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HomeMy WebLinkAbout1984-0226.Bakker et al.86-03-25IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Be.fore : THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU et al (Carolyn Bakker, .I Grievors - and - The Crown in Right of Ontario (Ministry ,of Health) Before: E.B. Jolliffe Vice-Chairman j. Smith Member G: Peckham Member For the Grievor: For the Employer: M;.I . Rotman Counsel Rotman, Zagdanski R.F. Rey Regional Personnel Administrator ' Ministry of Health Hearings: August 13, October 25 and 26, December 3, 1984. January 30, 1985. DECISION .In this case 16 employees of the Ministry of Health at London, Ontario,, grieved in February, -1984, that they are improperly classified "Clerk 3 General" and that they should be' re-classified "Insurance Represe~ntative" in the Administrative Services Category. This grievance is made possible by Section 18(2)(a) in. the Crown Employees Collective Bargaining Act and by Article 5 in the agreement between Management Board of Cabinet---and Ontario Public Service Employees Union which was--:still in force through- out 1984. The first two clauses in Article 5 are: 5.1.1 5.1.2 An employee who alleges that his position is improperly classified.may discuss hiss claim with his immediate supervisor at any time, provided that such discussions shall not be taken into account in the application of the time limits set out in Article 27 (Grievance Proce- dure). An employee, however, shall have the right to file a grievance in accordance with the grievance proce- dure, specifying in his grievance what classification he claims. In the case of any grievance filed under the above section, the authority of the Grievance Settlement Board shall be limited to:. (a) confirming that the grievor is properly classified in an existing classification, or (b) finding that the grievor would be properly classified in the job classificat,ion which he claimed in his grievance. 8 - 2 - The grievance of -MS- Caroiyn H. Bakke.r, Exhibit 2, dated February 8, 1984, put the case as follows: I grieve that my position as Clerk 3 General (Customer Services Clerk) is improperly classified. The redress sought was the following: My position be re-classified to Insurance Representative Y... in the Administrative Services Category, with retro- active pay to January 1, 1982. All of the other 15 grievances are to the same effect with minor variations in wording. Hearings in this case began in .August, 1984, and continued .i-nt~b 1985. For reasons to be explained, it was not thought proper to issue a decision at an earlier date in 1985. It is necessary to consider first and foremost two basic documents: (11 the sta~ndaid’ for the classification “Clerk General 3” , the grievors’ present classification,, and, (2) the Sta,ndard for “Insurance Representative,” the classification sought by the grievors. Thereafter, in the light of those two documents, it will be necessary to consider the actual duties and responsibili- ties of the grievors, as established by the evidence. The standards appear on the next two pages hereafter. -? ‘I - 3 - -. .~ CLERK 3 GENERAL CLASS DEFINITION Employees in positions allocated to this class, as "journey-man clerks", perform routine clerical work of some complexity according to established procedures requiring a background knowledge of specific regulations, statutes or local practices. Decision-making involves some judgment in the selection of alternatives within a comprehensive framework of guidelines. Initiative is in the form of following up errors or omissions and in making'corrections as necessary. Doubtful matters not covered by precedent are referred to supervisors. Much of the work is reviewed only periodically, principally for adherence to policy and procedures. Typical tasks at this level include the preparation of factual reports, statements or memoranda requiring some judgment in the selection and presentation of data; assessment of the accuracy of statements or eligibility of applicants, investigating discrepancies and ~securing further proof or documentation as necessary'- overseeing, as Group Leader, the work of a small subordinate staff by.explaining procedures, assigning and checking work. This is a terminal class for many positions~ involving the ~~ . competent performance of routine clerical work common to the office concerned. QUALIFICATIONS: ‘1. Grade 12 or an equivalent combination of education, training and experience. 2. About three years satisfactory clerical experience. 