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HomeMy WebLinkAbout1981-0001.Cooper.82-06-28IN THE MATTER OF AN ARBITRATION Under THE GRIEVANCE SETTLEMENT BOARD .,~- .~. -~~ -. ~,~---~~~ Between: OPSEU (John Cboper) and Griever ._ .The.Crown in Right of Ontario.- __ (Ministry of. Revenue)~ &ployer THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before Before: K.P. Swan - Vice-Chairman 5. Schachter - hiember D.B. Uiddleton - Member For the Griever: J. Miko Grievance/Classificaticn Officer Ontario Public Service Employees [Jnion For the Employer: R.51. Gordon, Sr. Personnel~Officer Llinistrq 5f Revenue Hearinn June IS, i9Si July I*, 19% . -2- I ! This matter, a classification grievance presented by :vlr. l.G.‘Cooper, a Tax Auditor I with the Ministry of Revenue, presents some difficult factual issues; and also presents problems in applying this Board’s jurisprudence on classification. The essence of the grievance is a claim by Mr. Cooper that, since August 29, 1977,‘he had been performing the work of the next higher classification, Tax Auditor 2. Since LUr. Cooper only filed his grievance on Xovernber, 3, 1980, the Employer raised as a preliminary “matter an objection to any award in the grievor’s. favour .retroactive fork’ such ~a along period. That matter, of ‘course, may be considered subsequent to the. major. factual problem: %as the grievor _ j.._~_ __~~ ~. ~--~~~ --.--..-~~ -~~ ___..- .~. ~_ ~. : Tperforrning duties,in classificat@T,+.f or T;\27 .: ,;~ ,~ _ _.--~. -~~.-‘-To--complicate matters,~there exist two -sets .of Position . . Specifications for the two jobs. One of these sets (Exhibits 3 Andy 3) dated -.-._--.-_-. ~.~~.. .~~ ;~. ~~~~~ __- . -----from 1973.~ .It .is this.set.‘that was in force when, in 1978, the grievor first ~_ . ..-.-~ . .~ begin to question the level at which his job was classified. The second set, of which we have only the TX1 specification, (Exhibit 4) only came into effect in May, 1980, at a point when the griever had engaged in much discussion, debate and correspondence over his job, and was on the verge of filing the instant grievance. Indeed, it was the griever’s evidence that the first time he saw the second set was at the last stage of the grievance procedure, although the process of formulating these specifications clearly . i began ;veII before then. ,~: . .-- _ L.“ .: : -~ 3 - We therefore begin with the 1973 specifications, which will be helpful in understanding the evidence of what the grievor actuaily does at work. The TAI specification, in the summary of duties and responsibilities provides as follows: Performs detailed audit work of large businesses, under the supervision of a senior auditor by: - familiarizing self with applications of the legisla- tion; carrying out audit tests according to plan set out by senior; discussing non routine matters and queries arising out of audit test, drawing up working papers, noting significant aspects; finalizing working papers ensuring that basis and compilation of assess- ments are clearly shown. ~. -. ‘L Performs audits of small busine_s&annyfype as dire&-_ ~- -. .---... by senior~auditorto determine extant ot taxpayer corn- -~-.? -:-. ~: pliance with the ,Retaii Sales Tax Act and to raise assess- ~.~ -- -+nts accordingly by: - making-preliminary appraisals based on branch records, carrying out appropriate audits tests, discussing.sigt ~_ nificant points of the audit with ~senior auditor and taxpayer, seeking agreement to:aasesment; preparing - clear concise .notes and. working papers and completing .,~.. - audit files for review, discussing with senior-auditor. Performs audits of small and medium sized rebate claims by: - examining circumstances in detail to determine if entitlement is warranted discussing doubtful points with senior auditor or supervisor; deciding amount of rebate, finalizing audit files. . Performs related tasks i.e. checking records of land transfer for compliance - with the legislation, making field collection calls as directed; other duties as assigned. The TA2 specificatjon, on the other hand, details, in the same part of the document, the following: ._ ,i -4- 1. Performs audits on businesses of aJl types and sizes, often alone or assisted by a junior but as part of an audit team under control of senior on very large audits, to determ~ine liability under the Statues, by duties such as: Analyzing vendor’s statement of account; inter- viewing taxpayer; inspecting premises; making preliminary judgement~ of possible liability; planning the audit; examining taxpayer’s records; appraising audits, extending tests when necessary because of nature and volume of errors; making final judgement on extent of liability and finalizing assessmenr; ensuring assessment is reasonable; noting precise details of work done; discussing audit with superiors; explaining assessment to taxpayer; writings confirmation letter. ~~* 2. Performs audits of large~rebate claims, $y. duties such ‘a~: ~: - I. Examining circumstances ~of -the-claim to &tablish .I: -. -.