HomeMy WebLinkAbout1983-0402.Morency et al.85-04-18IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COfLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievors:
For the Employer:
Hearing: December 5, 1983
OPSEU (W.R. Morency, et al.)
Grievors
- and -
The Crown in right of Ontario
(Ministry of the Attorney General)
Employer
M.K. Saltman
P. Craven
D. Wallace
Vice-Chairman
Member
Member
S.T. Goudge, Q.C.
Gowling & Henderson
Barristers & Solicitors
.
N. Robinson
Staff Relations Coordinator
Human Resources Branch
Ministry of the Attorney General
\
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DECISION
The Grievors in this case, W.R. Morency, E.C. Hardie,
C.P. Martin and G.J. Petmanis, claim that they are underpaid
and, in order to rectify the situation, ask to be reclassified
as Executive Officer 1. The Grievors are employed by the
Public Trustee as Estates Investigators, which is the only
position within the classification known as Investigator of ,'
f. Estates. The Grievors are the only incumbents in the job.
The essence of the Grievors' job is to investigate
estates administered by the Public Trustee in order to ascer-
tain and secure all of the assets belonging to the estate.
Estates administered by the Public Trustee include (1) estates'
of in-patients in psychiatric facilities or in psychiatric
wards of general hospitals or of out-patients certified as
incompetent to manage their own estates under the Mental Health
i
Act, R.S.O. 1980, c. 262, _ as amended; and (2) estates of pers'ons
dying intestate pursuant to the Crown Administration of Estates
Act, R.S.O. 1980, c. 105.
The duties and responsibilities of the job of Estates
Investigator are summarized in a position specification dated
February 20, 1973. Following the filing of the grievances,
management requested the Grievors to prepare a. revised
specification which would encompass all of the duties of the
position. In response to this request, the Grievors submitted
( - 3 -
the position specification dated June 8, 1983, which was
approved by their immediate Supervisor, Leonard Stiff. In
reality, there would appear to be very little difference
between
a summa r,
the rev i
portion
origina 1
the
Y 0
sed
th
two position specifications. The following is
duties and responsibilities as it appears in
position specification. Except for the underlined
s summary is identical to the one contained in the
position specification:
"1. Carries out investigation and examination of
all assets of patients in psychiatric
facilities, Crown Estates,'or other matters
as assigned by the Public Trustee such as
Charities Acct. Act, Business Corp. Act &
matters referred to him by the Courts by
uerforminq the following duties:
85%
--ascertaining assets, after receiving
'Request for Investigation' from Estates
Officers and/or solicitors, by setting out
details of known assets and names and
addresses of relatives and attending upon
,the patients' relatives, friends, neigh-
bours, employers, solicitors, doctors,
creditors, banks, farms, cottages and
businesses;
-searching all premises, vehicles, offices,
etc., to locate all and every conceivable
type of asset, concealed monies, will (sic),
deeds and insurance policies, agreements
and any papers or indication of further
assets and their location;
-visiting relatives, friends, neighbours,
employers, businesses, farms, cottages,
doctors, sol,icitors, police, banks or upon
any person or place to obtain ail infor-
mation pertaining to all assets of which an
estate consists and.to obtain specific
details as to safety deposit boxes and,
keys, wills, statements of accounts,
employee benefits, etc.;
-valuating all conceivable types of asset -
real and personal property, e.g., fur-
niture, personal effects,, antiques,.
