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HomeMy WebLinkAbout1983-0238.Parise et al.83-12-04Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Grievor: For the Employer: I;. Grant Deputy Director, Personnel Services Ministry of the Attorney General Hearings: OPSEU (Gianna Parise, et al) Griever - And - The Crown in Right of Ontario (Ministry of the Attorney General) Employer R.J. Roberts S. Dunkley W. Lobraico Vice Chairman Member Member E.J. Shiltdn Lennon, Counsel Cavalluzzo, Rayes 8: Lennon June 24, 1983 October lS, 1983 . - - 2 - DECISION 'V This is a classification case arising out of a technological change in the duties of the grievors. On June 1, 1982, the grievers, who then were classified as Clerical Typists 3, requested reclassification as a result of 'a rearrangement of their duties pursuant to the computerization of the records of their immediate Employer, the Regional Registrar, Metro-Toronto Area, of the Assessment Review Board. In January, 1983, the grievors filed grievances claiming that they ought to be reclassified at the level of i, Clerk 4, General. In March, 1983, they were classified at the level of Clerk 3, General and their grievances were denied on that basis. In due course, the matter came before this board. For reasons which follow, the grievances are denied in part. The appropriate classification was at the level of Clerk 3, General; however, this reclassification, which was in the nature of a promotion, should have been made retroactive to the effective date of the change in duties of the grievers,, which was September 1, 1980. Briefly, the Assessment Review Board, hears and decides complaints regarding property assessments in the Metro-Toronto area. It seems that disappointed litigants have an opportunity to appeal to the Ontario Municipal Board adverse decisions issued at this level. There is a Clerks office attached to . . . . -3- L this ReviewBoard whose function essentially is to deal with the administrative aspects relating to the hearings of the Assessment Review 5oard. This office processes complaints, sets up he~arings, sends out decisions and proces~ses.some aspects of.appeals from those decisions. The s.j& grievers apparently form the "front line" of this office. Each'is responsible for performing numerous functions with.respect to complaints arising out Qf a partkular geographic area to which he or she is assigned. M seems that when a complaint comes in an Assistant .Registrar assigns to it a number of different computer codes.~ 'For example, there are codes for the complainantts namer the-complainant's agent, and the reason for the complaint. 'The-complaint is then given to theegr$.evor who is responsible for the geographic area from which. the complaint arose. The grievor enters the complaint into the computer,,assigns a number to it, and sends a photocopy of the complaint to the Assessment Department, The evidence was not clear as to when a hearing date might be assigned to a complaint. It seems, however, that it must be soon after receipt. This function is performed by an Assistant Registrar after the latter ’ . -4- consults with the grievers to determine how busy they are- when' the hearing date is established the grievers send out notices of hearing and enter into the computer the coding for the hearing date and hearing room Location. This information is provided to them 'by the Assistant Registrar. Thereafter, the grievors combine, the hard copy of the complaint with 'the notice of hearing to form the Court Brief. It appears from the 'evidence that it is not uncommon L- for an Assistant Registrar to make an error,in assigniZg to a complaint the proper computer code for one or more of .tie iterns of'i'n'fonation that the grievors must enter Anto the computer, One of the grievorstestified that when entering this information into the computer the grievorshqbitually corrected any coding errors that they' happened to note. It was not customary for the error first to be brought.to the attention of the Assistant Registrar and have the latter make the correction. The gri.evors similarly entered into the computer the decisions of the Assessment Review Board in each case- Again, there are codes for, e.g., the type of decision that was made, The grievers also enter the reassessed value, I~f any, of the property involved. One additional ‘. , thing that the grievors appear to do is to check over each h decision before entering it into the computer. If some- thing does not appear to he,right they bring it to the attention of the Regional Registrar. If he agrees that something appears to be amiss he double 'checks with the Chairman of the aboard which.issued the decision. Et seems that there is an inducement for the grievers to mqke'such.an effort, They are the persons who appear to 6, contacted by the .Assessment Department or the agent for thecomplainant if either finds an apparent .