3. Ability to understand and explain clerical procedures and require- ments: ability to organize and complete work assignments within prescribed time limits; ability to maintain good working relation- ships with other employees and the public served. Revised December, 1963 R r; -4- . INSURANCE REPFLESENTATIVE '~' CUSS DEFINITION: This classcovers positions of those employees in the Health Insurance Registration Hoard (HIFB) who,.under the general direction of a District Supervisor, check mandatory and collector group records and payrolls for compliance with the applicable Regulations under the Hospital Insurance Act. These employees also provide advice and assis- tance to facilitate the registration'of ,eligible persons under the. Hospital Insurance Act and to register and service employers on a group basis under the Medical Services Insurance Act. Although on their own while in the field these employees work within carefully prescribed guidelines. Their main function is to visit various groups on a scheduled basis to ensure the proper collection and forwarding of premiums, and to resolve specific insurance problems. These employees may also lay charges, collect evidence, and appear as witnesses for the Ontario Hospital Services Commission (OHSC) where legal action is being taken with respect to contravention of OHSC Regulations. . . These employees provide advice and assistance to facilitate regis- tration of eligible persons by staffing exhibition and conference booths, attending and addressing meetings of the public., .and visiting any eligible groups to provide information on insurance benefits and registration~'requirements. QU=.LIFICATIONS: 1. Grade 12 or equivalent combination of education, training and experience. 2. Several years of responsible clerical experience, preferably gained in an insurance setting, or an equivalent combination of experience and higher education. 3. Mathematical aptitude for checkin~g financial transactions in bookkeeping and payroll functions: ability .to communicate effectively with the public and management with emphasis on sales and service; tact; personal suitability. March 1968 F -5- In the light of the two~standards, it will be necessary to consider the actual duties and responsibilities of the grievors~, as established by the evidence. Parts of that evidence are to be found in the Position Specification of the grievors, Exhibit 5, and the Position Specification of the Insurance Representative, Exhibit 6. ."~Other important documents are the Agreed Statement of Facts,.~ Exhibit 8, and the Job Audit, Exhibit 7, undertaken in 1983 as well as amendments thereto, such as Exhibits 9 and 10. The current Position. Specification of the grievors, dated February 11, 1982, was signed by Mr. J.M. Davis, District Director, and also by Mr. T.J. Reader, "Exec. Co-ord, District Ops." It gives the "Position Title" as "Information and Assistance Clerk; London Customer Serv,ice Office," and the Immediate Supervisor's title as "Group Leader, Information and Assistance." The work is done in the Health Insurance Division (commonly known as OHIP) Operations Branch, and it is said that in 1982 there were 15 incumbents. The "Purpose of Position" was then described as follows: To respond to the needs of the general public, Bospital Personnel, Practitioners and Group Administrators in the registration of all eligible persons. To provide a comprehensive service whereby all written, telephone, in person communications from the general public concerning all aspects of the Ontario Health Insurance Plan and related government programs can be directed or resolved. 3 g -6- -; i. Then came a lengthy "Summary of Duties and Responsibili- li ties," placing beside each ~"function".a percentage figure for the time spent. Whether or not the Summary is wholly accurate, it has such importance that it must be quoted in full. 1. Provides general information/assistance regarding other Ministry of Health programs and resolves enrplment problems for the general public, groups, hospitals and practi-tioners by: - analyzing problems by. asking questions, check~ing relevant 'documents; determining corrective action, insuring follow-through and that disposition is provided to source; 40% - assisting subscribers/group adminis~trators in completing appropriate forms i.e. Temporary Assistance, Premium Assistance; - communicating by telephone, in person and in written.form to all inquiries concerning general information, enrolment/eligibility matters: - liaising with related areas to clarify information/resolve problems regarding group accounts pay direct, hospital claims etc.' --approving, assessing and coding of non-group applications, issuing and controlling of OHIP numbers: determining eligibility for coverage adjustment amounts and refunds required; - obtaining update information by accessing on-line data base on files, fiche, etc.: - referring more difficult inquiries or problems to Supervisor for decision or opinion i.e. if subscriber or Group Administrator becomes irate. 