HomeMy WebLinkAbout1984-0804.Switzer and McKenna.85-11-07Between:
Before
For the Grievors: J. A. Millard
Counsel
Barrister & Solicitor
For the Employer: L. McIntosh
Counsel
Crown Law Office, Civil
Ministry of the Attorney General
804184, 805/84
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOAR0
OPSEU (T. Switzer & J. McKenna)
Grievors
- and -
The Crown in Right of Ontario
(Ministry of Transportation and CommunicationS)
Employer
P. J. Brunner Vice Chairman
F. D. Collom Member
W. D. Shuttleworth Member
Hearings: April 16, 1985
May 15, 1985
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DECISION
The question raised by these grievances is whether T.
Switzer and J. McKenna were at the material times, properly
classified as Clerk 3 General in the.General Issuing Section of
the Licensing' Operations Office, which is part of the Licensing
and Control Branch of the Ministry of Transportation and
Communications. The substance of the complaint of the two emp-
loyees is that they were performing the duties and responsib-
ilities of a Record Audit Clerk,.which is a position that is
classified as a Clerk 4 General. The contention of the Employer
on the other hand, is that the performance of their duties is
that of a Data Input. Clerk and accordingly properly within the
lower classification.
The task of the Grievance Settlement Board on a classifi-
cation grievance such as this was restated in Re Montague,
110/78, as follows:
"The task of this Board in classification qriev-
antes is to assess whether the position has been
improperly classified according to the class
standards established by the government.'s classif-
ication system. In deciding such grievances, the
Board considers not only whether the grievor's job
comes in within the words of the higher class
standard which he or she seeks, but also whether
the qrievor's duties are the same as those of an
emolovee within the more senior classification sough; ~(Re Lynch, 43/77; Re Rounding, 18/75; Re
Wheeler, 166178).
A recent ,award by another panel of this Board
elaborated on this second line of enquiry in
To this shou
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c, McCourt
198/78. If another emulovee doins work identical
to the grievor is classified at a-higher grade, it
may 'indicate that the employer's actual classifi-
cation practices differ from the written classif-
ication standards. It should be noted, however,
that the concern is with the proper application of
the employer's classification system. Therefore,
it may not be conclusive for a grievor to show
that one employee in a higher classification
performsthe same tasks, for it may be that such
an' emulovee has been imorooerlv classified. In
deal&q with applications under-section 17(2)(b)
of the,Crown Employees Collective Bargaining Act,
S.O. 1972, c.67, or grievance reqardinq classif-
ication under the collective agreement,-the Board
is not directly concerned with discrimination
between employees in the application of the
classification system, unless the differential
treatment demonstrates a change in the classif-
ication system from the written standards. The
Board's concern is with the.quest.ion of whether
the qrievor's job has'been improperly classified,
when that job is measured against absolute
standards. Often, the description of jobs of employees in the higher classification will only
serve to illustrate the application to particular
cases of what are necessarily generally worded
standards."
Id be added the observations of the Divisional
Court of the High Court of Justice in Ontario Public Service
Employees Union v. The Queen in Right of Ontario et al, (1982) 40
O.R. (2d) 142, where at page 145, Mr. Justice Callaghan, on
behalf of the Court, put the matter in this way:
"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
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higher classification which 'he- seeks and, even if
he fails to fit within the higher class standards,
whether there are employees performing the same
duties in a higher, more senior classification."
The position of Data Input Clerk is classified as Clerk 3
General. The class definition reads as follows:
"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 practicesd
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 proce- dures.
Typical tasks at this level include the prepar-
ation 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 or 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."
The Clerk 4 General class definition is as follows:
"Employees in positions allocated to this class
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perform a variety of responsible clerical tasks
,requirinq a good background knowledge of specific
regulations, statutes or local practices. Deci-
sion-making involves judgment in dealing with
variations from established guidelines or stan-
dards. Normally, employees receive speci=ic A in-
structions only on.unusual or special problems as
the work is performed under conditions that permit
little opportunity for direct supervision by
others. Matters involving decisions that depart
radically from established practices are referred
to supervisors.
