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HomeMy WebLinkAbout1983-0410.Fraser.84-08-30ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 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: Date of Hearing: DPSEU (E. Diane Fraser) Grievor - and - THECrown in Right of Ontario (Ministry of the Attorney General-) Employer J. ~W. SamueIs Vice Chairman R. Cochrane Member 0. B. Middleton Member R.~ Anand, Counsel Laskin, Jack & Harris Barristers & Solicitors K. A. Grant Deputy Director Human Resources Branch Ministry of the Attorney General July 5, 1984 -2. The grievor is the Court Administrator for the Provincial Court, Family Division, in the County of Northumberland. Her office is located in Cobourg. She is classified as a Clerk 5, General, and she claims that she is wrongly classified. She asks ;or reclassification to Clerk 7, General. There are some 46 or more such offices in the province, of various sizes, and it appears that none of the Court Administrators is a Clerk 7, General or a Clerk 6, General. By way of preliminary objection, the Ministry argued that it is in the process of applying to the Ontario Public Service Labour Relations Tribunal for removal of this position from the bargaining unit. And we were urged not to hear - the case pending the decision of the Tribunal. We learned that the Ministry has been in the process of this application for quite some time now and still no proper application is before the Tribunal. In any event, the griever? claim concerns her service while a member of the bargaining unit, and the Tribunal's decision would not change the fact that for this period, and in the future until a proper application is made by the Ministry, the griever's classification falls to be adjudicated by this Board under the Crown Employees Collective Bargaining Act. We saw no reason to postpone hearing the matter, and we proceeded to do so. The grievor is responsible for the operation of the office of the Pro- vincial Court, Family Division, in Cobourg. She has one full-time and one part- time subordinate, both of whom she hired, and whom she now supervises, and she hires and supervises freelance court reporters as necessary. In short, she sees that the office is run efficiently, according to the relevant legislation (primarily the Family Law Reform Act and the Young Offenders Act), regulations, and admini- strative manuals. Unfortunately, we were not given any of these manuals in evidence, which means that we are unable to assess accurately the degree to which the griever's 3. work is merely filling in pre-established forms, and following pre-established procedures, or the degree to which she is responsible for carrying out more general objectives and establish her own forms and procedures. Her work involves meeting with members of the public and others (including lawyers) to assist them in knowing the correct procedures of the court, and in directing them to the appro- priate legal and social assistance. She must keep various records, and has responsibility for certain monies (primarily a maintenance account, holding funds paid in to court by persons ordered to provide maintenance). The court convenes in Cobourg generally only once a week. In addition, there are two satellite courts for which she is responsible--once or twice a month, there are sittings in Port Hope, and once a month there is a sitting in Brighton. The griever's duties and responsibilities are set out at length in her position specification, as follows: 1. Administers the Provincial Court (Family Division) for a county having a population of 64,232 in 1981, including 713% satellite sittings in Port Hope (l-2 per month) where the Pro- vincial Judge for the County sits, and Brighton (1 per month) held by one of two Belleville Court Judges, and having a caseload involving a variety of sensitive matters. Duties include: - Providing for the day-to-day operation and administration of the Court Office including organizing and implementing procedures involving a variety of acts and regulations; - providing guidance to staff in day-to-day work, as necessary; delegating and assigning work and setting priorities; r-e-assigning duties as required because of absence of staff to maintain balanced workload; resolving disciplinary matters and ensuring all proper procedures are adhered to; - interviewing applicants for vacant positions in the court office; submitting recommendations to Human Resources Management for approval; - training or ensuring the training of new staff; assessing performance by completing appraisal reports as required by Ministry; - scheduling vacations and overtime, if necessary; recom- mending merit increases as and when required; - obtaining services of freelance court reporters as required and supervising same; - hiring and training casual staff for courtroom or office as required, e.g., during vacations, illness, peak workload situations; 4. scheduling and co-ordinating of cases in the court and two satellite sittings maximizing the court and judiciary time; administering the maintenance account of the court (payments in excess of $415,000 per year, 1981-82) by maintaining procedures, exercising controls and assuming accountability; assuming overall responsibility for fines and restitution collected; reconciling Petty Cash Fund and Maintenance Bank Accounts; issuing cheque to COMSOC re Mother's Al!owance Assignments monthly; ensuring issuance of Income Tax statements annually upon re,quest of clients; approving and submitting invoices to the Financial Manage- ment Branch for payment of Justices of