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HomeMy WebLinkAbout1984-0240.Goobie et al.86-02-18Between IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Betty Goobie, et al) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer Before: R. L. Verity, Q.C. Vice-Chairman P. Craven Member L. Foreman Member For the Grievor: M. Cornish Counsel Cornish & Associates Barristers & Solicitors For the Employer: J. P. Zarudny Counsel Crown Law Office, Civil Ministry of the Attorney General Hearings: November 2, 1984 - Toronto March 18, 20, 25, 1985 - Toronto April 24, 1985 - Hamilton July 2, 9, 11, 1985 - Toronto October 11, 28, 1985 - Toronto November 8, 15 22, 1985 - Toronto ..~ ), ‘: DECISION In a Grievance dated October 21, 1982, Mrs. Betty Goobie claims that her position is improperly classified as Clerk 3 General, and requests reclassification as Clerk 4 General. ,I Mrs. Goobie is one of 18 female Information and Assistance Clerks employed at the Hamilton District OHIP Office who filed identical individual grievances in October, 1982. Similar individual grievances were filed by some 164 OHIP Information and Assistance Clerks employed at the Ministry’s nine District Offices and five Satellite Offices throughout Ontario. These grievances have been assigned to a common file, number 240/84. Inasmuch as neither the Crown Employees Collective Bargaining Act nor the Collective Agreement provides - for the processing of group grievances, it is necessary to cbnsider each Clerk’s grievance individually. The Parties agreed that Mrs. Goobie is representative of all the Hamilton District Office grievors. Accordingly, this Board’s determination of the Goobie grievance shall determine the disposition of all grievances in the Hamilton Office. Although the Parties have so far failed to agree upon ~. . ..: any additional representative grievances, it is to be hoped that this Decision will result in the resolution of most, if not all, of the remaining grievances in file number 240184. This matter is of considerable importance to the Par ties, who have spared no effort to satisfy themselves that the Board has been provided with all the facts and the arguments. In the course of an exhaustive enquiry into the merits of Mrs. Goobie's grievance, which involved 16 days of hearings, and the introduction of voluminous documentary evidence (61 Exhibits), and a view of the Hamilton District Office, the Board issued a number of procedural directions. In the particular circumstances of this matter, the Board consented to the Employer's request to have a Court reporter in attendance throughout the Hearing. In making that order, and addressing the concerns expressed by the Union, the Board directed that the Employer pay all costs associated with the preparation of transcripts, if ordered, and that copies be provided to the Union and to Board Members. Transcripts were not ordered at any point in the proceedings. - 4 - THE CLASS STANDARDS A grievance alleging improper classification may succeed before the Grievance Settlement Board on either of two grounds: (I) The measurement of the Griever’s job against the wording of the applicable Class Standards (the standards approach), or (2) On proof, that notwithstanding the wording of the Class Standards, other employees performing equivalent duties are classified in a higher classification (the usage approach). These principles have been upheld by the Ontario Divisional Court in the 3udicial Review of the Michael Brecht Decision in Ontario Public Service Employees Union v. The Queen in Right of Ontario et al (1982), 40 O.R. (2d) 142. Mrs. Goobie's grievance proceeded solely on the first test, namely the assessment of her duties and responsibilities as against the relevant Class Standards. This Board has the responsibility to interpret the Class Standards in-determining whether the Griever’s position is improperly classified in its - 5 - ,exist ing classification. It is appropriate, therefore, to begin by setting out the relevant Class Standards. The preamble to the Clerical, Typing, Stenographic, Secretarial Class Series states that, "these five series cover all office positions and office supervisory positions that are not covered by a specialized clerical, technical, equipment operating, or professional class series”. With respect to the >: General Clerical Series, the preamble states: “This series covers positions where the purpose is to perform clerical work entirely or in combination with incidental typing, stenographic or machine operating duties. Where exclusion of the latter would significantly change the character of a position, or where they occupy a large propor~tion of the working time, the position should be assigned to one of the specialized classes, e.g. Clerical Typist. Positions for which specialized clerical series exist, e.g. Clerk, Mail and Messenger, Clerk, Filing, etc. should not be assigned to this series. Group leader responsibility normally begins at the third level, while the fourth and above usually cover positions involving line supervision; however, non-supervisory positions can also be included." The Class Definition for Clerk 3 General is as follows: CLASS DEFINITION: Employees in positions allocated to this class, as ‘journeyman 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 judgement 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 a 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 requirements; ability to organize and complete work assignments within prescribed time limits; ability to maintain good working relationships with other employees and the public served. Revised, December, 1963” ,! ‘iI - 7 - I The Class Definition for Clerk 4, General is as follows: !f- ‘. “CLERK 4, GENERAL CLASS DEFINITION: Employees in positions allocated to this class perform a variety of responsible clerical tasks requiring a good background knowledge of specific regulations, statutes or local practices. Decision-making involves judgement in dealing with variations from established guidelines or standards. Normally employees receive specific instructions only on unusual or special problems as the work is performed under conditions that permit little opportunity for direct supervision by others. Hatters involving decisions that depart radically from established practices are referred to supervisors. Tasks typical at this level include the evaluation or assessment of a variety of statements, applications, records or similar material to check for conformity with specific regulations, statutes or administrative orders, resolving points not clearly covered by these instructions, usually by authorizing adjustments or recommending payment or acceptance; supervising a small group of ‘journeyman clerks' or a larger group of clerical assistants by explaining procedures, assigning and checking work and maintaining discipline. QUALIFICATIONS: 1. Grade 12 education or an equivalent combination of education, training and experience. 2. About four years of progressively responsible clerical experience or an equivalent combination of experience and higher educational qualifications. 3. Ability to communicate clearly both orally and in writing; ability to instruct and supervise the work of subordinates. Revised, December, 1963” - 8 - ‘. .