- error in a decision intheir case, It then becomes nec~essary for the grievor to dontact the opposing party in the 'case 'to determine 'if there is consensus that an error indeed was ~committed. If both agree that there was an error the grievor must then refer the matter to the Regional Registrar. It is up to the Regional Registrar to authorize changes to decisions,which already have been entered into the computer. This involves the Regi~strar in preparing a list of corrections and seeing to it that the corrections are made. There was evidence that i.n ensuring that the corrections are entered, it is not uncommon for the Regional Registrar to provide the grirevorjwith.his personal security code for the computer, the use of which, as a security precaution, is a condition precedent to being able to change the text of any decision already stored in the computer base, L -- ‘i’ -6- Another "front line" characteristic of the grievers' duties involves handling telephone enquiries from the public regarding the relevant legislation. It seems that in dealing with. these 'enquiries the 'grievers might offer brief advice on routine 'procedural matters regarding the presentation of cases{ howeve.r, sensitr>e calls, ,the 'evidence indicated, are referred to the Regional Registrar. The evidence left no doubt that to a great extent the grievers work.on their own-with little direction from their Supervisor, the Regional Registrar. The routine and volume of their work, combined with the volume of the Regional Registrar's work, dictate 'this method of operation. Within thescope allowed by the court datesthat already are . established for their cases', the grievors set their own daily priorities. !qhen the volume of their work becomes heavr, theegrlevors are free to seek assistance from a PO01 of casual employees in the office. One of the grievers testified that the grievors assign work to the casual employees but do not really give training to them. They do give them pointers on how they like the work to be done and they are responsible for the work produced by the casual employee assisting them. It seems from the evidence that the grievers began performing the above-described duties on a regular basis i _A .7- on September 1, 1980. By tha~t time the computerized system was in place on an on-going basis. The grievors, however, still retained the~ir former classification of Clerk Typist 3. This situation continued for almost two years until June, 198.2, when the grievors requested reclassification to Clerk 4, General, It seems tit in response to this request the Employer began then process-of reclassification butthisprocess wasp protracted. In January, 1983, the grievers filed a grievance claiming retroactive reclassification to Clerk 4, ,General. In March,' 1983, the grievers were reclassified to the classif'ication of Clerk 3, General, which was higher than their former classication. This reclassifica- tion was made retroactive 'to June 1, 1982. Because this action essentially constituted a denial of their grievance claiming the classification of Clerk 4, General, the matter proceeded on that basis. Then evidence at the hearing indicated that in the reclassification procedure which was carried out by the Employer.the~re was little, if any, substantive difference .between the assessment by, the grievers and the Employer of the grievers' duties and responsibilities, There apparently were only two aspects of the grievers' duties that escaped the attention of the representative of the Employer who audited the position in preparation for reclassification. In our view, these oversights were minor. The first involved - q-. -8- the fact that when entering complaints into the computer terminal the grievors routinely correct. errors they note were made by the Assistant Registrars in coding the complaints. This does not seem to us to involve the exercise of a,grea't deal of responsibility. !Much of the coding, asindicated earlier in this Award, seemstobe of a routine clerical nature, e.g., identification of the complainant's name or the ~agent for then 'complainant. There is a list of suchcodes~ In the 'office and it seems to be a logical inftience'that from repetition in entering these codes they would.Ee‘impressed upon the memories of the yrievors. In '- Ehese'circumstances detection of a coding error would become virtually automatic and the correction thereof would involve little $n the way of j~udgment. Ln ~fact it solely would involve double .checking the list of codes prior to making the appropriate change. The other oversight involved the fact that in entering the list of corrections to decisions provided by the Regional Registrar, the grievers are authorized by the latter to use his security code. This, again, does not '...- appear to involve the exercise of much responsibility. Clearly, .the agency of the grievors to use the Registrar's security code is limited to making those corrections on the '12st he provides. They do not have authority to decide to make, corrections on their own and use this security code to effect them, i ,. - :, - L In the light of these determinations, the dispute between the parties boils down to a difference of opinion as to whether the 'acknowledged duties and responsibilities of the grievors better fit the classification of Clerk 3, General or Clerk 4, General. For the following reasons, we conclude that the better fit is the one selected by.. the Employer, ~i.e., Clerk 3, General. I ,. ~From a reyxew of the class standards, it seems that the basic difference hetueen these two classications resides in the level of clerical responsibility assigned to each. Each classi.fication~appears to divide the broad category 'L of "res,ponsSiLljXy" into three parts; (1) discretion; (2) initiative; and