2. Reviews claims rejecting for eligibility reasons andgenerates appropriate correspondence. Investigates/actions communications resulting fromclaim Eligibility letters by: - applying the reinstatement policy to enable claims on lapsed coverage to be paid: 30% - communicating with the general public, hospitals, practitioners, group administrators re eligibility status; ,r - 7 - ----I - updating eligibility/file records upon receipt of premiums, status changes, new information; - assessing applications for Premium Exemption for accuracy, verifying quest,ionable information supplied, calculating eligibility based on taxable income; allowable deductions etc; - preparing SAS update documents for data processing, correcting rejects, resubmitting as required. 3. Investigates/actions rejected In-Provi~nce hospital admission/discharge forms. - determining subscribers eligibility forbenefits; 20% - communicating with the subscriber/hospital re eligibility/validity problems: > - approving/rejecting claims and referring contentious cases to Group Leader. 4. Performs cashiering functions-for the office by: - accepting and issuing receipts of premium payments; insuring that cheques received are properly completed i.e. body'and figures, amount, date, etc. - calculating and accepting premium arrears and adjustient payments; - posting and balancing daily payment transactions; 5% - recording premium collections on SAS Data Input form for keying purposes, completing daily walk-in inquiry deposit slip for Head Office balancing purposes; - Preparing daily bank deposits by, counting, listing cash by denomination, totalling cheques, etc.; - maintaining a cash reserve, reporting discrepancies in monies immediately to Supervisor (subject to periodic audits). 5. Performs other related functions such as: - maintaining daily production reports: 2 participating in public functions i.e. University registration, seminars and public information groups upon request; 5% - typing and issuing replacement of OHIP Identification cards in accordance with security regulations; - insuring all confidential material/information, claims, computer documents are secured in locked cabinets at day's end; - acting as Group Leader as assigned; - as assigned. The Position Specification concluded with a paragraph headed "Skills and Knowledge Required to Perform the Work", as follows: Excellent oral and written communication skills; excellent analytical skills; ability to handle conflict situations; thorough knowledge of enrolmentpolicy;procedure and benefits: several years progressive work related experience, preferably in dealings with the public;-'diplomacy, tact and gocd inter-personal skills; ability to type not to CSC Standards an asset. At the foot of the first page of Exhibit 5 appears an item numbered 6 and headed "Class Allocation ": presumably pre- pared after study of the "Position Specification." It was signed by Mr. R.F. Rey, "Authorized Evaluator,!! and date-d April 9, 1982. Mr. Rey also appeared at the hearings of this case as the spokes- person for the Employer. The reasons given for the allocation of "Clerk; 3 General" were the following: Performs routine clerical work of some complexity requiring a thorough knowledge of OHIP enrolment policies, procedures and benefits. I . ,i -9- Decision making involves"some judgement in resolving a variety of problems associated with OHIP enrolment e.g..lapsed Coverage, rejected hospital admission and discharge reports etc. Exercises initiative when liaising with other areas of OriIP to clarify information; when communicating with general public, hospitals, etc. to ascertain eligibility status etc: Since the work of the Information Services Clerk must be compared with that of the classification sought, i.e. that of the ~."Customer Service Representative," classified "Insurance ~~.. Represen,tative," it.is now necessary to refer to the Position Specification and Class Allocation of the latter, Exhibit 6, completed in February, 1982. There are said to be two incumbents of this position in the London District Offices; Actually, there was only one in 1984 and 1985. The "Purpose of Position" is stated as follows: To check and service mandatory and collector group records and payrolls to ensure that they comply with Regulations under the Health Insurance Act; to assist group administrators in the registration of new groups; to assist Hospital Administration in the accurate submission of Admission and Discharge forms: and, as required, liaise with,and provide CHIP information to the ge~neral public. The "Summary of Duti necessarily lengthy and detailed, ies" is es and Responsibilit as follows: -lO- 1. Ensures that mandatory, collector groups comply with applicable Regulations under the Health Insurance Act by: -visiting assigned group administrators on a regular basis to ensure that the correct premiums are being remitted as required, and that all eligible persons are properly insured or legitimately