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HomeMy WebLinkAbout1983-0432.O'Halloran.84-03-21180 DUNDAS STREET WEST. TORONTO. ONTARIO. M5G 1Z8 -SUITE 2100 . Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: OLBEU (Mary O'Halloran) Grievor - and - The Crown in Right of Ontario (Liquor Licence Board of Ontario) Employer R. J. Roberts Vice Chairman J. Best Member A. Reistetter Member For the Grievor: G. Beaulieu Consultant Union Consulting Services For the Employer: W. J. Hayter Counsel Hicks Morley Hamilton Stewart Storie Barristers and Solicitors Hearing : November 24, 1983 ,- W 2 - - DECISION This is a classification case which falls to be decided under the L.C.B.O. & L.L.B.O. Classification Guide. Clerk Grade 2 claimed in her grievance the level of Clerk Grade 4. At the hearing, the case for the grievor was argued on the footing that the grievor ought to be classified at the level of Clerk Grade 3 or 4. reasons which follow, we conclude that the grievor was improperly classified as a Clerk Grade 2 and should be The. grievor, who presently is classified as a For reclassified as a Clerk Grade '3. The Licensing Branch of the Employer has a number of different departments, including the Industry and Special Licensing Department, where the grievor works. The grievor's desk is located in the office of this department which issues age-of-majority cards. They are known as Ontario Photo Cards. A little more than half the grievor's work day involves the performance of duties relating to the issue of Ontario Photo Cards, arbitration, it is not necessary to go into great detail regarding the nature of these duties, say that these duties involve a certain amount of routine For purposes of this Et suffices to -3- ,- Y checking of applications, typing of vital statistics of the applicants on blank cards, mounting thereon a photographic likeness provided by the applicant and producing. a laminated card by creating a polaroid picture of the complete blank and putting it through a laminating machine, Because the demand for Ontario Photo Cards is high, a number of other clerks in the grievor's office work duties. grievor is that they perform these duties full-time. alongside her in performing these The main difference between them and the It seems that this arrangement came about in September, 1982. The Employer decided that it was advisable to have only one person handle all of the receipts that came in with various applications and make the required deposits every day. grievor was viewed as responsible, she was the person Apparently because the selected. for collecting and depositing with the Accounting Department the daily Ontario Photo Card receipts. She also was made responsible for performing a similar function with respect to the daily receipts from the Licensing and Transfer Departments of the Branch, associated duty for which the grievor became responsible was to keep a record of N.S.F. cheques which were received by these departments and document when a replacement The grievor was given the responsibility An . -4- cheque was received and deposited. The grievor testified in detail as to the nature of these duties. It seems that around 3:30 p.m. each day, the grievor collects from the Transfer and Licensing Departments their daily receipts. payment on various lists that these departments have already supplied her. and institutions from which payments are due for various types of fees. the grievor marks it off on these lists and enters the date of receipt, in a safety deposit box overnight and locks them up. She marks off each The lists set forth the names of organizations As each payment shows up in the receipts, The grievor then places the cheques On the next morning, the grievor makes out several lists setting forth the details of the revenue collected from the above departments. The evidence indicates that these lists are not only divided up by department but also by type of license for which the fee was paid, After completing this task, the grievor makes up deposit slips for the receipts. the grievor takes the cheques, lists and deposit slips to the Accounting Department, The grievor also brings with her Once this has been completed the tape from her calculator showing the totals for and own the receipts. Once the Accounting Department verifies confirms the grievor's computations, sheretarns to her department, -5- Perhaps because more in the way of cash. is involved, the grievor follows a slightly different procedure with respect to collection and deposit of the Ontario Photo Card Receipts, The grievor counts the cheques and cash from this area and prepares a deposit slip, takes her deposit slip and receipts to her supervisor, Mr. R. Bible. and then he and the grievor compare notes. the grievor takes these receipts to the Accounting Department to be processed in the same fashion as the She then He counts the receipts a second time After this, others. It seems that once an N.S.F. cheque is returned the grievor is the first (presumably to Accounting) person to be contacted. She retrieves the cheque, makes a detailed record setting forth the date the cheque was received, the name and address of the issuer of the cheque, and the nature of the fee for which the cheque was issued. The grievor then returns the cheque to the Licensing Officers in the department responsible for the collection of the fee in question and checks periodically with them to determine whether they have contacted the issuer and made arrangements for replacement, When a replacement cheque comes in, the grievor enters upon this list its date of receipt and deposit, f i It would be an understatement to say that the fore- ,- going. duties and responsibilities do not fit easily into the categories marked Evaluation Criteria" of the L.C.B.O. & L.L.B.O. Classification Guide for the Clerk series. So far as our review indicates, none of the criteria addresses the status of an employee who must handle and account for relatively large sums of money. Certainly, it cannot be said that the sums handled by the grievor are small. receipts averaging about $80,000 per month, The evidence