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HomeMy WebLinkAbout1979-0116.Duck.82-06-01ONL4RIO CROWN EMPLOYEES GRfEVANCE SETTLEMENT BOARD IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYERS COLLECTIVE BARGAINING ACT Before ,... THE GRIEVANCE SETTLEMENT BOARD I + Between: Before: FOT the Grievor: .; ,,, ~‘.:i,. ‘I ’ CPSEU (Mr. Arthur'Duck) Grievor - And - .~ '. The Crown in Right of Ontario (Ministry of Revenue) Prof. M.R. Gorsky Vice Chairman Mr. R.. Russell Member Mr. A.G. Stapleton Member Mrs. J. Miko Grievance/Classification Officer Ontario.Public Service,Employees Union ~.. . ..+. :::.., .,1. , For the Employer: Mr. E.C. Farragher Director, personnel Services Branch Xinistry of Revenue Hearings: July 29, 1991 December 11, I981 January 23, 1962 AWARD The Grievor, Arthur Duck, claims that he should be classified as a Property Assessor 3 and not asa Property Assessor.2;-~GiFifih~~t~~~'-----"'"--- classification he occupied at the time of the grievance. The relief claimed is that the classification be made retroactive to October 5. 1978,' when the matter of recltissificationwas firstraised by Mr. Duck with his supervisor (see Exhibit 8). In so claiming, the Grievor alleges that the Employer'has violated s.18(2) of the Crown Employees Collective Bargaining A&,~ R.S.O.~l980,'c~'l08.'Section~'18(l)(a) of the latter Act provides that "classification of positions" is within the exclusive jurisdiction of the . Employer.? Where an employee.alleges, relying on s.l8(2)(a),that he or she .,~ ' :. .;. 1 has-Itieen.improqerly:classified,.a bdard. is~ precluded, .by-~'s.?8(l),!a), fro?,, _ : ,, ~'; interfering with the classificationsystem adopted. This Board.is restricted : -, to determining whether the Employer is conforming to the relevant classification : $ iem ~.-'Y'- The'lLcgi]sl'ation.fiirther~ precludes this Boaid,from doing-other than :. . ;- ascertaining whetherthe employee, whose,case is before.the Board, _ *' actually .> ,, performs the duties 'assigned to the position.. As well,. .in a case where the _. ~ '. employee is performin9the duties assigned to the position,'it must be .i _.~_ .~..~ ascertained whether he or she is, as well,.being required to perform virtually the identical duties which are being performed by employees whose position is included in another and more senior classification. In Re: Roundinq, 18/75, Professor Beatty describes the juris- diction of a board in matters such as the one~before this Board: ., -3- ‘c I, . ..thisBoard is'limited by the express provisions ~ :. of legislation to determining whether or not on the system employed in the classifications struck, the employee in question is actually performing the duties assigned to the position or even assuming ,that to be the case. whether that employee is nevertheless being required to perform virtually the identical duties which, the class standard notwithstanding, are being performed by 'employees whose position has been included in some other more senior classification." It was the position of the Union thatthe Grievor was performing substantially the same duties as employees classified'as P.A.3s.. In this regard,evidence was heard from George Broadfootand Mike Campbell, two employees classified as P.A.3s. : ., .._ -,.. ~.~ ,ItSwas.the position of$he Qapl-oye'r thatd,the.Grievor was-not... : .:' ,._ ;:;: performing substantially the same functions ai' those:'of P.A.%and. that, in fact; he was neither able to,nor.required to,perform many of the functions ~~which~ are set out in the class standardsapplicable to the P.A.3 classification. .~ It-was' the position of~the Union that if Mr. Duck was not performing certain functions which are~.set out in the class standards'applicable 'i&the -P.A.3~classiflcation;theti~~Wi~wd~ ~0, because those pat%i&Tar funttions were, at best, infrequently, performed by P.A.3s. In the case of Re Rounding, supra, it is stated,at p.8,that where.certain duties set out in a class standard are,in fact not being performed ,or only.~infrequently being performed'by persons within that class, such standards would, be overlooked. That is, the Board would look to see whether the Grievor was performing "virtually the identical ,duties which,.the class standard notwi.thstanding,~are~being perfonneddby,.emploiees_whosee position has been included,in some other mOre xenior classification.