~----r:---‘~--.~.,~. ~ if claimant is entitled to rebate; examining I claimant’s records to verify amount due; extend- ‘. ; ing tests when necessary due to nature and volume : -. :.,I-’ ‘. ’ :, I ,~ of errors; deciding amount to be diiowed, if any; _ finalizing au@t file;~preparing~alFformi necessary’ ,. ~: to effect rebate; completing file in every respect. : ,: :I {~, ~.: :: .; ‘::~ .’ 3. Studying Branch policy &reflected intian~alj~and H.Q. -. : -. .;-.- .,. ..~ memoranda to ensure knowledge of legislation~and proce- dures is up-to-date; noting from daily work cases of vendors needing audit, reporting these to Senior; noting other instances where policy or procedures apparently need revision for discussion with superiors; completing reports as required; other duties as assigned. I Still at the theoretical level, ii can be seen that these jobs entail many of the same duties, and the difference between them is not functional, but hierarchical. Indeed, the position titles, as opposed to classifications, are lunior ,Auditor and Senior’ Auditor respectively, and the stared purpose of the TAI position in Exhibit 3 is “(t)o perform detailed , -5- audit work under the close supervision of a senior auditor in the administration of the Retail sales Tax Act, and Race Tracks Tax Act”. Two other documents are of assistance in dealing with the essence of the grievance; the relevant sections of the classification standards for the Tax Auditor and Tax Director Series. These documents are the guidelines which are supposed to be followed by classification officers when they make up. the position specifications, and they are therefore at one degree of abstraction beyond the specifications. The standard for-the TAI position (Exhibit 7), insofar as is relevant, provides: .., _ ._~,~~ :~-. -. .- -_ . ~~ CLASS DEFINITION: ‘This class covers entry level positions of’employees -.: .: who perform auditing and assessing duties under dose- supervision in the taxationbranches of~the Revenue Divi- .:, ,~ L,’ sion of the Treasury Department.~ They normally work as part of a team of auditors or assessors, receiving tech- nicai guidance from a group leader or senior auditi, but _ _ L, ~- -: may work on their ownto~produce summary audits of smail businesses, assess straight-forward claims for tax re- funds, or assess uncomplicated corporation returns. Their work is closely checked land they operate within a framework of established procedures but are required to employ initiative within these guidelines. For example: (a) In some positions in this class employees work as junior auditors in the Retail sales Tax Branch, assisting in the detailed audit of vendors by check- king sales invoices, purchase invoices, expense items, etc., for tax paid. They also perform summary audits of small vendors, acquainting them- selves with the vendors’ accounting systems and personnel, obtaining the audit information required, discussing results of the audit with the vendors and with their ovm supervisor, and calculating additional assessment, interest and penalties. They may deal with enquiries from taxpayers, advising them on the application of legislation to their particular cases. These employees report to an audit supervisor or District Office Director. -6- The correlative part of the TA2 definition (Exhibit 5) reads: CLASS DEFINITION: This class covers positions of employees who perform auditing and assessing duties under general supervision in the taxation branches of the Revenue Division of the Treasury Department. They may work as a part of a team of auditors or assessors receiving guidance from a group leader-on the most difficult problems. Frequently, they carry out an audit or part of an audit on their own, operating within a framework of established procedures and reporting the results of their audit to a group leader, and discussing its ramifications and unusual features with him. They may assist in the.training of junior auditors. For example: : (a)-In some positions in this class employees work as ~~~ ~. .~ --- : .i -. auditors in the Retail Sales Tax Branch, performing. - -- __~_ - .detailedaudit-work-alone,-or as part of a team. ~z~Y~;I-2z: ----z- .ll. Theychecksalesinvoicesfor taxcollected,check ,~.~:. “:~ : ~~ii :; purchase invoices, ~purchases and sales of fixed ~’ :‘:. : ‘. :. assets,.and major expense items for tax paid, prep- ., ;, ,i .