HomeMy WebLinkAbout1984-0203.Angus et al.86-10-10 Decision180 W STREET WEST. TORONTO, Ontario M5G 1z8 -SUITE 2100
Between
Before :
For the Grievor:
IN THE MATTER
OF AN ARBITRATION
- Under -
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
For the Employer:
Hearings :
OPSEU (Angus, et all
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
G.J. Brandt
S. Kaufman
D. B. Middleton
TELEPHONE^ 416/598- 0688
203/84
Grievor
Employer
- Vice Chairman
Member
Member
E. Shilton-Lennon, Counsel
Sheila McIntyre, Student at Law
Cavalluzzo, Hayes and Lennon
Barristers and Solicitors
J .F. Benedict
Manager
Staff Relations and Compensation
Ministry of Correctional Services
August 29, 1984 May 31, 1985
December 13, 1984 July 3, 1985
December 14, 1984 July 4, 1985
April 25, 1985 July 5, 1985
April 26, 1985 July 11, 1985
May 29, 1985 October 21, 1985
May 30, 1985
i.
TABLE OF CONTENTS
PAGE NO.
AWARD 2.
INTRODUCTION
This award deals with 6 classification grievances.
They are 6 among a group of 100 classification grievances
all of which involve grievors who are currently classified
as Probation Officer 2 (P02) and who seek classification as
Probation Officer 3 (P03). Prior to the commencement of hearings
the parties came to an agreement whereby the Union would proceed
with the 6 grievances the awards in which would form the basis
upon which the parties would attempt to negotiate a settlement
of the remaining grievances. In the event that settlement
could not be achieved the Board would remain seized of juris-
diction to hear and dispose of the outstanding grievances.
The parties also purported to reach some agreement
as to the application of the evidence led in respect of these
grievances to any further proceedings that may be necessary
before this Board in relation to the other grievances.
for the Union informed the Board on the first day of hearing
that the parties were in agreement that "all of the evidence
for the first 6 grievances would continue to apply to the
next cases but that the order of the Board would be final
only with respect to the 6 grievances put before the Board."
Counsel for the Employer did not directly take issue with
Counsel
that statement. He stated that all are individual grievances
and that the parties were looking for individual decisions.
3.
The Union submissions restated the point that "all of the
evidence heard with respect to the initial grievances would
be considered part of the evidence in any subsequent cases."
In response the brief of the Employer denied any agreement
of this kind.
Board was to hear and decide individually each
of the 6 grievances
based on the specific evidence in each case and the evidence
Rather, it was claimed that this panel of the
that was common to all 6 cases.
would have to be presented on their own merits with their
own evidence.
The remaining 94 grievances
The Board was asked to resolve this dispute and
to incorporate its ruling in the award.
the parties had agreed that the evidence respecting background
facts, facts of a general nature, such as the increases in
the use of volunteers and in contracting out with agencies,
would be accepted as proven for the purposes of any future
grievances.
to the jobs of any of the remaining 94 grievors, all or some
of whom may prosecute their grievances before this Board,
such facts would have to be proved and it would be a matter
for subsequent Boards to draw such conclusions as are warranted
from those facts. Moreover, the Board rules that it cannot
prevent future Boards from reaching their own findings as
to the extent to which general background facts have been
proven and as to the conclusions that can or should be drawn
from those facts.
The Board rules that
However, as to any facts which may be unique
4.
GENERAL BACKGROUND
It is not clear from the evidence exactly when the
class standards for the P02 and PO3 positions were created
although it would appear that the PO3 position was created
in 1960. The evidence which the Board does have is that the
Class series standards for the PO2 and PO3 classifications
were last revised in 1964. It is the position of the Union
in this matter that over the approximate 20 years between
the revision of the class standards and the filing of the
grievances in 1983 the nature of the duties customarily performed
by the grievors has changed dramatically. It is claimed that
over that period of time there were a number of changes in
the Probation and Parole Service, changes in the nature of
the clients being referred to the Service, and changes in
the methods by which probation and parole services were de-
livered, all of which had
a significant impact on the nature
of the job of the journeyman Probation Officer, the P02.
It is claimed that the net result of these developments
was to convert the PO2 position from one in which the officer
was involved in direct supervision of a client whose case
was assigned to him by the Courts or Correctional Institutions,
ensuring that the client comply with the then relatively simple
terms of probation or parole, into a position in which the
PO2 is, to quote from the Union's written submissions,
"essentially self-assigning and self-supervising with respect
5.
to his own work", with "significant supervisory and administrative
responsibilities" with respect to the work of others and who
became a "specialist" carrying a "much heavier and much more
complex case load".
It will be helpful, before outlining the evidence
in detail, to review in general terms the nature of those
changes which, in the Union's submissions, have radically
and dramatically altered the job.
It should, however, be
noted at the outset that these changes did not necessarily
have the same impact on all Probation Officers. A part of
the difficulty in this case is that, although all of the grievors,
have the same classification, there are significant variations
in their duties depending on where they are located and on
the particular way in which service delivery may be organized
in their particular office.
In general what occurred was a change in both the
numbers of clients and types of clients that came under the
supervision of the Probation and Parole Service. This was
accompanied by changing philosophies as to the methods by
which probation and parole services should be delivered and
by certain practical fiscal constraints which influenced the
way in which the Service continued to discharge its respon-
sibilities.
6.
Mr. David Parker, now a Regional Director of the Service
and Mr. Dickson Taylor, testified extensively as to the history
of the various changes that occurred in connection with the Service.
Between 1960 and 1975 there were frequent organizational changes
with respect to the assignment of responsibility for adults and
juveniles on probation or parole as between various Ministries.
Mr. Dickson Taylor, who was Director of Probation and Parole Services
until his retirement in 1983, testified extensively as to these
changes. Prior to 1960 the delivery of probation services had
been both a municipal and a provincial government responsibility.
The provincial service was created in the 1930's and over the
succeeding years various municipally run services folded into
'the provincial service. The first Director of the. provincial
service was appointed in 1951 with a mandate to incorporate all
of the then existing municipal services. The process was finally
completed in 1960.
At that time the province also provided some services
in relation to parole. Probation services, both adult and juvenile,
fell under the jurisdiction of the Ministry of the Attorney General,
while parole and after care for adults and juveniles respectively
were dealt with by the Ministry of Correctional Services. In
1972 there was a re-organization as a result of which probation
services
for both adults and juveniles was transferred from the
Ministry of the Attorney General to the Ministry of Correctional
Services. Co-incident with that change there
was an organizational
split with respect to othe delivery of services for adults and
7.
juveniles by Probation and After Care Officers. The latter had
been classified as Rehabilitation Officers but, since they were
now to assume responsibilities in connection with juveniles on
Probation, they were retrained and reclassified as Probation Officers.
In 1973 there was a further organizational change by which juvenile
services were again transferred this time to the Ministry of
Community and Social Services.
of Correction Services had responsibility for adult services,
Thus, .as of this time, the Ministry
both probation and parole.
The classification claimed by the grievors is that
of P03. There are two types of P03's, the Senior Officer and
the Specialist. Both positions have been under review within
the Ministry for some time. When Mr. Taylor became Director of
juvenile Probation and After Care in 1972 he, along with his opposite
number on the adult services side, Mr. Don Mason, reviewed the
position of the PO3 Specialist. As Supervisor of Staff Training,
Mr. Taylor had some experience with that position and had come
to the conclusion that, as a separate position, it was not workable.
There were a number of reasons for this conclusion. First, given
the nature of the case load of such officers, i.e., "complex cases
with multi-disciplinary and inter-service complexities requiring
long and intensive personal attention", appointments to the position
could only be made in urban centres. Secondly, Mr. Taylor could
not then, and still doesn't, understand what the class standard
means. While theoretically, it was possible to look at the terms
8.
of the probation order as some kind of objective criterion, e.g.,
order for psychiatric treatment, in practice it became difficult
to distinguish these cases from those which were assigned to PO2’S,
i.e., cases in which there were no such terms on the order but
which nevertheless presented with the same kind
of problems.
However, no decision was taken to eliminate the position
at that time. Instead, it was decided to allow the class to become
unpopulated through attrition. In 1972 in Probation and Parole
there were only 4 or 5 PO3 Specialists out of a full complement
of 250 Officers. In the Probation and After Care Division there
were 25 P03's of which none were PO3 Specialists. Consequently,
after 1972
no more PO3 Specialists were appointed and when one
of the existing 4 or 5 retired, his position was not re-filled.
Although there was doubt concerning the feasibility
of the PO3 Specialist position since
1972, the other PO3 position,
the Senior Officer position, continued to be used. However, further
re-organization within the Ministry led ultimately to the phasing
out of his position as well. Consequently, the entire class was,
at the time of the grievances, unpopulated. However, in view
of these pending grievances, the Ministry decided not to delete
the class and it remains one to which the grievors can lay claim.
The impetus for further re-organization within the
Ministry was the receipt by Mr. Taylor of the report of the Work-
load Management Committee in 1978. The genesis of the report
9.
lay in the completion of the Renner Report in 1977.
was a study of the changes both in the numbers of clients needing
services and in the nature of those clients.
ments were putting a strain on the workload of officers, a strain
which was not being adequately met by proportionate staff increases.
Consequently, Mr. Taylor struck the Workload Management Committee
to address the problem.
That report
Both of these develop-
The major recommendation in the report was that the
Ministry make fuller use of the community
as a full participant
in the provision of services
to the offender population. Thus,
emphasis came to be placed on the contracting out of the delivery
of services to community agencies and the greater use of volunteers
from the community.
ment was complemented by an increased judicial use of conditions
requiring the performance of community service in probation orders.
Beginning around
1978 the Ministry began to contract out the
responsibility for supervision
of certain types of probation orders.
One area in which this was frequently done was that of Community
Service Orders where the client, as a term of his probation order,
was required to perform some community Service. Here the Ministry
entered a contract with an outside agency which assumed respon-
sibility for finding placements for the client, for matching
probationers with placements and for supervising compliance with
the condition in the order. However, Probation Officers retained
primary responsibility over the offender.
This trend toward greater community involve-
10.
These changes in the methods by which services were
to be delivered resulted in certain organizational changes
designed to reflect the changes.
community participation would involve and require
a greater use of management resources at the local level.
Local management would, to a greater extent than before, be
involved in budgetting matters and in the negotiation of contracts
with community agencies.
It was believed that greater
In order to achieve greater local management it
was decided initially to create 36 Area Manager positions across
the province. Nineteen of these were filled by the 19 existing
Area Managers (formerly known as Area Supervisors,
P04 and
the remaining 17 were filled by competition among the senior
officers (P03's) and some P02's. Twenty-three P03's were unsuccessful
in the competition and were red-circled. Subsequently, the
complement
of Area Managers was increased from 36 to 42 and
further competitions were held. However, at the same time
it was decided to reduce the complement of senior officers
(P03's).
to 1978 when the case load of the service had increased dramatically
and had been involved in assisting the Area Managers with admin-
istrative duties.
of Area Managers, the need for senior officers declined and
the decision was taken to reduce that complement to approximately
They had been appointed during the period from 1972
With the decision to increase the complement
11.
18. It was intended that they be involved in full-time and
part-time staff training and in support positions to the Area
Manager where required.
Those few PO3 specialists who remained following
the decision in 1972 to allow the classification to become unpopulated
through attrition remained unaffected by these changes, although
some were transferred to staff training and development.
The P03's, both senior officers and specialists,
continued to exist under the new organization. However, the
continued viability of the position continued to be the subject
of review. A report on the Duties
of the Senior Officer dated
January 11, 1980, and sent to Mr. Taylor, reviewed those duties
with particular emphasis on the question as to the extent
that such officers could perform supervisory functions while
at the same time remaining members of the bargaining unit.
The report concluded that there was still a role for them to
play in terms of being involved in staff training and in various
aspects of program development.
No recommendation was made
that the position be abolished.
However, there remained a great deal of disagreement
as to any future role for these positions and ultimately, in
1981 the decision was taken to abolish the positions completely
and to red-circle the incumbents. These grievances flowed
from that decision.
I.
12.
The essence of the Union's case in these grievances
is that, although the PO3 positions may have been abolished, in
reality the movement towards community involvement in the delivery
of services accompanied by the organizational changes which began
in 1979 has led to a situation in which the grievors are now per-
forming duties which fall within the PO3 classification.
In connection with this claim it is useful to record
the quantum of the changes, both qualitative and quantitative,
which have occurred in work load during the period following the
1979 re-organization. The annual report
of the Ministry to the
Cabinet provides statistics with respect to the extent to which
volunteers were used by the Ministry. Although there had been
some use of volunteers as early as 1965 it was not until the report
of the Workload Management Committee in 1978 by which it was decided
as a matter of Ministry policy to involve the community more in
the delivery of services that their use came to be extensive.
These figures indicate that in 1980 there were
1500 volunteers,
1700 in 1983, and that in 1984 that figure increased to 2846.
Both Mr. Taylor and Mr. Parker questioned the reliability of the
1984 figure and suggested that a different reporting basis was
used in that year, that is, that the figure represented all of
the volunteers, both short term and longer term used in that year,
and could not be taken as indicating the number of volunteers
working on a "full-time" basis. They stated that the main growth
in the use of volunteers was over the 1970's and that the program
crested in the early 1980's when it became difficult to recruit
13.
any more volunteers.
maintain the level of volunteers.
Currently the Ministry merely attempts to
Volunteers handled about 14% of the case load. The
type of case for which they were responsible were those with low
to medium risk although, if a volunteer has had some social work
background, he or she may be given a higher risk case. In all
cases, however, there is a probation officer who retains ultimate
responsibility for the case and the degree of risk associated
with the case will determine the extent to which the probation
officer himself will become actively involved in it.