~? '1 a+eti:' : with Professor Beatty's interpretation,which in no way detracts from the binding effect of:the.class standard; Such a case is not to be confused with a situation where only one employee in a higher classification "performs the same tasks, for it may beg tnat such an employee has been improperly classified". (See, s i . . c’ -4- Montigue, 110/78) 5winton. Professor Swinton stated at pp.5-6: "If another empioyee doing-identical work to the grievor is classified at a higher grade, it may indicate that the employer's'actual classification practicesdiffer from theitten classification standards." Professor'Swinton then goes on to indicate that evidence of the performance of one employee might be inconclusive for the reasons stated. . In the,case of Re Charbonneau and Skomorowski C’ . 435/80, at p.36 I stated that: "I treat the class standards as being the absolute standard. The reliance on evidence relating to ~jobs performed ty other employees covered by the class standards provides an -~ . . . . -,_... ~., - . illustration of 'the applicat~ionto pa'rticular '; I :' : . . " - : cases of what are necessarily generallyworded r statements'.,To this extent they ser%e as aids. to interpretation. They cannot; however', serve to undermine the class standards asthe governing ~~ _~ . . basis for determining classification disputes." \~. ~. '> There is nothing inconsistent, in. the last quoted statement,. with examining the~actual performance of responsibilities by employees,:.'. I.-,. ~assigned to a particular classification. Depending on the circumstances, they may assist in determining what the class standards are. If a significant number of employees are assigned to a particular classification and it is demonstrated that,they .doinotperform,certain of the work set out in the written classification standards, then an employee, in a lower classification, doing work identical to that which is assigned to employees in the higher ~. .~. classification, should~ be treated .as.includedin the ~hi.gher.cl~as~sificatiqnt,;., :...-zil::' At no time are~the.class standards discarded or ignored. they are merely I .: interpreted in the light of standard practice. -5- It was the position. of the Employer that the Property Assessor - ..~ -,,. .-.-. . . ----,.-.. . . _.. . .._ ~~ .._. ~-- -_ ..- I ._._ ___~ .______._. classification is a training position and accordingly an employee does not attain a higher classification until he or she demonstrates competence in carrying out the functions of the higher classifications and it is-not enough to merely demonstrate that the employee performs or is expected to perform the work of that classification. There is nothing in the language of the Property Assessor-clas~sification which 'designates those within the classification as being party of an overall training scheme whereby they move from position to position as they attain an acceptable standard of performance. There.. was nu evidence of any communication to employees that this was. the case I -when they were.assigned ,to the performance- of.work which was arguably ': ~_ AL:;. . within the ambit of a higher classification. ~Gi'ven the nature of the ', ., Property Assessor classification, it is inevi,table that there will be al ..' certain amountoi.overiap between the tiork~.perfgrmed by persons within ,the several classifications. In the.absence of any clear language disclosi!ng that an' incumbent must attain a particular standard of proficiency to ; qualify for advancement to a higher classification-, I am unable to accept the Employer's submission that this Board should imply such a term. Iimust also reject the submission of the Employer that the process undertaken requires uSto not only rate an employee with-respect to the job functions expected to be performed, but also to rate the employee's proficiency in performing the functions. If~that were the case; it would be expected that this I .. requirement would be represented in' the classstandards. There was ,,& '; ,I: ', :~, ~:: . . . . .: evidence disclosing that when the Grievor was given responsibility'fo'ri' ":'~ assessment in a neighbourhood, he was also informed that this was merely part of a ongoing training process. which might lead, upon satisfactory completion of training, to the acquisition of the status of a P.A.3. : .I . -6-. I I- 2.- It was the position of the Employer that the class standards ‘--forthe P.A.2 and P.A.3'positions wereeclear and unambi~ljous-~-.I.inust-eon~~~~~'---"-~-.- that I do not find them to be so. The meaning of the general language contained in each of the class standards is capable of being clarified,,~ utilizing. for that purpose, examples of the work actually performed by, persons classified as P.A.3s. On several occasions,it was submitted, on behalf of the'Employer. that it was necessary that the-Grievor first "establish and,prove that he . c has the ability .to perform the higher level duties described in the P.A/3 class standard." Mr. Dick, the Grievor's Manager, testified that, in ! .* . .:his.opinion,-.