Peace, Freelance Court Reporters, and office bills; approving time sheets for regular and casual staff; maintaining Petty Cash Fund for payment of Witness Fees, postage and office expenses; maintaining and submitting reports required by the Ministry such as monthly fines and restitution, daily statistics and courtroom utilization forms; ensuring the maintenance and purging of records for all Family Court matters; signing and requisitioning office supplies and equipment, including the forecasting of forms required for the fiscal year bulk ordering system; providing information to the public through interviews to assist them in determining what course of action they wish to take to resolve problems or complaints involving a variety of sensitive matters, such as those relating to domestic cases involving child welfare, support, custody and access of children, juvenile delinquents, etc.; referring clients to appropriate social agency, justice of the peace, police, lawyers; assisting unrepresented and non-welfare clients to make application under FLRA, i.e. assisting clients to complete application and financial statement as appropriate; maintaining liaison between the court and the police, welfare agencies, children's aid society, legal profession, legal aid, gaol officials, adult and juvenile probation officers, 'parental support workers and justices of the peace to provide information and advice on course of action available regarding family law procedures, the scheduling of cases and the interpretation of legislation; reviewing adoption documents (which are of a very confidential nature) for completeness before forwarding to Judge for perusal and decision as to signing of Adoption Order; signing Adoption documents pursuant to Judge's endorsement and ensuring proper distribution of adoption order upon completion; arranging and scheduling of hearings for contested adootions: orovidinq advice to lawyers on adODtiOn orocedures; checking Judge's endorsement against typed orders compiled by lawyers, court staff and Children's Aid and signing orders pursuant to FLRA and CWA as Clerk of the Court; assuming authority and accountability as Clerk of the Court including adjourning court in absence of judge, issuing Notices of Hearing, Summons to a Witness, Writs of Execution, 5. Notices of Motion, Orders on Motion, Orders, Certificates of Provisional Orders, Notices to Garnishee, Notices of Default, Notices of Hearing of Dispute; - implementing new procedures and changes according to new legislation as passed; - composing and issuing directives regarding court matters for new or amended policies, procedures, or regulations received from the Ministry or the Office of the Chief Judge; - processing REM0 Act matters for enforcement outside of Province, including preparing Affidavits if required; - enforcing support orders pursuant to the Automatic Enforce- ment system; making agreements with debtors as to payment of arrears to avoid a notice of default being issues subject to the approval of the recipient or the Judge; - exercising signing authority as Commissioner of Oaths for affidavits, financial statements, as required; - assuming responsibility for Moveable Asset Control including taking inventory disposing of excess equipment according to procedures; submitting Moveable Asset Control Report; 2. Provides clerical and typing or other services relating to matters before the court by: 30% - setting up case files for Family Law matters; - completing necessary Notice of Hearing by assigning a court date, sign~ing and sealing documents, mailing copies of relevant documents to the respondent; - processing monthly expense accounts for Judge; - acting as Courtroom Clerk (approximately twice a year or as required in absence of regular staff); - as required. The issue for us is whether or not the grievor is properly classified as a Clerk 5, General. If she is not, then we must go on to decide whether she should be classified as a Clerk 7, General. The preamble to the class standards for the clerical series explains that there are 7 levels in this series, covering positions where the purpose is to perform clerical work entirely or in combination with incidental typing, stenographic or machine operating duties. Group leader responsibility normally begins at the third level, while the fourth and above usually cover positions involving line supervision. The class definition for the Clerk 5, General is as follows: 6. 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 deter- mination are referred to supervisors. 'Tasks typical of this level include responsibility for a signi- ficant 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 c work, deciding priorities, maintaining production levels and carrying responsibility for the total performance of the unit. The class definition for the Clerk 7, General is as follows: Employees in positions allocated to this class perform clerical administrative work in the implementation of a departmental program. Although these positions vary widely in the range of duties and the diversity of supervisory responsibilities, they are characterized by the finality of operational decisions made, the complexity of the programs administered, and the confidence placed in the recommendations of the incumbents. Employees in these positions receive general instruction on departmental policy or changes in procedure from an administrative official who initiates new assignments through expressed objectives. They supervise personally, or through subordinates, all activities in a large clerical-administrative operation. They