‘( ~.. As is usual in classification matters, the Board also received into evidence a "Position Specification and Class Allocation Form" describing the job. The position specification form is not part of the class standard, and therefore does not bind the Board. Mrs. Goobie’s Position Specification is dated February, 1982, and is reproduced in material parts: "PURPOSE OF POSITION To respond to the needs of the general public, Hospital personnel, ‘practitioners and Group Administrators in the registration of all eligible persons. To provide a comprehensive service whereby all written, telephone, or in person communications, from the general public, concerning all aspects of the Ontario Health Insurance Plan and related government programs, can be directly or Promptly resolved. SUMMARY OF DUTIES AND RESPONSIBILITIES 1. Provides general information/assistance and resolves Enrolment problems for the general public, groups, hospitals, practitioners, etc., by: analyzing problems, by asking questions and checking relevant documents; determining corrective action, insuring follow-through and that disposition is provided to source; assisting subscribers/group administrators in completing appropriate forms i.e. Out-of-Province, Hospital/Medical claims, Temporary Assistance, Premium Assistance; etc. communicating by telephone, in person and in written form to all inquiries concerning general information, enrolmentleligibility matters; liaising with related areas to clarify information/resolve problems such as group accounts, pay direct, claims etc.; i - 7 - / approving, assessing and coding of non-group 40% applications, issuing and controlling of OHIP numbers; determining eligibility for coverage, adjustment amounts and refunds required; obtaining update information by accessing Subscriber Administrative System Data Base, files, fiche, etc.; referring more difficult inquiries or problems to Supervisor for decision or opinion i.e. if subscriber or Group Administrator become inordinately irate. 2. Investigates/actions communications resulting from Claim Eligibility letters initiated particularly by the Production Services Section by: applying the reinstatement policy to enable claims or lapsed coverage to be paid; communicating with the general public, 30% hospitals, practitioners, group administrators re eligibility status; updating eligibility/file records upon receipt of premiums, status changes, new infor,mation; assessing applications for Premium Exemption for accuracy, verifying questionable 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-Province hospital Admission and Discharge Reports by: determining subscribers eligibility for benefits; communicating with the subscriber/hospital re 20% eligibility/validity problems; approving/rejecting claims and referring contentious cases to Group Leader. 4. Performs cashering functions for the office by: accepting and issuing receipts of premium payments; insuring that ch’eques received are properly completed i.e. body and figures, amount, date, etc.; calculating and accepting premium arrears and adjustment payments; posting and balancing daily payment transactions; recording premium collections on SAS Data Input 5% - form for keying purposes, completing daily walk-in inquiry deposit slip for Head office balancing purposes; - IO- 5. 5% - 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). Performs other related functions such as: maintaining daily production reports; participating in public functions i.e. University registration, seminars and public information groups upon request; typing and issuing replacement of OHIP Identification cards in accordance with securitv regulations; insuring all confidential material/information, claims, computer documents are secured in locked cabinets at day end; acting as Group Leader as assigned; as assigned. SKILLS AND KNOWLEDGE REQUIRED TO PERFORM THE WORK Excellent oral and written communication skills; excellent analytical skills; ability to handle conflict situations; thorough knowledge of enrolment PollcY, procedure and benefits; several years progressive work related experience, preferably in dealings with the public, diplomacy, tact and good interpersonal skills; ability to type not to CSC Standards an asset." Mrs. Goobie's job is also described in an extensive Job Audit prepared by the Ministry in January, 1983, reproduced, in pertinent part as Appendix "A" to this Decision. Mrs. Goobie described her duties and responsibilities in minute detail during eight days of testimony. It is neither practical nor necessary to set out her evidence or the evidence of other witnesses here, except in some salient respects. Before turning to the evidence concerning the Griever's job as ,it was at the time the Grievance was filed, it is helpful to recites some evidence by way of background information. EVOLUTION OF OHIP CUSTOMER SERVICES The Ontario Medical Services Insurance P lan (OMSIP enacted by the Ontario Legislature in 1965, became a reality ), in 1966. In 1969, Ontario complied with certain federal criteria for the funding of health insurance programs, and created the Ontario Health Services Insurance Plan (OHSIP). In 1972, OHSIP was merged with the Ontario Hospital Services Commission's hospitalization insurance program, to create the Ontario Health Insurance Plan (OHIP). The creation of OHIP involved the administrative reorganization of the provincial health insurance program. While enrolment and related functions remained centralized at Head Office, the claims-processing function was decentralized among several new District Offices, among them the Hamilton District Office, which opened in 1972 with a staff of some 400 employees. Despite the formal separation of functions between Head Office and the Districts, many local residents looked to - ,,, i, - 12- i #the local OHIP office for information about the Plan and for enrolment assistance. Management in the Hamilton District responded to this demand by opening a small public enquiry office, staffed by claims clerks. By 1974-5, the volume of customer enquiries coming into the Office had increased to the point that a District customer service entity was required. A new position, Customer Service Clerk, was created and filled by recruiting applications from claims clerks. Since.the District had no direct access to customer records stored in the Head Office computers, the Clerks responded to local customer enquiries by referring them to Head Office for investigation. Between 1979 and 1981, a number of changes in OHIP organization resulting from government policy initiatives contributed to the evolution of the customer service function. New security procedures came into effect in response to the Krever Royal Commission on the confidentiality of health information. The introduction of a new computer system permitting District staff to gain access to Head Office enrolment records led to the implementation of the "one window approach", which decentralized eligibility determination decisions that had formerly been taken at Head Office. The Government introduced its Access'Program, emphasizing improved customer services and the simplification of bureaucratic procedures. OHIP offices were now expected to respond to a i, - 13- broad range of public enquiries, and such facilities as toll-free telephone lines were installed to encourage public access. The combined impact of these changes on the duties and responsibilities of the Information and Assistance Clerks has moti~vated the present grievances. The Union claims that the position has changed so substantially that it no longer fits within the Clerk 3, General Class Standard. The Employer acknowledges that the job has changed, but maintains that it remains properly classified at the Clerk 3 level. THE GRIEVOR’S 308 The Griever commenced employment with the Hamilton District Office on 3anuary 24, 1972. In her first assignment involving the processing of physicians' claims, she was classified as Clerk 2, General. Approximately one year later, her position was reclassified to Clerk 3, General. In 1974, the Griever transferred to an Inquiry Clerk position within the same classification. She remained an Inquiry Clerk until late 1979 or early 1980 when she became an Information Service Clerk. The position title was subsequently changed to Information and Assistance Clerk. The Griever's immediate 1, i, - 14- I supervisor was Group Leader Boyce Collis, classified as Clerk 5, General. Mrs. Goobie testified that the Position Specification and Class Allocation Form was defective, in that it failed to specify a number of her duties, wrongly reported the proportions of her working time spent on the duties specified, and provided an inadequate impression of the knowledge required / to perform the job. Mrs. Goobie testified that the gob Audit accurately described her duties. She was personally involved in the preparation and revision of the Audit. The Audit document bears the signatures of Mrs. Goobie, her Supervisor Ms. Boyce Collis, and the Hamilton District Director, Mr. Albert Board. These signatures