~the.,Grievor,.who was classified'asa P.A.2, not onl:y'did.not:- '. _ : ;:;2 have the ability, atthe material times,' t0,per'fot-m many of the PA.3 ; functions, but, as well, did not even have the ability to perform many of "-the P;A;2 functions.~. .In fact, he~volunteered. Mr. Duck did not even have , the abilityto carry out many of the P.A.l functions. Nevertheless,'the Grievor was classified as ~a P.A.2. In August of 1978, at an appraisal meeting, he was advised that his level of performance as a P.A.2 was less (. than satisfactory. It would appear, from Mr. Dick's evidence,that the Grievor had never acquired qualifications, in the sense used by the Employer, at any clevel of the Property.Assessor-classification., This might be the case. However, the, promotion of the Grievor to the P.A.2:classification by the Employer is consistent with my view of the class standards as job related and not man related-; If an employee is assigned to perform the work of a- particular' .: ; =.; L ; :,,.':.:~ classification, in the absence of clear language in the class standards, such employee is within that classification, whether he or she performs the (work -7- .c’ well or badly. <Poor work performance need not be tolerated by the Employer, but we are here not concerned with the expedients available to the Employer fin such a case. -;.ce.r.t.a.inly, .jn,.the :vi.~w.pf..a.t_,!,east.~one-sf..hjs .supervisors..~.,..-..- the Grievor was unqualified, at any level, to function as a Property Assessor. I have not been directed to any case on point which establishes that an employee must be able to perform the work set out in the class standard to a particular level of competency in order to~be within that classification. In the absence of such.a requirement being present in the class standards : the.issue is to be decided~in ~the manner.set out in the~Roundinq case (-1. Mr. Farragher characterizes his position; at p.9 of his written argument: , ..-A,~: ~ ",...[S]ince~the.duties: Performed by Mr.'Duck .. ' : .~ were not identical to those performed by Messrs.. Campbell and Broadfoot,,I suggest that there if no indication of the employer s actual classification practices differing from the written classifications standards." .~ ,. -. What I take him to mean, is .that Messrs. Campbell and Broadfoot were accepted by him as representing P.A.3s, properly classified and performing their functions as set out in the P.A.3 class standard; whereas the Grievor~, who it was alleged was not performing those duties., could not be considered to be improperly classified as a P.A:2. My examinationof the duties carried out 'by Messrs. Campbell and Broadfoot satisfies me that there were many areas within the class standards for the P.A.3 posi~tion which they did.not carry out, and which they. were not required to carry out. There was no suggestion that Messrs; Campbell and Broadfoot fell within that group of employess in a higher classificationreferred to in the Yontigue case decided by Professor Swinton and relied upon by the Employer. From the argument of the Employer, it is clear that it accepts that the work performed . c c c - 0- by Messrs. Campbell and Broadfoot was representative of the work performed by P.A.35 anti-i that they did not constitute isolated examples of improper ~classificati-ion; ..Therefore; if~I find that the Grievor'was required to perform virmally the identical duties which, the class standard notwithstanding.,' were being performed by Messrs. Broadfoot and Campbell, whose positions were included in ithe P-A.3 classification, then I would find that the Griever has been imprroperly classified. See, the Rounding case -. II would find that there are areas of responsibility established under the PA.3 class. standard which the Grievor did not carry out nor can I find tlhat he was required to carry them out. This was also true of Messrs. Br-oadfoot and Campbell and I am satisfied that the result ,~.. '. in this.case.,must be based~on a comparisonofthe responsibilities attached, : ...i ~^,.. . 1'. to the Grievar's position and those attached td the positions of Messrs. Broadfoot anal Campbell. In doing so, I must.once again emphasize that the alleged defic3encies fin Mr;.Duck's work performance cannot be considered. . in this case,, although.they may have, to be dealt width in other grievances ' ..~ ..