As indicated earlier, contracting out to community
agencies was also employed as a means of coping with the increasing
case load, a case load which had tripled in the ten year period
1974-1984. One measure of the increase in the use of contracts
can be gleaned from the increase
in the numbers of probation orders
containing
a condition that the probationer perform some community
service, the majority of which are dealt with through contracts
with agencies. Admittedly, a few of them have no reporting condition
and, hence, the involvement of the Ministry would essentially
end upon the negotiation and execution
of the contract. However,
even then each case would still be assigned to an officer who
would be responsible for taking enforcement measures should such be
necessary. Most such orders have a reporting condition. The
figures in respect to CSO's indicate that 10,000 such orders were
made over the period from 1978-1980, and, that, in 1984 alone, 13,000
I.
14.
such orders were made, a figure which represented an 18% increase
over the volume in 1983. Another type of order which was frequently
dealt with on an agency contract basis was the restitution
order. While they were relatively uncommon at an earlier time,
they comprised, in 1905, about 20-24% of probation orders. On
a more general level the evidence indicates that in 1975 there
were 15 contracts with outside agencies. In 1981 that figure
had risen to 225, although only approximately one-half of these
involved the Probation and Parole Service.
The case load also continued to rise although not
as dramatically as had been projected in 1980. In fact, it increased
by that amount in 1980 but gradually tailed off until by 1984,
the annual rate of increase was of the order of 8%.
During this period of time there
was no corresponding
increase in the number of classified staff. A Position Paper
on Privatization of Community Corrections in Ontario prepared
by the Probation Officers Association, indicates that the quantum
of that increase over the period from 1978 to 1982 was no more
than 4 Officers (375-379). Mr. Taylor could not accept that figure.
He estimated the 1982 figure to be of the order of 400, although
he admitted that his count might include unclassified Officers
under contract.
The qualitative changes in the type of clients that
came to the service for supervision may now be detailed.
15.
Philosopical and economic factors fuelled a movement towards greater
de-institutionalization
of offenders.
used less by the courts and the costs of institutionalization
in times of budget restraints led to an increasing use of probation
orders as an alternative.
consequences.
a change in the nature of the clients who had to be supervised.
Generally, the clients came to include persons who were convicted
of more serious crimes, persons more likely to be second and third
offenders.
Incarceration came to be
This had both quantitative and qualitative
There was both an increase in the case load and
At the same time, organizational changes led to a
transfer to the service of greater responsibility over parole
cases. Responsibility over parole cases changed between 1965
and the time of the grievance. Prior to 1974 the only parole
duties performed by persons in the Probation Officer series were
national parole cases
of which there were "very few".
parole matters were dealt with
by a separate division of the
Ministry and duties were performed by people in the Rehabilitation
Officer (RO) classification.
completed by 1974, all parole cases were dealt with by the
Probation and Parole Service and RO's were eventually reclassi-
fied as PO'S.
Provincial
In the re-organization which was
Further changes led to further increases in the numbers
of parole cases to be dealt with by the service.
National Parole Board acquired certain powers to delegate their
In 1978 the
16.
cases to the provincial parole boards and the latter came to have
jurisdiction over all inmates of provincial institutions rather
than being limited only to inmates serving indeterminate sentences
of less than 2 years.
certain of its policies, such that that parole could be considered
for people with sentences of less than 6 months.
changes may have increased the parole case load,
of this to the Board did not significantly change the functions
and duties of the Officer. In both cases, the basic obligation
was to supervise the conditions of parole.
were the forms and the body to whom Officers were to report.
Now the service no longer handles national parole cases.
As well, the Ontario Parole Board changed
While these
the addition
All that was different
In comparison with probation cases, parole cases are
generally considered to require more frequent supervision and
to be administratively more complex. Moreover, the authority
of an Officer to eliminate the reporting requirement is not present.
However, it is also the case that the case load of parolees tends
to be smaller than a case load of probationers.
not regard parole cases as any more difficult or complex than
other cases, although he did acknowledge that, since parolees
have come from institutions, there may be a period of time during
which there are difficulties in adjustment to their changed circum-
stances. Moreover, they may have "attitudes" which are less co-
operative than probationers who have not been incarcerated and
who, generally, would not have committed as serious an offence.
Mr. Parker did
17.
Before moving on to outline the evidence with respect
to the duties of the individual grievors, reference should be
made to one of the means by which the service responded
to both the quantitative and qualitative changes in the case loads.
That was the initiation in a number of offices
of various "team
concept" models as a method of service delivery. Experimentation
with such models began around 1975 and they came into greater
use in the late 1970's. Variations on the team model are used
in urban areas and in approximately twenty out of the approximate
ninety offices in the province. Essentially, the team model con-
stitutes a variation from the one-to-one probation supervision
model which had existed at an earlier state in the evolution of
the probation service. In general terms they involve the partici-
pation of officers in an assessment of the needs
of a client prior
to the assignment
of a case to a particular officer. Depending
on the needs of the client, the assignment is then made to an
officer who has developed a specialty with respect to the particular
kind of case. Types
of specialties include cases involving clients
with drug and alcohol problems, mental problems, parole cases,
and cases involving probation orders including a condition
respecting the performance of community service and cases re-
quiring the making of restitution to the victim.
THE CLASS STANDARDS
The class standards for the PO2 and PO3 classifications
are as follows:
18.
PROFATION OFFICER 2
class DEFINITION:
This is corrections work performed under general supervision in the
provincial probation program
Officer 1 by the increased reliance placed on reports, scope of the
assignments and the greater skills and insights which incumbents possess
by virtue of academic training and work experience. On instructions of
the Courts, these employees carry out a variety of adult and juvenile
probation
services including preparation of presentence reports,. super-
vision of persons placed on probation and guidance and counselling of
probationers. They ensure that terms of probation including reparation
and restitution are carried out as prescribed by the Court. They report
on cases of default and they see that such probationers are brought before
the
court for sentence. According to the terms of The Probation Act, these
employees are ex officio provincial police constables in the exercise of
their duties. Although their assignments come directly from the Court,
they receive supervision from the Supervising Probation Officer for the
area on probation methods and techniques and office administrative pro-
cedures. They my provide some guidance to trainee Probation Officers 1
and they usually supervise stenographic staff.
develop harmonious working relations with the judiciary, court officials
and community groups.
This class is distinguished from Probation
They are required to
CHARACTERISTTC Duties
Prepare pre-sentence reports as instructed, including social and family
histories, for the use of the judges and magistrates in determining
sentences; prepare special reports on former probationers for use of
treatment staffs in penal institutions.
Supervise adults placed on probation through provision of case work services
and give guidance and counsel as appropriate.
Ensure that terms of probation are kept, report on cases of default and see
that defaulters are brought before the court for sentence; attend hearings
when
a breach of probation charge is being laid; receive money being paid
into the Court as restitution.
serve as Clerk of the Juvenile and Family Court and receive money paid
under court order; prepare pre-sentence information; supervise juvenile
cases including provision of counselling and guidance; carry out matri
monial counselling aimed at settlement short of court action.
Maintain case records and reports; prepare correspondence; maintain records
on restitution payments; maintain case load registers; carry out required
procedures on transfer of cases.
19.
Escort persons in custody to detention institutions; as directed, supervise
prisoners released from penal institutions under The National Parole Act.
Promote community understanding and acceptance of probation goals and
methods through lectures and discussions; co-operate with community social
agencies.
REQUIRED knowledges ABILITIES AND skills
Thorough knowledge of the concepts, principles and practices of probation
work including the implications of & corrections setting for case work.
Strong identification with the probation function and demonstrated ability
in carrying out the requirements of the Probation Services branch and the
courts served
Thorough knowledge of federal and provincial statutes and regulations and
court decisions pertaining to probation work.
Demonstrated ability in developing productive client-worker relationships
in & corrections setting.
Skill in communicating goals and purposes of a probation program to inter-
ested lay groups and other agencies.
QUALIFICATIONS:
Successful completion of the departmental in-service training course
and passing (i.e. obtaining at least 70%) each of the four parts of
the Barrier examine tion.
PROBATION officer 3
These employees, under the supervision of an Area Suparvisor, advise
on problems and instruct on methods and procedures and supervise the activ-
ities of four or more Probation Officers in an assigned area for the Prov-
incial probation Program. they interview Probation Officers on an individual
basis inspecting, reading, analysing and evaluating records selected by spot-
check or produced by the officer himself They check to ensure that the r-
quirements of law are being adhered to and verify that administrative proce-
dures are being followed. They examine the quality of pre-sentence reports,
reviewing and questioning statements and ensuring that all due judgments
are substantiated
factually and that the information is complete, reliable
and comprehensive and analyse and assess the treatment aspects being given
to Probationers. They redistribute case loads to enable adequate coverage
and equity throughout the office and regulate the administrative practices
in the local offices, ensuring efficient observance of legal and departmental
regulations.
AS instructed by the Director or &ea Supervisor, they investigate
complaints or criticism from the public or department regarding the Probation
Officers under their
direct supervision. As directed by the area Supervisor,
they conduct group teaching seminars, group discussions and lectures on various
aspects of probation work. They assist and direct the study of officers prepar
I. 20.
by the Head Office.
Officer, handling the more complex cases requiring a greater degree of intensity
of investigation and supervision, and a higher degree of skill in handling the
Probationer.
They also perform the full, duties of an experienced Probation
OR
This class applies to the positions of Probation Officers, who, under
only general supervision of the Director of Probation services assume cases
without prereview selection, or assignment. They concentrate on complex
cases having multi-disciplinary and inter-service complexities, which require
long and intensive personal attention.
authority, independently representing the department
in any situation involv-
ing their clients, utilizing their own professional judgment for which they
are held responsible. Consultation or supervision is not imposed, but advice
is available at the request of the officer. The work done is subject only to
an administrative review by the Director from reports submitted.
qualifications :
These employees speak and act with
a minimum of two years’ experience at the Probation Officer 2’ level;
proven supervisory ability, tact, sound judgment, personal suitability.
THE DUTIES AND RESPONSIBILITIES OF THE SIX GRIEVORS
We now turn to a consideration of the evidence with
respect to the duties and responsibilities of the grievors.
PETER PARK
Peter Park began his career with the Ministry in
In 1961 he was transferred to the Parole and Rehabilitation 1951.
Service and by 1968 he was a Senior Rehabilitation Officer
(R03) in that service. The R03 position was excluded from
the bargaining unit.
position of PO3 in the Probation and Parole Service.
in that capacity in various offices. He was at the Keele
St. office until 1979 at which time he was transferred to
In 1973 he was upgraded to the unit
He served
21.
the Bay Street Office until 1981 when he was transferred to
the Dufferin Street office where he now works. He remained
a PO3 until June 1, 1981, when he was advised that the position
of Senior Probation Officer (PO3 was to be abolished and
that he would become a PO2 as of that date.
As a PO3 at the Keele St. office from 1974 to 1979
he was responsible for the supervision and training of both
the professional and the support staff, for the preparation
of staff appraisals, the assignment of work to officers, and
for the administration of a petty cash account. He also carried
a small case load. Following the 1979 reorganization he was
transferred to the Bay St. office where he became the Parole
Coordinator in that office. In this regard he supervised
all of the parole cases coming into that office,
In March of 1981 he was transferred to Dufferin
St. where, in addition to carrying a specialized case load
he took on certain other duties, viz., staff supervision and
training, orientation and resource training for new officers,
student placement in summer programs, volunteer training and
control of intake and co-ordination of the assessment and
assignment of classes.
Mr. Park stated in evidence that, following his
re-classification to the PO2 position his duties did not change,
22.
that he did the "same work" as he was doing as a P03. As
Parole Co-ordinator, he prepared a Level of
Supervision Inventory (LSI) which attempts to identify
the special problems that might be involved in the supervision
of a parole case and the needs of the client in order that
the supervising officer may be able to set up his own program
according to the priorities established. This requires him
to get background information concerning the client, to investi-
gate the situation in the community to which the client will
be returned, to check the suitability of his accommodation
and to determine the availability of employment opportunities.
In addition, as Parole Coordinator, the grievor is involved,
along with Parole Coordinators from other offices in Metro,
in an evaluation of the parole program. This occurs at meetings
of the Parole Coordinators held every second month. At weekly
staff meetings in the local offices, the Parole Co-ordinators
pass
on information concerning changes in parole procedures
as contained in directives from the Parole Board or from the
Area Manager.
In cross-examination the grievor agreed that, while
the bulk of his case load consisted of cases, most of the other
PO's also handle at least some parole cases including the
preparation of an LSI and all PO's are expected to be familiar
with the administrative, legal and supervision requirements
of parole cases.
23.
The grievor also gave evidence with respect to his
duties as a Duty Officer, a function which is rotated daily
among all of the 12 P02's at his office. The Duty Officer
receives all calls from the Court Liason Officer on new cases,
assigns the case for intake to another officer, deals with
problem situations which may arise concerning another officer's
caseload during his absence and handles general inquiries
from the public, from field officers or from social agencies.
This initial assignment of cases is done essentially on a
rotational basis to the next officer in line and involves
little assessment of the case. The one exception to this
is where the client has had some earlier contact with the
service in which case the matter may be assigned to the officer
who had familiarity with it.
A further assignment of a case is done through the
medium of a "team concept" approach which has been adopted
in his office. The officer to whom a case is assigned by
the Duty Officer interviews the client and determines certain
priorities according to the legal requirements of the order
and the needs of the client. The case is then reviewed by
an Assessment Classification Committee (which consists of
all of the field officers working out of this office.) The
Committee is chaired by the Area Manager, or by a PO2 if the
Area Manager is absent (which occurred in about 1 out of 4
meetings at the Dufferin St. office during the period of time
that Mr. Dymond was the Area Manager). The intake officer
24.
reports his recommendations to the committee and the case
is assigned to the officer who has some expertise or experience
in meeting the needs of the particular client. Examples of
some of the specialized areas of expertise include services
in respect of offenders with drug or alcohol problems, mental
health problems, high risk offenders or those requiring only
minimum surveillance, or offenders which have been ordered
to make restitution or provide community service.