attest to the Audit's accuracy. Mrs. Goobie's only comment about the Audit was that it did not adequately address the importance of her position in dealing with the general public. The Griever worked in the telephone enquiry unit of the Information and Assistance Unit at the Hamilton District Office, and filled in, as required, in the walk-in enquiry unit. It was her job to provide callers with comprehensive information about OHIP and related programs in a prompt, I.. . ,. ; :.. ~, ‘i - 15- ( courteous and efficient manner; to answer, where possible, a broad range of public enquiries about other Government programs and services; and to assess OHIP subscribers’ eligibility for premium assistance and the like. The Griever testified that the core duties of her position, which amounted to 70% of the job, involved resolving eligibility and enrolment problems, processing OHIP application i forms, and answering general enquiries, unrelated to OHIP matters. Other duties, which accounted for the remaining 30% of her job, included processing hospital claims, chequing and cashiering functions, and other related duties. The Griever handled between 70 and 90 telephone calls per day. Of these, 70% related to OHIP problems, and 30% were general enquiries. Of the OHIP-related calls, 85% involved eligibility and enrolment problems. These required her to use the office’s SAS computer terminal to retrieve information. appl each In addition, the Griever processed some 50 OHIP ications each day, spending an average of 10 minutes on such application. Mrs. In cross-examination, Mr. Zarudny established that Goobie completed the equivalent of 900 to 1,240 minutes' - 16- ,work in a 405 minute (6-3/4 hours) working day. She accomplished this by performing two or more tasks simultaneously. For example, she would review an OHIP application while speaking to an enquirer on the telephone. ..:,. The evidence established that there was a comprehensive set of OHIP policy and procedural guidelines in the Enrolment Policy Manual, which was a detailed interpretation of the Health Insurance Act, and in the Enrolment Service Bulletins, which detailed policy changes affecting the disposition of eligibility and enrolment matters. These were voluminous documents which the Griever had substantially committed to memory. The "One Window Manual" detailed a step-by-step procedure for editing, assessing and coding each of the seven OHIP application forms. The Gr ievor was thoroughly familiar with this document, although she had not memorized it line for line. To assist her in responding to general enquiries, the Griever was provided with numerous pamphlets and brochures outlining certain Government services as for example, Ontario 'Tax Grants for Seniors, Drug Benefit and Income Maintenance Programs, The Assistive Devices Program, and information about service providers in the Hamilton District, to mention but a few. ,,. c / - 17- The Griever acknowledged the existence of guidelines for the conduct of her non-core duties, such as hospital claims, chequing and cashiering functions,. and (in some respects) for related duties. The Griever considered the essence of her job to be Customer service, and in particular communicating effectively with members of the general public. In her own words, “I am * / the first line of communication the public has with the Government... I must be prompt, courteous, informative, and have a keen sense of listening...". She testified that Clerks were instructed to assist the public to the best of their ability, and where possible, to avoid the transfer of calls to other government offices. The Grievor testified that she dealt with 99% of the eligibility and enrolment calls without involving her Supervisor. The thrust of the Grievor’s’ evidence was that the essence of her job was dealing with the public. While there were extensive guideliqes and policy directives governing the substance of the information she could relay to callers, she testified that there were no guidelines or specific directions to assist her in managing the communication aspect; in phrasing the questions necessary to elicit or analyse the topic of the caller's concern; in dealing tactfully 7 - IE- c‘ ,and diplomatically with angry or emotional callers; in stating the policy in words the caller could understand; and in framing suggestions or recommendations to the caller about resolving a problem. The Union also called Dr. Pat Armstrong, Professor of Sociology at Vanier College in Montreal. Dr. Armstrong’s publications include - A Working Majority; What Women Must Do ( For Pay (1983); The Double Ghetto: Canadian Women and Their gegregated Work (1984); and Labour Pains: Women’s Work in Crisis (1964), the two former co-authored with Dr. Hugh Armstrong. The Board received Dr. Armstrong’s testimony on the Union’s submission that it might be of material assistance with ’ respect to the analysis of job content, a subject about which Dr. Armstrong is a recognized expert. Dr. Armstrong admitted that she lacked expert knowledge of the Ontario Government’s classification system, and that her familiarity with the Griever’s job was limited to a review of the relevant Position Specification and Job Audit. Dr. Armstrong testified that one-third of all employed women perform clerical work, and that in our society people tend to associate clerical work with women. In this -9. 7 - 19- .-. .context certain skills, particularly communication and relational skills, tend to be undervalued or even invisible when performed by women. The thrust of Dr. Armstrong’s evidence was that much of the work performed by the Griever involved the application of highly-developed skills. For example, she suggested that not only was the Griever required to be thoroughly familiar /’ with OHIP enrolment and eligibility policies, but she also had to employ a high-level skill in applying that knowledge to particular problems and in making the policies understandable to subscribers of varying levels of sophistication. Similarly, Dr. Armstrong suggested that much of the Griever’s work involved relational and tension-management skills that are highly valued and rewarded in certain male-dominated professions, but which are taken for granted and thus become “invisible” when exercised in the context of female-dominated clerical occupations. Dr. Armstrong characterized Mrs. Goobie’s evident success in performing two or more tasks simultaneously as further demonstrating another set of “invisible” skills. She testified that the requirement for confidentiality in the Griever’s job exemplified an additional layer of responsibility. - 20- In cross-examination, Dr. Armstrong expressed the view that to the extent the Griever has to make information understandable to a third party, she is engaging in “interpretation” even though the information in itself is largely predetermined. In Dr. Armstrong's opinion, the Griever's responsibilities were more complex than Mr. Zarudny was prepared to suggest. For example, she considered that the communication of information to the elderly and to people whose first language is not English, are complex tasks: in her own words, it is "not my experience that Government regulations are understandable to the general public". The Employer called three witnesses. Albert Board is Hamilton District OHIP Office Director, and has been involved with the administration of Government Health Insurance in Ontario since the early days of OMSIP. Mr. Board presented an historical overview of OHIP and the development and organiza- tion of the Hamilton District Office. Parts of Mr. Board's testimony have been referred to earlier in the Decision. Norman Glaze is Manager, Customer Services, at the Hamilton District Office. At the time of the Grievance, he was Supervisor of Customer Services: Mr. Glaze was the direct Supervisor of Ms. 3oyce Collis. 