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HomeMy WebLinkAbout1983-0217.Berry et al & Alcampo et al..88-06-21EMPLOYES DE LA COURONNE DE “ONTARIO C(lMMISSION DE REGLEMENT DES GRIEFS Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLENENT BOARD OPSEU (Berry et al & Alcampo et al) Grievers and The Crown in Right of Ontario (Ministry of Community & Social Services) Employer R.L. Verity, Q.C. Vice Chairman T. Traves Member A.G. Stapleton Member For the Grievor: T. Hadwen Counsel Cavalluzzo, Hayes & Lennon Barristers and Solicitors .* For the Employer: D. Costen Solicitor Legal Services Branch Ministry of Community and Social Services Hearings: May 4, 13 & 16, 1988 -2 - DECISION In this matter, the Board is required to grant remedial relief in two groups of classification grievances, Berry et al 217/83 and Alcampo et al 218/83, following the release of the Ontario Divisional Court Judgment on March 13, 1986 in OPSEU (Carol Berry et al) and Ministry of Community and Social Services. In each group of grievances there are grievors employed in three distinct jobs: 1. Income Maintenance Officer ( 2. Eligibility Review Officer (: I.M.O.) E.R.O.) and 3. Handicapped Children's Benefits Worker (H.C.B.) The Berry Decision of Vice-Chairman Samuels dealt solely with the issue of the appropr i Officers (I.M.O.). The Board unanimous in its finding that Welfare Field Worker 1. However, the Board also found that I.M.O. duties did not justif,y the amended classification sought of Clerk 6 General. .In a majority Decision, Vice-Chairman Samuels dismissed the grievances primarily on the basis that Article 5.1.2 of the Collective Agreement prevented granting classification r&lief "other than the existing classification or the one claimed". Professor Paul Craven wrote a lengthy Dissent and concluded that "the appropriate remedy for improper classification is proper classification". ate classification of Income Maintenance Decision, dated January 22, 1985, was I.M.O.'s were improperly classified as -3 - . The Uni6n brought a successful Application for Judicial Review. In a unanimous Judgment, the Ontario Divisional Court quashed the Decision and remitted the issue of remedy "for rehearing" to a new panel of the Board. Mr. Justice Reid's rationale appears, in part, at pp. 12, 13 and 15: . . ..the individual's right to grieve conferred by s. 18(2) cannot be restricted by a collective agreement. That being the law, the majority was simply wrong in thinking its powers were limited by Article 5.1.2. The Board is obliged to follow the law and no question of reasonableness arises. The question that does arise is whether the Board had power to require the employer to find or create a classification for grievors. I think it had that power. Its authority under s. 19 of the Act is untrammelled. It "shall decide the matter". Simply to dismiss the grievances when it acknowledges that the grievors are wrongly classified is to empty the grievance procedure of any meaning. It is a commonplace of the law that the existence of a right implies the existence of a remedy. The employer initiated the process which led to grievors being wrongly classified. The employer alone can create classifications yet it has failed or refused to do so and seeks to take advantage of its failure. Classification is not a mere matter of title, it is a matter of money. The employer .has given grievor5 added responsibilty yet refuses to compensate them accordingly.... The Board's obligation under s. 19(l) is to "decide the matter". When looked at.without the confinement imposed by Article 5.1.2. "the matter" grieved was wrong classification. If the Board concluded that the classification was wrong, its mandate was to effect a proper classification. Its jurisdiction is unrestricted. Its mandate is remedial..." -4 - Some 78 individual classification grievances, filed between October 1980 and August 1983, were consolidated by the Board's Registrar and are now known as Berry et al, 217/83. Similarly, some 253 individual classification grievances, filed between 1980 and 1984, were consolidated under Alcampo et al, 218/83. When the matter came on for rehearing, the parties agreed that the remedial determinations in the Berry group would apply with equal force to the Alcampo group. 1. Factual Background The parties filed a lengthy Agreed Statement of Facts accompanied by five separate appendices (Exhibit 1). The highlights of the Agreed Statement can be briefly summarized. All grievors are employed in the administration of the Family Benefits Act, R.S.O. 1980 c. 151. Most of the grievances in both Berry and Alcampo were filed in 1980 and 1981 when all grievors were classified as Welfare Field Worker 1. The grievors requested a multiplicity of different classifications (i.e. Clerk 7 General, Welfare Field Worker 2, Social Worker 2 and in some cases "the most appropriate classification"). .