exempted through checking a positive listing (GCL)-of insured persons in the group against the appropriate payroll; -providing a continuing educational program to ever-changing group administrators as revisions are made in benefits, rates, rules and regulations, and as procedures are up-dated. I -resolving problems pertaining to arrears, refunds, status changes, 55% -unaccounted for employment, unpaid premiums and rejected claims encountered by group administrators; -collecting unpaid group premiums as requested by the group collections' officer; -registering new groups on request or as they becane mandatory; -working with the Labour Relations Department i,n,.,$foviding an,. information and enrolment service to organized labour; -following up on group cancellations to ensure that accounts are properly reconciled and groups closed out in accordance with ~legislation and regulations; -collecting evidence in situations where legal actions may be required to enforce OHIP regulations; -working with employers to help resolve problems concerning incorrect certificate of Payment forms. 2. Ensures that assigned hospitals, maintain efficient, effective systems and procedures to enable them to report accurately and promptly as required by the Ministry under the various in (sic) order to pay for insured services and determine future Health - Care needs by: -visiting with administratorsand other.key personnel on a regular basis to discuss their responsibilities; -holding meetings with those involved to resolve reporting and related problems; 25% -referring unsolved problems to the responsible Branch or Department (Operations) Ambulance Service,s Group Accounts, Pay Direct Institution Operations etc.); -operating with these areas by bringing their problems to the attention of personnel in Hospitals; -creating a good rapport between all concerned personnel within the Ministry and Hospitals and maintaining a good rapport between all con- cerned personnel within the Ninistzy and iiospitals. 3. Provides general information regarding the Plan by: -attending public meetings, conferences, etc. to explain insurance benefits and registration. requirements; -visiting institutes of learning to advise students of registration requirements on reaching age 21, and premium assistance facts; 10% -assisting the enquiry services area (when circumstances dictate) in the disseminationof pertinent information to the general public in person, by telephone or in writing. c- i - ll.- 4. Performs other related duties such as: -completing daily call reports, mileage reports, week reports; :ly planning 10% -carrying out special investigations and preparing appropriate reports; -as assigned. The "Ski also be quoted: .ll s and Knowledge Required" in paragraph 4 must A thorough knowledge of the Health Insurance Act and Regulations and related legislation, practices, and procedures; an aptitude for accounting and a knowledge of payroll procedures an asset; good written and oral communications skills, publics relations skills, initiative, tact and good judgment. In April, 1982, Mr. Rey gave the "Class Allocation" of "Insurance Representative," for the following reasons: . Under the general direction of the Supervisor, Customer Services, checks mandatory and collector group records and payrolls for compliance with the applicable Regulations under the Health Insurance Act. . Provides education and service to personnel in assigned hospitals, doctors' offices and other Health-care facilities to facilitate the payment of insurance claims. Provides advice and assistance in registering new groups and provides OHIP information to general public as required. At the outset of hearings in this case, the Soard received a Statement of Facts agreed to by the parties, as follows: 1. 2. 3. 4. 5. 6. - 12 - The grievance is properly be.fore the~Board and there are no preliminary matters. ,~ All sixteen (16) grievors are employees at the Ministry of Health and at all pertinent times are in the position of "Information and Assistance Clerk" London Customer Services Office. The Job Audit submitted by the employer was completed and agreed to~by one of the grievors in February of 1983. The Job Specifications of 'the respectivepositions are part of the current official records of the employer. The class standards submitted as exhibits are official class standards. Al.1 the grievors are essentially performing the same job. 1 i,; As previously explained, the 16 grievors are all classified "Clerk 3 General," and they seek reclassification as "Insurance Representative." The Employer's spokesman, Mr. Rey, said the latter classification has only one level and is unique; i.e. it exists only in the OHIP offices of the Ministry of Health. When he added that there is salary differential of $8,000 per annum between the two classifications, the Union's