5; :, - 21- Mr. Glaze substantially agreed with the Griever's testimony about her duties and responsibilities. He character- ized her as a “very competent, well-trained person". He admitted that the Griever exercised judgment in numerous areas of her work as, for example, in formulating appropriate questions to put to a caller. He acknowledged that parts of the enrolment policy manual were “very complex" and admitted that judgment is exercised in sifting information to yield appropriate solutions to callers' problems. However, Mr. Glaze stated that in 90% of the enquiries, solutions were readily apparent. In his opinion; "the vast majority of the problems presented are routine and of a repetitive nature". Mr. Glaze testified that the Griever was provided with a comprehensive set of guidelines in the form of manuals, and that she had little, if any, authority to vary from those guide1 ines. However, he agreed that there were no guidelines relating to such matters as how to glean information from callers. or how to deal with enquiries from the general public with courtesy and with sensitivity. He acknowledged that maintaining the confidentiality of health information was a very important aspect of the job. Mr. Glaze testified that both he and Group Leader Collis monitored the Clerks' telephone calls, but on a very #infrequent basis. Further, he acknowledged that Clerks would serve as Acting Group Leaders in Boyce Collis’ absence.' At such times, the Acting Group Leader would.perform most of Ms. Collis' regular functions, except for appraising or counselling employees. In cross-examination, Mr. Glaze acknowledged that the Information and Assistance Clerks are in a "constant state of f~ learning" new and up-dated policies and procedures. It was his evidence that twelve to eighteen months of on-the-job training are required before a new Clerk is fully capable. In his view, the fact that the Grievor had memorized the contents of the manual did not make working with the manuals "routine" because the memory and recall that are required make it skilled work. Mr. Glaze testified that the Griever spent approxi- mately 80% of the average day exercising her "communication skills". She wai required to have detailed information committed to memory and to communicate it upon request. Mr. Glaze agreed that there was a “wide variance" in callers’ ability to comprehend the "pre-determined solutions" found in the manuals and guidelines. Having considered the evidence and the submissions carefully, this Board finds as a fact that the Griever's core ‘,, ‘7 - 23- l' #responsibility is to communicate OHIP policy and procedure to members of the general public, and to actively assist them in securing and maintaining health insurance coverage within the scope of that policy. The Board also finds that the Griever’s chief ancillary responsibilities are to process various OHIP application forms, and to respond within the framework of the Access program to general public enquiries, unrelated to OHIP. The Board is satisfied that the Grievor is required to have i extensive knowledge of OHIP policies and procedures. Considering the volume of enquiries and the heavy workload generally, we are of the opinion that it is a requirement of the position that the Griever have most of the materials described above committed to memory. We also conclude that in carrying out her principal responsibility, the Griever is required to exercise a range of interpersonal communication skills. These may be enumerated (at least in part) as follows: 1. Courtesy, tact and diplomacy. 2. Interviewing, information-eliciting skills. 3. Tension-management skills with respect to apprehensive, emotional or irate callers. 4. Interpretive skills, with respect to conveying government policy to callers in an understandable and contextually clear manner. - 24- 5. Problem-solving skills with respect to identifying a method by which the caller’s difficulties may be resolved. 6. General relational skills that permit the grievor to empathize with each caller’s difficulties without becoming so involved as to neglect other responsibilities, within the context of a heavy workload. In arriving at these findings, we have considered the Employer's submission that the majority of callers present familiar problems which have simple solutions. We have no doubt that'this is the case. The Board is impressed, however, by two related points. First, in many cases the familiarity and simplicity of the caller’s problem only becomes evident as a result of the Griever’s exercise of the communication skills outlined above. Indeed, it is a crucial requirement of her job that she be able to identify the problem promptly and accurately, despite confusion or lack of clarity on the part of the caller. Second, the fact that the majority of callers present substantively simple problems should not obscure the fact that a significant proportion of callers do present more complex and subtle difficulties. The Griever is expected to deal with the latter as well as the former. In assessing the level of complexity of the Grievor’s job, we have considered not only ,,,. i - 25- the extent to which apparently routine matters are rendered "routine" only by virtue of the Griever's skills and experience, but also the extent to which she is expected to resoond to non-routine occurrences in the same manner. Finally, we have considered the objection that the communication skills exercised by the Griever in her daily work differs little from skills exercised by most people in their i- working and non-working relationships, and therefore cannot serve to distinguish her work as particularly complex or responsible. It is trite to say that given a common stock of basic ‘social skills, some people have developed certain of those skills to a far greater'extent than others. While interpersonal communication skills exercised by the Griever in her daily work are possessed by most members of society, she is required, in the context of her work, to exercise those skills at a significantly higher level of specialized competence and experience than is the general norm. INTERPRETATION OF THE STANDARDS Bryan Neale was the Employer's final witness. Having worked with the Ontario Civil Service Commission between 1976 and 1982 in such capacities as Clasification Officer, Category Officer, Standards Officer, and Category/Module Officer, Mr. : ,,, i - 26- !’ Neale is well qualified to testify as to the interpretation placed upon the Class Standards by the Commission. Mr. Neale testifed that the classification system is a "grade description system" within which job levels or grades are narratively described and ranked in order of increasing complexity. It was his evidence that each Class Standard specifies "compensable factors", which are significant and i identifiable elements of the job to be applied in the measurement of the job's relative worth. According to Mr. Neale, the Clerk General Series incorporates three compensable factors: 1. The extent to which the job requires knowledge of specific regulations, statutes or local practices. 2. The nature of the decision-making required in the job. 3. The types of problems that incumbents refer to persons in higher positions, and the availability of supervision. Mr. Neale stated that the level 0.f job complexity in each of the general clerical grades is illustrated by example in the relevant "typical tasks" description. He also drew the Board's attention to the Preamble to the series, which specifies that group leader responsibility begins at the Clerk 3 General level, and that the majority of positions at the - 27- Clerk 4 General level are supervisory in nature. Mr. Neale characterized the Clerk General Series as "task-oriented", in which the incumbent's skills were only relevant to the extent that they might fall within the "knowledge factor". The thrust of his evidence was that while the Grievor exercised communication and relational skills in her work, these are not compensable within the Clerk General Series. He testified that these skills have never been taken i'nto account in analyzing a job for classification purposes. Mr. Neale stated that the ability to communicate was not a compensable factor, but rather a minimal staffing requirement. In his opinion, the knowledge required by the Grievor to perform her job was "near" the Clerk 4 level, while the tasks performed were at the Clerk 3 level. The general principles concerning the Grievance Settlement