried out; or
the skills and knowledge required.
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.The disputed classification in the Hooaer ease
(h) had attached to it the allocation "atypical".
In this case, however, the classification, officers did
dot cons'ider the term appropriate. &lr.. Luczay has said
that it makes no difference whether the term was used or
not.
Two other definitions should be mentioned.
"Compensable Factors" are "the common components
in positions, present in varying degrees, used to assess
the relative,worth of the positions being evaluated".
"Factor Analysis" is defined as "the analysis
of a position in terms of the compensable factors".
Exhibit 7 consists of "Class Standards" in
respect of three classifications: Technician l(a), X-Ray
Technician l(b),X-Ray (the classification allocated to
Mr. Beaton's position) Technician, X-Ray Supervisor ---
the classification tentatively used in connection with
Mr. Beaton's contracts in 1976, 1977 and early 1978.
Exhibit 6 is the !'Class Standard" for the
"Forensic Analysts Series", with a "Preamble" describing
the kind of work done (and the exclusions) followed by
very brief references to~Forensic Analysts 1, 2 and 3.
Attention has been drawn to the three-line description
of a Forensic Analyst 2 (the classification sought by
the grievor) which 'includes the rather ungrammatical
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sentence: "They will be required to present evidence in
Court as an'pxpert witness".
NS. McMullin explained steps in the procedures
followed to arrive at a "Class Allocation".
.The first step, ~she said, involves a written
description of the "Duties and Responsibilities" --- in
other words, the specifications applicable to the job. !
At the second step, a classification officer
is required to identify.the "Class Standard" against~
which the job should be measured. In this case of course
the second step was crucial:.there is controversy about
whether the appropriate standard is in the X-Ray Seri.es
or the Forensic Analyst Series.
At the third step, the classification officer
takes the class series.or standard against which the job
, is being compared, starts at the'lowest level in the
series and continues to work upward until a "match" has
been found. The result at this step would be invalid if
the second step .had been taken incorrectly.
Finally, the classification officer compares
the job with the next higher level in the series for
the purpose of verifying or confirming the match which
has already been chosen
In the case of'Ur. Beaton's job, the step-by:
step.procedure was not carried out by Ms. Nchlullin her-
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self. The,specifications were drafted by a subordinate
.(presumibly with some help from Dr. Hillsdon-Smit,h land
the grievor's notes) and they later met at the first and
second levels of the grievance procedure,' Ms., McJlullin
had approved of the work done by her subordinate, who did~
not testify at the hearing held by this Board. Ms.
McMullin maintains that nothing in Exhibit 3 (the Posi-
tion Specification and~class Allocation Form) is inconsi-s-
tent with Exhibit,7, which is a rather brief and attenuated
description of the positions in the X-ray series, the
language amounting to very much less than
the wordage in the Position Specification filed in respect'
of &e position--- Exhibit 3. Obviously, it is impossible
for a Class Standard to describe comprehensively the range
of functions represented by a class. This leaves the
classification officer with rather a wide latitude (or
discretion) when comparing a lengthy job description with
a very brief definition of the appropriate standard. Nore-
over, the Standard as defined discloses little information
about the "Compensable Factors" --- or theirrelafive.
weight --- which are said to be important in job evaluation,
and which are more precisely stated in most procedures
utilized by industry. The Board has been told nothing of
the "Factor Analysis" arrived at in revaluating Mr. Beaton's
job at the Forensic Pathoiogy Branch.
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The Board, however, was told that the position
did not match ,t,hat of a "Technician, X-Ray Supervisor",
principally because employees at that level (to quote the r
Standard) "exercise full technical and administrative
supervision over an X-Ray Department where at least one
qualified technician is employed", and '!supervisory re-
sponsibility is usually exercised over other support
staff as well".
The Board has no difficulty agreeing ,with the
Classification Officer's view that Mr. Beaton's position
did not match that of a~"Technician, X-Ray Supervisor".
1t.k clear that Mr. Beaton functioned alone (which.does
not mean necessarily that the position was any less re-
sponsible) having no othertechnician to supervise. He
was responsible to the Branch Director and also.in a sense
to the various Pathologists, Radiologistsand other pro-
fessionals such as-the Dean of Dentistry at the University
of Toronto, ,as well as with Police Officers and other in-
volved in the investigation of deaths. However, all this
becomes irrelevant if the matching was being done by the
Classification Officers in the wrong series. Once it is
assumed that the applicable class standard is in the X-ray
series,. Exhibit 7, thena match would necessarily be found
with the position of "Technician l(b), X-Ray" --- and not
Technician, X-Ray Supervisor".
The question remains, however: what was the
applicable class standard to be determined at the crucial
second step in the classification process?