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collectibles, automobiles, trucks, air-
planes, boats, snowmobiles, businesses and
all types of business equipment and stock,
farms of all types and related livestock,
machinery, crops, etc.;
-assuming temporary responsibility for the
maintenance and protection of assets
including buildings, automobiles, farm
tractors, boats, pumps, etc.;
-examining of real property to make
recommendations to Estates Officers con-
cerning management, repairs and
redecorating required and obtaining struc-
tural details of all premises and out-
buildings, pertaining to construction,
state of repair, type of area and sales
and rental value; securing, winterizing,
cleaning and fumigating homes where
necessary;
-locating heirs of deceased parties with
regard to Crown Estates, involving
discreet interviewing of neighbours and
acquaintances, lawyers, employers and
police, examining and analyzing police
occurrence reports, locating wills, etc.;
-attending at banks throughout province for
purpose qf removing contents of safety
deposit boxes, a detailing of contents in
the presence of bank representatives and
issuing receipt; transporting contents to
office of the Public Trustee as a single
custodian;
-preparing written survey reports of estate
&sets and placing a value on each item
such as - real property, personal property,
antiques, collectibles, business property,
insurance, mortqaoes, pensions, wages,
livestock, prod& liabilities, etc., and
including report on.details of estate not
included in asset survey forms..e.g., out-
lining families' attitude and recommen-
dations, acting as conciliator in disputes
with neighbours, etc., and snlicitors'
comments, investigators' recommendations
concerning continued operation of farms,
businesses, and recommendations for repairs
and 'disposition of assets, etc., .and sub-
mitting same to Estates Officer;
-advising patient's family (if any) of the
Public Trustee's legal position and
procedures in Public Trustee's office;
assisting the family in some instances in
i
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preparing dependent allowance forms and
advising the family as to other welfare and
Government agencies that are available' for
financial assistance where no funds are
immediately available to them;
-creating and maintaining sound public
relations between families and all contacts
relating to Investigations and the office
of the Public Trustee;
-attending Registry Offices in all areas to
search titles and obtaining Sheriff's
certificates, etc.;
-recommending t-e disposition of assets, con-
tinued operation of businesses and farms,
repairs to property and estimate of cost of
repairs.
2. Performs other related duties:
3
-carrying out the duties'and responsibilities
of a Commissioner of Oaths by attending on
physicians re medical affidavits, affidavits
of execution re Crown Estates and further
affidavits relating to numerous types Of
legal matters such as General Power of
Attorney, etc.;
-serving of various types-of legal notices
and witnessing signatures on legal
documents;
-attending on various nursing homes
throughout the province of Ontario to review
their accounting procedures, e.g., verify
monies received from Public Trustee, credits
to bank accounts, credit to patient form (sic)
whom forwarded, maintaining proper receipts,
etc., and reporting to Accounting accor-
dingly;
RE: Working Conditions - Normal Office
- 20%
Outside Office
- am (incl.
travel)
Approximately
30,000 klm. per
annum;
investigation
often involves
exposure to
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unsanitary con-
ditions and
dealing with
emotionally
upset or
hostile persons.
RE: Working Hours - 8:30 a.m. - 4:45 p.m.
with frequent night work."
This summary was supplemented by the evidence of one
c
of the incumbents, W. Reginald "Reg" Morency. On consent of
the parties, Mr. Morency's evidence was accepted on behalf of
all of the Grievors.
Mr. Morency explained that his involvement with an'
estate begins when a "request for investigation" is received
by the Supervisor of Estates, Mr. Butt. These requests are
initiated from within the Investigations Department, either by
an Estates Officer or by a Solicitor and are allocated among
the four Grievors according to geographical "tone" in which
i
the request arises, except for requests in Metropolitan
Toronto, which are allocated on an ad hoc basis to one of the -I
four incumbents.
The "request for investigation" may include only
basic information, such as the name and address of the deceased
person or person certified as incompetent, as
addresses of persons to be contacted in relat
or more extensive information which may even
indication of where the asse ts of the est
well as names and
on to the estate;
nclude an
ate are to be found
-7-
(which is often the case where the Estates Officer has done
some preliminary investigation). The Estates Investigator then
proceeds with his investigation, which may include:
(1) interviews with professional advisers
(such as,doctors, lawyers, etc.),
business associates or family members
(either in the case of a person cer-
tified as incompetent or a deceased
person) Especially in the case of a
person certified as incompetent, there
may be some resistance to the presence
of the Estates Investigator, who may
be perceived as "taking charge" of a
family situation;
(2) search of the premises and other
locations in order to locate money and
other assets. On occasion, each of
amounts of cash
one million do1
collections;
the incumbents has found assets of
considerable value, including large
and securities (up to
lars ) and valuable art
(3) isolating the assets (which may
involve sorting through a considerable
amount of debris and even disposing of
the debris);
.
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.(4) valuing the assets (a precise valuation
is not contemplated, only some indication
of whether the assets.are in fact
valuable);
(5) preparing a written report identifying
each asset, its location (which may be of
some importance, e.g., in the case of a
bank account) and the estimated value
of the asset (if known). This report
is then conveyed to 'the Estates Officer
for use in managing the estate; and
(6) securing the assets,.which is done by
attempting to ensure the physical
integrity of fixed assets and by taking
possession of movable assets, such as
money, securi ties, jewelry, etc. For
his own protection, the Investigator
usually issues a receipt for any assets
removed from the estate so as to avoid
the accusation that the Invest
has converted a portion of the
his own use. In fact, such an
i gator
assets to
accusation
has,never been made. Nevertheless, the
Investigators are alert to the
possibility as investigations are con-
ducted alone without any direct
r’
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.i
supervision. Whenever possible, movable
assets are conveyed for safekeeping to
the Head Office of the Public Trustee at
the end of the working day. Although it
is preferable for the Investigator to
surrender the assets to Head Office at
the end of each working day, it is not
always possible for him to do SO. Accor-
dingly, the Investigator may be required
to retain the assets in his possession
for several days thereby subjec.ting him
to the risk of physical attack and, at
this juncture as well, to an attack on
his integrity.