counsel, Mr. Rotman, objected that such considerations are ,,. irrelevant. In argument Mr. Rotman also suggested it is not without significance that all of the grievors are women and the only Insurance Representatives mentioned at the hearings are men, which may or may not be relevant. The principal witness called by the Union was Ms. Ann Tavares, an employee with 13 years' experience in OHIP. She had .L. - 13 -' participated by way of,amendments in the final version of a job audit (Exh~ibit 10) drafted originally by Ms..,.,Sally Kelly, a -Personnel Officer in the Ministry of Health, which is Exhibit 7. Ms. Tavares testified for two and one-half days. She showed a thorpugh grasp of all the duties of her position and a remarkable lucidity Ian explaining them. Her experience has included the training of new employees and the authorship of Exhibit 20, which is in effect a manual of "Information Services Enrolment Procedures" and an "Enrolment Policy Work-Book," Exhibit 20.~ The qualifications of the witness were noted in the "Employee Appraisal and Development Guide," Exhibit 12, signed in February, 1984, by the Manager of Cu.stomer Services in the London .-District Office, Mr. Dennis Dickson, in which he said: Ann displays an excellent understanding of OHIP Regulations and enrol- ment policy. Has participated in the training of many of the Customer Service staff. . . . . . Approaches daily routines methodically. Organizes work according to priority and maintains set standards. . . . . . Remains composed at all times. Explains herself rationally, in terms that are easy for the customer to understand. . . . . . - 14.- Uses sound judgement in the decision-making process. Systematically -evaluates unusual situations and solves problems in a knowledgeable fashion. . . . . . Eagerly seeks new information that will facilitate her job. Easily grasps new concepts and frequently acts on own initiative. . . . . . . . Displays a keen interest in doing a good job. Willingly shares her knowledge with others. Appearance is always neat and business-like. . . . . . . -Excellent attendance. Shows an air of self-confidence. Is able to functions as an independent. . . . . . Able to communicate well, both orally and in written form, perhaps best demonstrated by a talent for training new individuals. . . . . . Ann is one of the original Customer Service staff and as such has acquired an extensive knowledge~of the inner-workings of the area. She i,~, continues to be of great value to the London operation. . . . . . I would hope that Ann will continue to pursue an active interest in OHIP, but more importantly, continue to shared her experience with others. It is no reflection on Ms. Tavares and her very enlight,ening testimony when we do not find it possible to review that testimony in detail. To review itall.would reauire a book- length decision, not appropriate in this case --- for reasons to be explained. Suffice it to say that Information and Assistance Clerks are required to deal daily with an immense variety of - 15 - problems raised by members of the public, group plan adminis- trators, employers, employees and former employees, hospitals and physicians and their staffs. This is due in part to the fact that the Act, the Regulations and the Ministry's policy guide- lines are very'complex~and a,lso to the fact, that employment and social and economic conditions in our society are far from.being stable or unchanging. To cite only one example: what is to be done whe~n a married working couple are both laid off but at different dates, although one.or both have been enrolled for some time in a group plan? Or if both employers are bankrupt Andy have failed to pay OHIP? For this and many other reasons, the London Office of OHIP receives, according to Mr. Dickson, thousands.of inquiries by "walk-in" or telephone as well as processing about 750,000 ,claims ~per month. To do all this, Mr. Dickson has at London one Insurance Representative, responsible for over 2400 group plans (o,f which,almost a quarter are usually in arrears with their payments) two supervisors (now c,lassified Clerk 5 Ge.neral) 16 Information and Assistance Clerks, two cashiers, two query clerks, and a Control Clerk who distributes the mail and logs cheques received. It is futile to suggest that group adminis- trators should deal exclusively with the only Insurance Repre- sentative --- who is seldom in the office. They often telephone the clerks, who can always be reached. - 16 - Although there is no great dispute about the accuracy of the Position Specification, Ms. Tavares stressed that it fails tom cover all the work required. For example, one duty was said to,~ be: "assessing applications for Premium Exemption . . . calculating eligibility based on taxable income..." Actually, Ms. Tavares (until her grievance was filed) sat almost weekly