~, .’ are reports of their audits and discuss the results : with the supervisor or group leader. They ta&e ; _ : :, I-, ..- charge of a section of a larger audit and allocate -:.: duties to a juniorauditor.~ They also perform sum- .: mary audits of .smaller businesses; acquainting them: :- --~ - - -- -~. ~~~-~selves-width-the-vendors’ accounting systems and per- - ~~- sonnel, obtaining the audit information required,, discussing the results with the vendors and’with theirsupervisor. They collect cash on assessments, and calculate interest and penalties. They report to an audit supervisor or District. Office Director. The general prescriptions at the beginning of the classification standards for the series also makes the following comments about assignment to different levels in the series (Exhibit 6): I . In both series, the allocation of individual positions is based on the following factors: complexity of the auditing function performed and/or supervised, size of group supervised, and degree of accountability for results obtained. -7- As we have observed, the relationship between the two positions is hierarchical, and the dividing line between them, on- a theoretical level at least, is that a TAI performs simple audits alone while a TA2 performs complex audits alone or with a TAl to assist. The positions may’ be viewed, in theory a~ supervisor and assistant, and indeed the T.-II is described as working “under close supervision”,~which supervision is ,provided,at ieast in substantial part, by a TA2. I .” To a considerable extent, this hierarchical’ relatibnship’ is <‘.i $y ;--’ ‘recognized in the 1973 position specifications, <vhere’thCTAl-is descfibed ,. -.- ‘~I~-._ -~_ _- -,__:,,-~,..~as doing “detailed aud~~~~~~o~k.,~of~~arge~busine~~s~u~d~~, the-sup(trvision-of-a---L. ,It ~ ‘. ;:: g; senior auditbr”, and as performing audits of small businesses ‘:a;; dir&d by ( :-: .~ ,, seniy ‘+$tor!‘. VI-+ continuing.our:$scussion on a theoretical Ieve!, it_; 1 seems reasonable~ to. conclude that there is a relatively faithful application ‘&- ~__ 2 -inPtheeL9z3;.pqsition_specificationsmof..the. principles fin the- class~ific?Jion -’ ~_. ,: ,-. i standards. We turn; therefore, to the actual duties assigned to the griever during the relevant period. The griever began as a TAI with the Ministry ‘in the London District office in May, 196S, following several years of experience as an internal auditor and accountant in the private sector. By 1977, the audit department of the office was organized, reporting to the District Manager, with an .\udit Supervisor dire&g three groups, each.headed by a group leader (Exhibit I?). In 1977, one 3f these group leaders was a T.43; the -8- I other two were in the TA2 classification, but this appears to have been a temporary arrangement only. The auditors who worked in each group were either. TA2 or TAI; no particular pattern to the distribution emerges. By August, 1977 the grievor~ had concluded that his job was not materially different from the work being performed by a TA2, and he thus began a . campaign to be reclassified at that level, the details of which campaign are not yet important. During 1977, he performed about 50 audits. .Among otherffirms, : .’ : : he audited Labatt’s Breweries and a !arge Labatt’s~subsidiary. Precise :‘,’ . .~ ~__..,~ ..~~.C .L~. ~. -.. .: . ..~’ statistics about his’audits are not available abut there is, from all of the _.. ~~. .-~ ..i~ .-.~ ~~ ---__ -.._-__~_~~-.-_. ~~ ._ __~ _~- _ ..~ ,. I in’ witnesses;ample~evidence ~from ivhich we ,can conclude.that, in ‘St&:. 1~ ..,I 1 .~ ~~ .:. ., ...., .~~ griev’or did . “detailed audit. work, of large’ business”;,:.but not under- : ‘. ,‘,. supervision of more, thank a minimal nature., ., Ye. also, ~did”Ya. number ,. of’-‘.i :‘. .~.: .- ~. “rebates”, rhecking~claims~for a .refund of retail sales taxy~actually ~pa’i,d by: an oiganzatm exempt’ from tax.~ --While there is sorne-onilictin-?.~. evidence, we,find that rebate work is not as difficult, in general terms, as. audit .work; indeed, some rebate c. heck ;nay be done by relepnone. During 1975, the griever’s job changed fairly often. He acted for a time as Duty’ Officer, in charge of dealing with telephone and personal inquiries from the public, a role assigned to both TA2s and TAls. He did some more rebate work as assigned. !ie also did some 50 audits, but . . it is important to note that ;he did not claim, during this period, any substantial experience of “detailed audit work of large businesses”. He also , -9- assisted for the first time in the “VIP” program, a system of personal interviews with new holders of vendor’s permits under the Retail Sales Tax’-~ Act to acquaint them with their obligations. The VIP involvement has continued, and is now done by the Duty Officer for the most part; Duty Officer work is done on weekly rotation by all TAls and TA2s. The evidence of the history of the VIP program is a little vague, but it ‘appears that the London office was involved before it; general adoption in ~1977 or,l978, and that all VIP-work was at first.done by Mr. Charles ChappIe; a group leader classified”as.TA3. He handed~,th&-program,~----‘- _ --. _-- .