~. filed by the tGrievor and which.are proceeding to arbitration. One of the positions taken by the Union was that the Grievor, in June of 1977, was assigned to a neighbourhood when the neighbourhood system was established, and that as all of the other assessors assigned neighbour- hoods.wereP,A.3s~~this ~representssome evidence demonstrating that the Grievor was required to perform the work assigned to P.A.3s. The evidence discloses, however, that there were some P.A.2s assigned to other neighbourhoods and that, in fact, there was"a~.P.A.2 assigned' to a neighbour.hood in,.,theiGrievor's.area. -. Q- c The Employer endeavored to differentiate the responsibi,lities of the Grievor from those of the other P.A.3s assigned a neighbourhood, by stating that the Grievor's neighbourhood was a training neighbourhood and was one presenting less complicated assessment problems. Mr. Campbell's evidence was to the effectthat his own neighbourhood was not that.complex and was similar to that of theGrievor's,with a small incidence of commercial properties.' An examination of Exhibit 2-11 dfscloses that there are a number of other P.A.3s who have a small number of connaercial properties; . c for example Mr. R.'MurCay in, neighbourhood 501. and Mr.~F. Fry in neighbourhood 514. ,.-:; ,.T+ The.~,Employer emphasized the trainlng nature of the neighbourhood :i . . . . . . -__ .:. assigned to the Griever. It is true that?(ej$eceived some superv~s&n, , .,., although it is not clear that such supervision was appreciably greater . than that furnished P.A.3s inthe same area. Where a P.A.2 wasassigned functions in a neighbourhood,it would. seem that he was under the direct supervision of a P.A.4. -For example, Mr. Peter Jensen, a P.A;4, who was .: assigned neighbourhood 516 and in turn assigned to Mr. T.~ Dineen, a P.A.2, certain functions in his oeighbourhood which were carried out under the direction and guidance of Mr. Jensen. Reliance was also made. by the Employer, on the Grievor's allegedly poor statistical record of jobs completed. I do not believe that the volume Of work performed is germane to this issue, as this would relate to whether an employee was meeting acceptable productionrequirements but would be irrelevant to the question of whether he was expected to perform the same function as P.A.3s assigned to neighbourhoods; A review of Exhibit 2-11; "Comparative Records and Quarterly Production Reports," demonstrates that Mr. Duck carried out assessor functions also~ carried out byp.A.3sL These duties are associated with Sales; . .I ,I - 10 - I.' ./ the s.42/43s; s.636 A/B and Appeals. These were described by Mr. Campbell in his evidence as !'ordinary.neighbourhood functions." There was a great deal of evidence as to, what was termed, Mr. Duck's unwillingness to go out into the field and. particularly to his refusal to go out into the field at night to perform various assessor functions. Once~again, this relates to the standard of performance and not to the functions assigned. In their evidence, both Mr. Campbell and Mr. Broadfoot testified that they made court appearances with respect to assessment appealspas did the Grievor. There was an attempt to differentiate the nature of the responsjbility (1 . .~-.I. based on the Grievor being subject.to greater supervision. The Grievor and - Messrs. Campbell and Broadfoot all testified that their Manager,%. Dickgwas . ~"p&sen<.,at co'urt~'hearings and I am'unabieto find, on the evidence,:that.the ) ~':;. . ~Grievor was being supervised to such an extend that it might be said that the nature of the work being performed by him was not, therefore, the same as that assigned to P.A~;3s such as Mr.'Campbell and Mr. Broadfoot.: In his initial presentation of evidence, Mr. 'Dick emphasized : the.degree of supervision given Mr.' Duck in connection with court appearances,. but in cross-examina,tion.admitted that he went to court with all of the ( assessors. I cannot avoid observing that there was manifest hostility existing between Mr. Dick and Mr. Duck. When Mr..Dick stated, without ,~'further explanation, that Mr. Dtick;'-who was classified'as a P.A.2. could not even perform the functions of a P.A.1, I can only interpret this as representing a form of animus which affects my ability to give credence to many of his answers. I must also state that Mr. Duck was a less than open witness,"and was often defensive and evasive. Nevertheless, Messrs. Campbell and Broadfood appeared to be anxious to testify frankly and openly and appeared to have no special interest in supporting either side. .,., ,I _,a - 11 - i- Upon a review of the relevant evidence 'I conclude that the Grievor was assigned to perform the work of a P.A.3 and should be so classified. In so ruling I make no finding either as to the quality or quantity of his work performance or whether he refused to follow instructions, which matters, I find, for the reasons above set out, are not relevant to the issue before A. DATED at London, Ontario this 1st day of June, 1982. M.R. Gorsky Vice Chairman fc c-&y . R. Russell Member A.G.Stapleton ,Member