UT supervision received. As to discretion, theeessential difference between the two classications appears to be that Clerk 3, General contemplates the existence of a framework of established procedures and guidelines H&h restricts or limits the discretion of the employee while Clerk 4, General contemplates the use of discretion in making decisions on matters which vary from those establish- ed procedures or guidelines. WLth.rm'pect to InAtiative, Clerk 3, General limits initiative to merely following up errors and making corrections, with.all doubtful matters being referred to i ,~ -lo-. superiors. Clerk 4, General, on the other hand, contemplates exercising initiative to decide all doubtful matters except those radically departing from established procedures. As to supervision received, the difference between the two classifications seems to be more difficult to define. It seems that an employee tiho receives little direct super- vision might equally well satisfy this aspect of either classification. It is difficult for us to appreciate the subtleties of the distinction between an employee working .- on his own with *only periodic review for adherence to policy and procedure" (Clerk 3, General) and an employee working with "little opportunity for direct supervision" (Clerk 4, General). This sub-category must play a minor role in differentiating between the two classifications. ‘L It seems to us that in the more significant sub-categories of discretion and initiative the duties and responsibilities of the grievors fall much more readily into the classification of Clerk 3, General. As to discretion, the evidence left little doubt that there exists a framework of established procedures and guidelines~ which 'restricts or limits the discretion of the grievors. For ex~ample, there was entered into evidence a comprehensive Operations Manual which set forth in detail the limitations upon the discretion of each Assessment Clerk, e.g., regarding separation of complaints; processing - 11 - of late complaints; filing of complaints; verification; and so on. And while 'this Operations Manual was noted to be of relatively recent vintage, there was no evidence to Cndi~cate that a ssmilar framework oft procedures and guide- lines did not restrict the discretion of the grievers .: at all relevant times. There 'also seems to be little doubt tha~t the exercise Of initiative by the grievors was limited to following up errors and mating correction within the context of this comprehensive ~framework. of guidelines. For example, the codlhg errors tha~t the 'grievers corrected on their own fell into this category. There was no evidence to indicate that then grievers were entitled to make "judgment calls" Sn dauhtful codings, i.e.', choosing from among two or more codes whi?h.might equally seem applicable. For all the evidence disclosed, this was a function reserved to the Assistant Registrars, Stiilarly, with'respect to correct- ing errors in declsCons,. the evidence indicated that where an error was detected the ultimate decision to correct it was made by the Regional Registrar and the authority of the grievors,to use the security code of the Regional Registrar was limited to entering the corrections that he 'or she directed, There did not appear to be any evidence of authority in the grievors to decide doubtful i __ ” - 12 - matter's which.departed from established procedures. In the light of these considerations our conclusion must be 'that the grievors properly were classified at the leyel.of Clerk. 3; General, At the same time, however, we must conclude that this reclassi,fication was not made retroactae to the proper effective 'date. As previously Sndl'cated in this Award, the Employer made June 1, 1982, the effectiveedate of the ~&classification. It seems, however, ,that the qrievors began performing on a routine basfs all of'the duties of this classification by September 1, 198&, The evidence for the Employer tended to indicate that 3une 1, ,1982, was selected because this was the point at which the ~Employer's representative was led to believe the change fin job had taken place. If so , the Employer's representative was shown by the evidence to have been. in error. It seems incumbent upon this Board to correct this error. In this regard, we note that there was no evidence to indicate that the grievers should be estopped on equLtahle ~grounds from claiming full retroactivity. There was no claim that the grievors had "slept on their rights" to the detriment of the Emgloyer. The grievances that were :‘:. T$ - 13 - filed claimed, in essense, full retroactivity. In these circumstances, we do not hesitate to award it.~ Accordingly, our Award is as follows: The grievances are allowed in part, While the claim of the grievors to the classrficati‘on of Clerk 4, General is denied, their promotion to the classification of Clerk 3, General is made retroactive to September 1, 1980. The grievers are entitled to all hack wages and henefits that would have heen paid to them if their reclassification had been made L- retroactive to the 'correct date and not June 1, 1982. We will retain jurisdiction of the matter pending implementation by the parties of .the terms of this Award. DATED at London, Ontario this 4th day of December, 1983. R.J. Roberts, Vice Chairman W. Lobrzico, Member