on.an appeal committee to adjudicate on disputed claims' for exemption, .which certainly cannot be described as "routine clerical work." Other clerks have served on that committee from,time to tim~e. This and other responsibilities and proposed duties of the clerks were curtailed when they.presented ~their grievances in 1984. One result of the grievances was that Ms. Sally Kelly, a personnel officer with the Ministry, conducted a job audit. It . was notentirely satisfactory; for example she chose to base her report on interviews with the most junior incumbent, who had less than a year's experience. The Regional Personnel Administrator, IMP. Bryan Neale, then asked for comments on the Kelly audit. The Union insisted that all the grievers be present but Mr. Neale ~,_ succeeded in getting a number of amendments from Ms. Tavares and Ms. aakker. The last version of the job audit appears to correspond with ills. Tavares' explanation of the work ;equired, although she says she saw the Kelly audit "for the first time" when she met - 17 - Mr. Neale. It is impossible to do justice to that detail .explanation in the body of this decision. The job audi -~ however, has been of some assistance to us. ed t, Mr. Neale testified that he decided the classification of Insurance Representative was correct for Mr. Cutter, the only incumbent of that position in the London office. Mr. Neale concluded, however, that there are signifi- cant differences between the Insurance Representative's position and that of the clerks. the gave the following reasons: ( 1~) .The Representative spends 'most of his time out of the office and has little or no access to management when dealing with group plah administrators. Except when assigned to outside duties (such as enrolling students at the University of Western Ontario or attending meetings with hospital staffs) the clerks spend practically all their time in the office, with ready access to their Group .Leaders, who are supervisors recently classified C.lerk 5 General. (2) The Representative must ensure regular payment by the groups for which he is responsible and the collection of "* arrears from delinquents --- which can amount to more than one million dollars a week. The clerks have no such responsibility since they deal mostly with individual subscribers, hospitals and - 18 - physicians' offices, acting in accordance with detailed instructions in their manuals. (3) The Representative .is responsible for the establishment of new groups (mandatory where the employer has more than 15 employees) and,. for training and guiding ~,.. inexperienced administrators through the maze of OHIP requirements. The Clerks have no such responsibility, although they.may get telephoned inquiries from such administrators. The Board tends to agree with Mr. Neale's claim that there are significant differences between the two classifications: Insurance Representative and Clerk 3 General. This is not to say, however, that we can agree with Mr. Neale's second assertion, which is that the grievers are correctly classified Clerk 3 General. We have noted that --- notwith- standing the distinctions identified by Mr. Neale --- there are some close resemblances between the language used in the Repre- sentative's Position Specification and the Clerks' Position Specification. We note also certain differences between the Position Specification given the clerks in 1979, Exhibit 27, and the .~. revised version issued in 1982, Exhibit 5. For example, in 1979 the only reason for the allocation given by the evaluator (Clerk 3 General) was the following: - 19 - As journeyman clerks, incumbents perform routine clerical work of some complexity according to established procedures requiring a background knowledge of-specific local practices. Apparen~tly, the inadequacy of such reasoning was eventually recognized. There were changes made suggesting that the evaluators realized the position"had grown in scope and responsibility between 1979 and 1982, which is also our opinion. In 1982 the rea<&-(as previously quoted) became the following: ,I~ Performs routine clerical work of some complexity requiring a thorough knowledge of OHIP enrolment policies, procedures and benefits. ~L&cision making involves some judgement in resolving a variety of ,problems associated with OHIP enrolment e.g. lapsed Coverage, rejected hospital admission and discharge reports etc. Exercises initiative when liaising-with other areas of OHIP to clarify information, when communicating with general public, hospitals, etc. to ascertain eligibility status etc. ,z,.: The first reason above opens with the words "performs routine clerical work of some complexity." In light of all the evidence we doubt that "routine clerical work" is a fair or valid description. Of course'"routine clerical work" are key words in the Standard for Clerk 3 General --- appearing twice in that rather brief document. The Board became aware in 1985 that a large number of similar grievances have been referred to arbitration, some of which have been heard or part heard, and for that reason, we have - 20 - hesitated to issue a decision. However, in view of the conclusio~n we have reached it would no longer be appropriate to - : withhold.the result in this case. Apart from the documents in evidence, there was certain testimony about the work of,an .jnsurance Representative. Ms. 