~ _.-~ _ :-XT-- ~~:I, -.r!y-- -- onceme&JDlish&d; &-to: oth&r. TX2s-and-T~l~~including~.~-the~grievoi;~.~he-- ..__ 12 ., duty .finally was.formalized as part of the ~Duty Officer function.‘~’ .- (- ._.. _ .~ - ~. .~ During 1978, the grievor performed about. 35 ,-audits and 25, .:.’ ” ‘~ rebates, generally of lesser &o-Fthan-- those’ asslgned In earher -~_~ ~--~ _ periods, and particularly not as clearly in the ranges of complex audits as the ones performed in 1977. He continued to act as Duty Officer and, as a result, to perform the responsibilities of the VIP program. During 1980, in addition to rebates, he became involved in the “Vis-a-vis” program. This program appears to have been inaugurated in 1978 or 1979 with two TA2s involved. The program required visits to vendors who had not been seen or audited for a period, during which visits an interview took place and a checklist sf audit-related questions ‘was csmpleted. It seems from the evidence that Vis-a-vis was a sort of pre-audit, described by one ,witness as “an audit ;vithout the paperwork” -lO- In the event of any difficulties in the visit, a recommendation for an actual audit appears to have been the appropriate response. In about .April 1980 ~~ this program was handed over from the two TA2s who had established it to the griever. ,’ .* While the griever does not ‘agree with the others evidence tendered, that other evidence is clear that the VI? program is~ a fairly routine provision of general advice to new vendors, and that, the, Duty -7 Officer function apart .from VIP~ requi:es an ongoing advice service for the public, vendors-in particular,:on the requirements ‘of the ie&ation. -The& -“‘-~ _~... appearstorbe- no_reason_why_such_duties,~cannot-be-~ubsumed~in~the~clas~~~ .-~ 1. ~” definition’ of TAI (Exhitiit 7- quoted above) as a’ part of’ dealing “with - _. .~,.:L enquiries ~from taxpayers and advising them on the ,application of, .: .legislation to theirs particular, ,casesUQ’; We ,cannot see that hit makes- any’ :.~ ~‘.: .~ _.. _ --. .__.~_. _._.. difference- thatCTA2sCalsd performthis routine iHork~~on~rotation;if-it fits‘- ~7~ mm, +: __~.. - .% : into the class definition of the TAl job, it cannot justify reclassification upward even if the members of the higher classification also do’it. Nor does it help the griever’s case that the work was once done by a TA3; the evidence makes it clear that the original assignment was for the establishment of the new program only; once the program was in place, the work was properly re-assigned to both lower classifications. Turning to the Vi+&vis program, there is again a conflict in the evidence. The griever refused to categorize the ,work as “easier” or - II - “harder” than audits, being prepared only to say that it was different and varied considerably in complexity. The other evidence, however, including the other Union witnesses, at best placed the program at about the middle of the scale of complexity of the range of audits which were conducted from the office. As for the fact that two TAZs originally did the. Vis-a-vis work assigned to the griever in April 1980, we do not think that the griever’s case is helped by this any more than by similar evidence respecting.the VIP program. Here also, the testimony ,of other %itnesses, 7 including Union witneses, makes it clear that the griever was only assigned’ this work_once the start-up period was over ‘and+he.~program .wasl: ..-_ to a-lower- classification;- if ‘that work fits .&thin the class ~definiti&does LL :-. ‘. .~ ,. i. .~ not detract from the inference that. establishing the, program was, a ,more :.,- responsible~.task properly ,a&gned to the ,higher ~classification. ~~.. ‘. , . - .-.~~~ -- ,-- -. ~..~~. .~ ~-~ We therefore do not think that the -evidence relating to the :, : Duty afficer, VIP or Vis-a-vis operations, nor the evidence that similar work was done by higher classifications, can assist the griever’s case. It will be observed as well that these functions were no; a part of the 1973 position specifications, and so must be assessed instead against ~the class definitions, the more general documents used in preparing ~the specifications as required and, in particular, purportedly used to prepare the revised specification issue&on May I, 1980 (Exhibit G) we!1 after’the brievor’s discontent ?.vas known :o ‘3;s supervissrs. T?e gievor’j xawrory - 12 - “improperly classified” (see The Crown Employees Collective Bargaining Act, R.S.3. 