Board's jurisdiction with respect to the interpretation of Class Standards are well known. Briefly stated, the Standards are absolute standards to be taken as we find them, and to be interpreted as a whole. Similarly, Class Standards are, of necessity, generally-worded. The essence of the Board's enquiry is to determine whether the Employer has conformed to its actual classification standards in the particular case before us. In answering this question, the .I li ‘2 - 20- I aBoard is not bound by the Employer's interpretation of its Class Standards, which inevitably is self-serving. On the contrary, the correct interpretation of the Class Standards is a question which falls to the Grievance Settlement Board for determination pursuant to its authority under Section 18(2)(a) and Section 19(l) of the Crown Employees Collective Bargaining Act. _ ._ The Grievance Settlement Board has been called upon i to interpret the Class Standards for the clerical series on numerous occasions. Various Panels of the Board have commented on the fact that the Standards in question were last revised almost a quarter of a century ago, when the general character of office work in large organizations was vastly different than it is today. For example, see Re McCourt, 198/78 (Saltman); F& John et al, 463/81 (Zlolliffe); Re Garrard, 521/81 (Solliffe); Re Cho-Chu et al, AA/82 (Teplitsky); and Re Eiorges et al, 21104, 22184, 23184 (Verity). While it is true that absolute standards should be revised infrequently, they must surely be made subject to periodic revision if they are to serve their intended purpose in a meaningful way. Clearly, the Board has no jurisdiction to amend or alter the Class Standards. However, as stated by Vice-Chairman Draper, we are required to consider them to be i 2, - 29- i ,“referrable to the state of the art, that is, to the current stage of development of their subject matter" - Re Parker, 107/83 at p. 7. Sooner or later, it may occur that the words of the standard and the nature of the work performed diverge so completely that the incumbent is prima facie misclassified. In the inte’rim, this Board must treat the standards as though drafted with the Griever’s work in mind. gust as this Board has commented on the antiquity of i. the clerical series standards, so has it commented on the apparent overlap between the various levels in the series. For example, see Re Montague, 110/78 (Swinton); Re McCourt, 198/78 (Saltman); Re Barnes, 306/82 (Jolliffe); and Re Borges et al, 21184, 22184, 23104 (Verity). The Series is graded at the various levels by degree of responsibility, complexity, knowledge, authority, judgment, autonomy and discretion, more than by the nature of the basic tasks performed. That' observation has been well characterized by Vice-Chairman B'runner in Switzer and McKenna, 804/84, 805/84 at p. 11 as follows: "An examination of the class definitions of Clerk 3 and Clerk 4 General makes it clear that the dividing line between the two classifications is not black and white. These definitions do not contain water tight compartments which are easily distinguishable from one another but constitute only a general outline of the .., 7. 2, - 30- duties and responsibilities of the employees, with the main difference or distinction being the degree of responsibility, independence and judgment that is exercised." A third feature of the Clerical Series Standards to have attracted comment by the Grievance Settlement Board is their general and encompassing nature. These are "global and composite" standards which are designed to cover a very broad spectrum of tasks and working environments. See for example, f’ Vukoje, 13/75 (Beatty). As the preamble clearly states, the clerical series .is a large residual class, consisting of "all office positions and office supervisory positions that are not covered by a specialized clerical, technical, equipment operating or professional class series". Within the clerical series, the Clerk General series is defined in residual terms: it covers Clerks whose work is "general" in the sense that it does not fall within a more specialized classification within the Clerical Series. In interpreting the standard for a global and composite series, this Board has neither expected nor required that every element in the standard would have its counterpart in the job under consideration. In Re Vukoje (supral, where the Grievor claimed that she was misclassified as Clerk Typist .I; - 31- $3 and sought reclassificat ion as Clerk 3 General, Vice-Chairman Beatty at p. 22 recognized that in view of the global and composite nature of the Class Standards, “-a person may perform only one or two of the duties described therein and still properly be classified as a Clerk 3". Taking both the degree of overlap between levels and the global character of the standard into consideration, this Panel of the Board has placed more emphasis on locating the job appropriately within the continuum than on the performance of specific tasks. This approach cannot be described as novel and without precedent. As Vice-Chairman Swinton stated in Montague (supra) at p. 8: "Classification of position does not necessarily turn, however, on the fact that an employee performs a given duty, particu- larly when.the classification standards under consideration are very general and applicabJe to a wide range of positions. This is especially true of the Clerk series of Class Standards. Many similar tasks will be performed by employees with differ- ent classifications within the Clerk series. Their classifications will vary because of factors such as the degree df complexity of the task or the degree of independent judgment required in performing the task." Having reviewed the Grievance Settlement Board's existing jurisprudence, and after careful consideration, we find that we cannot accept Mr. Neale's characterization of the - 32- 1 : Clerk General Class Standards in terms of narrowly-construed "compensable factors” which exclude consideration of factors such as the exercise of communication and.relational skills which we'have found to be central to the Griever’s job. We adopt this position for two reasons. First, in our opini on, the approach recommended by Mr. Neale, if followed exact1 y, must lead to arbitrary, if not and the be mist General compensable factors, then, we must find Mrs. Goobie lassified, not only as a Clerk 3 General, but as a C at any level or grade. 'lerk absurd results. We have found that the Griever’s core responsibility is to communicate OHIP policy and procedure to members of the general public, and to assist them in securing and maintaining health insurance coverage within the scope of that policy. If the Class Standards for the Clerk General Series preclude consideration of precisely those job qualities that are most representative and necessary to the performance of core responsibilities, then it must surely follow that the Grievor is misclassified in the Clerical Series. It is true that the classification system is within the control of the Employer; but it,is equally true that it is a system for classifying jobs and as such must take account of the work that is actually being performed. If Mr. Neale is correct in the approach to be taken in interpretation of the Class Standards to , Of more importance, the Board finds that there nothing in the wording of the Class Standardsto restric relevant factors to the three enumerated by Mr. Neale: knowledge, decision-making, and autonomy. Indeed, it is is t the clear on the face of the Standards that other factors are to be taken into account. As Mr. Neale himself pointed out, supervisory responsibility is one such additional factor. There is nothing in the Standard to suggest that persons are to be compensated for supervising others merely as an incident of their own autonomy. We prefer to consider that supervisory responsibility is compensated for its own sake. Similarly, the Standards clearly refer to such factors as complexity, initiative and responsibility in addition to the three enumerated by Mr. Neale. In summa.ry, the Board finds that the Clerk General Series is described by global and composite standards, with