* All grievances arise from a Ministry re-organization, commencing in 1979 to decentralize the delivery of provincial welfare -5 -. benefits from the Income Maintenance Branch in Toronto to local field staff throughout Ontario. Mr. Justice Reid made the following succinct observations at p. 3 of his Judgment: Until 1979, the principal function of employees in the Welfare Fieldworker I classification was to gather information from applicants and for recipients of benefits under the Family Benefits Act so that a determination of eligibility or continued eligibility for benefits under the Act could be made. The'determination of eligibility was made by analysts in the Branch Office in Toronto. In 1979, the Employer initiated a process of decentralization of the administration of the Family Benefits Act, the ultimate effect of which was to delegate responsibility for the determination of eligibility to the grievors. Decentralization was undertaken in two phases. The second phase was not completed until the end of 1983. Phase 1 was implemented at various local offices December, 1979 and November, 1980 (Appendix 1 to Exhibit 1) phase, all eligibility and continuing eligibility decisions between . In this on active files were delegated to the local field staff. A Data Communications Network (ONTAP) was introduced at the field level. Phase 2 was implemented between July, 1981 and March, 1983 (Appendix 5 to Exhibit 1). In the final phase, eligibility reviews, retroactive decisions on eligibility, overpayments and retroactive budget calculations were transferred to local field staff. An -6 - . automated system ,(C.R.S.) was implemented to link local offices to trace files on a provincial basis. Decen for field staff Officer (I.M.O. created. I.M.0 ,t 1 ‘. ralization resulted in the specialization of duties and eventually the position of Income Maintenance and Eligibility Review Officer (E.R.O.) were 's were responsible for client information gathering, determining eligibility and continuing eligibility, and making decisions both current and retroactive on information provided by the client. The task of E.R.O.'s was primarily investigatory. The E.R.O.'s were required to objectively determine eligibility and verify the information provided by clients , and in appropriate cases to investigate alleged fraud. Effective April 1, 1983, the Ministry reclassified E.R.o.'~ from Welfare Field Worker 1 to Clerk 6 General (atypical). On May 1, 1984, Counsel for the Union informed the Ministry in writing that all grievors in Berry et al would now seek reclassification to Clerk 6 General. In January, 1986, after the release of the Samuels Decision, but prior to Judicial Review, the Ministry made a decision to reclassify Income Maintenance Officers from W&fare Field Worker 1 to Clerk 5 General (atypical) retroactive to September 1, 1985. All Income Maintenance Officers who worked exclusively on cases involving handicapped children were reclassified from Welfare Field Worker 1 to . -7 - Welfare Field Worker 2 retroactive to April 1, 1985. A position audit for Income Maintenance Officer was prepared in September, 1984 by Consultant Heather Hall on the basis of a representative sample. Generally, the parties agreed that the job audit was accurate and indeed was relied upon in the Samuels Decision. In November, 1986, all Income Maintenance Officers were reclassified from Clerk 5 General (atypical) to Level 10 of the Office and Administration Group (O.A.G.) , with the exception of Handicapped Children's Benefit Workers who remained classified as Welfare Field Worker 2. Similarly, all Eligibility Review Officers were 11 of the Off reclassified from Clerk 6 General (atypical) to Level ice and Administration Group. 2. Classification of Income Maintenance Officers On these facts, the Board is now required to fashion an appropriate remedy in light of.the reasons given by the Divisional Court in Berry et al. The evidentiary basis before us was similar, although not identical, to the evidence considered by the Samuels panel. Briefly, the rehearing proceeded on the basis of the 1984 Job Audit, the Agreed Statement of Facts and extensive submissions accompanied by a plethora of legal and arbitral urisprudence. -8 - The central issue is the appropriate classification of Income Maintenance Officer in light of the 1984 Job Audit, the findings in the Samuels Decision, the Employer's subsequent classification decision and the Judicial Review in Berry et al. Other issues for determination include retroactivity and entitlement to interest. The Board was also requested to retain jurisdiction on Eligibility Review Officers and Handicapped Children's Benefit Workers. At the rehearing, on March 11 and April 24, 1987, the Parties requested certain procedural direction. The Employer maintained that the I.M.O. grievances had been effectively resolved with the decision to reclassify I.M.O.'s to Clerk 5 General and the Ministry offer to pay full retroactive benefits to 20 days prior to the filing of the grievances. In sum, the Employer's position was that Union disagreement with the classification selected must be the subject of fresh grievances. The Union did not agree with the classification selected and urged the Board to fashion appropriate remedial relief. The Board's Interim Decision dated July 16, 1987 made the following observations at pp 6 and 7: . . . ..the Board does not accept the Employer's argument that the Berry grievances have been resolved. In our opinion, the reclassification of the Berry I.M.O. 