indicated that the grievor handles Because of this, we must analyse the criteria in order to determine what relevant factors differentiate the classification of Clerk Grade 2 from Grades 3 and 4. As to the criterion of "responsibility level" the relevant factor seems to reside in the complexity of the work. As the degree of complexity increases from "limited" (Grade 2) to "moderate" (Grade 4), so does the grade of the responsibility level, case, it appears that, overall, the work of the grievor is of "some complexity" (Clerk Grade 3). While the Ontario Photo Card part of her job might be considered routine, and hence of limited complexity, her responsibility for handling and accounting for relatively large sums of money involves her in performing tasks of a higher order, In the present These -7- tasks take up a considerable amount of her time; hence, they form part of the “core” of her job, . When performing these tasks the grievor functions as much more than a "courier"'. She 'does not simply convey a sealed packet of receipts from one department to another. She is made accountable for them, and must create and reconcile her own records of these receipts with the Accounting Department . The criterion which is designated "typical duties" does not appear to be particularly helpful in this case. From our review of the description of this criterion in each classification, it seems to be virtually impossible to extract some general principle -- other than, perhaps, complexity (which already has been dealt with) -- which would assist in determining the "best fit" for the duties of the grievor. Passing on to the next criterion, which is "decision- making/cormplexity", it seems that the relevant differentiat- ing factor is initiative". The classification of Clerk Grade 2 requires the exercise of little, if any, initiative, while Clerk Grade 4 requires considerable, Again, the "best fit" for the grievor s duties and responsibilities appears to he Clerk Grade 3, This classification requires the exercise of limited initiatlve, in, e.g., "following-up -8- on errors and making necessary corrections," with respect to the financial aspect of her job, the grievor more than adequately satisfies this criterion every time she takes charge of* the receipts from the various departments. She checks against the actual receipts the information that appears on the reports provided by each department. The evidence leaves little doubt that if and when the grievor finds an error in this information, she follows up on it and has it corrected before undertaking to take charge of the receipts. With respect to the remaining criteria of "contacts"; "supervision given"; "supervision received'' ; and "entrance qualifications"., the duties of the grievor seem compatible with either Clerk Grade 2 or Clerk Grade 3. They are not, however, compatible with those criteria in Clerk Grade 4. For example, the grievor does not have "frequent and varied contacts within the L.C.B.O./L.L.B.O.", She is not responsible for "maintaining discipline" of junior staff. Nor, it seems, is the grievor "expected to exercise initiative in recommend- ing solutions to problems.'' These all seem to be hall- marks which significantly differentiate the classification of Clerk Grade 4 from those below it. - Based upon the above analysis, we conclude that the most appropriate classification for the job of the grievor 4 -9- would-be Clerk Grade 3. Counsel for the Employer, however, submitted that the Board did not have jurisdiction to award this classification to the grievor because the grievor solely claimed in her grievance the position of Clerk Grade 4. When counsel began to make this point in his argument, the Board initially thought he was claiming "surprise", which is a claim that might give rise to the grant of an adjournment to enable counsel to marshall evidence and argument upon the issue. Accordingly, we advised counsel that we would consider granting him this opportunity. He refused, contending that the absence of a claim for the classification of Clerk Grade 3 meant that the grievor was not entitled to be awarded this classification in the present proceeding. argument upon this point. Vice-Chairman in a timely manner, We requested and received from counsel written This argument was submitted to the Upon due consideration of these submissions, we conclude that we must reject them. was Re Price and Ministry of Community and Social Services, G.S.B. #25/81 (Verity). This authority is inapposite. In that case, the Board allowed a grievance to be amended to claim "an entirely different classification series from that set out in the grievance form." "Id. at 6. the grievor does not claim a different classification series; her claim is restricted to the Clerk series, The only authority cited by counsel W Here, - 10 - It is true that in dictum the Board went on to suggest that a request for remedial amendment "must be presented at the outset of the Hearing and not within the course of the Hearing itself .” solely to the claim of an entirely different series. presumably was a claim of which the Employer might not have had any reasonable advance notice. that this is the case here. The grievor, after all, was Id. But, again, that remark related This We do not believe claiming the level which fell squarely between her existing level (Grade 2) and the level claimed in her grievance (Grade 4). We do not understand how, in these circumstances, it would be possible for the Employer genuinely to be "surprised" by a claim of the sole intervening level. An alternative argument was presented to the effect that the grievance should be rejected because the collective agreement restricts classification grievances to circumstances in which there was a changeinthe duties of the grievor, and there was no such change in this case, We reject this contention on two grounds. First, under the Crown Employees Collective Bargaining Act, s. . 