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HomeMy WebLinkAbout1984-0021.Borges et al.84-11-30. ..;.: -. Between: Before: 21/84, 22ia4, 23184 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYE~ES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (E. Borges; Mira Fawcett; and Dianne~Wylie) - and - The Crown in Right of Ontario (Ministry of Health) R.L. Verity, Q.C. Vice Chairman H. Simon Member A.G. Stapleton Member For the Grievors: M.I. Rotman Counsel For the Employer: R.F. Rey Reqional Personnel Administrator Human Resources Branch Ministry of Health Hearings: July 12, October 9 E 10, 19B4 Grievors Employer ? . . -2 - DECISION = In identical grievances dated October 27, 1983, the Grievors, I?. Barges,, Mira Fawcett and Dianne Wylie, allege improper classification as Clerk 3 General and request reclass- ification to the Level of Clerk 5 General. By way of settlement, the Grievers request reclassification asp specified above, and retroactive salary at the higher classification i as of November, 1982 when their concerns were first.brought to the Employer's attention. Subsequent to the filing oft the grievances, a job audit report relating to the Grievors' positions was prepared by the Ministry, and in addition a new Position Specification and Class Allocation Form followed. As a result, the Grievors were reclass- ified in 1984 to the classification of Clerk 4 General retroactive to October 1, 1983. 8' ,There is relatively little dispute.on the facts. In the spring of 1982, the Ministry established a new Recovery and Collection Department for O.H.I.P. at Kingston. Wilfred Wiseman was appointed to the position of Manager,,Recovery and Collection Department on May 10, 1982. At the time of his appointment, Mr. Wiseman had ten years service with the Ontario Government, and he had served for the previous 3f years .as Accountable and Collection Supervisor of the Ministry Of Health. Essentially, the mandate of the Recovery and Collections Department was to, collect, as expeditiously as possible, all debts owing to O.H.I.P. Mr. Ciiseman hired each of the Grievers in August of 1983 as Collection Officers and,c.hose each Griever from the private sector on the basis of their knowledge and experience in collection procedures. A11,three Grievors perform identical functions. The purpose of~the Grievors positions is setforth in the Position Specification Form (Exhibit 7) as follows:. "Purpose of Position To collect monies owing to CHIP from subscriber groups in chronic arrears, bankrupt, in receivership, or ceased operations and fmm direct subscribers in persmal bankruptcies: to recover money overpaid to physicians, pharmacists, private laboratories, and othapractitioners providing health care services; and to investigate and' ,recover money paid outor initiate a criminal action as a result of intentional fraud." Similarly, the Skills and Knowledge required to perform the job are setforth as follows: 'Wst have extensive knowledge of a numberof pieces of legislation such as Health Insurance Act and Ragulations; Con-r Protection Act; Bankruptcy Act; Personal Property Security Act; Land Titles Act; Land Registry Act; Fraudulent Conveyances Act; Executions Act: Fraudulent Debtors Arrest Act: the Criminal code; Bulk Sales Act; and Creditors Belief Act as they relate to the Recovery and Collection Department, the availability of useful information, and the securing Of a creditor's interest; -considerable exoerience in debt collection or closely related field; .-should have a mrking knowledge,of the other areas within CXIIP with which this section must co-operate tie.-All alX3.S i - ‘I - of Operations Branch, Finance and Administration Branch, Audit Branch, Professional Services Branch, etc.); -mtst possess well developed negotiation skills; -must be able to make decisions on own initiative with minimal super&son; -must be able to conduct detailed research and present findings accurately in an organized, concise manner, both orall:{ and in writing, .with accent on presentation of background, alternative CouTseS of action and reconnended solutions. -must be able to cornnun icate effectively both orally and in writing with~professionals as well as the general public; -must have the ability to deal tactfully in matters.of a highly sensitive nature." The Parties agree that the Position Specification Form ,accurately sets out the dut ies the Grievers perform. Exhibit 7 details the duties in the following terminology: "1 . Investigates indebtedness to OBIP, initiates recovery prcce&res, investigates allegations of fraud, and rraintains related records by: -receiving notification of indebtedness from internal orexternalsources (eg.+%C~up Accounts, Trustee in Bankruptcy, Hospitals, Police); -originating Recovery & Collection case files, file index card for the i%ster,Lcg of all files received, and folk&-up card to record movement of file and payments received; -determining and compiling documentary proof of indebtedness: -calculating the total amount of indebtedness pertaining to a case file from information gathered through OWI research: -sendinq Receivership letter, proof of claim, and fact sheet to notify Receiver/Trustee of CHIP claim and to determine the status of OHIP'S claim; -arranging with Receiver/Trustee for a,group inspector fmm the Financial Inspection SeCtiOn to gain aCCeSS to the payroll records of companies in receivership or bankruptcy, as well as arranging inspections with Co~ny,Official in situations such as Ceased Operations or Arrears, in order to determine total amount of 'mdebtedness as applicable: 90% -tracing/locating debtor as necessary by using information available from other provincial ministries, Federal Depamts, credit bureaus, banks, internal reoxds (eg.