The grievor performed certain duties in connection
with summer students and volunteers. He has been involved
in the orientation and training of some of the summer students
who are placed with the Ministry and who provide assistance
when classified officers are away on summer vacation. Summer
students are assigned to a field officer and in some cases
take on some responsibility for cases.
The grievor described the process by which volunteers
are screened, selected and trained. This is done by a Volunteer
Co-ordinator, where there is one in the office. Occasionally
a PO2 will assist in the selection process. Volunteers are
trained formally through an in-house program to which others
will contribute their expertise and informally through their
assignment to a classified officer who provides on-th-job-train-
ing in the various duties performed by volunteers. These duties
include conducting intake interviews and job searches, providing
25.
telephone and clerical assistance, participating in presentence
report investigations, providing court services and victim/offender
reconciliation services and, in some cases, supervision of
simpler cases.
It was Mr. Park's opinion that, although the volunteer
program was originally instituted to provide some relief from
the increase in the work load of classified officers, it did
not, in fact, achieve that result. Rather, since classified
officers retained full responsibility for all cases assigned
to them, where they were provided with the assistance of a
volunteer in connection with those cases it also became necessary
to supervise the volunteers. Similar observations were made
in respect of the Ministry practice of contracting out various
services to community agencies, such as the Salvation Army
and the John Howard Society. Thus, the classified PO2 acquired
some additional responsibilities in connection with monitoring
the effectiveness of
the program contracted out.
In general it was Mr. Park's evidence that the duties of
theP02 had changed over the years. In particular, the duties
that came to be added gradually were those in respect of intake
assessment, supervision of volunteers and students, supervision
of contracting agencies, and filling in for the Area Manager
when he was absent.
Mr. Park was cross-examined at some length on the
extent to which the duties which he performed while a PO2
26.
at Dufferin St. corresponded with the PO3 class standard.
He agreed that, insofar as his relationship with other
classified probation officers was concerned, he did not "advise
and instruct" them on the methods and procedures; rather he
was more in the nature of a consultant, one to whom other
officers might go for advice on an informal basis, but not
someone who possessed any authority to enforce any "advice"
or "instruction" given. He agreed that he had no authority
to supervise other officers, that he was not involved in their
hiring, did not recommend their appointment, and did not prepare
performance appraisals of them. Similarly, with respect to
"inspecting, reading, analysing and evaluating records", checking
to "ensure that requirements of law are adhered to" and examining
the "quality of pre-sentence reports. ..ensuring that value
judgments are substantiated," and assisting and directing
the study of officers preparing for examinations." Mr. Park
repeatedly stated that, his involvement with classified officers
was essentially unofficial and informal. Thus, because of
his considerable experience, officers would approach him for
advice in connection with particular problems they were having
with files and he would assist them. Similarly, officers
who were preparing to take their examinations would approach
him on an ad hoc basis for advice.
While Mr. Park tended to characterize his associations
with other classified officers as "informal" and "unofficial"
he took a different view with respect to his involvement with
the volunteers and summer students. In respect of them he
27.
regarded his duties as of the nature of "supervision", "instruction",
"review" and "assessment
Mr. Park admitted that he did not "redistribute"
case loads and that he did not "regulate administrative practices"
in local offices. However, he stated that, as a PO2 he has
conducted, on a rotational basis with other officers, group
teaching sessions, principally to high school students.
Evidence concerning the extent to which the grievor
handled "more complex cases requiring a greater degree of
intensity of investigation and supervision, and a higher degree
of skill" centred on the nature of the parole cases which.
made up a large proportion of his case load. In his evidence
in chief he stated that his caseload and changed both quantitat-
ively and qualitatively in that he was now getting more difficult
clients with psychiatric problems. Under cross-examination
he agreed that parole cases were more complex administratively
but that the client himself was not necessarily one who presented
a higher risk to the community than a client on probation.
Moreover, he agreed that while the supervision of parole cases
required a different knowledge than was the case with probation
cases it did not necessarily require more skill.
As to whether the grievor's load of parole cases
satisfied a key requirement of the PO3 specialist class standard,
viz., that the officer "concentrate on complex cases having
28.
multi-disciplinary and inter-service complexities, which require
long and intensive personal attention", Mr. Park agreed that
not all parole cases exhibited these characteristics. (He
estimated that approximately 2 or 3 of his current case load
of 50 would qualify on this standard He also agreed that
some probation cases might qualify under this definition.
As for the degree of "personal attention" involved, Mr. Park
was of the view that this was satisfied by reason of the need
to monitor the client's progress, although he admitted that
such monitoring is required of all cases, whether probation
or parole. As for the balance of the PO3 specialist class
definition, Mr. Park agreed that they did not apply to him.
DANA SUMMERS
Mr. Dana Summers is a PO2 in the Midland Office
of the Barrie area. In that area there are offices in Barrie
(5 or 6 PO’S and the Area Manager), Orillia (3 Po's), Colling-
wood (1 PO), Alliston (1 PO) and Midland. At the Midland
Office there are two Po's. Until November of 1984 the grievor
and Mr. Ken Moore were the two P02's in the Midland Office.
After Moore's retirement, the Ministry hired Ms. Kathy Anest
as a PO1 to replace him. At the time of the grievance, W.
Davis was the Acting Area Manager replacing Bill Canning.
The grievor spends most of his time working out of the Midland
Office and has contact with his Area Manager
on those occasions
that the Area Manager visits the various offices in his area.
Mr. Summers testified that he met with his Area Manager on
29.
8 days in 1983 and on 5 days in 1984. Each visit was approx-
imately two and one-half hours in length and involved general
discussion of problems or securing the approval of the Area
Manager for various programs that required his approval.
The grievor carries a caseload which averages 107
clients. At the time he testified his case load was 120 and
that of Ms. Anest was between 90 and 95 clients. When Ken
Moore was his partner they assigned the cases coming into
the office on the basis of an informal system. Generally,
cases were assigned on the basis of existing case load in
a way which would attempt to ensure that each had an approximately
equal case load. Beyond this, individual cases were assigned
on the basis of geography, each man having responsibility
for an area serviced by the office, and on the basis of the
nature of the case. The grievor assumed responsibility for
clients with psychiatric problems while Moore took cases involing
problems with alcohol. The Area Manager took no part in the
assignment of individual cases although he did approve of,
or at least did not disapprove,
of the system that had been
put in place 'for the assignment of cases.
The grievor testified extensively with respect to
the nature of his duties in connection with his case load
of "psychiatric" cases. His involvement with these cases
arose as a result of his own interest in them and as a result
of the proximity of the Midland Office to the Penetanguishine
30.
Mental Health Centre. One of his responsibilities was to
prepare presentence reports for persons who had been remanded
by the Court to the Oak Ridge Division
of the Mental Health
Centre for a psychiatric assessment prior to sentence. These
were generally persons who had committed serious offences
and who had serious psychiatric and emotional problems.
He regarded the preparation of these reports and
the preparation of pre-parole reports for the Parole Board
as different than for other clients that might come under
his supervision. Insofar as these clients had committed
serious offences the preparation
of these reports required
a more careful and intensive investigation involving a deeper
investigation of the background of the offender, his family
etc. and a greater degree of contact with the psychiatric
staff at the centre.
The grievor estimated that approximately 25% of
his total case load involved clients with psychiatric problems.
In his estimation supervision of these cases required greater
counselling skills, greater knowledge of the area of mental
health and of mental health facilitities and a greater degree
of contact with other agencies than was the case with ordinary
cases. He contrasted his cases with those involving alcohol
problems in that for the latter there was a fairly obvious
solution to the problem while with psychiatric cases it was
much more difficult to diagnose the problem and formulate
a plan for dealing with it.
31.
The grievor also testified with respect to the general
character of his case load in terms of the extent to which
his cases were "complex cases having multi-disciplinary and
inter-service complexities requiring long and intensive personal
attention." He estimated that 75% of his cases involved contact
with some other agency and that of those, a third would require
his attention over a period of months while two thirds would
involve him for a period of weeks. Of those cases which he
regarded as requiring "long and intensive personal attention",
that is, the psychiatric cases, he estimated that "conservatively"
he would spend on average 2 hours per month on each case or
30% of his working time.
In addition to carrying his regular case load the
grievor was involved in a number of other activities. He
was the Volunteer Co-ordinator of the other offices in the
Barrie area, on a committee which meets once or twice a year
to design a volunteer training program. Evidence was given
with respect to two such programs each of which were primarily
organized by Stan des Roches, the Volunteer Co-ordinator at
the Barrie office. These were held in May and in November
of 1984 and each involved a three hour seminar run by the
grievor.
There are currently in the Midland office 3 volunteers
whose length of service ranges between 1 and 2 1/2 years. Each
volunteer is responsible for a case load of approximately
32.
3 cases in respect of which they perform certain limited duties.
Those cases are part of the grievor's total case load and
he retains responsibility for them.
that he spends approximately 10% of his working time on activities
involving his volunteers.
The grievor estimated
In this regard, the grievor also stated that he
was involved in "day to day" training and in the evaluation
of the performance of volunteers, generally in an informal
setting in which the grievor would help the volunteers with
problems that might arise in connection with the conduct of
an intake interview, the explanation of the terms of the order
to clients or in the preparation of documents.
Evidence was
also given in respect of the grievor's
participation in various programs contracted out to community
agencies.
Alcohol and Drug Counselling program and when the monies were
approved, Mr. Davis asked him to set it up. He met with various
counsellors and drew up a proposed contract under which such
a program would be run by the Rotary Club of Midland.
was rejected by the Rotary Club and further discussions with
local counsellors led the grievor to initiate discussions
with officials of the YMCA and to negotiate a budget for the
program.
the agency was signed and counsellors were hired to set up
a course to which clients with alcohol and drug problems could
be referred for counselling.
He and Ken Moore put forward a proposal for an
This
In due course a contract between the Ministry and
33.
Another project in which the grievor had some involve-
ment was the establishment of emergency housing for clients.
He, Moore and Lieutenant Braddock of the Salvation Army in
Midland had had some discussions concerning such a project
and the grievor put in a proposal for Ministry funds which
could be used to contract out his service to an agency.
then Area Manager, Canning, organized a meeting which was
attended by, among others, Mr. Art Nuttall, the Director of
the Community Resource Centre Branch of the Ministry. In
due course Nuttall approved the funds and a contract was entered
into with the Salvation Army under which the latter would
operate Experience House. The grievor remained involved in
a liason function with the Salvation Army concerning the operation
of the house. In this respect he was involved in the placement
and removal of clients from the residence and the seeking
of approval from the Community Resources Branch
of the Ministry
for the expenditure
of monies as and when required.
the residence ceased to operate in August of 1983, the grievor
did a review of the entire idea of community residential agree-
ments and sent copies of that review to Nuttall and to his
Area Manager.
The
When
The grievor also supervised clients required to
comply with a Community Service Order (CSO) as a condition
of their probation. For the period from 1979 and 1981 the
grievor himself was the CSO Co-ordinator in the Midland Office.
34.
As such his job was to find suitable projects in
the community on which the client could work in order to satisfy
the condition of his probation and to refer clients to those
projects.
Subsequently, as the numbers of CSO's coming from
the Courts increased the Ministry contracted this work out
to private agencies and the grievor came to be involved in
the delivery of probation services through the medium of these
private agencies. Funds for the contracting out of this service
were made available and Mr. Canning asked the grievor to find
a suitable agency. The grievor approached CONTACT, an agency
in Midland, drew up a budget proposal, discussed the matter
with Canning who then met with the agency to finalize the
budget and sign a contract. A committee consisting of Canning,
the grievor and a representative of contact was formed.
to
hire a CSO Co-ordinator.
(who subsequently joined the classified staff as the replacement
for Ken Moore).
In due course they hired Kathy Anest
From this stage on the grievor's involvement in
the work of the CSO Co-ordinator was twofold. First, he participated,
along with his Area Manager, in an annual audit of the program
and the work of the CSO Co-ordinator, as part of the process
by which the Ministry controlled the expenditure of funds.
In this respect his role was largely one of reviewing the
program and making recommendations to the Area Manager who
35.
in the training and the "supervision" of the CSO Co-ordinator.
She was trained in how to make case notes, to do assessment,
to supervise clients and to contact various community agencies.
If Ms. Anest had questions she would come to the grievor for
help and was expected to report to him concerning any difficulties
she was having with particular clients. However, the grievor
had no formal or direct supervisory authority over Ms. Anest.
She remained an employee of CONTACT and if there were difficulties
which might arise in connection with her performance of her
duties, the proper course of action would be to approach them.
In that regard, the grievor had no authority in relation to
CONTACT, either with respect to how the CSO's were being carried
out, how CONTACT was spending its budget or the extent to
which it was or was not complying with its contract with the
Ministry. If problems arose of that kind, the responsibility
for dealing with them remained with the Area Manager. Direct
supervisory authority over the CSO Co-ordinator rested with
the agency. Ultimately, if problems with the Co-ordinator
could not be resolved to the satisfaction of the Ministry,
its recourse was to cancel or refuse to renew its contract
with the agency.
The last of the duties of the grievor to which reference
needs to be made are those that he performed in respect of
Ms. Anest after she became a member of the classified service
as a PO1 on November 26, 1984. The grievor took over respon-
sibility for the day-to-day on-the-job-training of Ms. Anest
36.
who, if she had problems or questions, would raise them with
the Area Manager, Mr. Davis, when he met with her every two
weeks. In this respect he instructed her in the application
of Ministry policy and generally in the various procedures
to be followed in supervising clients. It was the grievor's
view that in this connection he was required to examine the
quality of the pre-sentence reports which she prepared and
review statements she had made. However, he did not check
her work or "verify that she was following administrative
practices and procedures". Moreover, he had no authority
to enforce any instructions and no direct supervisory authority
respecting such matters as giving time off, doing performance
appraisals or issuing discipline;
The grievor also had some involvement in preparing
Ms. Anest for her examinations. However, this was not done
in any kind of formal context.. Indeed, the grievor admitted
that he was not even familiar with the syllabus now used in
preparation for the exams. Rather, largely on an informal
and ad hoc basis, he taught her the practical application
of the theory in the course and answered any questions that
she might have.