's after the release'of the Samuels' Decision but prior to the release of the . -9 - Divisional Court Judgment does not dispose of the matter.... Clearly, the Grievance Settlement Board's mandate is to hear and resolve differences between the parties. There is at least one significant difference between these parties; namely, the Union does not agree that the classification of Clerk 5 General is appropriate. . ..the Board has broad remedial authority to order the Employer to find or create an appropriate classification in appropriate cases. Accordingly, the Board will hear whatever evidence either Party may deem appropriate.... The matter proceeded for a rehearing on the merits on May 4, May 13 and May 16, 1988. At the outset, the Employer advanced a preliminary objection. Mr. Costen maintained that the sole issue before the Board was the appropriateness of the classification selected for Income Maintenance Officers, namely Clerk 5 General. He maintained that it would be wrong to entertain a proposal by the Union for any other classification. The Union argued that the Board had jurisdiction to review the appropriateness of the Welfare Field Worker 2 Class Standard, and if deemed inappropriate the Board must order the Employer to create a new classification. We reserved on the preliminary objection and proceeded to hear the merits. There can be no dispute that under s. 18(l)(a) of the Crown Employees Collective Bargaining Act the Employer, and not the Board, has the exclusive authority to classify a position. However, following the judicial review in Berry et al, it is clear that under s. 19(l), the Board has the remedial authority to effect a proper - 10 - classification once a finding is made that the grievors are improperly classified. The Board's authority is to require the Employer to find or create a proper classification for the grievors. Given the length and complexity of these proceedings, the Union cannot be faulted for making a proposal where it is not satisfied with the classification selected. The Board can go so far as to make findings of fact or recommendations on the appropriateness of any such Union proposal. However, the decision to classify remains within the exclusive jurisdiction of the Employer. We turn now to the central issue. The Class Standard for the General Clerical Series contains the following preamble: CLASS STANDARD: PREAMBLE CLERICAL, TYPING, STENOGRAPHIC, AND SECRETARIAL CLASS SERIES KINDS OF WORE COVERED: These five series cover all office positions and office supervisory positions that are not covered by a specialized clerical, technical, equipment operating, or professional class series. GENERAL CLERICAL SERIES - 7 CLASSES: This series covers positions where the purpose is to perform clerical work,.-entirely or in combination with incidental typing, stenographic or machine operating duties. Where exclusion of the latter would significantly change the character of a position, or where they occupy a large proportion of-the working time, the position should be assigned to one of the specialized : - 11 - classes, e.g. Clerical Typist. Positions for which specialized clerical series exist, e.g. Clerk, Mail and Messenger, Clerk, Filing, etc. should not be assigned to this series. Group leader responsibility normally begins at the third level, while the fourth and above usually cover positions involving line supervision; however, non-supervisory positions can also be included. The Clerk 5 General Class Standard reads: CLASS DEFINITION: Employees in positions allocated to this class perform responsible clerical work requiring detailed knowledge of a body of regulations, statutes or local practices, together with a thorough understanding of the objectives of the work unit. Decision-making involves judgment in the interpretation and application of policy or administrative directives to problems where the intent of existing instructions is obscure in specific cases. This frequently necessitates modifying work processes or the development of new methods. Although the work is carried out with a large degree of independence, it is reviewed for consistency of decision-making. Difficult technical questions, or those involving policy determination are referred to supervisors. Tasks typical of this level include responsibility for a significant non-supervisory, clerical, or clerical accounting function involving the interpretation, explanation and application of a phase of departmental legislation or regulations and requiring the ability to make acceptable recommendations or provide functional advice, supervising a group of "journeyman clerks" performing clerical duties of varying complexity or a smaller group engaged in more specialized work by planning, assigning and reviewing work, deciding priorities, maintaining production levels and carrying responsibility for the total performance of the unit. QUALIFICATIONS: 1. Grade 12 education, or an equivalent combination of education, training and experience; preferably completion of - 12 - additional training such as related correspondence and university extension courses; thorough knowledge of office practices and procedures. 2. About six years progressively responsible clerical experience or an equivalent combination of experience and higher education. 