-medical claims history, Canadian Medical Director, SAS files), newspapers, etc., and following up tiatever leads develop .from these and other sources: making initial contact with debtor by telephone (or by mail if unable to contact by telephone) to advise him of his indebtedness~ and to decide upon an arrangement with the debtor or his repre- sentative through negotiation for recovery in the shortest possible time period, having assessed the alternatives; -writing to debtor to confirm verbal agreement and diarizing file for follow-up to determine response or lack of response from debtor: -deciding on an appropriate course of action in cases of no response from the debtor on the basis of age of debt, debtor's ability to pay, and an assessment of: the background of the debt (ie.-writeoff, Refer to Legal Branch, Refer to Collection Agency, initiate civil or criminal action); -securing the debt by obtaining collateral security or writ of execution against personal or real property: -monitoring those cases on which an arrang-t is aade for ccn@iance with the arrangement and finalizing and, closing the file when the indebtedness is fully paid: -reqxmding to enquiries fmn debtors or their represen- .tatives (es.-solicitors, receivers, trustees in bankruptcyY) by providing details about specific amounts owing and resolving problems including inquiries of a customer service nature; -making re&mndations to Mmager with regard to alternative courses of action available for particularly difficult cases after all efforts have been exhausted and all alternatives have been assessed: -analyzing medical claims history and other available information (ie.-SAS, Income Tax Verification, etc.) to determine the nature and extent of fraud, and referring matter to appropriate authorities (ie.-R.C.M.P. and D.P;P. Fraud Squad) for criminal action: -developing new procedures where none previously existed on the basis of past experience in the field; -conducting legal research such as available remedies to a problem or oomparison of various pieces of legislation: -recommending changes to procedures, policies and legislation .'as deemed appropriate frcxn periodic review and group discussions; -representing DRIP at creditors' meetings or legal proceedings as required; -performs field calls as required. . / - 6 - 2. Processes Wnies Received and Updates Related Records By: -receiving cheques, entering receipt in log as appropriate tie.-Fraud Recovery Ledger) entering payment in Master File Index Card, and monitoring for compliance with 'arrangesent; -co@eting receipt and forwarding to payer as appropriate; -prepariry appropriate input docents and forwarding documents and payment to.Cashiers Section or &dical Claims Payment Section in Finance and Accounting 5% Branch as appropriate; -maintaining control of post-dated cheques and processing as they come due; 5%‘3. Performs Other Related Duties As Assigned." -monitoring M.C.P. monthly reports on Medical/Dental/ Practitioner Review Committee Recoveries and Private Laboratory Recoveries for compliance with arrangerrents for repsynmnt made by physician/practitioners and private laboratories; ,-closing recovery files when debts fully paid or written off. The Ministry acknowledged that the Grievers were improperly classified on the date that the,grievances were filed; however, it was the Ministry's position that all three Grievors are now appro- priately classified as Clerk 4 General. The Grievors maintain that they shouldbe appropriately classified at the Clerk 5 General Level. The relevant Class Standards in question appear as follows: "CLEF!K 4, GENEPAL CLASS DEFINITION: l%ployees in positions allocated to this class perform a variety of responsible clerical tasks requiring a gccd background knowledge of specific regulations, statutes or local practices. Decision-making involves judgment in dealing with variations from established guidelines or standards. Mmmlly', employees receive specific instructions only on unusual or special pr&lems as the ho&is performed under conditions that permit little opFort.unrty for direct super- vision by others. Matters involving decisions that depart radically from established practices are.referred to super- visors. i Tasks typical of this level include the evaluation or assessment of a variety of statements, applications, records or similar rraterial to check for conformity with specific regulations, statutes or administrative orders, resolving pints not clearly covered by these instructions, usually by authorizing adjustments or recomndihg payment or acceptance; supervising a small group of 'journeyman clerks' or a larger group of clerical assistants by explaining procedures, assigning and checking work and maintaining discipline. QUALIFICATIONS: 1. Grades 12 education or an.equivalent ccmbination of education, training and experience. 