STEPHEN CHARLES
Stephen Charles began his employment with the Ministry
in 1967 as a Correctional Officer 2. He became a Correctional
37.
Officer 3 in 1973 and a Probation Officer 1 in 1974. He has
been a Probation Officer 2 since 1975 working in the Rexdale
Office until his transfer, in 1980 to the Thornhill Office.
This is part of the York Region which also has offices in
Newmarket (4 P02's) and Keswick (1 P02). There are 5 P02's
at Thornhill in addition to the Area Manager.
He stated that the Area Manager is absent from the
Thornhill Office for approximately 60% of the time, and that
if she will be absent for a few days she designates the grievor
as Acting Area Manager. The longest period of time when
he acted in this capacity was for a period of 2 weeks when
she was away on vacation. Apart from this there was one occasion
in early 1985 when she was absent for 3 days and one when
he was designated as Acting Area Manager for a period of 3
days to 1 week. During these periods he did not perform all
of her duties, only what he described as "routine" duties
and was instructed as to what he could not do as Acting Area
Manager.
He gave evidence as to the system in the Thornhill
Office for the assignment of cases, a system which he admitted
had been approved by the Area Manager and which could be changed
by her if she wished, although this has never happened. That
system is based on the "team concept". An initial assessment
or interview of a new CLIENT is done by a Duty Officer, a
38.
p02 who rotates in this position on a daily basis.
morning all of the P02's meet as a team, for approximately
Each Monday
2 hours to review the information gleaned from the intake
interview and decide as a team to whom the case should be
assigned. This involves an examination of the needs of the
client, the risks involved, the kind of supervision that will
be necessary and a decision to assign the cases according
to various specialties that various officers have developed.
He described the areas of specialization in the Thornhill
Office as Parole Co-ordinator, Volunteer Co-ordinator, Employment
Officer and Young Offenders Act designate.
attends at these meetings "rarely" (1 in 15) and plays no
role in the assignment of cases.
The Area Manager
In addition to these meetings there are also staff
meetings every 2 weeks in the Thornhill and the Newmarket
Offices. The Area Manager attends these meetings, which in
Thornhill have been chaired by the grievor since their inception,
where there is a general discussion of operations and programs
and where the Area Manager passes on information relative
to the policies of the Ministry. Finally, there is an area
meeting, once a month, chaired by the Area Manager for the
Thornhill Office.
Each of the P02's in the Thornhill Office carry
a case load of approximately 100 cases. The grievor regarded
his own case load as comprising mainly "complex" cases. Of
39.
these there were essentially two kinds of cases, parole cases
and cases involving a problem with drugs or alcohol. As Parole
Co-ordinator he assumed responsibility for 90% of the parole
cases that came into the office, that is, 15 cases. As such
he was required to do the pre-parole investigation reports
for the Parole Board, and to supervise the client upon release
from custody. He estimated that he does between 6 and 10
such reports a month and, as Co-ordinator, is involved in
assisting other officers doing the reports for the remaining
10% of parole cases. He regarded the supervision of paroled
clients as more intensive than the supervision of clients
on probation in that both their needs and the risks to the
community are greater. He estimated that between 8 and 10
of his parole cases required greater skill in supervision
than was required with respect to probation cases, principally
in regard to the need to persuade clients to reject their
"jailhouse" attitude.
In the area of cases involving drug and alcohol
problems the grievor was involved both in the development
of a drug/alcohol awareness program and in the supervision
of individual clients. The program consisted of a 2 hour
seminar which ran for 8 consecutive weeks to be attended by
probationers, parolees and their family and friends.
The grievor's case load no longer consists of cases
involving clients, either probationers or parolees, with drug
40.
and/or alcohol problems. As of April 1, 1985, he was asked
by his Area Manager to take over the role of designate under
the Young Offenders Act. Evidence was led with respect to
what his duties were and were expected to be in connection
with the Young Offenders Act. However, counsel for the union
advised the Board that it was not asking that this evidence
be considered in relation to the re-classification of the
grievor. Rather, the Board was asked to consider that evidence
as a part of the general evidence establishing that there
have been and continue to be changes in the job of Probation
Officers, changes which require the development of specialized
skills. What that evidence indicated in general was the Probation
and Parole Officers will be required to become more heavily
involved in the implementation of the philosophy behind the
Young Offenders Act which will, in turn, require a greater
degree of contact with the families of young offenders, more
involvement in the mandatory review of the earlier disp sition
40.
and/or alcohol problems. As of April 1, 1985, he was asked
by his Area Manager to take over the role of designate under
the Young Offenders Act. Evidence was led with respect to
what his duties were and were expected to be in connection
with the Young Offenders Act. However, counsel for the union
advised the Board that it was not asking that this evidence
be considered in relation to the re-classification of the
grievor. Rather, the Board was asked to consider that evidence
as a part of the general evidence establishing that there
have been and continue to be changes in the job of Probation
Officers, changes which require the development of specialized
skills. What that evidence indicated in general was the Probation
and Parole Officers will be required to become more heavily
involved in the implementation of the philosophy behind the
Young Offenders Act which will, in turn, require a greater
degree of contact with the families of young offenders, more
involvement in the mandatory review
of the earlier disposition
of a matter and more regular and frequent contact with lawyers
and social agencies.
Although the grievor now has limited involvement
with the drug/alcohol cases it is appropriate to outline the
nature of that involvement over the period up to April
1,
1985. He estimated that over 50% of the cases coming into
the Thornhill Office have a history of drug or alcohol abuse
and that he was assigned most
of them (i.e., approximately
100 cases). In addition, because of his experience and expertise
41.
with these cases, he was called upon by other officers with
such cases to provide them with advice and assistance. He
did not give detailed evidence as to the respects in which
these cases were more complex than others or as to how they
may require greater skill at supervision than any other kind
of case.
Another more limited respect in which the grievor
regarded himself as performing specialist functions was in
the area of family counselling.
involved in a contracted program called Parents of Probationers
and came to be identified as one to whom cases in which the
client might benefit from family counselling could be assigned.
At one point he had been
Apart from these specialist functions the grievor
also testified as to various respects in which he was, on
a routine and ongoing basis, involved in the
work of other
classified probation officers. The thrust of that evidence
was to the effect that, as a senior and experienced probation
officer, the grievor was frequently approached
by other junior
and less experienced officers for assistance with their own
cases. This could involve assistance with the preparation
of pre-sentence reports, explaining Ministry policies or procedures,
advice on legal questions or preparation for examinations.
However, none of this was done pursuant to any formal structure
in the office. Rather, individual officers approached the
grievor with specific problems and he, as an experienced colleague,
assisted them.
42.
Finally, the grievor testified as to occasions when
he had given seminars for other probation officers, for volunteers
or volunteer co-ordinators, to school audiences and to the
York Regional Police Department. While he admitted that this
was something which any experienced probation officer might
do he did not believe that other officers in his office were
involved in this kind of activity.
ARCHIBALD HURGE
Archibald Hurge became a PO2 in 1976. When he was
first appointed he worked in an area which covered the entire
city of Ottawa and which was supervised by a P04. There were
also two P03's who had divided responsibilities of what appears
to have been an informal division of that area into Ottawa
West and Ottawa East. Each PO3 supervised half
of the PO1's
and P02's. This informal structure appears to have been formalized
in 1981 when the Ottawa West and Ottawa Centre offices were
each established as separate Areas under a separate Area Manager
without any P03's. As of that time, the grievor worked as one
of 10 Probation Officers in the Ottawa West area which was under
Loraine Braithwaite, the Area the general supervision of Ms.
Manager.
The griev or stated that Ms. Braithwaite spends about
40% of her time in the office and is involved in budget preparation,
acquisition of resources for the office, validation of mileage claims
43.
and generally supervisory responsibilities over the classified
staff, vacation approval performance appraisals, discipline etc.
No regular staff meetings have been called in the past year,
although special staff meetings may be held either on the call of
the Area Manager or upon request of the staff. These meetings are
for the purpose of explaining re-organizations within the
Ministry or discussing practical in-house issues that may
have arisen. When she is absent no one is put in charge.
If a matter needs attention it can either wait or, if urgent, it can
be dealt with by the Area Manager for Ottawa Centre.
Mr. Hurge testified extensively as to the design
and operation of the team concept'' model employed in his
office. That is a model under which 2 units are established,
an intake assessment unit (consisting of 4 officers) and a
supervision unit (consisting of 6 officers). The grievor
works in the intake assessment unit.
Each of the officers in the intake assessment unit
rotate monthly in the role
of co-ordinator of the unit. As
co-ordinator the officer receives the incoming mail which
includes requests for pre-sentence reports, requests for pre-parole
reports, requests for pre-transfer inquiries, probation orders
and letters from other jurisdictions that may require the
attention of either the Area Manager or other officers. The
eo-ordinator then assigns responsibility for dealing with
these various matters to other members of the intake assessment
unit. The criteria upon which this assignment is made is
44.
essentially one of work load. An effort is made to ensure
that work loads are roughly equal. However, that rule of
thumb may be departed from in certain cases, e.g., where a
serious offence has been committed a junior officer would
not be assigned responsibility to prepare a pre-sentence report.
The job of co-ordinator takes between
1-2 hours per day for
the month during which one of the members of the unit is serving
in that capacity.
As a member
of the intake assessment unit the grievor
prepared an average of 12 pre-sentence reports and 3 pre-parole
reports per month. Most of the pre-parole reports are done
by an Institutional Liason Officer who is a part
of the intake
assessment unit.
A major responsibility of the members of the intake
assessment unit
is the preparation of an intake assessment
report.
25 and 28 of these per month.
the client, identifying and outlining the conditions of probation,
completing the Level
of Supervision Inventory, and the preparation
of a supervision plan for the officer in the supervision unit
who will take over responsibility for supervision of the client.
The grievor stated that he prepared on average between
This involves interviewing
The supervision plan identifies the client needs
and problems, states the supervision objectives, organizes
whatever referrals are necessary at that stage to ensure co-
ordination between the supervising officer and an agency and
45.
incorporates the risk prediction factors from the LSI score.
Once the intake assessment reports are prepared a
weekly team meeting of all officers in both units is held and
the intake assessment unit officers report on the cases that
they were assigned to do by the co-ordinator and make a recommen-
dation as to which officer in the supervision unit should be
assigned to supervise the case. This recommendation is based
largely on various specializations which have developed among
officers in the supervision unit. Included among these are
specialization in psychiatric cases, drug/alcohol related problems,
maximum supervision high risk cases, restitution orders, volunteer
co-ordinator, and parole co-ordinator. Where there is a case
which has two equally important needs which might be assigned
to either of two officers the recommendation is based on case
load. Generally the recommendations are followed.
Although the Area Manager attended these weekly meetings
at the beginning, she no longer does so.
The grievor also carries a small case load of 9 cases
which he assigns to himself when he is co-ordinator or which
other co-ordinators assign to him on their rotation. His own
case load is not assigned at the weekly team meetings. His
caseload consists of recidivists or persons in respect of
whom there is an outstanding charge for breach of probation
which has not been processed in the courts.
46.
The grievor also testified as to his involvement
in the development of various programs.
Program which had been started in 1975 assisted probationers
with their rehabilitation into the community through developing
ties with employers and service clubs.
ment of a volunteer program under which volunteers would be
trained in job counselling. The grievor was responsible for
the training
of 7 volunteers under this program from 1975 to
1982. In 1982 the program was contracted out to the John Howard
Society.
An Offender Employment
This required the establish-
He was also involved in an alcohol referral program
from 1982-1983 and more recently with a Group Supervision program
which has been approved by the Area Manager but not yet imple-
mented. Finally, he is chairman
of an inter-agency board called
the Basic Job Readiness Training Advisory Board on which sit
representatives from Canada Manpower, Childrens Aid Society,
Algonquin College, Royal Ottawa Hospital and the Youth Services
Bureau. This Board monitors the monies made available by Canada
Manpower to Community Colleges for places for disadvantaged
people seeking to upgrade their skills.
Generally, it was the grievor's opinion that the
changes in the nature of the clientele now coming to the service
had produced a situation in which P02's were required to exercise
greater skill, initiative and judgment in making decisions
as to the identification of needs and the development of an
47.
appropriate supervision plan than was the case when much of
this function was assumed by the P03.
SUSAN WICKETT
Susan Wickett has been a PO2 since 1975. From 1979
to 1981 she was a Parole Specialist working at the Islington
W. Office and since 1981 has been a Court Liason Officer working
out of the East Mall Court House serving the area of Metro
West.
liason between the offender and/or probation officer and the
court.
the provision
of one Court Liason Officer for each of the provincial
and district courts in Metropolitan Toronto. Thus, in the
Metro Court Services area there are 5 CLO's (one for each of
4 provincial courts and one for the 'district court). The Area
Manager, Mr. Martin, works out of offices at the Old City Hall.
The grievor is the only
CLO working out of her office.
she has 9 volunteers and a part-time Volunteer Co-ordinator
who works for Metro Toronto Volunteers, Inc. under contract
As a Court Liason Officer she essentially provides a
In Metropolitan Toronto this service is delivered through
However,
with the Ministry.
Her contacts with her Area Manager occur primarily
at monthly meetings held at the Old City Hall which are attended
by all of the CLO's in the area and 2 representatives from
the agencies which supply volunteers.