'Tavares could not say a great deal about it, but she made clear that many inquiries' from group administrators which'should probably be directed to the London Insurance .Representative are necessarily telephoned to the .clerks. .This is inevitable: formerly~ there were two Representatives at London, now there is only one, and he must work with at,least 2,400 groups. The Union called Mr. Emile Kehimkar, who is the Representative in the Oshawa area. He said that in his office there are only four or five Inf~ormation and Assistance Clerks --- an interesting contrast with the ~situation .at London. He,spends most of the week “on the road" and works from his residence. The essence,of the job, he said, is mostly "group-related", setting up new plans, training administrators and solving problems --- frequently those raised by bankruptcies. Other problems arise in connection with coverage of employees during prolonged strikes. Mr. Cutter, the only Representative at London, was not called to testify, but Mr. Dickson, the Manager of Customer i.’ - 21 - I Relations, had much to say about the job, little of which suggested that the Representative's work resembles that of the Clerks. It is important to keep in mind that inreality two issues were raised by the grievors iii this case: (1) they complained of being improperly classified as Clerk 3 General, (29 they asserted that their proper classification .would be that of Insurance Representative. Both issues turn on the application of existing standards. The la'nguage of Article 5L1.2 in the agreement purports to link the two issues together in a way which can deprive,the-Board of the capacity-to render a meaningful ._ decision. It is unlikely that this was the intent of Section 18(2) in the Crown Employees Collective Bargaining Act. After reading and carefully considering the standards for both classifications, we do not think it has been proved that, the grievors' position falls within the.standard for an.- Insurance Representative, although,at the same time we have serious doubts that it falls properly within the standard for a Clerk 3 General. The right to gr ieve against classification is of course a statutory right, enshrined as follows in Section 18(2)(a) of the Crown Employees Collective Bargaining Act: -22; (2) In addition to any other rights of griev~ance under a collective agreement, an employee claiming, (a) that hisposition.has been improperly classified .*... may process such matter in accordance with the grievance procedure provided in the collective agreement.,.... _ .;y :,. Nevertheless, the collectiv~e agreement in Arti cle 5.1.2 mow purports to restrict the authority of-this Board to "(a) .confirming that the grievor is properly classified in an existing classification, or (b) finding that the griever would be properly classified in the'job classification which he claimed in his grievance." We are of course aware of the Divisional decision in the Brecht case (1982) reported at 40 O.R. ( Speaking for the Court, Callaghan J. said at pages 145-6: Court's 2d) 142. : Where a right to grieve a particular matter is specifically recognized by legislation it ought not to be restricted absent a clear intention on the part of the legislature to do SO-~ The effec't of the board's decision herein is to restrict the right to grieve classification to levels within a particular class series. It denies a grievance for cross group classification or cross series classification. We see nothing in the Act justifying the limitation imposed upon the right given by section 18(2)(a) by the Board herein. On a classification grievance the Board is generally mandated to consider two matters, namely, whether or not the grievor's job measured against the relevant class standard comes within a higher classification which he seeks, and, even if he fails to fit within the higher class standards, whether there are 2 -23- employees'performing the same duties in a higher, more senior classification. The jurisprudence of the Board cited to us on this application indicates clearly that these matters have been conside,red by the board onclassificationgrievances. Such matters in no way infringe the management rights provisions of the Act. We are of the view that in dismissing this grievance the Board declined to exercise its jurisdiction under section 