In fact, integrity is an integral component of the
job, which is reflected in the following summary of skjlls and
o perform the work contained in the position knowledge required
i specification:
"Good know
with real
fledge of appraising techniques dealing
and personal property. Ability to
understand, decipher and apply information found
to affect investigation; ability to communicate
effectivelv with officials at all levels,
families, and relatives; hiqh degree of trust
and integrity to act as sole custodian of
valuables found during independent searches;
thorough knowledge of regulations of law
applying to estate work;.power to'administer
oaths and take declarations; good knowledge of
related Acts, procedures, standards and codes,
. ..tact. sound judgement and initiative."
1 - 10 -
Although the job requires the exercise of independent judgment
and initiative, if the Investigator encounters an unexpected
circumstance, assistance is available from an Estates Officer.
If the'circumstance arises outside normal working hours when
the Estates Officer is not available, the Inves
rely on his own judgment.
In addition to responsibilities in re
igator must
ation to
( estates of persons certified as incompetent or persons who die
intestate (which account for approximately ten investigations
per week per Investigator), the Grievors have intermittent
responsibility for investigating the assets of companies that
are defunct or that have failed to file returns with the
Ministry of Consumer and Commercial Relations under the
Business Corporations Act, R.S.O. 1980, c. 54, as amended.
Further responsibilities include conducting inquiries under
the Charities Accounting Act, R.S.O. 1980, c. 65, as amended,
to ensure that the charity is fulfilling its intended objective.
i
Based on the evidence, the Union claimed that the
Grievors were performing duties beyond those described in the
position specification for Estates Investigator and, therefore,
that they ought to be compensated at a higher rate of pay. In
particular, the Grievors are claiming compensation at the rate
of pay for Executive Officer 1. (There was no explanation as
to why this rate was chosen, except that it was viewed by the
Grievors as a realistic rate to attain.)
! The issue is whether the Grievors are entitled to
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be compensated at a higher rate of pay.
In order to determi
which defines the classificat
of some relevance:
ne this issue , the class standard
ion of Invest igator of Estates is
II
Summary Specification
INVESTIGATOR OF ESTATES
CLASS DEFINITION:
This is investigational and appraisal work
pertaining to administration of estates of persons
confined to Ontario Hospitals and other estates for
whom the Public Trustee is Statutory Committee.
These employees make investigations throughout the
Province to ascertain the real and persona7 property
in an estate including real estate, livestock, farm
implements, bank accounts, insurance policies, bonds,
stock shares, and notes receivable and payable.
They make valuations and inventories and convey or
arrange to forward to Head Office title papers,
valuables and contents to safety deposit boxes. On
occasion they make on-the-spot decisions on collec-
tion of rent, supervision of a business or protec-
tion of and repairs to property. Information
collected during investigations is ,compiled on a
survey report form for use of superiors in
administering estates. These employees work under
general supervision.
QUALIFICATIONS:
1. Senior matriculation or an acceptable equivalent
combination of education and experience. A
thorough working knowledge of the practices and
procedures of the Division.
2. Several years progressively responsible clerical
experience in the related field, preferably
within the Civil Service.
3. Proven capacity for using good judgment and
making decisions; ability to report accurately
and to work efficiently without close super-
vision. Must be,capable of maintaining good
public relations during investigations.
Revised November 1961"
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According to the conventional jurisprudence, in order
pay, it must be shown to estab lish a claim for a higher rate of
that an employee is improperly classified
improper classification rests with the Un i
The
on.
oving sector, the Union satisfies the onus by p r
onus of proving
In the public
that the
employee's job measured against the relevant class standards
comes within the high'er classification the employee seeks or,
if th
i there
class
43177;
job fails to fall within the higher class standard, that
are employees performing the same duties in a higher
fication: e.g., Re Rounding et al. 18/75; Re Lynch
Re Pretty 64/77; Re Edwards & Moloney 11/78; Re Montague
110/78; Re McCourt 198/78; Re McLean et al. 499/82; Ontario
Public Service Employees Union v. The Queen in riqht of Ontario
(Ministry of Community and Social Services) December 21, 1982
(Ont. Div. Ct. (unreported)).