Area Manager informs the CLO's and others of policy matters
and such problems as may have arisen are discussed and resolved
At these meetings the
48.
on a consensus basis. The Area Manager does not supervise
the grievor on a day to day basis and visits her office once
every third or fourth month. However, he does do an annual
audit on her work and is responsible for such things as performance
appraisals, approving time off, discipline etc.
As Court Liason Officer the grievor's main responsibility
is to interview clients who have just left the court and who
have been put on probation. She is required to go over the
terms of the order with them and make sure that they understand
both the conditions and the consequences of breach: to obtain
information concerning their address, phone numbers, place
and hours of work: and to arrange for an appointment with a
field probation officer in the location where the client lives
and works. The probation order and the relevant information
are then forwarded to the appropriate office.
The interviews take approximately 20 to 25 minutes
and in her office there are approximately 150 interviews done
per month. Of these the grievor herself does what she characterized
as the more difficult cases which comprised, in her opinion,
about 40% of the total. Altogether she does about half of
the interviews and the remainder are done by the volunteers.
She described as "difficult" those cases where the clients
were hostile and who appeared to be unwilling to follow the
conditions prescribed in the order or who were intoxicated
or generally aggressive and in respect of whom it was difficult
49.
to know if they understood the conditions of the order or the
consequences of breach.
It was her opinion that the conduct of the interview
required some professional training in that there was a need
to know something about probation services, the courts and
the legality of conditions in orders. As the first point of
contact with the clients she felt that certain skills in social
work were valuable. She also felt that, to a limited extent,
the interview involved some assessment and diagnosis of the
case in that she is sometimes asked by field probation officers
whether or not a client might be appropriately assigned to
a volunteer in the field for supervision. She makes this assess-
ment based on the attitude of the client at the interview,
on whether there had been prior contact of the client with
the system and
on the nature of the offence. She admitted
that much of this assessment is also done by the field probation
officer who bears final responsibility for supervision
of the
client. She also admitted that the kind of assessment that
she does is not as extensive as that done by a field probation
officer and that she is not involved in the preparation of
any supervision plan.
Other duties done by the CLO, or assigned to be done
by a volunteer include the referral of requests for a pre-sentence
report to the appropriate field office for action and the writing
of "stand down" pre-sentence reports. This occurs where a
50.
judge "stands down" the disposition of a matter for a short
period of time, which varies between 2 hours and 2 days, and
request
To do this it is necessary to interview the client,
family members or the police if feasible and prepare a report.
The report which is neither as intensive nor as extensive as
a pre-sentence report is not reviewed before it is submitted
to the court.
from
1 to 4 hours and occupies about 5% of the grievor's working
time. She stated that normally she does an average of 2-3
stand down pre-sentence reports per month except when certain
judges whose practice is to request such a report are sitting
in her court.
week or, in one extreme instance, 77 in 7 days.
a brief outline of the background of the offender.
contact
The length
of time it takes to do this varies
Then she might be expected to do 4 or 5 per
A similar duty is performed in respect of conducting
investigations for judges who want to make use of the Temporary
Absence Program as a disposition of a matter before the court.
Where this is requested, she checks to see whether or not the
client's employer is prepared to have him back and reports
on her findings to the judge.
The grievor also plays a role in connection with
the enforcement of probation orders.
CLO's in Toronto participated in the preparation of a package
of materials which were intended to serve as a guide to field
probation officers who had to take steps to enforce the conditions
She along with the other
51.
on a probation order that had not been observed.
consisted of sample forms duly filled out, (e.g., information,
warrant for arrest, notice under Canada Evidence Act, etc.)
The package
which would assist field officers in having the correct documen-
tation necessary when seeking enforcement. Where it is necessary
to take proceedings to enforce an order the field officer forwards
the package to the
CLO who checks it for errors and where necessary
contacts the field officer to clarify some discrepancy that
may be discovered. The CLO then acts as the complainant and
swears the information. The grievor estimated that she spent
approximately 30-40% of her time acting as a complainant either
on wilful failure to observe the conditions of probation or
on applications to seek a variation
of the conditions.
In this regard the grievor has also had occasion
to respond to requests from other P02's for advice as to whether
to proceed by way of a wilful breach charge or an application
for variation of conditions, as to the time period they should
use and as to the wording on an information. She has also
advised other officers on whether or not they had a good case
and stated that there was never an instance where an officer
insisting on pressing a charge against her advice.
As for her involvement with the volunteers that work
in her office, she has provided them with on-the-job training,
which supplements the training which they receive from the
,I
52.
agency which employs them.
and a more formal training session once or twice a year.
addition to this she is required to check the work of the volunteers
respecting pre-sentence report intakes, stand down pre-sentence
reports, and probation order intakes.
makes sure that forms and reports are properly filled out and
that there are no mistakes in the warning given to clients
respecting the consequences
of a breach of a probation order.
She also organized a mock court
In
In this respect she
Finally, her duties involve her in responding generally
to various kinds of requests for information from either field
officers, judges, Crown Attorneys, the police, or members of
the public in general. These include requests from a field
officer for clarification of an order, requests from judges
for clarification of 'a pre-sentence report, and calls from
relatives or friends of clients seeking information.
among this class of duties are those which involve the handling
of complaints, the most common of which are complaints of victims
to whom restitution has been ordered as a condition of probation
but who have not yet received satisfaction.
stance the grievor may direct them to the appropriate field
officer or to the police, or, where there is no reporting require-
ment and therefore no field officer responsible, she may attempt
to get information from the Restitution Clerk of the court
into which payment was directed as to the status of the matter.
In addition, there may be complaints concerning the actions
of volunteers, e.g., a complaint concerning a referral to the
wrong field office.
Included
In that circum-
53.
ALBAN AYRES
Alban Ayres started with the Ministry in 1967 as
a Rehabilitation Officer. He was re-classified as a PO1 in
1969 and is currently a PO2 working out of the Keele Street
Office in the Keele Street Provincial Court Building.
At the time of the grievance there were in his office, 6 PO2’s
either
1 or 2 PO1's and 1 employee of the Ministry who was
a member of the unclassified staff. In addition, the Area
Manager, Mr. J. Tramble, works out of that office. He is absent
for approximately 4-5 days per month during which time he leaves
the Duty Officer in charge or has the field probation officers
contact either the acting Area Manager or the Regional Manager
if there are problems. He is not involved directly in the
supervision of officers in their dealings with their clients.
He chairs a staff meeting once a month at which time matters
of general Ministry policy are discussed. He has authority
to audit the work of probation officers and carry out performance
appraisals but with respect to the grievor he has done two
audits in the last 10 years and has never done a performance
appraisal.
It was the grievor's evidence that over the last
4 or 5 years he has experienced a "massive" increase in his
work load brought on by the de-institutionalization of offenders,
54.
either through the grant of early parole, short term parole,
or the ordering
of probation to persons convicted of serious
offences, e.g., manslaughter, attempted murder, arson, persons
who in earlier times would be institutionalized.
This has led to an increase not only in the case
load itself but also in the nature of the cases that need to
be supervised. For example, the case load of P02's rose from
between 50 and 75 at the start to a present average load of
100 (although it could run as high as 120 to 130 cases at any
one time). The grievor's own case load is
170 cases some of
which are inactive. Prior to January 1985 the grievor was
assigned all
of the cases in which the probation order contained
a condition requiring the making of restitution to the victim.
A decision was, however, taken by the Area Manager to assign
some
of the restitution cases to other officers. Consequently,
his current load consists of 118 restitution cases of which
li are inactive. The grievor admitted that while the restitution
cases do not generally involve serious offences, the balance
of his case load, which now includes some non-restitution cases,
had cases which did involve offenders who had committed serious
offences.
The grievor admitted that, while there was some change in
the type of offender coming to the probation service, there also
remained what he described as the "run of the mill" case; that
is, the case where the only condition was a reporting condition,
55.
where the reporting condition was ended after restitution had
been made, or generally where minimal supervision was necessary.
The grievor admitted that, prior to the time that the nature
of the case load changed, probation officers also had some
responsibility for cases which required more than just minimal
supervision. However, the numbers of those cases increased.
Another general respect in which the grievor believed
his work load had changed concerned what he described as greater
involvement in "management functions" characterized by the
grievor as "supervisory". In particular he emphasized the
tendency toward contracting out services to outside agencies
and the increased use of volunteers each of which required
of the PO2 that he exercise certain "supervisory" functions.
The method by which cases are assigned in the Keele
St. Office is through the Duty Officer. The subject of moving
to a team concept method was discussed among the PO'S and the
Area Manager and rejected.
PO under contract) rotate in the Duty Officer position on a
daily basis. Thus, each officer performs the function for
between 3 and 4 days per month and for between an hour and
an hour and a half each day. When a new case comes into the
office the Duty Officer examines the order to ensure that it
is sent to the proper office and checks the conditions for
errors, e.g., an unenforceable condition in which case the
order would be sent back for variation. The case is then assigned
Each of the P02's (and the unclassified
56.
in such a way as to ensure, so far as possible,
an equal case load except that the sequence would be jumped
where the next officer in line was a junior officer and the
case to be assigned had certain features which would suggest
that it should not be so assigned. Examples of such features
included cases which involved inter-provincial transfers,
or cases requiring a high degree of supervision or use of
community resources (e.g., weekly reporting condition, need
for psychiatric or family counselling).
There was a similar system in place for the assignment
of preparation of pre-sentence reports, again, with the exception
that a pre-sentence report for a Supreme Court judge would
be assigned to a more senior officer.
involved one
of the specializations that existed in the office
Finally, if the case
it would be assigned to the specialist, viz, CSO co-ordinator,
Restitution Specialist, Parole Co-ordinator, or Volunteer
Co-ordinator.
The grievor himself was a specialist in restitution
cases and received those cases as well as cases which contained
both a restitution and community service order element. Upon
receipt
of a new case, he initially checks the order for errors,
both typographical and substantive. For example, the order
may have been sent to the wrong area or a condition on the
order may have been improperly changed at the CLO level by
a volunteer. If there are no errors he contacts the client,
57.
(or the client attends at an appointment arranged between
the grievor and the CLO), assesses the case as to the level
of difficulty and prepares a supervision plan.
He is also involved in the enforcement of and/or
variation of the conditions of the order. If a reporting
condition is breached, the grievor contacts the client by
phone to inform him of his obligations and, if the client
still does not report, he follows the matter up with a registered
letter following which, if the client persists in ignoring
the reporting requirement, the grievor commences enforcement
proceedings. Alternatively, if there is a restitution order
and the client has not paid the matter is discussed with the
client
who is informed of his options, one of which is that
the client may seek a variation of the condition, for example,
an extension
of the time which he would be permitted to make
full restitution. If that avenue is pursued the grievor forwards
his recommendations to othe court which routinely accepts
them.
The grievor also spoke
of circumstances in which
he could administratively close an order without the necessity
of seeking a variation
of the order by the court. He described
this as a relatively common occurrence and gave as an example
a situation in which the term of probation may have not yet
expired but all of the conditions have been satisfied.
58.
Evidence was given concerning the contracting out
Of services in the Keele St. Office. In particular, reference
was made to contracts with the John Howard society for the
provision of services in relation to employment assistance
and CSO order placement: with York Community Services for
the provision of family counselling and psychiatric services;
and with Youth Employment Services for assistance in finding
employment for clients.
out the grievor retained primary responsibility over the case
and was thus required to have some connection with the agency
concerned. He stated that he "supervised" the agency staff
in various respects. He instructed them to report back to
him on progress or to send warning letters in the event of
breach. He informed them as to the conditions on the order
and instructed them as to when they would need to be in court
to testify in the event of a charge of wilful breach.
he responded to questions that agency personnel had. Beyond
this he did not have any supervisory authority such as might
permit him to deal effectively with agency personnel
had failed to do their jobs properly.
Notwithstanding this contracting
Finally
who
The grievor testified as to the use of volunteers
at his office but his evidence did not indicate that he personally
had much contact with volunteers. In the Keele St. Office
that was assumed by the Volunteer Co-ordinator.
however, "monitor" the work of a second year law student who
assists with the preparation of pre-sentence reports and is
He does,
59.
The grievor stated that he "supervises" the work of the student
and "advises" and "instructs" him on methods and procedures.
He estimated that his contact with the student occupies him
for approximately an hour and one half per week.
As for any duties that he might have in relation
to other classified officers in connection with verification
that adminstrative procedures are being followed or requirements
of law adhered to, in connection with checking the quality
of pre-sentence reports, reviewing value judgments, and assessing
treatment plans of probationers, and in connection with the
assistance of other officers in the preparation for their
examinations the grievor stated that his only involvement
was an informal one. If asked by a classification officer
for advice or assistance he would provide it.
JURISDICTION AND remedies
I
Until recently it has been well established in the
jurisprudence of the Board that, in a classification grievance7
the Board is limited in its remedial jurisdiction to either i
confirming that a grievor is properly classified in his existing
classification or to finding that he should be classified in that
clasification which he claims in his grievance.
naturally from the language of Article 5.1.2 of the Collective
Agreement.
This result flows
Thus, the Board is essentially involved in an examination
60.
of the job duties and responsibilities of the grievor which
are then measured against the competing class standards.
In this regard, the class standards are to be read as general
descriptions of generic functions and are not to be treated
as a Position Specification which contains a more detailed
job description and which, unlike the class standards, is
frequently revised. The Board has also stated that, in assessing
which of two or more competing classifications is the more appropriate,
it may examine not only the language of the standards themselves
(the "standards" approach ) but may also examine the usage
or practice of the Employer in relation to them (the "usage"
approach). Where the Employer has, as a matter of practice,
classified employees in a way which does not accord with the
appropriate standards the Board will treat that practice as
defining the content of the classification.
