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HomeMy WebLinkAbout1984-0078.Smith et al.86-10-31CROWN EhmOVEES .’ -+ GRIEVANCE : SETTLEMENT BOARD Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before, THE GRIEVANCE SETTLEMENT BOARD OPSEU (C. Smith, F.C. Collins, E. Rainey, P. McNeil) - And - The Crown in Right of Ontario (Ministry of the Solicitor General) Before: For the Grievers: For the Employer: Hearing Dates: M. K. Saltman Vice-Chairman J. McManus Member K. .Preston Member M. Farson GXln?.el Cornish & Associates Barristers & Solicitors D. W. Brown COUllSel Crown Law Office, Civil Ministry of the Attbrney General October 25, 1984 February 18, 1985 The Grievors in this case, F.G. Collins, P. McNeil, E. Rainey and C. Smith claim that they ought to be reclassified from Instructors 1, Ontario Fire College to Instructors 3, pi pntario Police.College, retroactive to.September 14, 1982. At the outset of the hearing, the parties agreed to proceed with the grievance of Collins and to apply the ~outcome of the grievance to. the other Grievors. _~,. On April 18, 1986, the Board issued its decision llow. These are those dismissing the grievance with reasons to fo reasons. The Grievors are employed in the Ministry of the Solicitor General as Instructors at the Ontario Fire College. In this capacity, they are responsible to the Chief Instructor and, ultimately, to the Principal of the Ontario Fire College. The Ontario Fire College provides general and advanced level training to officers and officer candidates of municipal fire.departments. The primary course g~iven by the College .is the Fire Protection Technology Course, which is offered at the general, intermediate and advanced levels. Upon completion of each level, a certificate of completion is-,given to each successful candidate. In addition to the Fire Prote.ction, Technology Course, the College offers a number of specialized seminars of varying duration. Courses range from one week, for some of the specialized courses,~ to twelve weeks, consisting of four units of three weeks each, for the general level Fire Protection Technology Course. 3 2 With the exception of recruits, the average student of the Ontario Fire College has had considerable field experience (at least four or five years for students in the general level course). Enrolment in each of courses is limited and application for enrolment is made by the municipal fire departments to which the candidate is attached. Students pay no tuition fees and are inreceipt of their regular wages while in attendance at the ..~ Ontario Fire College. Students at the College are considered to be-on duty‘and~~are required to maintain a 'minimum dress standard (although no uniforms are required). Courses are offered.from 8:30 a.m. to 4:30 p.m. with scheduled breaks in between. The duties and responsibilities of the Instructors 3 at the~ontario Fire College are set out in the .job specification as follows: "1. Provides instruction through lectures, discussions and practical demonstrations in a variety of subjects by: - developing and preparing instructional material, researching subjects to produce clear and I up-to-date standard notes for students (sic) use; - preparing lessons from appropriate textbooks and publications, adapting as necessary'to reflect current technology and students' needs; - assisting students in the preparation of assignments, recommending, obtaining and distributing necessary equipment and visual-aids, advising on lesson plans and answering technical - questions as appropriate: - conducting research programs with ~students, graduates and Fire Department personnel in order to determine present and future training needs; - providing direction .and guidance to seconded instructors at the .Ontario Fire College; - developing syllabi and time tables for Ontario Fire College programs, both operationaland planned for future: . 4 - teaching a variety of--subjects related to fire prevention and inspection including: fire. and building codes; states, structure and flammability of matter; convection, conduction, radiation methods,of heat transfer; units of heat measurement: flame spread and control in relation to various finishes and finishing processes; spontaneous heating, etc. at the general level; the use and application of the Ontario Fire Code and _the Ontario Building Code, etc. at the advanced level: - teaching fire fighting operations at the College and Regional Schools, conducting demonstrations and instructing in the techniques of rescue, salvage and forcible entry, ventilation practices, hydraulics, fire streams, etc.; the use of ropes-and knots, tarpaulin folds, stretchers, chutes; the use and proper care of pumpers, ladders, fire hose,'~,fire extinguishers, breathing apparatus, etc.; the establishment of command posts, efficient utilization of human and physical resources, effective tactical survey programs: contingency planning etc. at the advanced level; - providing instruction in fi-re department administration, the developmentof fire training programs, types and uses.of records, teaching and assisting in the teaching of.manmanagement, preventive discipline, personnel need and the optimum utilization of human and material resources: the elements of financial administration, managing managers, grievance procedures, master planning, etc. at the advanced level; - instructing in the proper use and care of a .variety of types of fire department equipment and apparatus, e.g. directing students in such matters as hose lays and the cleaning, drying and replacing of hose; - preparing or assisting in the preparation of class schedules, questionnaires, examinations, etc.; - marking papers and participating in student evaluation as required;, - designing-, fabricating, and setting 'up training aids for instructional and display purposes; - creating or assisting in the creation of video-tapes: testifying in court re methodology; authenticity and continuity of video-tapes of tests and fire scenes; - counselling students on academic and personnel problems as required; - remaining current with improved teaching and man management techniques, technical changes, etc., 5 reading relevant publications as appropriate. 