In the instant case, the Grievors do not claim that
they are improperly classified (in the, sense of claiming that
(. they are performing duties which come within the class standard
of a higher classification) but that they are doing work outside
(and not incidental to) their,own position specification, for
which they ought to be compensated.
In making this claim, the Union relies on the recent
case in the private sector of Re Ontario Hydro and Canadian
Union of Public Employees, Local 1000 (1984), 11 L.A.C.(3d)404
(Shime) (the "m" case). In the Hydra case, the grievors.
who were employed as mechanical maintainers, were required to
t perform work completely outside (and not incidental to) their
( - 13 -
norma! classification. What distinguishes the Hydro case is
that the work in question also did not fall within the central
core of a higher-rated classification, which is generally
recognized as the test for reclassification in the private
sector*. Notwithstanding that the test for reclassification
was not met, the Arbitrator awarded compensation for
additional work performed beyond the grievors' normal job
description an'd classification. In making his award,
Arbitrator Shime rejected the strictures of the conventional
jurisprudence, which he found inadequate to the circumstance
where work is performed outside the employee's normal
classification which does not come within the core duties of a
higher classification. His reasoninq is as follows:
We now turn to the main argument con-
cerning the nature of the job performed. This
case has proceeded in a manner that is the same
as other previous cases of this kind. The
usual circumstance prompting this kind of case
is that the employer asks an employee to per-
form work which on its face.is not part of the
employee's normal routine. The employee feeling
that he or she is being asked to perform tasks
that are not normal work asks for more money and
attempts to show that the work is within a
higher rated classification while the employer
claims that the work falls within the job.
description of the grieving employee.
* Although formulated somewhat differently, this test is the
equivalent of the test for reclassification in the public
sector, i.e., whether the work being performed comes within
the class standard of a higher-rated classification: see
Re Brick et al. 564/80.
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It is very difficult to capture all
the specifics, the nuances or the potential con-
tingencies of.the work place in a collective
agreement, classification description, job
description or occupational definition such as
we have in this case. 'Thus, work which is
normally incidental or part of an employee's
usual work should not be compensated at a higher
rate. On the other hand, there is no reason why
an employer should have the benefit or a wind-
fall resulting from a job assignment where an
employee performs work outside of his or her
normal routine where that work is more complex
or more difficult. The bargain that has been
struck is that employees will perform a certain
range of tasks for a fixed rate. Why then
should the employee be required to perform at a
higher level for the same fixed rate?
,
The cases have proceeded on the basis
that an employee will receive a higher rate
only if the employee performs in a higher rated
classification. Generally, arbitrators have'
honoured the classifications and wage rates
negotiated by the parties. They have insisted
that the employee must stand the test of per-
forming the core duties of the higher rated
classification before receiving the greater wage
rate. That view appears to us to be too narrow.
It, in effect, places the arbitrator in the
position of a tailor trying to fit a person with
two ill fitting garments - one too small and one
too large.
Look at this case. Here we have work
being performed which is completely out of the
ordinary. It differs from the usual. and routine
work performed by a mechanical maintainer; it
was not in the job description and subsequently
the company agreed to a whole new job description
where new language appears covering this very
work. How can it be said that this work was con-
templated by the parties as falling within a
mechanical maintainer's normal work routine, or
as being necessarily incidental to that work. It
is work that is completely different. The new
changes or language lead to the inference that it
is work that was not contemplated by the parties
as falling within that occupational definition at
the established rates. Why should the employer
have the benefit of the more complex efforts at
rates which it had agreed covered a more routine
set of tasks.
(’
i.
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. ..It is too narrow and inflexible a position to
require an employee to bring himself or herself
squarely within a higher rated classification
once the employee can demonstrate that he or she
has performed a set of tasks extending beyond
(but not merely incidental to) his or her normal
classification. The employer should not be
entitled to a benefit of work which is clearly
beyond the lower rated classification. In those
instances, we believe some form of payment should
be made.
. . .