3. Ability to.evaluate the effectiveness of clerical procedures and staff performance: ability to supervise the work of other employees; ability to interpret regulations and instructions into procedures and practice; ability to prepare effective correspondence, instructions and reports. Revised, December, 1963 The Union proposal of Welfare Field Worker 2 reads: WELFARE FIELD WORKER 2 CLASS DEFINITION: This is welfare fie~ld work carried out from the District Offices of the Department of Public Welfare involving the investigation and obtaining of information as to the eligibility or continuing eligibility of applicants for assistance under the Welfare Allowances programmes and the counselling and guidance of applicants on financial matters, job opportunities, rehabilitation, child guidance, health facilities, etc. The worker will be required to develop satisfactory relationships with applicants and agencies, to carry out the practices and techniques of case work and to maintain adequate social histories. At least 40% of the duties performed must concern counselling and case work. CHARACTERISTIC ~wrms: . . Offer counselling and case work service to all applicants and more extensive counselling and case work to applicants selected by the Welfare Field Supervisor in conjunction with the Welfare Field Worker as most likely to benefit from this type of service. - 13 - Represent the Province at Juvenile and Family Court hearings. Interview, in their homes, applicants for assistance under the Old Age Assistance, Blind Persons' Allowances, Mothers' and Dependent Children‘s Allowances, Disabled Persons' Allowances and General Welfare Assistance Acts, and record on prescribed forms all necessary information to enable applicants' eligibility to be determined by the Department. Undertake the rehabilitation of applicants by counselling and arranging financial assistance. Provide parents with guidance in child care and training. Help applicants to obtain and maintain satisfactory housing. On behalf of the Federal government, accept applications for Old Age Security. Verify applicants' or recipients' statements by investigating health and medical records; obtain Surrogate Court records, executors' statements, details of bank savings deposits, statements of cash surrender values of insurance policies and statements of earnings from employers. Maintain close liaison with local welfare agencies and guide applicants for assistance to the most appropriate source; keep abreast of Provincial, Federal and local welfare legislation; discuss current status of particular cases with local officials. Maintain caseload records and carry out related clerical work: arrange interviews and appointments. In unorganized areas, accept applications for General Welfare Assistance, set up welfare budgets, issue emergency relief vouchers, approve and arrange transportation for indigent hospitalization cases. QUALIFICATIONS: 1. A minimum of Grade XIII education: pass standard in the Departmental examinations for this class. - 14 - 2. Three years' experience as a Welfare Field Worker 1. 3. Ability to establish satisfactory relationships with applicants; ability to carry out practices and techniques of case work; good knowledge of the relevant Acts and Regulations: ability to drive a car. May 1961. In addition, the Employer's Ontario Manual of Administration in its policy section entitled "Position Administration" contains the following definitions: "Class" or "Grade" "Atypical Allocation" A distinct level and type of work with: . the complexity, skill and responsibility exemplified as a class standard; and . a specific pay range. The allocation to a class of a position that in general fits that class better than any other, but is significantly different from other positions in the class with respect to the: . function(s) carried out; or . skills and knowledge required. On the evidentiary basis of the 1984 Job Audit, we would agree with the findings of the Samuels panel that the I.M.O. duties and responsibilities encompass three essential functions - counselling, information gathering, and eligibility determinations. The factual conclusions of the Board were unanimous. The Samuel s Board unanimously concluded that the grievors were misclassified because the Class Standard for Welfare Field Worker 1 did not cover ; - 15 - the "critical task" of eligibility determinations. That task, of course, was acquired by the grievors as a result of decentralization. This Panel agrees with Vice-Chairman Samuels' comments at p. a: While we accept that a Class Standard may not encompass all the duties involved in a job, the Standard must cover at least the significant elements of the job. The 1984 Job Audit assigns 75% of I.M.O. working time to the management of an assigned family benefits case load (between 300 and 400 cases on an average). 20% of the time is spent in counselling duties and 5% in other related duties. There is no dispute that there are substantial clerical component to the I.M.O. position. However, there are also substantial' non-clerical components to the job - i.e. a case load involving direct client relationships, meetings, interviews, a counselling component and a substantial percentage of time outside the office. In addition, the preamble to the clerical series specifies that the five series referred to covers "all office positions". In our opinion, it cannot be said that the I.M.O. position is an office.'position. The Board is satisfied that the significant non-clerical component required of I.M.O. 