2. About four years of progressively responsible clerical experience or an eguivaient ccmbination ,of experience and higher educational qualifications. 3. Ability to comicate clearly both orally and in writing; ability to instruct and supervise the work of subordinates." CLASS DEFINITION: Eqaloyees in positions allocated to this class perform responsible clerical wxk requiring detailed knowledge of both of regulations, statutes or local practices, together with a thorough understanding of the objectives of the wxk unit. Decision-making involves judgnent 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 developnt of new methods. Although the work is carried out with a large degree of independqce, 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-supemisoly, clerical,. or clerical accounting function involving the interpretation, explanation and application of a phase of departrental legislation or regulations and requiring the ability to make acceptable re camendations or provide functional advice: supervising a group of 'journeyman clerks' performing clerical duties of varying complexity or a smaller group engaged in ntxe @cialized mrk by planning, assigning and reviewing mrk, deciding priorities, maintaining production levels and carWing responsibility for the total psrfomnce of the unit. QUALIFICATIONS: 1. Grade 12 education, or an equivalent combination of education, training and experience, preferably completion of 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 educa- tion. 3. Ability to evaluate tba 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." At the Hearing, Mrs. Mira Fawcett was the only Griever called upon to give evidence. The Parties agreed that Mrs. Fawcett's evidence would be equally applicable to each of ~the two remaining grievances. It was agreed that Mrs. Dianne Wylie left the Ministry on April 20,,1984 to accept a more responsible position with another. Ministry. Mrs. Fawcett testified at some length regarding her job responsibilities and presented highly credible evidence that the three Grievers combined their collective talents to prepare an extensive procedural manual on collection procedures with some input from Department Manager Wilfred Wiseman. On the evidence, there can be no doubt that the Grievors perform the~tasks set Out in Exhibit 7 and referred‘to above. Similarly, there .iS no doubt that they are aggressive and competent in the performance of their duties. On the evidence,there is no doubt that Mr. Wiseman has giveneach of the Grievors broad discretionary powers to effect all settlement of claims. Mrs. Keitha McConnell, the Subrogation Claims Examiner forthe Ministry of Health, who is classified as a Clerk 5 General, testified as to her responsibilities. Mrs. McConnell's Position Specification and Class Allocation Form accurately reflects her job responsibilities and indicates that she devotes 40% of her time allocation in the determination of third party liability on ! subrogation claims and 55% in the negotiation of collection procedures. The Ministry called upon three witnesses to support its position. The Ministry's first witness, Mr. Wiseman, was most sup- portive of the Grievors' claim. However, on his own admission he ~readily indicated that he had no particular experience in classifi- cation procedures. Mr. Wiseman testified, that he retained carriage of "sensitive collections": however, in the vast majority of files he permitted the Grievers to function largely without supervision. From August of 1982 to November of the same year, Mr. Wiseman trained the Grievers in all relevant government procedures, regulations and policies. Subsequent to that time, he has made himself available to them primarily as a resource person. On the evidence, it is clear that the Grievors have attained such a degree of competency in all aspects of their job so as to function autonomously with a minimum of supervision. Mr. Wiseman's evidence was to the, effect that the Grievers have had full authority to negotiate i i - 1,o - "appropriate settlements" sirice April of lVH3. John Campbell, Manager of Central Collection Services of the Ministry of Government Services testified asto the operations of his unit and in particular the responsi,bilities of his nine collection officers, all of whom were classified at the Clerk 5 General Level. Briefly, he testified.that~ his collection officers are responsible for all Ministry accounts that are 90 days in arrears. The case load for each collection officer is.1,200 cases and the unit currently has a case load of some 16,000 active files. Mr. Campbell acknowledged that collection of debts "was not a simple matter" and was'"a'potentia1 hot-bed". ,- He submitted the Position Specification Form for his Collection Officers, and testified that each offic.er was required to have 2 'detailed knowledge of the administration of some 60 government programs. Mr. Campbell's evidence was bo'th informative and credible; however, he possessed little knowledge of the Grievers' job respon- sibilities. .Ministry of Health Personnel Officer, Robert' Anderson, was the principal witness for the Ministry. He testified that he spoke with only Mrs.. Wylie in his preparation of the job audit in question, and he reviewed in detail his