2. Performs a variety of duties to ensure for the safe, efficient operation of fire equipment and the College by: - conducting regular inspections of College buildings and grounds for adherence to fire safety regulations; - detecting potential hazards and correcting de~ficiencies or making recommendations for modifications ,and improvements; -.checking Commissionaires' reports for unsafe conditions and addressing same; - maintaining breathing apparatus and keeping records related to same; --explaining and demonstrating the use of fire fighting equipment to College staff; 7 establishing and maintaining controls of equipment utilized'in demonstrations, e.g. vehicles, aerial ladders, pumpers,~ hoses, selection of hose bore~and pressure rations, and various types and sizes of fire extinguishers; - cleaning, lubricating, adjusting and making minor repairs to equipment and instruments; - maintaining inventory and service records of all equipment and vehicles for which an instructor has Bssigned responsibility; - supervising safety aspects during fire fighting exercises, demonstrations and tests, recommending preventative measures and changes in proc~edures, taking immediate action to ensure safety if necessary; -.ensuring adequate supplies, proper condition and readinessof equipment such as pumpers, aerials, sizes of hose, etc.; - maintaining and refilling extinguishers for use in training exercises and Regional Schools; - liaising with vendors and ordering supplies for training. ar&qperations, recommending major repairs or purchase of replacement or improved items and arranging same; - inventorying and restoring all items donated or loaned to the College Museum and preparing items for parades and/or displays as required. 3. Performs related duties such.as: - participating in staff training programs, providing instruction in first aid and safety: - representing the College at association meetings; - conducting tours of the College, explaining its purpose and programmes and answering queries: - auxiliary duties as assigned." 6 This description was supplemented by the evidence of .~ ?. the Griever, Mr. Collins. Throughout his testimony, Mr; Collins attempted to distinguish between his duties as Instructor and his duties as Course Co-ordinator. According to Mr. Collins, one .Instructor is assigned responsibility for each course. This Instruct&‘&is in essence the Course Co-ordinator and may be distinguished from an Instructor who provides instruction in a course that someone else is co-ordinating. According to Mr. Collins, each of the Grievors is Co-ordinator for one course and Instructor in one or more other courses, Although there was some suggestion in the evidence that the situation may have changed, the job specification in effect at the time of the grievance makes no express reference to course co:ordination. Nevertheless, in Mr. Collins's view, this is the essence of the job. According to Mr. Collins, the Course Co-ordinator i .~ responsible for performing the following functions, subject to the approval of the Chief Instructor: 1) developing teaching objectives: 2) determining course content; 3) developing a timetable or work plan setting out the material to be covered each day and assigning 'Instructors to teach the material: and S 4) hiring guest lecturers. In addition, the Course Co-ordinator is responsible for 1) supervising seconded Instructors; and - 2) generally ensuring that the course runs efficiently,-which includes making sure that notes are printed, physical resources are availab 1’ e, assignments are prepared and marked, and marks are 7 i recorded for each student. Finally, the Course Co-ordinator may be required to deal with students' problems. All Instructors, including the Course Co-ordinators, are responsible for developing lesson plans for each of the . courses in which they instruct. There is no specialization among the Instructors at the 0ntari.o Fire College; each of the Grievors .s. may be called on to provide instruction in any course. The Union sought to compare the Griever's duties with _~ t,hose of Robert Brock, who is an Instructor 3 at the Ontario Police College. There was considerable dispute between the parties as to whether this was an appropriate comparison or whether the comparison ought to be with all Instructors 3'at~ the Ontario Police College.. In our view, even if the comparison suggested by the Union is the appropriate one, the grievance cannot be sustained. Although there is similarity in the subject-matter taught by Messrs. Collins and Brock (both teach a form of management theory), there are sufficient differences in the two institutions and in the nature of the functions