1980, ci 108, s. 18(2)(a)), and we do not think that the absence of an up-to-date position specification affects this issue. Where the specification is obsolete, therefore, we feel justified in going beyond it to the class definitions in determining the propriety of a particular classification. The griever’s case must, therefore,~. starid or fall on the .(. complexity of the audits assigned to him ,and the degfee of supervision prdvided during their performance;, \G& have already found that-there is no .~ .~. -., evidence-that-the~rebate-work,assigned-.went outside-.the:prov.isions :oi:the;.‘r--’ i .- ::. ., .-, class definition or positi& specificatiori. ~~ W& ,have.~found abo& that’ thef:-~?-’ ~’ Until about the time of the griever’s original inquiry in 1977, a system of classifying audits by letter code from A to E xas employed. A and B audits involved an annual sales voltitie of up to $1 million, 2 and D audits volume from $1 million to $20 million, and E audits those above $20 million. The griever’s evidence was that he had performed three E audits and at least one D audit, and that he had never received close supervision during these assignments. He-observed, under questioning from members of the Doard, rhat all of his E audits.were in the same year, presumably (on the basis of other testimony) 1977. On April 25, 1975 :Ir. E.J. Canessa, - I3 - - then a Senior Operations Officer with considerable experience of audit operations in the Ministry, was assigned to make an “independent review of -’ I the problem”, the results of which are set out in Exhibit 13 and were canvassed in testimbny by Mr. Canessa. For the year April I, 1977 to March 31, 1978, the grievor was found to have spent 64% of his time on audits, and 66% of this time on code A and B audits. More precisely, he I was found to have done 62 A and B audits, 13 C and D audits and one E audit. 7 ctint~dicftK~@ievor’s, although thc:absolutePnumber.~ofaUditYls greater ,,’ ~. ~; ,’ ‘._ and. the number of E’ audits less than his own estimates for’ 1977, since the ~. . t’wo time periods chosen are not co-extensive. The griever-was-recalled-to..-._ _,~_-_ - reb& this document, however, and called.various aspects’of it into question __~.__~__~_. ~_. without being -able, to -offer anything but the-vaguest, recollections to counter the precise~ breakdown used in Exhibit 13. Mr. Canessa, while unable to recall details any better than the griever, was able to tell US the source of the information he provided at that time and the way in which he compiled his report. In addition, the griever’s testimony on cross-examination during his rebuttal evidence considerably retreated from many of his earlier allegations that he had received no supervision and~only the most cursory of written instructions for a compiex audit during this period. He also admitted that‘he had not challenged the factual assertions in Exhibit 13 at the time, nor does any challenge appear to have been <made until the second day of hearings in this case. Sased on these observations, - 14 - we prefer Mr. Canessa’s evidence, that Exhibit 13 accurately sets out the results of his review of the time and assignment records available in 1977 and 1978,to the griever’s testimony to the contrary. On the first aspect of this issue, therefore - whether the grievor was assigned complex audits to perform alone - we find that he was, but over a limited period of time and apparently without any real. int~ntionro do so; Exhibit 13 suggests that, in a letter from the Manager of the London office to. the Audit Supervisor on November 22, 1977, the former instructed t&t ~~. ; .- . _..~_~ - _^-~- ~- We should ensure that thisauditor~ is-assigned work whidr m-7 -.- __ :- :; falls within the prescribed duties of a Tax Auditory 1. ‘. ;.;.z! ‘,. ~:;Y, ~- CT.:.! .I ~.We have no proof that this letter.was ever sen’t, and o&this excerpt.from_L IT : .,. ~.;, ~. it is set out in Exhibit 13. We include it only because the evidence actually ~__~ ,, :; ; j ilk ‘- ~ -~~-~ .- .- .‘- before us indicates irresistably that-some ~directive of this sort must have ~1 ~. 7- .