significant overlap in tasks among the levels in the Series. A position's level within the series is to be assigned by determining where it falls with respect to a broad range of factors including responsibility, complexity, knowledge, authority, judgment, autonomy and discretion. Positions ranked higher in the Series will have these factors in greater degree than those ranked at a lower level. In sum, there are no simple touchstones established in the Class Standards, and - 34- , &determining the correct classification within the Series must involve the exercise of judgment and the balancing of all relevant factors. APPLICATION OF THE STANDARDS TO THE 308 There was no dispute between the Parties as to whether the Grievor’s position was properly classified in the Clerk General Series. We are satisfied that it was properly classified in the series. The Board is required to determine whether the position was properly classified at the Clerk 3 General level, or whether it should have been classified as Clerk 4 General. We have set out our determination of the nature of the job, and described at some length our reasoning on the interpretation of the Standards. It is unnecessary to discuss in exhaustive detail the correspondence between each word and phrase of the two Standards and each task and responsibility of the job. Suffice it to say that we heard extensive submissions from Counsel and have given them due consideration. In the result, the Board finds that the Griever's position was improperly classified as Clerk 3 General and would have been properly classified as Clerk 4 General. Our reasons are 5 >. - 35- / *. summarized in respect to the three main components of the Grievor’s job - responding to OHIP enquiries; responding to general enquiries; and processing app1icat.ion.s. The Clerk 3 General Standard refers to “routine clerical work of some complexity", while the Clerk 4 Standard refers to “a variety of responsible clerical tasks". Of the three main components, processing applications came closest to the Clerk 3 Standard. However, regarding that task, the work was "responsible" inasmuch as the Grievor made eligibility determinations. General enquiries fell between the two Standards, but somewhat closer to the Clerk 3 than to the Clerk 4. With respect to the Griever’s core responsibility, namely the handling of OHIP related enquiries, the Board has no hesitation in finding that it fell squarely within the Clerk 4 range. Unquestionably, it was "responsible" work, and whfle the majority of enquiries were more or less routine in substance, the Board finds, on the evidence, that with respect to eliciting information, communicating effectively with callers of varying levels of sophistication, and managing the heavy workload, the work was of significantly more than merely "some complexity". The Clerk 3 General Standard refers to work performed according to "established procedures" and "requiring a ‘i i i ,.. . . *, - 36- I, background knowledge of specific regulations, statutes or local practices". The corresponding requirement of the Clerk 4 General Standard refers to the performance of tasks "requiring a good background knowledge of specific regulations, statutes or local practices”. There is little dispute on the evidence that the knowledge requirement in the Griever’s job was in excess of the Clerk 3 Standard. This was true not only with respect to the volume of material the Griever was required to digest and comprehend concerning OHIP practices, policies and procedures, but also with respect to the additional requirements that she commit the bulk of this material to memory, and that she constantly renew her knowledge as practices, policies and procedures changed. While processing applications was clearly performed according to “established procedures", and while in resolving OHIP-related enquiries, the Grievor was clearly bound by such procedures, there was no "established procedure” to direct her in the communication and relational aspects of her work. The Clerk 3 Standard refers to decision-making which "involves some judgment in the selection of alternatives within a comprehensive framework of guidelines". The Clerk 4 Standard refers to decision-making which "involves judgment in dealing with variations from established guidelines or standards". Processing applications fitted the Clerk 3 Standard at best. - 37- 5 ,The communication and relational aspects of the other two tasks involved the exercise of substantial judgment, well beyond selecting among specified alternatives, and even beyond dealing with variations from established guidelines inasmuch as few if any real guidelines can be said to have existed for this aspect of the job. The Clerk 3 Standard refers to initiative, "in the form of following up errors or omissions and inmaking corrections as necessary". The parallel provision in the Clerk 4 Standard specifies that “normally, employees receive specific instructions only on unusual or specific problems as the work is performed under conditions that permit little opportunity for direct supervision by others”. To the extent that Mrs. Goobie's work involved dealing with paper, she exercised initiative at the Clerk 3 level. To the extent that her work involved dealing with people, the Clerk 4 language appears to us to describe the situation more closely. So far as "conditions that permit little opportunity for direct supervision" are concerned, there is no doubt that the Griever’s Stipervisor was normally present in the room where she worked. The Supervisor had ample opportunity to direc tlY supervise the Griever’s paperwork. In our opinion, she di d not have the same opportunity to supervise the Griever’s hand1 ing ! ..;-::. 5 - 38- L, .of telephone calls; certainly not on a regular and effective basis: For his part, Mr. Glaze monitored Clerks telephone calls only very~ occasionally. With respect to supervision, the Clerk 3 Standard states that "doubtful matters not covered by precedent are referred to Supervisors". The Board is satisfied that most of the Griever’s work, if reviewed at all, was reviewed only periodica p.rocedure decisions 1 . ly, principally for adherence to policy and The Clerk 4 Standard states that "matters involving that depart radically from established procedures are referred to Supervisors". On balance, we consider that the Griever’s supervisory situation is better described by the Clerk 3 than the Clerk 4 Standard. It is necessary to add once again, however, that with respect to the communication and relational aspects of her core responsibility, the Grievqr was not subject to "established procedures" in any meaningful way. Taking the job as a whole, and comparing it to each Standard as a whole, we are satisfied that the Griever’s work responsibilities with respect to communicating OHIP policy and procedure to members of the general public, and assisting them actively in securing and maintaining health insurance coverage within the scope of that policy, involved significantly more ,i‘. ” 2, ’ - 39- ,. ,.. , knowledge, complexity, responsibility, and discretion than are contemplated by the Clerk 3 General Standard. In our view, these factors outweigh others that would place the job properly within the Clerk 3 General Standard. On balance, the Board finds that Mrs. Goobie's position was misclassified as Clerk 3 General and would have been properly classified at the Clerk 4 General level. ,’ (,, In all likelihood, the Griever was properly classified prior to 1979 as a Clerk 3 General. On the evidence, the Eoard is satisfied that government initiatives between 1979 and 1981 brought about substantial and material changes in the quality and quantity of the Griever’s duties and respongibilities, which by the date of the filing of the grievance, justified the higher classification of Clerk 4 General. In the result, we must succeed. She is entit hold that Mrs. Gbobie’s Grievance led to ret lassification at the Clerk 4 General level effective October 21, 1982, the date of the filing of the Grievance, and she is to be compensated retroactively to that date. The Board does not consider this to be an appropriate case for an award of interest. We shall remain seized in the event of any difficulties in the , - 40- ation of this Award. DATED at Brantford, Ontario this- 18th day of A.D., 1986. 