For reasons to be given, the Board has come to
the conclusion that the Classification Officers (and the
Branch Director) were wrong in thinking, .as they seem to
have done from the outset, that the applicable or appropri-
ate class standard was to be found in the X-ray series.
It is significant, although not conclusive, that
. the only,position specification an the.X-ray series (other
than that for Mr. Beaton's position) placed before the '
Board was that of "Technician l(b), X-Ray" in a mental.
retardation facility at Woodstock, Exhibit lOR, and that
it describes a job very different from that held by Mr.
Beaton. Since.the standard describing "Technician l(b),
X-Ray" is so abbreviated, the Board was naturally interested
in Exhibit 10R. Us, Rage1 obj,ected to its admissibility on,
the ground that it was not proved and not provable through~
Mr. Beaton. The Board reserved consideration of that point. _
We are now satisfied that the document must be accepted as
authentic and that it is relevant. It bears' all the signs
of being just as authentic as Exhibit.3 or Exhibit 11;
Ms. Nagel said nothing to suggest it is not genuine, offering
only a technical objection. Suchdocuments ~ai-e not secret and
no doubt many are in circulation. If there is another
"Position Specification" for a job in the X-ray series
bearing a closer resemblance to the job in the Forensic
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Pathology Branch, it was open to Ms. Nagel to produce it.
The Board would have been pleased to consider more and
better evidence from both parties. In any event, Article
5.1.3 of the applicable collective agreement makes clear
that the Union has a right of access to "all information"
and may obtain "copies of all documents which may be rele-
vant to the grievance" --- i.e. a classification ,grievance.
In that context, the objection to Exhibit 10R is unfounded.
J
There are of course "common components" as ,....
between the technician's work at the Forensic Pathology
Branch and the technician's work at the Woodstock facility,
Since.both must 'use X-ray equipment. However, the striking )
thing in a comparison of'Exhibit 3 with Exhibit 10R is that
on the whole the Woodstock position.appears to involve
considerably lighter duties and~responsibilities than does
the position at the,Forensic Pathology Branch. The' former \'
is replete with strictly routine duties, such as "annually
re-X-raying all residents, arranging times, ensuring survey
is complete", and "preparing card and film file on all new
staff and residents". Some duties would never 'be applicable
on Forensic Pathology, e.g. "taking E.C.G.'s on residents
when they are admitted as well as upon doctor's request".
6f course, it could be argued that X-rays of the living are
more important than X-rays of the dead. However, many of
the significant items listed in Exhibit 3 ar,e,totally
absent from Exhibit lOR, e.g. Xeroradiography. (Mr. Beaton
~testified without contradiction that the ,ForensicPathology
-.26 -
Branch is.the on1.y facility on the continent to use that
technique, one on-which he has collaborated with the Xerox
Corporation). Moreover (not surprisingly) the Woodstock
technician is not called-on to give lectures to Pathologists
or Coroners. Most important, ,his real function is to do
routine X-rays of living persons and not to help in dis- -
covering,explanations for mysterious deaths, a field in
which forensic science and the law take a speciai and
intense,interest.
The Employer's witnesses emphasized that employees'
in the X-rays series utilize the same "tools of the trade"
as Mr. Beaton did: i.e. they all use X-ray equipment, even
if it does not include Xeroradiograp,hy.
The Board's opinion is that Classification Officers
in this'case were unduly influenced by the "tools of the
trade" factor. It cannot be the sole determinant or even
'the~.most important'. In the newspaper trade one 'sees both
a managing editor and a cub reporter using a pencil, a type-
writer and a telephone. It'does no'c follow that their jobs
would ever have the same classification standard.
Forensic science is a world apart from others
because of its special relationship with law enforcement
and the administration of justice, both civil and criminal..
It is not widely understood. Crime fiction, television and '
other media create the mistaken impression that the mysteries
of unnatural deaths~are usually solved by aningenious
-
,
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detective. The.painstaking work of forensic scientists
and their aides may be less dramatic (and.much less
publicized) but often solves mysteries beyond the capacity
of .any detective. Forensic scientists, assisted by tech-
nicians~and analysts, can identify the age of arsenic in
the human hair, analyze undigested fragments of food many
years after death (if an autopsy has been conducted correctlyX 1
classify paint, metals, poisons or maggots and --- by using
.X-ray --- discover bullets and fractures hidden from.'che
eye of the detective. In doing,so, forensic science re-
sorts to specialists and ~technicians in a wide variety of
areas including odontology, pharmacology,chemistr), physics,
,metallurgy and the resources of advanced X-ray technology.