's is not encompassed in the general - 16 - i clerical series. Indeed, the Employer appears to have recognized that fact by designating the classification Clerk 5 General as atypical. Union Counsel made the argument that by definition an atypical designation constitutes misclassification, post Berry et al. The Board can appreciate the force of this argument; however, we prefer to review the merits of each atypical designation to assess the appropriateness of the classification selected. In the post Berry era, the Court has made it clear that the Employer has the right and the obligation to properly classify the employees. In certain circumstances, it may well be that an atypical designation is indeed appropriate. However, for the reasons stated, the Board is not persuaded that the atypical classification selected in these circumstances is appropriate. Accordingly, we cannot confirm the Employer's selected classification of Clerk 5 General atypical. Similarly, we cannot agree that the Union proposal for classification as Welfare Field Worker 2 is appropriate. That Class Standard specifies a 40% counselling component. The Job Audit in question assigns a 20% time allocation to counselling duties. Mr. Hadwen candidly acknowledged that I.M.O.’ s would have difficulty in matching the in depth counselling requirement to justify the Welfare Field Worker 2 classification. Clearly, the I.M.O. performs a more limited counselling role. - 17 - It appears to us that the Welfare Field Worker series is the appropriate classification with significant changes in .the Class Standards to reflect current responsibilities. The Field Worker series was last revised in 1961 and presumably with the passage of time is in need of revision. Alternatively, the Employer must create an entirely new Class Series. In sum, we order the Employer to revise the Welfare Field Worker series or alternatively to create a new classification for I.M.O.'s. 3. Retroactivity Once the classification issue has been resolved, the grievors will be entitled to retroactive compensation. The parties disagree on the effective date of retroactivity. The Union urges the Board to award retroactivity to the date the employees became improperly classified. Alternatively, it was contended that retroactivity should run 20 days prior to the date of the filing of the grievances. The Employer suggested various retroactivity dates: 1. September 1984 - the date of the"position audit; 2. May 1, 1984 - the date the Union amended all classification requests to Clerk 6 General; - 18 - 3. "the end of 1983" - the date referred to by Mr. Justice Reid on the basis of the factums submitted by the parties; or 4. April 1, 1983 - the date when E.R.O.'s were reclassified to Clerk 7 General. The Samuels Decision makes it clear that the employees became misclassified when they were required to perform eligibility determinations. That task was added as a direct result of the decision to decentralize. The first phase commenced in December 1979 in two offices (Hamilton and Kingston) and continued until November, 1980. The second phase commenced in July, 1981 and was introduced at various dates until March, 1983. In our opinion, the 1983 date referred in Mr. Justice Reid's Judgment, based on the factums'submitted, does not resolve the issue. Clearly, the Court was not required to adjudicate the retroactivity issue. We are satisifed that the grievors are entitled to retroactivity to 20 days prior to the filing of the various grievances which in the vast majority of cases was late 1980 and the first three months, 1981. However, the Union has claimed'.entitlement to earlier retroactivity on the basis of discussions held between the parties. However, no such evidence was adduced, presumably due to the illness of the Union president. Accordingly, the Board shall retain - 19 - jurisdiction to a'suitable future date to hear evidence of earlier entitlement to retroactivity. 4. Interest The Employer contends that interest is not appropriate and sites as authority OPSEU (Susan Peters) and Ministry of Health 241/84 (Jolliffe). Alternatively, the Employer argued that if interest is to be awarded, the award should date from either May 1 or September 1, 1984 because of the delay in processing the matter to arbitration. The Union maintains that full interest be awarded on the authority of OPSEU (Boner et al) and Ministry of Transportation and Communications 1563/85, 1571/85 (Kates). In the absence of any evidence of delay on the part of the grievors in processing these classification grievances, we cannot accept the Employer's submission that interest be withheld prior to 1984. Since the Judgment of the Ontario Divisional Court in The Queen in Right of Ontario and Ontario Public Service Employees Union, et al. (1987), 57 O.R. (2d) 641, - there can be no dispute that the Board has the authority to award interest by necessky implication under s. 19(l) of the Crown Employees Collective Bargaining Act. In that Judgment, the reasons for awarding interest are fully canvassed by Mr, Justice Craig. Accordingly, we award interest from the effective - 20 - e date of entitlement to retroactivity on the class ification chosen to December 31, 1985, at which point the 1.M.0.'~ were reclassified to Level 10 of the Officer and Administration Group (OAG). 5. Retention of Jurisdiction The Board shall retain jurisdiction on a proper classification for I.M.O.'s, on the issue of the date of entitlement to retroactivity, and on the grievors who are E.R.O.'s and H.C.B.'s or until such time as we are required to make a further decision. Similarly, we retain jurisdiction in the event the parties encounter any difficulties in the interpretation or implementation of this Decision. DATED at Brantford, Ontario, this 21st day of June, 1988. L- .-+-- L A;---* L R. L. VERITY, Q.C. - VICE-CHAIRMAN T. TRAVES - MEMBER & .&/c: A, A. G. STAPLETON/- MEMBER