While the Employer has the exclusive right under
section 18(1) of the Crown Employees Collective Bargaining
Act to establish classifications and define their content,
it has also been recognized in the jurisprudence of the Board
and the Courts that the parties to the collective agreement
cannot (through collective bargaining) act in such a way as
to compromise the statutory right under s. 18(2) of the Act
an an employee to grieve complaining that he has been improperly
classified. A number of cases have examined the relationship
between the statutory rights of employees and the provisions
61.
of the collective agreement and have concluded that the statutory
right prevails. (See A.G. Ont. v. Keeling et a1 (1980)
30
O.R. (2d) 662 (Ont. H.C.) and Re OPSEU and the Crown in
Right of Ontario (1983) 44 O.R. (2d) 51 (Ont. H.C.))
In the context of classification grievances this
has led the Board to articulate the "best fit" doctrine.
Thus, where an employee's duties are such that he or she cannot
be said to fall squarely within either the classification
held or the classification claimed (on either a "standards"
analysis or a usuage analysis) the Board will choose a classifi-
cation which "best fits" the duties performed. This ensures
that the Employer cannot, by choosing not to create a classifi-
cation which appropriately reflects the actual duties performed,
effectively prevent the employee from exercising his statutory
right to grieve.
adopted by the Board include the following: Hooper 47/77
(Swan); Cassir 591/80 (Verity); and Woodcock and Van Alstine
564/81 (Samuels.)
The cases in which this approach has been
The remedial jurisdiction of the Board in classification
cases has recently come under review in the Divisional Court.
In Ministry of Community and Social Services and OPSEU (Berry
et al) (unreported) a Board chaired by Professor Samuels (as
he then was) found that the grievors who were Income Maintenance
Officers were improperly classified as Welfare Field Workers.
However, it also found that the Clerk 6 General classification
62.
which they claimed was also inappropriate. Moreoever, the
Board found that this was an inappropriate case for applying
the "best fit" doctrine. Notwithstanding its findings that
the grievors were improperly classified a majority of the
Board dismissed their grievances. In essence, the Board held
that, in the circumstances, it had no choice but to "confirm"
the grievors in their existing classifications even though,
as the Board noted "they do not appear to be suitably classified
as Welfare Field Worker I."
In a lengthy dissenting opinion Professor Craven,
while agreeing with the finding that the grievors did not
fit either of the two competing classifications, concluded
that the Board ought to have ordered the Employer to classify
the grievors properly. In his opinion that could have been
done either by finding an existing classification
or by creating
a new classification appropriate to their duties.
The award of the majority was taken on review to the
Divisional Court and the Court sustained the position taken
by Professor Craven and quashed the award. The Court reviewed
the relationship between s. 18(2) of the Crown Employees Collective
Bargaining Act and the provisions of the collective agreement
and concluded that the right to grieve could not be restricted
by the Collective agreement.
63.
"That being the law, the majority was simply wrong
in thinking its powers were limited by Article 5.1.2.
The Board is obliged to follow the law and no question
of reasonableness arises. The question that does
arise is whether the Board had power to require
the employer to find or create a classification
for grievors. I think it had that power. Its
authority under
s. 19 of the Act is untrammelled.
It "shall decide the matter". Simply to dismiss
the grievances when it acknowledges that the grievors
are wrongly classified is to empty the grievance
procedure of any meaning. It is a commonplace of
the law that the existence of a right implies the
existence of a remedy.
The employer initiated the process which led to
grievors being wrongly classified. The employer
alone can create classifications yet it has failed
or refused to do
so and seeks to take advantage
of its failure. Classification is not a mere
matter
of title, it is a matter of money. The employer
has given grievors added responsibility yet refuses
to compensate them accordingly. That situation
existed since "the end of 1983", to state a fact
asserted in applicant's factum and accepted by
respondents
The Board's obligation under
s. 19(1) is to "decide
the matter". When looked at without the confinement
imposed by Article 5.1.2 "the matter" grieved was
wrong classification. If the Board concluded that
the classification was wrong, its mandate was to
effect a proper classification. Its jurisdiction
is unrestricted. Its mandate is remedial. In
making the decision it made the Board refused to
decide the matter, it simply finessed it. In doing
so it erred in law." (Emphasis added)
Following the release of this decision the Divisional
Court was called upon to decide whether the Board, if it were
to find a bargaining unit employee to be improperly classified
in a bargaining unit position, could find him to be more properly
classified in a position described in the Management Compensation
Plan which is inapplicable to bargaining unit employees.
64.
In upholding an award of the Board which so found the Court
re-iterated the position taken in Berry that the Board's juris-
diction is not limited simply to finding that an employee
has been improperly classified. Rather, "it has the power,
and perhaps the duty, to fashion a remedy if it determines
that there has been improper classification."
of Government Services and OPSEU (Canning et al) (Ontario
Division Court, unreported).
(See Ministry
The Employer applied for leave to appeal each of these
decisions to the Court of Appeal. Leave was denied in Canning
on May 26, 1986 and in Berry on June 2, 1986. Consequently, as
a remedial matter, the choices which we have are the follow-
ing :
1)
2)
3)
confirm that all or some of the grievors are
properly classified as PO2's.
find that all or some of the grievors ought
to have been classified as P03's.
direct the Employer to classify them in some
other appropriate existing classification or
create a new classification that fits their
duties and responsibilities. In respect of
this third option the decision of the employer
would, of course, be subject to challenge through
the grievance procedure.
65.
ANALYSIS OF THE CLASS STANDARDS
1. The PO2 Standard
The Employer submits that this standard is appropriate
and that, save for certain minor exceptions, e.g., that PO’S
are no longer police constables and no longer supervise juvenile
probationers, accurately defines the current duties of the
grievors.
supervision" (as contrasted with the "direct supervision"
to which Polls are subject) the standard contemplates that
PO2 s are quasi-prof essionals who enjoy considerable independence
Insofar as these duties are performed under "general
in the performance of their daily duties, free of detailed
review of the decisions which they are called upon to make.
Secondly, it is argued that the "variety of probation
services" carried
out by P02's go beyond those identified
(e.g., preparation of PSR's, supervision, guidance and counselling
of probationers) and comprehend the many other types of duties
described in the evidence of the grievors. Further, it is
noted that, except for Mr. Park, the reference in the standards
to ensuring that the terms of probation orders are kept and
to reporting on cases of default, the standards describe duties
which are performed by all the grievors.
Thirdly, it was submited that the reference to "probation
methods and techniques" comprise the different ways by which
66.
a "variety of probation services" will be delivered and the
skills required to effect such delivery. The particular "methods
and techniques" are not defined and are subject to change
through the introduction of new skills, new organization and
new means for the delivery of probation services. In other
words, while the methods and techniques used in the delivery
of services may have changed over time, the essential "work"
(viz, corrections work, supervision, guidance, counselling,
enforcement of orders etc.) has remained the same.
In this respect, the Employer submitted that the
use of volunteers, full time CLO's, service contracts with
community agencies, team concepts, case conferencing, "speciali-
zation" in case assignments are
all simply more modern "methods
and techniques" used by journeyman PO'S to carry out a "variety
of probation services"
The Union submitted that when the actual duties
of the grievors are compared against the language of the PO2
standard, it becomes clear that it no longer describes their
characteristic functions. Several functions which no longer
exist are included: certain essential core functions are omitted:
and the standard describes a type of service delivery which
no longer prevails. Moreover, while PO'S did supervise a
small number of national parolees, provincial parolees were
supervised by RO's until 1974 when they came under the
supervision of PO'S.
I
67.
The obsolete functions referred to in the class
definition and characteristic duties which are no longer performed
include working with juveniles, preparing social and family
histories for the Juvenile and Family Court, reporting on
cases of default and producing the probationer for sentencing,'
serving as ex officio police constables, receiving restitution
payments and escorting persons in custody to detention in-
stitutions.
Another significant difference lies in the means
by which cases are referred to individual officers. Under
the PO2 class standard and according to the then prevailing
practice clients were assigned by the Courts directly to particular
individual probation officers. That no longer occurs. Referrals
are made by a Court Liason 0fficer to a particular office
where generally, by way of a Duty Officer
or through some
form of intake process, the cases are then assigned locally
to individual officers. The Union submitted that this internal
assignment process which required an assessment of client
needs and a matching of officer specialties, involved probation
officers in a more responsible decision making role than had
obtained at a time when officers essentially carried out judicial
instructions.
The Union argued that the PO2 standard is silent
on what it regarded as a number of core functions. These
68.
included: evaluation of needs and risks and referral to or
liaison with contract agencies: case conferencing through
some type of team model; provision of supervision to other
officers in the absence of the Area Manager; training Pol's:
training and/or supervision of volunteers, summer students
or agency staff: conducting in-house seminars, group teaching,
preparation of written materials for the benefit of other
PO'S, (e.g. Pre-Parole Investigation Report (Park), Enforcement
Package for Breach Charges (Wickett); and developing, monitoring,
auditing community agency programs or negotiating contracts
with community agencies.
Moreover, it was noted that the standard also contains
no reference to the functions of the CLO nor does it contemplate
the kind of "complex" case which P02's have come to assume as
part of a specialized case load.
In summary, the Union submits that the PO2 standard
is obsolete in portraying the PO2 simply as a caseworker supervising
individual clients; that it is incomplete in that it fails to
"capture the complex context of client supervision" that' exists
by reason of the development of "sophisticated intake assess-
ment techniques, specialist officers, team case conferen-
cing and specialized external agency delivery"; and that it
describes a world which does not exist; one inhabited by an officer
with "little or no individual discretion or initiative, little
69.
autonomy, no role in assessing client needs or risk and no
supervisory duties in the broadest sence except over support
staff “
We agree, in general, with the submission that the
PO2 standards do not adequately reflect the nature of the
job now performed by the grievors. The reasons for this vary
as between different grievors and we
do not intend to conduct
the
usual comparison of duties with standards in respect of
each grievor individually. Rather, we propose to outline
the main themes which underscore our conclusion that the PO2
standard is inadequate and that all of the grievors are improperly
classified.
We regard the changed manner by which cases come
to be assigned to individual officers as of primary significance.
There is little doubt that the process wherein this occurs
has given probation officers who are involved in the process
in a significant way, either as members of a team or as Duty
Officer, greater responsibility and greater initiative in
terms of the assignment of work and definition of the content
of the duties to be performed by each other than that which
obtained when cases came directly from the Court to individual
officers. We are not persuaded by the Employer's submissions
that, since this process occurs within a system which has
been approved by the Area Manager, and which could be altered
or discontinued by the Area Manager at any time, the process
70.
itself should not be regarded as representing a significant
addition to the responsibilities of the grievors.
Secondly, we consider the involvement with volunteers
and community agencies to represent a type
of function which
is not comprehended by the standard. We reject the submission
that all of these duties can rest comfortably within those
parts of the standard which speak of different "methods and
techniques" of service delivery, or "co-operation with community
social agencies". It is true, in a very general sense, that
these terms comprehend the kinds of duties involved in connection
with volunteers and contract agencies. However, while we
recognize that class standards are not Position Specifications
and must, of necessity, be couched in general language, there
must
be a limit to the extent to which the Employer can, by
such general language, subsume within the standard a wide
range of qualitatively different duties and responsibilities.
Before these changes the officer had a direct relationship
with the probationer and was charged with ensuring that the
terms of the order were met. With the advent of volunteers
and contract agencies there has been interposed a third party
who has assumed the more direct contract. Yet, since the
officer continues to have ultimate responsibility for the
case, he must, of necessity, be involved in some fashion with
those who have immediate responsibility for delivering the
service in question.
71.
Another important feature of the changed duties
which deserves mention relates to the significant involvement
of some of the grievors in the initiation, design and implementation
of projects involving volunteers or community agencies.
seems to us to take them considerably beyond the notion of
simple delivery of probation services by various methods and
techniques. They are involved directly in the development
of the resources by which services will be delivered, that
That
is, they enjoy certain creative responsibilities which, in
our view, differ significantly from the comparatively routine
carrying out of assigned tasks.
Superimposed over these changed duties is the changed
organizational framework within which the grievors perform
their jobs. The Area Managers are ,frequently absent on other
matters and the intermediate level of supervision, the P03,
has been phased out.
in a situation in which they were compelled to take initiative
and, in essence, work on their own. We recognize that they
These circumstances placed the grievors
are quasi-professionals and free of detailed and close supervision.
We also recognize that the PO2 standard itself contemplates
that the PO2 works only under general supervision. However,
that general supervision was in part provided by the P03.
With that level of supervision removed what remains is the
supervision provided by the Area Manager. Yet, as the evidence
indicated, contact with the Area Managers was infrequent and
72.
tended to concern reporting on general issues of Ministry
policy or approval of budget matters. In reality, in terms
of carrying out their various duties and responsibilities,
the P02's were unsupervised.
Before leaving our discussion of the PO2 standards
we should comment on the claim that the development of speciali-
zation among officers is a factor that should be taken into
account in assessing the appropriateness
of the PO2 standard.
We disagree.
of the PO3 standard. For present purposes it may be said
that such specialization, of itself, does not take a "specialist"
outside of the classification. Within the context
of his/her
particular specialty, whether it be restitution cases, CSO's
drug/alcohol cases, mental health cases or parole cases, the
officer essentially performs the various generic functions
which Mr. Parker characterized as constituting the provision
of probation and parole services. These were assessment and
diagnosis, preparation of a supervision plan, follow through
on compliance with the order, re-evaluation of the plan, and
enforcement or variation of the order. These are the core
functions of a probation officer and the fact that all or
some of them are primarily performed in relation to a particular
type of case does not (unless the case is one which can be
said to fall within the PO3 standard) of itself justify a
re-classification.
We shall return to this question in our discussion
73.
2. The Po3 Standard
It may be recalled that this standard covers 2 different
types of P03's referred to as the senior PO3 and the specialist
P03.
We can deal quickly with the claim for re-classification
as a specialist P03.
of this position was under review from as early as 1972.
At that time there were only 4 or 5 such officers out of a
full complement of 250 probation and parole officers and none
were appointed since 1972. The classification was allowed
to become unpopulated through attrition and no PO3 specialists
were in existence as of the date of the commencement of these
hearings.