investigation and his conclusions in the classification of the Grievers at the Clerk 4 General Level. - 11 - On behalf of the Union, Mr. Rotman argued that the Grievers were entitled to the classification sought on the basis of measurement of duties performed against.the higher Class' Standard, and also in the comparison of the Grievers' job responsibilities with other employees performing substantially the same duties. For the Ministry, Mr. Rey contended th~at the Grievors were appropriately classified at the present time, and that comparison with,other employees had failed to establish that the Griever performed the same functions. The appropriate test used by arbitrators in classification grievances have been extensively canvassed in numerous awards and by the Courts. The Ontario Divisional Court considered those tests in a judicial review of OPSEU (Michael Brecht) and Ministry of Community and Social Services, 171/81, in an oral judgment of Mr. 'Justice Callaghan dated December 21, 1982 as follows: ~'01 a classification grievance the Board is generally mandated to consider tko r&ters, namely, whether or not the griever's job masured against the relevant class standard cones within a higher classification which he seeks, and, even if he fails to fit within the higher class standards, whether there are employees performing the sama duties in a higher, more senior classification." f . - 12 - In this matter, the two Class Standards that we must consider have been in existence, unrevised, for a.period in excess of 20 years.. Inevitably, there is some degree of overlap between the two Class Standards in question. Both Class Standards deal with certain common elements, namely knowle.dge required, decision-making and judgment required, supervision and typical tasks. The difference between the two Class Stan'dards is essentially~a matter of degree of complexity of the assigned responsibilities or the degree of independent judgment required in the performance of those duties. The Board ,is of the view that it would be indiscreet on our part to review the meth,ods and techniques employed by the Grievers in the execution of their job responsibilities. Suffice it to say that the position in question requires a large measure of tact, sensitivity, aggressiveness and f,irmness Ian addition to detailed knowledge and experience. in collection procedures. Clearly, the Grievors are highly successful in the performance of their duties. On the evidence, it is apparent that there has been a significant increase in the collection of O.H.I.P. arrears since the Grievers were first employed in August of 1982. There is no doubt that this department of the Ministry of Health is charged with the responsibility of collection of all arrears in O.H.I.P. payments and that at the present time only extraterritorial accounts (i.e. where the debtor has left the Province) are being referred to the Central Collection agency of the Ministry of Government Services. i. . - 13 - Having considered the evidence carefully, *we ar~e satisfied that the Grievors perform responsible.clerical work which requires detailed knowledqe of legislation and-local 'practices. Similarly, the judgment component of the job requires the interpreta,tion and application of policy which involves the development of new methods. The .work performed by.the Grievers .is carried out with a large measure of independence as is con- templated by the higher Class Standard. In addition, we are satisfied that the typical tasks performed by the Grievers require the interpretation and explanation of departmental legislation, in particular the Health Insurance Act, although many other statutes both provincial and federal are frequently utilized. In summary; the Grievors perform job responsibilities which in our opinion, fall with- in the Clerk 5'General classification. The Board has difficulty in accepting the fact that Mrs. Keitha McConnell, the Ministry's Subrogation Claims Examiner, performs the same or similar work to that of the .Grievors. However, a better comparison would be the comparison with the Ministry of Government Services collection officers. While it cannot be said that the Grievers perform the same job as do collection officers with M.G.S., the central score of duties is substantially' similar. The Grievor,s function as collection officers within a single Ministry, while the M.G.S. collection officers operate within a broader mandate involving all GovernmentMinistries. There are other differences between the two positions. However, having compared the 'Position 1 - 14:. Specifications and having had the benefit of Mr. Campbell's testimony, the fact remains that the Grievors perform the essential core duties of M.G.S. Collection Officers. In the result,,these qrievances must succeed. The Grievers shall be awarded the classification of Clerk.5 General, retroactive to October 27, 1983, the date.of the filing of the grievances. In our opinion, it would be inappropriate to award the classification to Novembers, 1982 as requested. We shall retain jurisdiction in the event the Parties are unable to agree on the appropriate compensation. DATED at Brantford,Ontario, this 30th day of November 1984. L =+d ‘7. K. L. Verity, Q.C. - Vice-Chairman H. Simon - Member r A., G. Stapleton - Member.