4 t ,>.A - d /GzY > 4~ -I R. L. Verity, Q.C. - Vice-Chairman %+J- P. Craven - Member "L. Foreman - Dissent to Follow" L. Foreman - Member i. DISSENT GOOBIE. ET. AL. - 1\240/8(1 In the long and difficult set of hearings in this classification grievance, the chairman has striven mightily to steer a course between Scylla and Charybdis. Alas, within.sight of port. I fear he has run aground. With respect, I must dissent from the decision of the majority in this case, on the grounds outlined below. 1. INTERPRETATION OF THE STANDARDS The majority refers to the Class Standards in the Clark General series as a “continuum” Cp.311 with “no simple touchstones” [p.331 on which a decision can be made. Rather. any decision must be based on a purely subjective decision made by the appropriate panel of the Grievance Settlement Board. I suggest that such a call for subjectivity [rather than objectivity] in the interpretation of the Class Standards is a recipe for chaos. Surely the responsibility of the panel is to apply objective standards that would be reached by any other reasonable person. If that is not the case. every classification grievance will be decided on ~the purely subjective view of the panel hearing it.. As a result. the entire classification system will disintegrate under a welter of conflicting decisions and it will be impossible to arrive at any reasonable determination of the appropriate classification for a particular job. While there are overlaps in the Clerk General series. there are also break points which clearly distinguish the Levels. The “judgement call” approach may be appropriate to refereeing situations in sports events, but I suggest it is not appropriate to the calmer environment of an arbitration hearing. 2. APPLICATION OF THE STANDARDS TO THE JOB In classification grievances. the onus is on the Griever to establish that she is improperly classified in her current position. On the basis of the evidence presented. I believe that the Griever did not satisfy that onus and so I would have dismissed the grievance. In support of this position. I will review the majority award as it applied the standards and then review the standards and the evidence as I think it should be applied. -2- i First the majority award. On pages 35 to 39. the majority establishes five categories for comparison between Clerk 3 and Clerk Y and then reviews the three main components of the Griever’s job to determine her proper classification. For ease of review. I have summarized the results of this analysis. Class Standard Routine clerical work [Clerk 31 vs. a variety of responsible clerical tasks [Clerk 41 Majority Analysis of Griever’s Job Two of the three main components are assessed as falling in Level 3 and one is in Level q. Established procedures and background knowledge. Although recognizing that the Griever “clearly performed according to established procedures”. [i.e.. Level 3 standard) the majority decided to place her in Level 4 on this category. Judgement and Guidelines Processing applications clearly falls in Clerk 3. The communication and relational aspects of the other two tasks bring it into Clerk 4. Initiative The majority appears to ,split this evenly between Clerk 3 and Clerk 4. Supervisory Situation “On balance. we cons.ider that the Griever’s .’ supervisory situation is better described by the Clerk 3 than the Clerk r( standard.” A review of the above information reveals that the majority considers the Griever to fall part way between Levels 3 and 4. In one category she is clearly a q, in another clearly a 3. and in the other three categories evenly split between a 3 and a 4. On page 31 of this award. the majority approvingly quotes Vice-chairman Beatty when he stated “a person may perform only one or wo of the duties described therein and still properly be classified as a Clerk 3.” Since the Griever must establish that she was improperly classified as a Clerk 3 in order to be reclassified as a Clerk ‘+.‘I submit that on the basis of the analysis dons by the majority, she has not fulfilled this onus and so the grievance should be dismissed. A determination of the proper location of an employee in a classification grieVanCe requires an application of the entire Class Standard. including the preamble and the qualifications not just selected portions. I propose to review the standards in order _! :: I ! -3- to find the break points end thus arrive at a determination where this Grievor fits on an application of the standards. . f . . Preamble The preamble states that “group leader responsibility normally begins at the third level, while the Fourth and above usually cover positions involving line supervision: however, non-supervisory positions can also be included.” It is clear on the evidence that. at best, the Griever may have group leader responsibility. but definitely does not have complete line responsibility. While &eve1 rl positions can sometimes include non-supervisory positions. this is clearly intended to be an exception. This Griever is one of a large number of OHIP employees. all of whom claim elevation from their current classification to a higher one. Clearly it is not the kind of exception anticipated in the preamble to the Class Standards. Thus. on this ground she clearly is a Level 3. Established Procedures The Level 3 standard refers to “routine clerical work according to established procedures”. The modifying phrase referring to established procedures is Bbsent in the Clerk 4 standard. Clearly, the touchstone between the two levels is the extent to which the clerk has established procedures to guide her in her work. We were inundated by manuals outlining procedures that the OHIP clerks were required to follow. The fact that their volume and the extent and frequency to which the clerks refer to these manuals required them to memorize the relevant portions doesn’t detract from the fact that the procedures were available. It is also clear that the vast majority of the work was repetitive and therefore “routine”, as opposed to “variety”. On balance. in light of this aspect of the standard, I would have placed the Griever at the Clerk 3 level. Knowledge The difference between the Clerk 3 and Clerk ‘f standard is the insertion of the word “good” in front of background knowledge in Level 4. This is a good example of the continuum in the Clerk General series to which the majority refers and leaves little to choose between the two levels. Nevertheless, the Griever in this case is required to have a good background knowledge. and may be said to be in Level 4. I : -+ . Decision Making The Clerk 3 standard refers to the “selection of alternatives within a comprehensive framework of guidelines”. while the Clerk ‘I standard does not refer to the selection of alternatives but rather “dealing with variations from established guidelines”. As noted above, the OHIP clerks were given guidelines to deal with almost every conceivable situation. In cross examination. the Griever admitted that virtually every task she completed was covered by some aspect of the manuals with which she was provided. Very little of her work dealt with variations from guidelines. On the basis of this aspect of the Class Standard. she clearly falls in Level 3 rather than Level 4. . Initiative The Level 3 standard refers to following up errors or omissions. while Level 4 states that normally, employees receive specific instructions only on unusual or special problems. Again, much of the work done by the Information and Assistance Clerks deals with reviewing and checking application forms or answering questions from the public that deal with issues that are frequently raised. Obviously the Level q Clerks are expected to exercise a much higher degree of initiative, because instruction is only provided on unusual problems. On this basis, the Griever should be classified ss Level 3. . Supervision The Level 4 Standard states that “work is performed under conditions that permit little opportunity for direct supervision by others”. It is clear on