The evidence indicates that the viability
The core duties of this classification involve an
incumbent in concentration on "complex cases having multi-
disciplinary and inter-service complexities, which require
long and intensive personal attention". The meaning of this
was beyond the comprehension of both Mr. Taylor and Mr. Parker.
Neither could think of anyone who could ever really be said
to "concentrate" on such cases. None of the evidence which
we have heard persuades us that any of the grievors have
a case load which meets the rigorous standards set out.
The appropriateness of the PO3 senior classification
74.
requires a closer examination.
duties of persons in this classification are supervisory in
nature. The threshold requirement is that these employees
"advise on problems and instruct on methods and procedures
and supervise the activities of four or more Probation Officers."
The rest of the class definition, save for the last sentence,
elaborates more specifically on how this supervisory or teaching
function is to be discharged.
It is clear that the core
The evidence before the Board
from both the grievors
and from Messrs. Taylor and Parker is consistent in describing
the duties actually performed by the PO3 senior. Mr. Park
described his duties when he was a PO3 as including supervision
of staff, preparation of performance appraisals for the Area
Supervisor to sign, assignment
of cases as they came in from
the Court or the Parole Board, administration of a petty cash
account, conduct of case audits and the training
of new staff.
Mr. Manning trained him, reviewed his PSR's, assigned cases
coming into the office and "was on the spot for help" when
needed. Evidence to a similar effect was given by Mr. Hurge
and Mr. Ayres.
Mr. Taylor stated that a PO3 senior spent approximately
30% of his working time supervising other PO'S, that he was
involved for between 1 and 2 hours per week in one to one
contact interviewing officers and analysing and evaluating
75.
records brought to him by the officer for checking to see
that case work methods and administrative procedures had been
followed. P03's also checked court orders and officer's files
to ensure that the conditions of probation orders were being
carried out and they checked the factual basis for conclusions
reached in PSR's prepared by officers. Finally, he stated
that PO3's were involved in preparing officers for the promotional
exams through conducting weekly 2 hour seminars end through
tutorial teaching delivered in the course of the daily ongoing
supervision of the officer in respect of his case load.
estimated that the total amount of time taken up by teaching
in one form or another was between 8 and 10%.
He
P03's also carried a case load which took up approximately
40 to 50% of their working time. However, the cases did not,
in his estimation, qualify as "complex cases requiring a greater
degree of intensity of investigation and supervision, and
a higher degree of skill..."as contemplated by the PO3 standard.
Rather, in terms of complexity, the case load was no different
than assumed by other P02's in the office.
Mr. Parker's evidence substantially confirmed that
of Mr. Taylor. During the period 1973-1977 when he was a
PO3 he supervised Pol's and P02's. He estimated that formal
supervision occupied about 30% of his time and that informal
supervision arising from officer initiated contacts occupied
a further 20% of his time. That supervision took the form
76.
of checking records and conducting case audits and giving
appropriate instructions where officers had failed to follow
proper procedures. He was also involved both in conducting
seminars and in preparing candidates for the promotional examin-
ations. This teaching was both formal and informal. His
case load varied in size, ranging from one which took up half
of his time to one which was as low as 10-15% of his time.
In his estimation the cases which he undertook as a PO3 were
no different in terms of complexity than those of other PO2's
in his office.
The central submission of the Employer is that none
of the grievors can be said to have met the threshold require-
ment of supervising 4 or more probation officers. In that
regard it is argued that, for the purposes of interpreting
the standard, "probation officer" must be taken to mean "classified
probation officer", that is,
a PO1 or a P02. It does not
include volunteers, summer students, or employees of agencies
with whom the Ministry has contracted for the delivery of
services.
There is no question on the evidence that, if this
view is taken, none of the grievors meets the threshold require-
ment. As far as duties performed in relation to other classified
officers is concerned, the provision of "advice and instruction
on problems and methods" was, at best, on an informal, ad
hoc, officer initiated basis. Thus, as is exemplified in
77.
the evidence of Messrs. Park, Charles, and Ayres, as senior
and experienced officers, they were approached by less experienced
junior officers for assistance. However, they did not exercise
the kind of formal supervisory functions of PO3's as exhibited
in both the class standard and in the evidence.
While it can be said that the "supervisory" functions
exercised in respect of volunteers, students, and agency personnel
were more formal, they were not exercised in relation to classified
probation officers and would, on that account, fail to meet
the threshold requirement of the standard.
In its submissions the Union challenged the significance
that should be attached to the absence of formal supervisory
functions in the roster of duties of the grievors. It was
conceded that a PO2 does not have the power to hire, fire,
discipline or evaluate other officers; but neither did the
P03's. Rather, the type of supervisory authority exercised
in fact by the PO3 was characterized by the Union as "collegial"
in which persons with experience and skill in a particular
job assumed, as part of their ordinary functions, some respon-
sibility for advising and assisting other professionals, but
without the formal external direction that may be more appropriate
for employees who are less independent. It was suggested
that the PO3 performed "stylized" and "ritualistic" reviews
of the work of junior officers according to systems prescribed
78.
by the Ministry and that they filled a supervisory gap created
where there was no PO4 in the office.
The Union submits that the PO2 has now assumed this
role, that he filled the supervisory gap left by absentee
Area Managers. In other words, they have become, like the
P03's, resource persons to be consulted when necessary. Thus
if, as the Union submits, the PO3 is viewed more as a group
leader rather than someone "directing" junior officers within
a hierarchical structure, the difference between the PO3 and
the PO2 in terms of the exercise of "supervisory" functions
disappears.
The difficulty with this argument is, in our respectful
view, that it is not supported in the evidence. We have reviewed
the evidence above and it does not support the thesis that
the PO3 was just a group leader, primus inter pares. Admittedly,
the PO3 did not possess those trappings customarily associated
with supervisory responsibilities, viz, discipline, performance
appraisal, decision making authority respecting working conditions
etc. However, he did 'have certain formal and 'directive"
duties to be exercised in relation to, inter alia, P02's.
None of the grievors, on their own admission, enjoyed any
of those types of responsibilities.
Nor are the grievors assisted in their claim by
79.
the nature of their case load. The concluding sentence of the class
definition in the PO3 senior standard states that, in addition
to the supervisory functions set out in the bulk of the standard,
the PO3 performs the full duties of an experienced probation
officer handling the more complex cases requiring a greater
degree of intensity of investigation and supervision and a
higher degree of skill in handling the probationer.
even if their case load met this requirement that alone would
not be sufficient to carry the day without also having those
First,
"supervisory" functions which form the bulk of the duties
that make up the classification. Secondly, in any event,
the evidence indicates that the practice in respect of this
factor was such that the case load carried by P03's was not
materially different, in qualitative terms, from that carried
by P02's.
Reference here may be made to the evidence of both
Mr. Taylor and Mr. Parker in support of this finding.
Thus, in terms of case load, the PO3 senior was
indistinguishable from the P02.
the added "supervisory" duties which occupied a substantial
portion of his time and which were not performed by the P02.
What did set him apart were
Thus, having regard to the standard itself, to the
practice thereunder and to the evidence pertaining to the
actual duties of the grievors, it must be concluded that the
grievors do not fall within the PO3 classification as defined.
80.
However, the Union submits that notwithstanding
that, they ought to be found to fall within the PO3 classification
on the basis that it is the "better fit" of the two competing
classifications. It is argued that, while the PO3 standard
may have been accurate in 1964 when the office hierarchy and
characteristic duties performed readily distinguished the
PO3 from the P02, by 1983 (the date of the grievances), service
delivery, organizational structure, community involvement
and the nature of the clientele had soaltered that the case
should not be decided on the basis of a strict comparison
of bundles of duties against class standards but rather "by
analogy" to such comparisons.
The Union concedes that certain of the functions
described in the PO2 standard continue to apply and further
that the grievors do not perform certain of the characteristic
duties set out in the PO3 standard. However, since significant
parts of what the grievors actually do are not found either
expressly or by analogy in the PO2 standard, the Union submits
that the Board should apply the "best fit" approach and find
the grievors to fall within the PO3 classification.
In dealing with this submission it is first necessary
to determine whether or not the jurisprudence of the Board
permits us to use this approach in this case.
!
81.
A review of the cases in which this approach has
been either applied (Hooper, Cassir, Woodcock and Va'n Alstine,
Patrick and Draper) or commented on, but not applied (Berry)
indicates that the Board has articulated a fairly stringent
standard for the application of this approach.
In Hooper, the Board characterized the grievor as
an "employment paradox" and noted that "very few, if any,
of the grievor's duties correspond to any of the characteristic
duties set out in the classification descriptions."
12). At page 14, the Board, after reviewing the duties, stated
that "none of these duties fit comfortably into either the
class definitions or characteristic duties of either of the
purchasing officer levels at issue.
(page
In Cassir, the Board noted (at page 8) that neither
classification "bears much resemblance to the job presently
being performed by the grievor." Further, it is noted that
"there is apparently no classification that is appropriate
to the grievor's job function." In Woodcock and Van Alstine,
the Board notes that the class standards for Clerks 3 and
4 "bear hardly any resemblance whatsoever to the jobs done
by the grievor" and that "there are no class standards which
do fit their jobs." The Board in that case reviewed the various
evaluation criteria in the Classification Guide and, with
the exception of decision making complexity and supervision
received, decided that the duties actually performed by the
82.
grievors could not be found to fall within any of the other
evaluation criteria.
Finally, in Berry, the Board states (at page 5)
that "where no class standard bore much resemblance to the
grievor's job, the Board has shown a willingness to find a
'best fit'" and cites Woodcock and Van Alstine and Cassir
as examples.
should be used "sparingly".
The Board in Berry also observed that this approach
All of these cases suggest a measure of caution
in the Board in the application of this test. Further, when
one examines the particular factual context in which the best
fit approach was applied, it appears that the particular duties
performed by the grievors in those cases really were of a
sort which simply could not be said to fall within any existing
classification. Thus, in Hooper, the grievor's duties involved
him in developing a cataloguing system for items purchased
by the Government, in cataloguing purchased items, in maintaining
a card file, in maintaining a system of codes which permit
control of funds spent and, in general, providing information
and organizing information in various ways which would assist
the purchasing functions. However, the Board noted, that
the grievor did not purchase anything and as such, could not
be found to fall within the class definition and characteristic
duties of purchasing officers.
83.
Perhaps a clearer example is to be found in Cassir.
There the grievor was a "watchman" with limited maintenance
responsibility whose duties required him to man the inquiry
desk', to patrol the premises for security purposes, to receive
and deliver mail from the warehouse, to switch lights on and
off, to lock and unlock doors, etc. The two relevant classifi-
cations were that of Warehouse Person 2 and Warehouse Person
3. The typical duties of a Warehouse Person 2 included loading
pallets, loading and unloading liquor box cars, warehouse
operations duties, cleaning, operating the bottling line and
performing maintenance tasks. The typical duties of a Warehouse
Person 3 included checking, transporting loads, loading and
unloading, warehouse operations, operating the bottling line,
maintaining equipment, examining damaged cases and performing
the duties
of a chauffeur or driver. It would be very difficult
indeed to see how either of those classifications was appropriate
to the duties actually performed by the grievor.
Similarly, in Woodcock and Van Alstine, the duties
performed by the grievors, each of whom were involved primarily
in the operation of photocopying equipment, could not be said
to bear much resumblance to the evaluation criteria set out
for either the Clerk Grade 3 or Clerk Grade 4 positions.
It would appear that the instant case is not really
one in which it can be said that either classification, PO2
t
84.
or P03, is one which is "inappropriate" or "inapplicable".
It is not the case that the duties actually performed by the
grievors do not find some reference point in either of the
two classifications.
duties have changed to such an extent that they can no longer
be found to fit within the PO2 classification, there is an
available classification, that of P03, which in certain respects
does cover their duties.
While it may be the case that the grievors'
The case before this Board bears certain similarities
to Berry. In Berry, the duties of the Income Maintenance
Officer, who had been classified as a Welfare Field Worker
1 and who sought classification-as a Clerk 6 General, had
become more complex over the years and had come to require
the exercise of a greater skill and judgment. The Board found
that insofar as the Income Maintenance Officers, were no longer
engaged in information gathering, which was appropriate for
the Welfare Field Worker 1 classification, but were involved
in some eligibility determination, they were improperly classified
as Welfare Field Workers. The Board also found that the Income
Maintenance Officers fell within the Clerical series, 'but
also found that, given their duties and given the class standards
for the Clerk 6 General classification, they could not be
classified at that level. Thus, the Board regarded the clerical
series as a classification available to the grievors, but
could not find that their duties brought them within the Clerk
85.
6 level.
to use the "best fit" approach.
In approaching the case in this way, the Board declined
We also decline to use the "best fit" approach in
the matter which is before us.
CONCLUSION
Thus, we have arrived at the situation where we
find :
1) that the PO2 standard is inappropriate to describe
the actual job duties
of all of the grievors
at the time of the grievance; and
2) that those duties do not bring the grievors either
on a standards or a usage approach within the
PO3 classification; and
3) that this is not an appropriate case for using
the "best fit" approach in such a way as to
bring the grievors within the PO3 classification.
As the Divisional Court has stated in Berry and
Canning (supra) we are not permitted to dismiss the grievances
and simply "confirm" the grievors in their existing classification.
A breach of the collective agreement has been established
to our satisfaction and the grievors are entitled to a remedy.
They are entitled either to be placed in some other existing
and appropriate classification or to be re-classified in a
newly created classification.
86.
We were not informed as to any other existing classifi-
cation that might be appropriate. Consequently, we have no
basis for placing the grievors in a classification other than
the one claimed. Nor do we read Berry or Canning as stating
that the Board itself could create the classification into
which the grievors should be placed. Indeed, that would appear
to fly directly in the face of Section 18(1) of the Act under
which we derive our jurisdiction.