organize work assignments, originate, install and maintain procedures, assist in selection and replacement of staff and integrate the work to produce results as expeditiously and efficiently as possible. In some positions, their supervisory responsibility is of a functional nature due to the geographical location of their subordinates. In these positions they ensure conformity with departmental procedures, observe expenditure trends, analyze problem situations, and are responsible for all activities under their control. In other positions, they perform specialized duties related to the drafting and presentation of policy statements, instructions to staff and special reports to their supervisors. In all positions, they are required to exercise tact and judgment and to develop effective working relationships in their personal contacts. 7. These two definitions are not entirely distinct. There is a difference of degree, and it is important to identify this difference in order to better understand the correct classification of employees in this series. Both classi- fications involve significant responsibility. For the Clerk 5, "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". On the other hand, for the Clerk 7, "Although these positions vary widely in the range of duties and the diversity of supervisory responsibilities, they are characterized by the finality of operational decisions made, the complexity of the programs administered, and the confidence placed in the recommendations of the incumbents'. The Clerk 5 may "supervise a group of 'journeyman clerks' performing clerical duties of varying complexity or a smaller group engaged in more specialized work", and may carry responsibility "for the total performance of the unit"; whereas the Clerk 7 will supervise personally "a large clerical-administrative operation". For the Clerk 5, reference is made to responsibility within a "work unit". On the other hand, for the Clerk 7, reference is made to responsibility for the "implementation of a departmental program". In sum, clearly the Clerk 7 is intended to function on a grander scale than the Clerk 5. There appears to be a greater degree of personal initiative involved for the Clerk 7. As well, the Clerk 7 supervises a larger number of employees, and may be responsible for carrying out the objectives of a program which is unique. 8. Turning to the griever's job description, there are elements which appear to involve significant individual initiative. We have to say again that we are unable to assess this as accurately as would have been possible had we received the administrative manuals in evidence. In any event, the day-to-day operation and administration of the office includes organizing and implementing procedures; and, she must compose and issue directives regarding court ma.tters for new or amended policies, procedures or regulations received from the Ministry or the Office of the Chief Judge.,. However, there seems little doubt that the scale of her operation (consideringthenumber of employees under her supervision and the number of times a month that there are court sittings) is smaller than is contemplated in the class definition for the Clerk 7, General. Hers is not c a "large clerical-administrative operation". Furthermore, the grievor is not responsible for a "departmental program", but rather is responsible for the total performance of a work unit-lone of roughly 46 such units in the province. Counsel for the Union placed considerable emphasis on the fact that the class definition for the Clerk 5 provides that "Although the work is carried out with a large degree of independence, it is reviewed for consistency of decision- making". He argued that the evidence disclosed that the griever's decisions were seldom reviewed. This is true, but one must consider also the nature of the 'decisions made, and the necessity that they be reviewed. We were not given any examples of particularly difficult decisions, involving matters of policy, made by the grievor. By and large, she appears to be involved with routine procedures, and there would be little cause for review of her work. Indeed, the class definition for Clerk 5 speaks of technical questions, “or those involving policy determination" being referred to supervisors~ And~we were given an example of a matter involving a policy determination (concerning the release of debtors from goal by the grievoc) where her supervisor did instruct her to cease the practice. She referred also to 9. calling various persons in finance, statistics, or court administration, for assistance when necessary. In sum, we do not think that the lack of frequent review of the griever's decision-making is critical here. Based on the evidence before us, and in light of these general obser- vations, our conclusion is that her job is fairly classified as a Clerk 5, General. For these reasons, we dismiss the grievance. Done at London, Ontario, this 30th day of August , 1984. "I DISSENT" R. Cochrane, Member D.B. Middleton, Member 10. EXHIBITS 1. 2. 3. 4. 5. 6. ‘7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. Grievance Form Class Standard Letter of March 16, 1979, with attachments Letter of November 21, 1979 Memo of March 24, 1980 Letter of August 21, 1980, with attachment Letter of September 22, 1980 Letter of October 29, 1980 Letter of February 17, 1982 Response to grievance, August 27, 1982 Letter of August 27, 1982 Letter of September 22, 1982 Job specification Letter of September 27, 1982 Letter of February 1, 1983 Letter of February 14, 1983 Second stage reply of June 30, 1983