18(2)(a) of the Act. The Board was obliged to consider whether or not therievor was properly classified regardless of whether or not he claimed in his grievance a classification in a different series. The obligation of the Board was to measure the duties performed by the grievor against either the class standard or other employees performing the same duties. In failing to determinethesematterstheBoarddeclinedtoexercise the jurisdiction conferred upon it by the legislation. Part of the passage~above was quoted with approval by a differently Constituted Court (Reid, Steele and Anderson J.J.) in OPSEU and St. --- Lawrence College of App - lied Arts and Technoloqy -- (1984). What was clearly established in those cases is that an employee's claim to a different classification need not be within the same class series. In other words, the grievers in this case were not obliged to-claim reclassification within the "Clerical, Typing, Stenographic and Secretarial Series;" they were free to lay claim to the. Insurance Representative's classification. But this did not relieve them of the onus of establishing that their duties and responsibilities fall within the I.R. standard or are the equivalent of the duties and responsibilities carried by an 1-R. such as Mr. Cutter. We do not think the evidence in this case goes far enough to meet that onus. ‘L! - 24 - Returning to the problem raised by Article 5.1.2 in the agreement, we have taken note of'the opinionexpressed by psler J. in the Stephen Smith case :(237-81) when it reached the --- Divisional Court on No,vember 24, 1983. In quashing a Board finding that it lacked jurisdiction, the Court said: To the extent the Board based itself on the view that s.5 of the Agreement limits the operation of s.18(2), we believe they are wrong. That is an interpretation of the language of the statute it cannot reasonably bear. We do not find it necessary for the purposes of ,this application to constru?V. \ s.5 of the agreement standing alone. We are of the opinion that the Board declined its jurisdiction by refusing to hear evidence and to consider the grievance on its merits. .L ., In this case, the board 'is not declining jurisdiction. .We have heard extensive evidence and we have taken pains to consider the grievance on its mer-its. ,. Xearings extended over five days in 1984 and 1985. Testimony was given by five ~witnesses and 52 exhibits were admitted into 'evidence. Notwithstanding its bulk, the evide~nce as a whole is not satisfactory. As advanced by both* parties it was almost entirely negative in nature. Thus, the thrust of the brievors' evidence was to show that the actual duties and responsibilities of the grievors do not fall within the Clerk 3 General Standard. - ..~ :- R ,; ’ - - 25 - Similarly, the thrust of the Employer's evidence was to demonstrate, we think successfully, that the actual work does not -- fall within,the 1n;urance Representative Standard. ,..i. Further, it appears to us that the Employer's attempts to refute the testimony of Ms~: Tavares were not very convincing, consisting principally of expressions of opinion by management witnesses. By the same token, nothing.of any real weight was adduced to re,fute the-&mploy.e~r's evidence that the work is very different from that of fan Insurance Representative. _. The net result in our view is that the grievors have succeeded in casting doubt on the validity of their present classification, but adduced no evidence whatever in support of a different and mo're appropriate classification. That of the Insurance Representative is clearly not appropriate. Thus, even if it be assumed that 'the Act and the Agreement empower us to determine the appropriate classification, evidence is lacking~upon which we could make that.determination. For the reasons aforesaid, our view is that we are not declining jurisdiction when we conclude that there is not sufficient evidence to confirm the present classification or to hold that the grievors should be reclassified in the classification they sought. : - 26 - After considering all the evidence placed before us we are obliged to state our conclusions in two parts: (1)" We cannot' find that the grievors would be properly classified Insurance Representative; (2) We cannot confirm that the grievers are properly classified Clerk 3 General and we make no finding on that~issue. In the result, these 16 grievances must be dismissed. Dated at Rockwood this, ~25th.day of March, 1986. . .._. *-.~ . Vice-Chairman -- . . "I dissent' (to folidi]. J. Smith; Member . c 3 SCHEDULE A - List of-Grievors: Carolyn H. Bakker M. Faye Hardwick Joan E. Wickhain Patricia A. Hawkins Margaret Paul Dorothy McLean Anna L. Galloway Ann Tavares Wanda Urbanowicz Margaret 3. Kovacs LYonica Breman IYonica M. Price Kathleen E.~ Laurie Carmen Branchflower Margery Bell Patricia Pascuzzo