the evidence that the Griever had ready access to her supervisors. The question is not whether she used that access. but rather the extent to which it was available to her in order to solve problems or answer questions that she could not deal with on her own. I submit that the fact that she did not have to cal~i on her supervisor very frequently is evidence of good training. a comprehensive set of procedures and guidelines. and a good working relationship instead of a complex job. The standards continue in this matter of supervision. indicating that in the Clerk 3 level “doubtful matters not covered by precedent are referred to the supervisors” and “much of the work is reviewed only periodically”. The Clerk 4 level. on the other hand. would only refer matters that depart radically from established practices and there is no reference to review of the employee’s work by supervisors. .,-:.I: : , . . . -5- Thus, it is apparent that the Clerk 4 level is expected to operate much more independently then the Clerk 3. It is e matter of record that Miss Goobie’s work was reviewed periodically land monitored by her supervisors. In the matter of supervision. the job is reflected much more accurately by the Clerk 3 then in the Clerk 4 level. Typical Tasks The Clerk 3 level refers to “assessing the accuracy of statements or the eligibility of applicants. investigating discrepancies. and securing further proof or documentation es necessary”. By comparison the Clerk 4 level requires an “assessment of a variety of statements. applications. records, or similar material...resolving points not clearly covered by...instructions”. On this basis. how does the Griever’s job compare? Clearly. she was only expected to assess OHIP applications using a comprehensive set of guidelines. By far the largest portion of the work she did on a daily basis fell into this category. Although she was sometimes called upon to resolve points not covered by her instructions. this represented a very smell amount of her daily duties. The fact that she was able to combine a number of tasks simultaneously is evidence both of her capabilities and the relatively simple and routine nature of most of her work. On the application of this aspect of the standard. I would have placed her in Level 3. Supervisory Responsibility The Clerk 3 level envisions operating es a group leader by “explaining procedures. assigning and checking work”. The Clerk 4 may “typically supervise a smell group of Journeyman Clerks or a larger group of Clerical Assistants...maintaining discipline”. At no point -in the evidence was it apparent that the Griever exercised true line responsibility in supervising other clerks. On a rotational basis. the clerks sometimes filled in during the absence of the supervisor. But this was the exception and they were not required to exercise true supervisory responsibility. particularly in maintenance of discipline. On this aspect of the standard, I submit that the Griever falls within the Clerk 3 level. . i -6- * Qualifications Since the qualifications sre minimal. there is little to distinguish between the Level 3 end Level 4. But it is worth noting a few points. Level 3 refers to the “ability to understand and explain clerical procedures and requirements”. On the basis of the evidence. I have no doubt that the Griever fully meets that requirement. Similarly she is quite able to “organize and complete work assignments in prescribed time limits”. By comparison, the Level 4 standard requires an “ability to instruct and supervise the work of subordinates”. While we heard some evidence on her assistance in helping to train new employees, there was virtually no evidence on her ability to supervise subordinates so it is not possible to infer that she should be in Level 4 on this aspect. The final qualification specifies that in Level 3 the clerk is required to “maintain good working relationships with other employees and the public served”. The Level 4 minimal qualification specifies an “ability to communicate clearly both orally and in writing”. I submit that as a minimum the Griever gave evidence that she is able to maintain good working relationships both with her colleagues and the public she interacts with. Indeed, she is able to communicate clearly both orally and in writing. But to the extent that such communication is relatively routine and straightforward the job is satisfactorily described in the Clerk 3 level. Summary It is apparent that the Grievor performs her job at a consistently high level. But one must not confuse excellence in performance of a job with the proper classification of the job. On the basis of the analysis above. I submit that the job performed by the Griever and her colleagues at the Hamilton office is properly classified as a Clerk 3. While there may be some elements of the Clerk 4 classification in the job. particularly as they relate to dealing with the public. they are not sufficient to take it out of the Clerk 3 level. 3. PAY EQUITY Counsel for the Grievor in this case is a ,prominent leader in the pay equity issue in the Province of Ontario. Some aspects of this issue were brought into this case. both in the submission of documents and oral evidence. In support of her position. counsel , i -7- imported en instructor from a CEGEP [Community College] from Quebec. Unfortunately. Dr. Armstrong is unfamiliar with the Ontario Government classification system and was not present during the lengthy testimony about her job provided by the Griever. These shortcomings. however. did not prevent her from coming to some conclusions about the nature of the Griever’s job. One such insight is quoted by the majority on page 20. “It is not my experience that government regulations are understandable to the general public.” At best. this is a non sequitur and is. like much of her testimony. irrelevant. Surely, if all the government regulations were understendable to the general public, there would be no need for clerks to help explain the regulations. That is exactly the Griever’s job. The point has absolutely no bearing on the level which the classification system assigns to that job. c ,‘.. .:.. ,, ..:::,.:+ It is diff.icult. on a reading of this award. to know whet weight the majority assigned to the pay equity arguments made by counsel. I trust that it had no beering whatsoever. The issue is a red herring and confuses en already difficult situation. In calling for an assessment of “invisible skills” counsel introduces a level of subjectivity that is wholly unwonted in classification matters. Panels of this Board should not import foreign concepts into the application of the Class Standards. As the majority notes on p.28. “the Board has no jurisdiction to amend or alter” them. Arbitration panels are not courts of equity. .However tempting it may be, we have no role in correcting potential deficiencies in the classification standards or’ redressing perceived societal or cultural shortcomings. Until the gender related issues are brought within the scope of our authority, this Board should refuse to entertain attempts to introduce them. whatever the merits. To reverse a well-known dictum: Justice must not only be seen to be done. it must be done. 4. PROCEDURAL FAIRNESS In defense of the approach used to arrive at its decision, the majority refers to several cases which were neither presented nor argued by counsel [see for example Parker 107/W et p.291. This introduces a new element to the case which was not previously addressed. Thus. the parties are not able to rebut or submit alternative arguments. As a matter of procedural fairness. I submit that arbitrators shoclld eschew this praceise. It puts et least one party at a serious disadvantage. ,, r - ’ . I I ( -B- This should not be teken to mean that arbitrators can’t do research prior to arriving I et a decision. But if new issues are raised in such research that were not even touched in evidence or argument [such as this one in which the class standards ere said to be referrable to the state of the art]. then the parties should be invited to address them. That was not done in this case. All of which is respectfully submitted. Leslie D. Foreman