In'its catholicity of scientific approaches, it is probably
unlike any other science. :
Examples of X-ray being used by a forensic scientist
are cited in such authoritative works as Gradwohl's "Legal-
Medicine" (2nd edition, edited by the late Dr. F.E. Camps i'
and others) at pages 74, 76 and 77, and the dangers of
radiation (including those in irradiated cadavers) are
discussed at pages 516 to 519. The classic work, Taylor's
"Principles and Practice of Medical Jurisprudence'(12th
edition, 1965, edited by Dr. Keith.Simpson and others) at
.page 57 of volume 1 sounds a warning note, doubtless~with
litigation (or an inquest) in mind: "In every case where
there is difficulty in diagnosis, and in every case pvhere
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the patient has sustained some violence which might possibly
have caused fracture or dislocation, the practitioner who
does not have an X-ray examination made exposes himself to
unnecessary risk".
The criterion which sharply distinguishes all
work in'forensic pathology from the work of X-ray techni-
cians (and others) .in hospitals is the intimate relation-
ship between forensic pathology and the law. Indeed, the
broad definition of the adjective "forensic" in the Oxford
English Dictionary is: "pertaining to, connected with, or
used in Courts of law . .." It also defines "forensic
medicine. as: "medical jurisprudence". Very similar defini-
tions appear in other dictionaries. None of these~character-
istics apply to most of the work done (by X-Ray Technicians
or others) in hospitals :or mental retardation facilities.
Even physicians are rarely concerned with medical juris-
prudence or any of the forensic sciences unless they become
defendants or witnesses in malpractice suits.
Our conclusion in this case must'be that an error
was made when it was thought (or assumed) that X-ray .work
in the Forensic Pathology Branch fell into the X-ray series
rather than the.Forensic Analyst series. The error was
made at the second step in the classification process (as
described by Ns. Mcklullinj and of course it invalidated all
subsequent steps.
In the Board“s opinion the error was due to placing
emphasis on the "tools of the trade" rather than on the
. . .:
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raison d'etre for a position created to serve a need in the
Forensic Pathology Branch which is associated with the Centre
of Forensic Sdiences; the Chief Coroner and the Fire Marshal,
all of theme being within the Public Safety Division in the
Ministry of the Solicitor General, all of which serve the
public by utilizing the resources of forensic science, which
has purposes far remote from the functions expected of a 3
hospital or mental retardation centre. Classification
Officers were also influenced by the."exclusions" de~scribed
in the standard for the Forensic Analyst series and'by the
mistaken belief that the incumbent could not be called to
give "opinion evidence".
Since the Employer's witnesses relied heavily
~ on the Classification Standard of the Forensic Analyst
series (Exhibit 6), it is reproduced as Appendix "A" to
this decision. The Board is not persuaded that the so-called
"exclusions" .apply to the position which was held by Mr.
Beaton. Our reason for rejecting the "exclusions" argu- '
ment is clear: there is no evidence that any other
"occupational group or category" embraced the unusual and
indeed unique functions the incumbent was qualified to'
carry out and in fact did carry out pursuant to-his job
description, e.g. giving lectures to.Pathologists, Coroners,
Lawyers and Police Officers. .
It must be repeated that the general purpose of
the position was most clearly stated in the opening words
of the Position Specification, Exhibit3: "To provide
technical X-ray services to the. Forensic Pathology Branch
in support of..enquiries into complex; sudden or unusual, /
deaths . ..'I Those words are obviously not applicable
to other X-ray technicians, but they are akin .to.some of
i the work done by'persons in the Forensic.Analysts series.
On referring to the standard for Forensic.A~nalysts;
'it is apparent that the position' in Forensic Pathology would
not match the very.brief description of a Forensic Analyst '1
(real1y.a trainee) or a Forensic Analyst 3 (who has "group
leadership" responsibilities) but would logically fall
within the,classification of a Forensic Analyst 2.
,
,The Board therefore finds that the grievance is
well-founded, the position formerly held by the grievor was
wrongly classified as of April .1, 1978, and it.ought to
have~been classified Forensic Analyst 2,. The grievor should
be compensated accordingly in respect of the period from
April 1, 1978, until the date on which he ceased t-o hold
the position.
DATED at Toronto this
.I :-;-i ‘.
.e.. \. .I’
?i ,: ,r
r>.-,
,, 8. _’ / /[ J . / _ ,, (,.i;.(-i
.-E...B. Jol,$qe, Q.C. I+e Chairman
4. G. Stapleton/ Member
f-r .,. :. _.--. f _.,,
1: J. .Thomson Vember .
/lb
EXCLUSIONS :
Excluded from t3e series are pasitixs xiaese tSe duties requ?e
skill and !&wledqe such tSat they c?jali-s for ix%.uion in a se>+rate
.occupational group or catesory. ~xan~-s ar- acsitions 'involving~ _-- --
scientific work which =e~~Jires,?ro~essiar.al qcalifica:iors in a
scientiZic discipline, photoqraghic wxk which rxy.~ires extensive
'techical training, and finqerprinz clrksification work csinq thd
Aenry ciassiZicrtion system.
.a -'
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