Tasks typical of this level include the evaluation
or assessment of a variety of statements, appli-
cations, records or similar material to check for
conformity with specific regulations, statutes or
administrative orders, resolving points not clear-
ly covered by these instructions, usually by
authorizing adjustments or recommending payment or
acceptance: supervising a small group of "journey-
man clerks" or a larger group of clerical
assistants by explaining procedures, assigning and
checking work and maintaining discipline;"
On April 23, 1983, the Production Operation of the Licensing
Operations Office was transferred from the Municipality of
Metropolitan Toronto to the City of Kingston. A general
re-organization of the Branch, including its methods and
procedures for recording, storing and searching of records with
respect to driver's licences and vehicle registration was
. planned. This included a contemplated merger of the previously
separate operations with respect to driver's licences and vehicle
registration.
Prior to the move to Kingston, there were Data Input Clerks
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(Clerk 3 General) and Record Audit Clerks (Clerk 4 General) in
both the driver's and vehicles sections. The position specific-
.ation for the Data Input Clerks and Record Audit Clerks reason-
ably accurately summarizes the duties and responsibilities of the
employees who perform these tasks and accordingly are reproduced
in the i r material parts.
"Data Input Clerk
1. Process all input documents by:
receiving and sorting all documents for input
into the automated system:
coding transactions with appropriate codes to
establish predetermined groupings within the
system;
investigating the computer records to deter-
mine the transaction type for those documents
that could not be readily identified because of insufficient data:
comparing information for accuracy with
appropriate sections of the Highway Traffic
Act:
counting documents into bundles, attach a
batch sli? indicating number of documents,
code and date;
complete batch card and batch control record
sheet showing batch number, transaction code,
pertinent instructions, data and total number
of documents in each batch;
photostating various documents for forwarding
to other sections, i.e. microfilm unit, data
conversion section, driver control, etc.;
identifying various, types of errors and
preparing quality control report;
initiates. correspondence to original source
requesting missing or incorrect information.
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2.
3. As assigned.
Maintains an input and output control on all
the batched and keyed documents from the time
of receipt to final disposition in order to
ensure that the data is loaded to the
automated system by performing such tasks as:
prepares a daily record of output for
statistical purposes and distributes copies
to section management:
being responsible for locating documents.
assumed lost, obtaining microfilm copy and
recording for re-entry into the computer
system;
ensuring all documents have been processed
and checking minor errors on the terminal;
inserts correct data on documents to ensure
that transactions are acceptable for data
entry;
Record Audit Clerk
1. Receives, reviews and resolves computer
related problems by performing such tasks as:
keying the appropriate transactions code into
computer terminal with pertinent driver/-
vehicle data to obtain internal search
record;
entering driver licence number and personal identification number into computer to obtain
overnight output requests used only for the
combining of double records;
complete batch control card showing required
transaction code for each. type of document
where a change is indicated:
resolve outstanding or rejected microfilm retrieval file numbers:
ensures that microfilm retrieval numbers not
used because of a rejection which cannot be
re-entered into the system are cancelled;
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2.
3.
locate driver's licence on terminal and
transcribe to certificate of conviction,
computer resolve message or other documents:
whe're driver never licensed, enter approp-
riate transaction code into terminal with
pertinent driver data to create a reference
number: this number is transcribed to approp-
riate document and used to identify driver on
computer file.
Ensures that the manual and automated. licen-
sing/vehicle records contain valid and accur-.
ate information by performing such tasks as:
audit, correct, authenticate driver/vehicle
history records.reported or suspected to be
erroneous (e.g. two applicants with same name and birthdate);
analyses the transactions and decides the
possible type of error and determines the
cause by scrutinizing resolve message and
determines the correct action to pursue from
a variety of source information (i.e. Acci-
dent Claims Branch and Driver Improvement
Office);
pre-editing and prescreening source documents
pertaining to errors prior to data entry in
the system for validity, accuracy and confor-
mity with the edit and update program logics;
prepares document to be re-entered ensuring
accurate change to computer record and reflecting transaction is a correction.
Performs other related duties as assigned:
records daily work record providing super-
visor with daily statistics of errors re- ceived and resolved:
discusses with supervisor possible program and product improvement methods; changes to procedural manual, etc.
assisting in the training of new and tempor-
ary staff."