Consequently, what we are left with is an order
directing the Employer to classify the grievors properly having
regard to their duties. We
so order.
However, it would not be sufficient to leave the
matter at that. In view of the fact that any re-classification
which is affected pursuant to this award will be subject to
challenge through the grievance procedure, we believe that
we, as a Board, should indicate for the assistance of the
parties, those factors which we find to be of particular signifi-
cance and those which we regard as less compelling.
We recognize that none of what follows can be regarded
as binding on the parties. Our role is to decide disputes
and we are not a classification tribunal. However, we believe
that our exposure to this issue through these lengthy proceedings
permits us to record our own views with the hope and intent
87.
that it will assist in the selection of an appropriate classifi-
cation for each of the grievors. In this regard we wish it
to be understood that we do not necessarily regard it to be
the case that all of the grievors should be put in the same
classification. The evidence indicates substantial differences
in the types of duties and responsibilities performed by the
various grievors in this case. For example, it occurs to
us that the duties performed by
Ms. Wickett and Mr. Summers
are so different as to defy comparison. Thus, the extent
to which the various factors which we propose to outline below
come together in a particular job may well vary significantly
as between different grievors.
We regard the following factors to be significant
and important.
1. Extent of involvement in the distribution of
the work load among other P02's.
The evidence outlined a variety of different ways
in which the distribution
of work load is accomplished in
different offices. For example, Mr. Hurge, as a member of
the Intake Assessment Unit at Ottawa West, spent a significant
proportion of his time in this kind of duty and carried a
relatively small case load. This factor is exhibited to a
lesser degree under the Assessment Classification Committee
88.
described by Mr. Park and the weekly team meetings described
by Mr. Charles. Further along this spectrum is the assignment
of cases by a Duty Officer on a rotating basis. (See the evidence
of Ayres).
2. Degree of contact with the Area Manager.
Again the degree of contact varies among the various
grievors. Mr. Summers, working in a satellite office, had
very little contact with his Area Manager. Mr. Charles' Area
Manager was away for 60% of the time and Mr. Ayres' Area Manager
was away for only 4-5 days per month.
3. Extent and nature of involvement with volunteers,
students and agency personnel.
Once again the extent of this involvement varies.
Mr. Summers who worked in a small office but which delivered
essentially the same range of services as would be delivered
in a larger office had extensive involvement in the negotiation
and implementation of community based projects, in the design
of volunteer training programs and in the daily informal training
and "supervision" of volunteers. Ms. Wickett only dealt with
volunteers but they were 9 in number and did half of the interviews
conducted as part of the Court Liaison Program. Mr. Park
was involved in the training and supervision of volunteers
89.
but had little or no involvement with agency personnel while
Mr. Ayres "supervised" agency staff but had little contact
with volunteers.
We regard the following factors as carrying less
significance.
1. The size and nature of the case load and the
specialization of officers in various types of service delivery.
While the case load has changed both qualitatively
and quantitatively, those developments have not changed the
essential nature of the job significantly. As probation officers
the grievors continue to perform the essential duties of diagnosis,
assessment, supervision and enforcement. What has changed
is the number of clients they supervise and the particular
circumstances in which they continue to carry out their essential
probation officer functions. We do not see the volume
of
the case load or the fact that these functions have come to
be performed by certain officers in respect
of a certain type
of case, e.g., mental health, drug/alcohol, restitution, CSO's,
parole, etc. as impacting in any fundamental respect on the
appropriateness of their classification as P02's.
2. Involvement in community teaching, community
projects, in-house seminars; etc.
90.
We regard these duties as essentially peripheral to
the main core functions of the job and of such a character that
they should not be given significant weight in the determination
of an appropriate classification.
Before concluding, we feel obliged to comment on certain
matters which have made this case extraordinarily difficult.
We applaud the decision of the parties to attempt a "consolidation"
of these grievances through the selection of six "representative"
grievors. However, as the evidence has, in our judgment, indicated
the six "representatives", although all classified as P02's,
performed a quite different range of duties depending on where
they worked, on how the local offices in which they worked were
organized to deliver probation and parole services, on the nature
and extent
of managerial supervision of their activities and
on the nature of the clients who came under their supervision.
Given that the actual duties varied
so considerably as between
the grievors, the search
of a common denominator that might form
the basis for determining their appropriate classifications became
difficult.
Secondly, considering that the essence of the Union's
case was that the class standards had become seriously outdated
since their establishment in the early 1960's, the Board heard
evidence which attempted to describe the evolution of the probation
and parole officer jobs over a period of almost a quarter of
a century!
Various panels of this Board have often been critical
of the fact that unrevised classification standards have not
kept up with the realities of particular jobs. We share that
view. Where, as here, the process of change has occurred over
a period of 25 years, without revision of the class standards,
the evidence necessary to document that change was voluminous.
In this regard, the decisions of the Courts in Berry
and Canninq are, with respect, to be welcomed. The Board need
no longer
wrestle with the difficulty of comparing the incomparable.
It can effectively order a revision of obsolete standards. To
the extent that the Board takes up that invitation, the kind
of problems which we have found in this case will occur less
frequently.
In summary, all of the grievances are allowed and
it is hereby declared that the Employer classify the grievors
properly.
DATED at London, Ontario, this loth day of October, 1986
G. J. Brandt, Vice Chairman
"I dissent In part" (see attached)
S. Kaufman, Member
"I dissent" (see attached)
D. B. Middleton, Member
DISSENT IN PART
I have reviewed the Vice-chairman's Award and concur in
the main with its findings; however, I am unable to concur with
the remedy proposed.
The Union sought reclassification of these employees or
alternatively, changes to the existing classification system, or
a
new classification system for years prior to the filing of
these grievances. The Union's requests were not honoured by the
Employer.
In view of the history of no action having been taken
by the Ernpoloyer, despite the patently outmodedly Class Standards
in this Series, the .declaratory remedy is insufficient.
In my opinion, the appropriate resolution would have been,
in view of the ample evidence with respect to the functions of each
Grievor who gave evidence, to have applied the "best fit" or "analogy"
approach to the evidence and the Class Standards. Applying that
approach I would have reclassified each of the Grievors who gave
evidence as P03.
I have come to this conclusion in view of the following
criteria :
a) the sophisticated level of counselling and admini-
strative skills and experienced utilized by each of the Grievors who
gave evidence;
b) the high degree to which each of the Grievors
who gave evidence supervises his or her own caseload;
.2
2
c) the proportion of time and high degree of auto-
nomy exercised by some
of the Grievors who gave evidence in initiating
contacts with and negotiating contracts with outside agencies for
their services (in my opinion, the fact that ultimate signing authority
rests with the Grievors' superiors does not diminish this responsbility
substantially);
d) the high numbers of volunteers and students,
both
summer and on placement, supervised by the P02s who gave evidence;
e) the fact that responsibility for the volunteers'
and students' actions in supervising probationers and parolees and in
other functions rests entirely with the supervising PO;
f) the numerical increase in the Grievors' caseloads
and numbers of contacts with probationers and parolees, whether the
caseloads are active or not;
g) the high degree of managerial responsibilities
undertaken by each Grievor who gave evidence, including self-assign-
ment of cases and assignment of cases to peers;
h) peer supervision regarding caseload planning and
strategy, and preparation for examinations;
i) the amount of responsibility each of the Grievors
carries on an individual basis in the context of the communities that
they serve.
S. D. Kaufman
Union Nominee
DISSENT
Case: 203/84
Re: B. ANGUS ET AL. OPSEU
and
CROWN/ONTARIO (MINISTRY OF CORRECTIONAL SERVICES)
I have read with great interest and disappointment the
decision of the Chairman of this Board and I would
agree with his conclusion namely items (2) and (3) at
page 85 and no further comment needs to be made i.e.:
that those duties do not bring
the grievor
either on a standards or a usage approach
within the PO3 classification, and
that this is
not an appropriate case for
using the "best fit" approach in such a way
as to bring the grievor within the PO3
classification".
"(2)
(3)
However, I do not agree with the first conclusion,
i.e.:
"(I) that the PO2 standard is inappropriate to
describe the actual job duties of all of the
grievors at the time of the grievance;"
for the following reasons:
1. The existing class standard for Probation Officer 2
sets out in broad and abstract terms the level,
nature and kinds of responsibilities expected of a
working level probation officer. The standard is
titled Probation Officer and the class series
consists of 3 levels i.e. PO1 (training level); PO2
(working level); and PO3 (supervision level).
2. The PO2 standard does not contain, nor is it
intended to contain, a detailed itemization of each
and every duty expected of a probation officer. A
classification standard is not intended to be a
position description, rather its intent is to
reflect in broad terms the duties and responsibilities normally expected of a working level probation
officer. Our chairman, it would appear, has failed
to understand this important point.
Case 203/84 Page 2
On the evidence it was clear that the duties performed
by the grievors and not specifically noted in the PO2
standard would best be described an incidental,
peripheral, episodic and taken together do not occupy a
significant portion of their working time. Similarly,
those duties noted in the standard that are no longer
applicable, taken together, do not detract from the
essential duties and level of responsibility expected
of a working level probation officer. The fact remains,
as the Chairman states at page 72, that:
"Within the context of his/her particular specialty,
whether it be restitution cases, CSO's, drug/alcohol
cases, mental health cases or parole cases, the
officer essentially performs the various functions
which Mr. Parker characterized as constituting
the provision of probation and parole services.
These were assessment and diagnosis, preparation
of a supervision plan, follow through on compliance
with the order. These are the core functions of a
Probation Officer...." (emphasis mine).
In other words on the evidence the core functions
of a
Probation Officer 2 have not changed significantly, if
at all, over the years. As the PO2 standard states:
"This is corrections work performed under general
supervision in the provisional probation program...
these employees carry out a wide variety of adult
and juvenile probation services" (emphasis mine).
In my opinion the nature of the work expected of a PO2
namely the duties and responsibilities, has remained
essentially the same. The organization of the work and
the way it is performed has changed but not the work or
level of responsibility itself.
3. At page 69 our Board chairman concludes that "the
PO2 standards do not adequately reflect the nature
of the job now performed by the grievors"; at page
85 the words used are "...the PO2 is inappropriate
to describe" and at page 91 he leaps to the
conclusion that it "...need no longer wrestle with
the difficulty of comparing the incomparable". At
no point does the Chairman of the Board conclude
that the PO2 standard is no longer applicable to
the grievors.
Case 203/84 Page 3 CROWN EMPLOYEES
GRIEVANCE SETTLEMENT
I BOARD
This was not a case wherein the Board was required to
compare apples and oranges nor was the Board being
asked to compare the duties of the grievors to a PO2
class standard that was so out of accord with reality
as to fly in the face of any standard of common sense.
The primary question before the Board was whether or
not the grievors were properly classified as is. That
was the matter to be decided, not the adequacy of the
PO2 standard.
The logical and informed conclusion is that the grievors
are properly classified as P02's but the class standard
for PO2 requiries revision and updating. These
grievances ought to have been dismissed. In my opinion
the Chairman has not answered the question before this
Board.
4. Respecting Berry, and as emphasized by Professor
Brandt in his award the divisional court stated:
'The question that does arise is whether the board
had power to require the employer to find or create
a classification for the grievors. I think it had
that power “
In my opinion the Board Chairman has misread and
misapplied the Berry decision in this case. This is
not a case where Berry t at question is raised.
evidence there is no need to find or create a
classification for the grievors. They are clearly
working level probation officers and the employer has
in place a class series and class standards entitled
Probation Officer that sets out the duties and
responsibilities that the employer expects of such
jobs. It seems to me that finding or creating is quite
different than revising the existing applicable
standard.
On the
Regarding the latter, a particular concern I have is at
what point, circumstances or conditions does one conclude
that the employer's class standard is no longer
applicable? In this case the Chairman of this Board
has drawn a conclusion based primarily on incidental or
peripheral duties that the current PO2 standard is not
applicable while the core duties remain largely
unchanged. Surely such a conclusion ought to be based
on major and substantial changes to core duties that
alter the very character of a job. That could not be
said in this case and I do not believe that the intent
of the divisional court decision was to give the board
license to unnecessarily bring havoc to the employer's
classification system or its standards.
Case 203184 Page 4
At page 91 the Board Chairman concludes:
"...the Board need no longer wrestle with the
difficulty of comparing the incomparable.
effectively order the revision
of obsolete
standards.
that invitation, the kind of problems which we have
found in this case will occur less frequently."
It can
To the extent that the Board takes up
Pursuant to Section 30(1) of the Public Service
the Civil Service Commission has the specific authority
to prescribe methods of evaluating and classifying
positions. Thereby, the Grievance Settlement Board has
no jurisdiction to order the Civil Service Commission
to revise or create any classification standard for any
reason. I concur with Chairman in his clear
acknowledgement that the Board lacks jurisdiction and
authority in this regard, and in the fact that he stops
short of ordering the Commission to revise or create
any standards. I also concur with the comments of
Professor Brandt respecting Section 18(1) of CECBA, at page 86).
Act,
6. This award states at page 87:
"...in this regard we wish it to be understood that
we do not necessarily regard it to be the case that
all of the grievors should be put in the same
classification.
I believe the overall tone of this unsupported decision
may unrealistically raise the expectation of the
grievors that they will be placed in a higher
classification, as opposed to a revised PO2
classification.
may in fact not be the end result, and in fairness to
the grievors and the relationship of the parties this
point ought to have received greater emphasis and
attention.
Allocation to a higher classification
Finally, the grievors claimed in their grievance
statement that they were "improperly classified as
Probation Officer 2" and they sought "reclassified as a
Probation Officer 3".
grievances for reasons previously stated.
Chairman of the Board has decided that the PO3
classification is not applicable to the grievors their
grievances at best have only been allowed in part.
I would have dismissed all the
Since the
Donald B. Middleton
Board Member