-~ --~ ~. ___ ‘T been promulgated and implemented: even the grievor does not claim that, after 1977, he was assigned complex audit work of such a sort as to suggest that he was performing TA2 duties. He asserted, of course, other evidence of performance of those duties, but we have already given our reasons for rejecting that evidence above. The second materiai aspect of the griever’s allegations is the absence of supervision. In general, we think that this allegation has been proved. The griever’s own evidence is that he was allowed to work largely on his own, and his supervisor ,&ring much of 1978, Mr. Chappie, confin= - 15- that he was an able and experienced auditor who needed very little supervision, and states that he was much better than the other TAls then working from the office. In particular, however, Exhibit 13 directly challenges the griever’s assertions. That document states, and Mr. Canessa confinned that the grievor recetved nine. visits on the job from his group leader during the 13 C and D audits he performed, and one on the job visit and a total of 11 hours of supervision in respect of the code E audit. The griever’s flat denial of this calculation, an4 his assertion on rebuttal that his then supervisor, who’had~~not been called to give evidence,~had either seiec?ed the documents to &? .ieviewed by :vlr.-Canessa oi~iiaa~deliberately --‘-_. ‘.. ~--~ - ~.- - ~ - .~~__~ ~-~~~~~,~ -_ - -~- --, altered them, rang particularly. false ~&light -of’ hu admission- that. he had- --- 7 _.. . ,~~ never before challenged Exhibit 13 organ-y part-of it. _” ~. .‘.~ ----._~. ~‘., There are three aspects to the supervision issue. First, in ~__~~ _-~- __~~ connection with Mr. Chapple’s assertion that he did not-supervise the _~ .-~ ~~ grikvor closely; that evidence relates to a period in 1978 when even the griever does not assert that he was involved in major audits. The position specification and the class definition do not appear to require minor audits to be individually supervised carefully, provided that overall control of the employee’s work is maintained. Second, in respect of the major audits ,a11 performed during 1977, there is evidence which we accept to cast. considerable doubt on the griever’s assertion that he did not receive any : i supervision. Third, it is important that the griever was an experienced internal auditor in 1965 when he was hired, that he had spent nearly a decade doing his job out of the same office, and that he was a skilled and i . - !6- trusted employee. The fact that he could be trusted to work with only minimal supervision is simply recognition of his skill and reliability in his assigned classification; it does not indicate that he had been, assigned duties beyond that classification. Even if we accepted the griever’s assertion that he had performed, unsupervised, the work of a T.42, that assertion could only be. accepted for a period beginning-and piding in 1977. The onus of proof of. such an assertion is on the grietior, and owe must conclude that the onus has - - difficulty in finding a remedy for thegr&or, ---- .~ ~. .~~ : Even if made~ :out,,: the 1, griever’s case. could_ at .-best. Abe... i ~cnaracterized as a temporary ‘p~romotion, probably conferred ‘inadvertently, by~.a-super.visor who had, lost sigitt-of the .distinction.betweenthe -TAl-and --- --~~ .~. -_--~~~~ _.~~~ .~ -~- .~-~ ~- ~~~, TAZ classifications. As the Employer pointed out early in the hearing, the. grievance was not filed until more than three years after he first concluded that his position was improperly classified. His own evidence was that he .’ had pursued political remedies rather than those set out in the collective agreement, having involved at least two cabinet ministers in his quest for reclassification. His reason for doing so, he told the aoard, was that he considered that the grievance procedure was essentially sordid, and that he preferred instead to pursue ioiitical remedies instead of the grievance procedure, to which he resorted only after being told that no political intervention could 5e made on his behalf. - ..~..~ ..-_ - 17- The griever, is, of course, entitled to his views and to his priorities, but we feel obliged to point out that his position has’had two significant consequences. First, early resort to the grievance procedure might have made it possible for the Board’ to be presented with fresh, cogent evidence of what happened in 1977 rather than vague recollections, fuzzy allegations, and docunients of some con’siderable age. Whether the grievor might then have been able to meet the onus on him we cannot say; it is only clear that he was evetitually unable to do so. Secon~d, even if he had cdnvinced’& that he had cieaily performed TA2 work during 1977, we., i. i_ think any relief would have td be bar@ by, the considerable delay involved -’ - T- -~-~.;. __- ‘t-:~- .~ .:_ _. ,.. ~.~ .