performed by.the two Instructors to defeat the Union's claim. The Ontario Police College is an institution with some similarities to the Ontario Fire College, but on a much larger scale. The Ontario Police College has a substantial recruit training programme for probationary constables and also provides specialized or advanced training for senior officers. Courses range from two.to three'days to 12 weeks, with the average.course lasting about three or four weeks. Application for enrolment in the Ontario Police College is made by a -. municipal-police force on behalf of one of its members.. Most candidates for advanced and specialized courses have between 10 to 15 years' field experience. Students cont.inue to be employed by a municipal police force while att.ending the Ontario Police College and continue to receive their regular wages. There are three levels of Instructor at the,Ontario ,!. Police College. Instructors 1, &o have no are responsible for physical activity train self-defense and first aid. Instructors 2, police background, ,ing,' such as who have some police i:. training, have specialized responsibilities, including the range and driver training. Instructors 3, all of whom have considerable police experience, are responsible for academic subjects, including police methods, . investigation procedures, identification techniques and management theories and concepts, which is Mr: Brock's.area of specialization. The.position specification for Instructor 3 at the Ontario Police College sets out the duties and responsibilities as follows: "1. Provides instruction in assigned subject area while,maintaining course training standards by: - researching the subject to ensure thorough know'ledge; - preparing lesson plans and assembling illustrative visual aids, exhibits and hand-outs; 9 - checking and evaluating assignments: - administering and scoring written, oral, and . - practical examinations; - compiling detailed student assessment forms: - maintaining familiarity with an assigned course or subject area specialty other than formally assigned to provide continuity and a back-up resource. 2. Performs an organizational function by: - assuming responsibility of subject co-ordination to update specifically assigned material; - co-ordinating special senior courses as periodically detailed: - liaising with police officials and guest lecturers; - co-ordinating the college selection process examination procedure. 3. Performs other related duties by: - responding to regular daily queries from Police Forces with respect to matters of law procedur.es; - as assigned." -_ .,/ According to Mr. Brock, an Instructor 3,may be assigned responsibility for co-ordinating a course and/or for teaching in a course co-ordinated by another Instructor 3. When assign.ed to course co-ordination, the Instructor is given responsibility for "building the course", which includes 1) developing 'teaching standards or course objectives; .'. 2) pre-course planning, including determination of course content and.course design, curriculum research, design and dissemination of course materials, and preparation of lesson plans and examinations; 3) engaging guest lecturers; and 4) assigning ' subject-matter to other Instructors. Instructors who are not Course Co-ordinators may assist on. occasion in the determination of course content and course design and regularly prepare their own lesson plans. There is a high degree of specialization among .^ I” the Instructors 3, who are responsible for courses only within 'their own specialities. There is also a great variation in the amount of instructi.onal time spent by each of these Instructors. Some, like Mr. Brock, devote almost all of their time to course .co-ordination. Based on the evidence, the Union claimed that the to prove its claim, '-.I~ Grievor was improperly classified. In order the Union must establish that the employee's the relevant class standard comes within a h '~;or, if the job fails to fall within a higher job measured against igher classification class standard, that :. there are employees in a higher classification performing the same or substantially the same duties as the Grievor: ..;, e.g., Re Rounding et al. 18/,75: Re Lynch 43/77; Re Pretty 64/77; Re - Edwards & Moloney 11/78; Re Montague 110/78;-Re McCourt 198/78; Re McLean et al. 499/82; Re Ontario Public Service Employees Union and The Queen in right of Ontario (Ministry of Community and Social Services), December 21, 1982 (Ont. Div. Ct. .(unreported)). .-._ The essence of the Griever's claim is that the second test applies, i.e. that there are other employees in a higher classification performing substantially the same duties. However, there was some suggestion that the first test might also apply, i.e. that the Griever's job measured against the relevant class standa,rd was improperly classified. : 11 In light of the Union's reliance on the first ,test, it is necessary to examine.the class standard for Instructor 3, Onta~rio Police College. Instructor 3 is placed within the Instructor, Ontario Police College series. The preamble to that series reads as follows: ,_. "The,class series covers positions of Instructors, below the level of Chief Instructor, at the Ontario Police College. DETERMINATION OF LEVEL: Basically, the levels are determined according to the type of subject being taught. At the lower leve.ls are Instructor and Group Leader positions specializing in physical activity