Generally, in circumstances such as
this, additional compensation, if any, for the
work performed should be determined in accordance
with any job classification system under the
Collective Agreement. In the event no job
classification system exists or is inadequate to
the task, the concepts of a quantum meruit claim
should be utilized and adapted to the collective
bargaining system in order to determine the
amount of compensation to be paid. That concept
which requires a person be paid what he or she
reasonably deserves may be useful in this kind
of wage case since it has long been a principal
(sic) of law that:
'If one bid me do work for him and do
not promise anything for it, in that
case the law implieth the promise
and I may sue for the wages' Sheppard,
Sheppard, Action on the Case, 2nd Edn. p. 50;
Cheshire and Fifoots (sic), Law of Contracts, 8th
Ed. p. (sic) 65,l - 654.
For all these reasons the grievance is
allowed to the extent indicated and the question
of the appropriate wage is to be remitted to the
parties. Should the parties be unable to agree on
the amount of compensation, we shall remain seised
of that issue."
(pp. 408-411)
Whether or not the rationale of the Hydro case
ought to be adopted by this Board, there is a major
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distinction which makes the rationale inapposite to the cir-
cumstances of the instant case. In the Hydro case, the work --
for which compensation was awarded was completely outside (and
not incidental to) the employees' normal classification whereas,
in the instant case, the work for which compensation was sought
is clearly encompassed within the class standard known as
Investigator of Estates. Indeed it can hardly be disputed that
it was not. Unlike most class standards, which cover a range
t. of jobs, the class standard for Investigator of Estates
encompasses only the job of Estates Investigator. Accordingly,
the classification description contained in the class standard
of Investigator of Estates and the description of duties and
responsibilities set out both in the origi.nal and revised
position specifications for Estates Investigator are remarkably
congruent.
There was no real dispute that the position
specification for Estates Investigator, even as revised, comes
i within the class standard of Investigator of Estates. The
real dispute was (1) whether the revisions to the position
specification for Estates Investigator are encompassed within
the original 'position specification; and, (2) if not, whether
the Grievors are entitled to compensation for work performed
outside the original position specification.
In the Board's view, the revisions to the position
specification for Estates Investigatordo not reflect a change
in job function but merely set out a more detailed and accurate
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description of the duties and responsibi ities contained in the
original position specification. For instance, the reference
in the revised position specification to (1) "protection of
assets"; and (2) "temporary" maintenance of assets does not
indicate a change in job function as Estates Investigators
have always been responsible for the protection and maintainance
of assets temporarily in their possession. Similarly. the
responsibility of Estates Investigator "as a single custodian"
( over the contents of safety deposit boxes is not new as it has
always been incumbent on Estates Investigators to assume
custody of the contents of safety deposit boxes (and other
movable assets) until these can be surrendered to Head Office.
Other revisions to the job specification such as (1) the
addition of "antiques and collectibles" and "boats" to the
list of assets to be valued; and (2) the reference t 0
"analyzing police occurrence reports", "locating wil 1s" and
"acting as a conciliator" in domestic disputes also do not
( represent added responsibilities but are merely an elaboration
of those duties and responsibilities which have always been
performed by Estates Investigators. Finally, the reference to
a "high degree of trust and integrity to act as sole custodian
of valuables found during independent searches" is not new but
is written confirmation of the quintessential requirement of
the job of Estates'Investigator. In summary, therefore, not-
withstanding revisions to the position specification, the job
of Estates Investigator remains essentially unchanged from the
original position specification.
(
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I
Even if it were not, the Board does not understand
the Hydra decision to require payment of additional compen-
sation whenever work is performed which is outside the
employee's job description. In the Hydra case, the work for
which additional compensation was awarded, as well as being
outside the employees' job description, was outside the
employees' normal classification. Accordingly, in the Board's
view, it is inaccurate to state that the effect of the Hy
( decision is to provide payment for work performed which,
although outside an employee's job description, comes within
the scope of the employee's own classification. Therefore,
the liydro case does not dispense with the requirement of
proving that an employee claiming a higher rate of pay is per-
forming work outside the employee's own classification. What
the Hydra case does is dispense with the requirement for
oroving that work performed which is outside an employee's
C lassification al so comes within a higher-rated classification.
instant case, as the duties of Estates In the
Investigator, both within the original and revised position
specifications are encompassed within the class standard known
as Investigator of Estates, there is no basis for additional
compensation even on the rationale stated in the Hydra case.
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Accordingly, the grievances must.be dismissed. The Grievors'
claim for higher pay must be dealt with at the bargaining
table.
DATED at TORONTO this 18th day of April, 1985.
M.K. Saltman - Vice-Chairman
P. Craven - Member
(&hbuL
D. Wallace - Member