~~___ in presenting his grievance. ,‘& we have found, the only possible period of :.‘, ‘I,-‘- .~ misclassification began and ended in 1977; and there could be no question,of ~. :. ---.~~ a continuing grievance;:. We’tiould, therefore, have beem in-so& diffi6Jlty;‘; i-’ ., ~~.‘:::~ in finding a remedy for this period pursuant t6 a grievance filed three years ‘. ~.~~ As we observed at the beginning of this award, this case also raises some important questions about this Boardls jurisprudence in classification matters. In her able argument, ,Ms. Mike canvassed a number of the cases decided by the Board and structured a rationale for fitting the present case within that jurisprudence. We do not deal with those issues only be&use the case fails at,,a lnuch earlier stage: on all of the evidepce, . and largely on the griever’s own testimony, the onus of proof mat the griever performed the functions of the T.&2 classification, whether for a short period in 1977 or for some Longer period, has simply not been :net. - lS- The interesting questions raised, therefore, about the degree of involvement, in the duties of the higher classification necessary to justify reclassification and about the distinction between the various levels of supervision, must await determination in a proper case. The grievance is, accordingly, denied. We wish to thank the representatives of the parties for their helpful presentations. ’ 7 DATED at Toronto this .2&b day of june, 1982. : . I /izg KP. Swan Vice Chairman _- __: .-..-;;i. - ~.. i ---- ,. - __ - ~---. “I-dissent” .&e-,atta&ed)----- ---I S. Schachter Member m $seGlfzA DA. >Aiddleton :lember /lb . DISSENT I have read the award of the chairperson and find that I must dissent. The chairperson has concluded that the 1973 position specifications were obsolete and therefore directed his attention to the class definitions (Exhibits 7 and 8) to evaluate and classify the duties of the griever. Exhibit 7 dealing with the TAl not only states that the position works under, close supervision but also states such employees d normally ,work as part of a team. The evidence from all witnesses at the .: : ihearing indicated the griever hardly ever worked as part of a team doing -~ ,.. ~’ ---~~ --_-~ an- ;-udit.~-~ather-h;“met-~tT;~~~~s;Tiption~~~~~~~~~~in~~~hibit~8-of-- -~‘I ~. working alone. ,, . :. ., A more fundamental dispute I have with the chair concer.ns the .~ : vls-a-vis program which. the chair in stating the evidence indicated was. handed over to the griever in April 1980 and continued to be performed by the griever during ~the period covered by the grievance. The chair’ concludes this work was routine and somehow ~equates it with the VIP work. However unlike the VIP work the vis-a-vis cannot be subsumed under the category of “advising (clients) on the application of legislation”. Rather the vis-a-vis work clearly falls within the 1973 TA2 specification paragraph 3 “noting from daily work cases of vendors needing audit”. The vis-a-vls program work was ‘clearly done under the most general supervision and done alone as opposed to be performed by teams. Tnerefore it continues to fall within the T’r2 class definition (Exhibit S) and does not fit ,xithin the T.4 I definition. -2- Aside from the above justification of the griever’s case on the basis of position specifications and, class definitions there is also an argument on public policy grounds. With the introduction of the vis-a-vis program the Employer has introduced a major operational and administrative change in the manner of enforcing the Retail Sales Tax Act. These changes were clearly within the Employer’s rights. However the changes enabled a substantial savings in cost and improvement in productivity. The changes enabled the same result tom, be achieved namely the administrat!on and enforcement of the Retail Sales Tax Act but with far fewer staff. it: is oublic policy that workers should share in .the ~_~~. ~~ benefits .~of -improved productivity in exchange for securing their .’ j -,-. -- .~- _. _ -. _.~ ~. .~ l._. i.;. cooperation for’ innovative changes, in ,the performance’ef wor~k; If ,this : :. “:. : Board is going’ to give its approval to the downgrading of the staffing . . :,., will be increased instability and turmoil in the Jabour relations climate as. the Union fights to retain-higher classified p%tions and-causes the ,delay if not the outright obstruction to the introduction of labour saving techniques. ..~ complement.in ,the face of an already reduced .&orkfdrce the likely’:result- .‘~ ‘,, For both these reasons I would have allowed the grievance anti directed the grievor to be classified and paid as a TAZ retroactive to August 29, 1977.