subjects, such as: weaponry, police holds, drill, physical training, and swimming. In the higher level positions, Instructors'specialize in academic type subjects, such as: English, law, police methods, traffic-control, investigation procedures, and identification techniques. At all levels, Instructors may also be required ~ to assist with various administrative or other related duties, such as: preparing instructional material, conducting tests, evaluating students, recommending changes in courses, ensuring proper discipline, and supervising recreational activities." From the preamble, it is evident that the series is designed to cover Instructors in police skills. The grade levels reflect differences in the complexity of the subject-matter upon which instruction is provided, e.g. Instructors 1 teach physical training whereas Instructors 3 teach academic subjects. 12 The specific class standard for Instructor 3, Ontario Police College, which is relevant to an assessment of a grievance, reads as follows: "This class covers positions of fully qualified Instructors of academic type subjects at the Ontario Police College. ,: ~' Employees carry out the fully range of duties, outlined in the preamble to the series, with a minimum of supervision. SKILLS AND KNOWLEDGE REQUIRED: . ..~-Expert knowledge of police methods and law enforcement techniques. -Ability to organize material and to instruct effectively." . . It is patently obvious that the Griever's job does no~t.come' within the class standard for Instructor 3, Ontario Police College. The Grievor is neither a "fully qualified Instructor of academic type subjects", such as English, law, police methods, etc. Nor does he have "expert knowledge of police methods and flaw enforc,ement techniques". Accordingly, the Griever's claim _-._ for a higher classification based on the application of the class ! standard must fail. Notwithstanding the class standard, the Grievor claimed that his job was substantially the same as the job.of Instructor 3 at the Ontario Police College. It is the Board's view that, notwithstanding superficial similarities, the two jobs are fundamentally different. Leaving aside the differenc.e in subject-matter, the Grievor is a generalist whereas the 13 Instructor 3 at the Ontario Police College is a specialist with highly developed skills and responsibilities. Moreover, the Grievors carry out-their responsibilities under the close supervision of the Chief Instructor whereas Instructors 3 at the Ontario Police College, although accountable, would appear to have more autonomy in the performance of their duties. Furthermore, the~evidence would indicate that the organization of the Ontario Police College is far more complex than the Ont.ario.Fire College and, consequently, that the responsibility ex~ercised by the Instruc.tors 3 at the Ontario Police College ismuch more highly developed than the responsibility assumed by the Grievdrs. It may be that the .~ Grievors perform.some form of course co-ordidation. However, in view of the limited number of Instructors (there are 7 permanent Instructors at the Ontario Fire College as opposed~ to !~?7 to 30 at the Ontario Police College), the magnitude of this responsibility is significantly less than at‘the Ontario Police College. Although the size of the institution may not affect all of the Griever's responsibilities (e.g. the size of the institution may. . have no substantial effect on the teaching function), in the Board's view, size has a significant impact on the co-ordinating function. There is much more responsibility in co-ordinating a large, highly specialized programme than in co-ordinating a small, less formalized programme in which the Instructors are more or less interchangeable. Although, in either case, there are administrative and co-ordinating functions to be performed 14 (both programmes must have teaching objectives, course content, course materials, etc.), the magnitude of the responsibility depends to a great extent on the size and complexity of the programme, i,ncluding the number of courses offered. According to the evidence,~ the Ontario Police College offers a wide range of courses and subjects whereas-the Ontario Fire College offers a more limited curriculum. Accordingly, although there is some similarity in the functions performed by the Grievor and by the Instructor3 at the Ontario Police College, in the Board's view, the level of rezaponsibility of the Instructor 3 is significantly greater. Therefore, in order to prov~e his cla-im, it is not enough for the Grievor to say that he is a Course Co-ordinator as is the Instructor 3 at the Ontario Police College. It also must be shown that the quality of the responsibility exercised is .- similar. In this case, the evidence is otherwise. at least with ,.,;.;~. ..~_ ~I~,, “1.. _ respect to the co-ordinating function. Furthermore, the Griever's claim cannot be sustained simply on the basis that they are both Instructors as there are Instructors in all nine d, occupational categorie‘sln the Ontario Public Service. suff In summary, the Board finds that there is not 'icient.similarity between the Griever's job and the job of Instructor 3 at the Ontario Police College to sustain the Griever's claim of improper classification. Accordingly, the 15 . grievancPmust be dismissed. DATED AT TORONTO, this 31stday of October, 1986. . M. Saltman, .Vice-Chairman "I dissent" - disseni to fpllow J. McManus, Member