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The evidence is that there was a very large backlog of
unrecorded or erroneously recorded driver's licences and vehicle
registrations in the computer system. This, as well as the fact
thatnot all employees were prepared to make the physical move to
the City of Kingston, resulted in a need for the hiring of
additional staff. The grievor J. McKenna was first hired by the
Ministry on May 11, 1983, as a, temporary contract employee. On
August 1, 1983, she became a Clerk 3 General and was subsequently
assigned to the position of Data Input Clerk. On September 6,
1984, she applied for a vacancy in the Record Audit Clerk
position which she was subsequently awarded. As a result, she
became a Clerk 4 General effective December 1, 1984, the
classification which she presently holds. Her complaint however
is that she was performing the duties and responsibilities of the
Record Audit Clerk as early as August 1, 1984, and should have
been re-classified at that time.
T. Switzer was hired on May 3, 1983, also as a temporary
contract employee. She became a permanent employee on August 23,
1983, and was thenclassified as a Clerk 3 General. Subsequently,
she too was assigned to the position of Data Input Clerk and now
claims that she should have been re-classified as a Clerk 4
General as she says that she has performed the duties and
responsibilities of a Record Audit Clerk for a substantial period
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of time prior to August 23, 1984, 'the- date of her formal
grievance.
Both grievors were advised by their Unions not to file
grievances until they had completed their probationary period.
Hence the delay to August 1 and August 23, 1984.
The evidence is that there was some intermingling of
functions between the Data Input Clerks and Record Audit Clerks
after the relocation to the City of Kingston. It would appear
that the latter were also performing Data Input duties for some
period of time, in order to alleviate the backlog which had
accumulated particularly with reference to the recording, storing
and searching of vehicle' registrations. There is also evidence
that some of the Record Audit Clerks were not capable of carrying
out some of the responsibilities of the Record Audit Clerks,
which the branch was attempting to develop as part of the
re-organization.
The two grievors only performed work in relation to vehicle
registration and had no involvement at all with driver's
licences. It would appear that groups of four employees holding
both positions and being classified as Clerk 3 and Clerk 4
General worked together side by side around. a computer terminal
and were under the general direction of one group leader. The
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Board heard a great deal of evidence over the two days of
hearings, sometimes in minute detail, as to what both grievors
did from the date they were hired to the dates of the grievances.
We also had the benefit of the testimony of several employees
who, while classified as Clerk 4 General and holding the position
of Record Audit Clerks, performed Data Input functions with,
respect to vehicle registration for certain periods of time. It
would appear that this was the result of developmental problems
within the computer system which resulted in very little vehicle
audit work being done. It would also be fair to say ~that there
was some lack of precise direction and organization which no
doubt was.due to the relocation of the,of.fices and the attempt to
redefine practices and procedures.
An examination of the class definitions of Clerk 3 and
Clerk 4 General makes it clearthat the dividing line between the
two classifications is not black and white. These definitions do
not contain water tight compartments which are easily distin-
guishable from one another but constitute only a general outline
of the duties and responsibilities of the employees, with the
main difference. or distinction being the degree of responsi-
bility, independence and judgment that is exercised.
Although the matter is not entirely free from doubt, we are
satisfied that the grievors have not established, on a balance of
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probability or on a preponderance of the credible evidence before
us, that the duties that they performed in the year preceeding
the date of their grievances, fell within the core or ambit of
the duties of a Clerk 4 General. In our view, the nature of their
work was that of a Data Input Clerk and accordingly that of a
Clerk 3 General.
As to the contention that their work was substantially the
same as several Record Audit Clerks, we are satisfied that this
was only so for short periods of time.and the result of special
circumstances due to the re-organization, the backlog of work and
the lack of abilities of some of the Record Audit C~lerks. It may'
be that the work scene had the appearance that there.was but
little difference or distinction in functions between the two
classifications. In this connection it is to be noted that the
grievors worked in close proximity and indeed as part of the same
group as the Record Audit Clerks. They obtained the documents,
reports and other information from the same source. They were
under the general direction of one group leader. It was a
collegial atmosphere and involved a group discussion of mutual
work problems. However, on a review of all of the evidence, we
are not satisfied that the grievors performed the kind of work
that was normally and habitually carried out by employees in the
Clerk 4 General classification.
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Accordingly and for these reasons, the grievances are
dismissed.
DATED at Toronto this 7th day of November, , 1985.
-‘,
,.-4 c~ c. ~-.-.. ~'~ K P. JOHN BRUNNER, VICE-CHAIRMAN
w . D. SHUTTLEWORTH. MZMBER