18 (2) (a) the rights of grievance under the collective agreement were broadened to include a claim by an employee "'that his position has been improperly classified". Secondly, the facts show that in any event there was a significant change in the responsibilities of the grievor. The financial aspects of the grievor's job did not materialize until September, 1982. - 11 - The grievance is allowed in part. The grievor is .entitled to the classification of Clerk Grade 3 effective as of the date of the hearing in this case, which is the operative date of her claim to the level of Grade 3. There will be no award at the present time relating to the positioning of the grievor’s wage level within this classifica- tion. between the parties. however, pending implementation of the terms of this Award. It is anticipated that this matter can be worked out We will remain seized of jurisdiction, DATED AT London, Ontario curl” (see addendum) J. Best, Member . “I dissent” (see attached) - A. Reistetter, Member i DISSENT I have had the opportunity of reviewing the Chairman's award in this matter and, with respect, cannot concur with the comments made therein. In his award the Chairman adverted to the fact that the "case for the grievor was argued on the footing that the grievor ought to be classified at the level of Clerk 111 or Clerk IV". To be more precise, the grievance itself sought to reclassify the grievor to Clerk Grade IV and no mention whatsoever was made of Clerk Grade III as a remedy which was being sought in the grievance. It was not until after the close of all of the evidence that the Union, for the first time, raised in their argument the possibility of having the grievor classified at the level of Clerk Grade 111. Counsel for the employer strenuously objected to the Union arguing their case on this footing as the employer's case was conducted upon the basis of a grievance which asserted the reclassification to Clerk Grade IV. Counsel for the employer was, indeed, offered the opportunity of reopening his case. That offer was rejected for the simple reason that it was then too late in the day to remedy the prejudice which the Union's change in position had created. As was stated by counsel for the employer in his written submissions: “ In our submission it is too late in the day to permit the Union to make this argument when the entire case has proceeded upon the basis that it was the Clerk IV classification which is in dispute. The Union's request for an amendment to the grievance to argue Clerk IV comes at a time when serious prejudice results to the employer who has conducted the case upon a footing different from that now being asserted. The grievance was processed through the grievance procedure with Clerk IV in dispute. The issue, thus joined, was dealt with at arbitration and the cross-examination of the grievor was conducted on that basis. It was also on that basis ~- that the employer elected to call no evidence. The Union's position, being revealed-for the first time after the close of evidence and during argument, seriously prejudices the employer who has prepared to meet a case which the Union are now trying to change. that prejudice be alleviated by an adjournment as all of the evidence thus far has proceeded upon the basis of Clerk IV, not Clerk III." (emphasi s added) Nor can Indeed, the result which the Chairman has reached in his award, that the grievor could not successfully claim reclassification to the Clerk Grade IV position, confirms counsel for the employer's decision not to call evidence. The award makes clear the fact that the Union had not made out a prima facie case for the classification sought in the grievance. In view of the Chairman's finding, I would have dismissed the grievance upon the basis that the Union has not made out their case, namely, that of reclassification to Clerk Grade IV. To do otherwise would, in my view, be a denial of natural justice which cannot, by virtue of the Union's timing in raising the issue after the close of evidence, be remedied. then different considerations might apply. Furthermore, the Chairman's reading of the decision of another panel of this Board rests upon a distinction without a difference. Had the Union raised this issue at the outset of the hearing Surely, the principle as stated by the Price case, that a request for remedial amendment "must be presented at the outset of the Hearing and not within the course of the Hearing itself" is not diluted by the fact that, in that case, the amendment related to a different series of classifications. That statement is nothing more than a reflection of one of the tenets of natural justice, that is, that a party must know the case he has to meet and be given a fair opportunity to meet it, The corollary to this principle is that a party ought not to be permitted to change their case when to do so results in a prejudice to the other party which cannot be remedied by an adjournment. happened here. That is, precisely what has In any event, the evidence is insufficient to warrant reclassifying the grievor to Clerk Grade III. On balance, the evidence reveals that Clerk Grade II is a better fit than Clerk Grade III. When the grievor's duties are considered as a whole it is apparent that the majority of them are of limited complexity and it is only by virtue of the monies which the grievor handles that the majority reached the conclusion they do. While it may be that the grievor handles large sums of money, the evidence shows that less than $100.00 of that sum is in cash and, in any event, the grievor's supervisor and the accounting department to which she takes the receipts each verify the amounts of money which the grievor transported. The grievor's "responsibilities" for receipts and the handling of cash are insufficient to take her beyond the threshold of duties contemplated by the class definition of Clerk Grade II and into the range of duties appropriate to Clerk Grade 111. In conclusion, it is my view that the grievor is appropriately classified as a Clerk Grade II and her duties are insufficient to take her outside of that classification A. Reistetter ADDENDUM I agree with the Chairman's decision to award the grievor a Clerk Grade 3. However, I would have made the award retroactive to the filing of the grievance. Member