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HomeMy WebLinkAbout1985-0094.Gardner et al.87-06-25IN THE MATTER OF AN ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN: BEFORE: FOR THE GRIEVOR: FOR THE EMPLOYER: HRARINGS : December 6, 1985, May 2, May 23 and June 19, 1986. BEFORE THE GRIEVANCE SETTLFHENT BOARD OPSEU (Gardner et al) Grievor THE CROWN IN RIGHT OF ONTARIO (Ministry of Revenue) Employer H. R. Gorsky I. J. Thomson P. D. Camp Vice-Chairman Member Member J. Miko Grievance Officer Ontario Public Service Employees Union D. Kirk Labour Relations Advisor Ministry of Revenue DECISION In identical grievances, dated May 9, 1984, in the case of the Grievors Dianne Nichol, Judy Sutherland, and Donna Gardner and on May 10, 1984, in the case of the Grievor Nancylynn Obiola, the Grievors allege their improper classification'as Clerk 3, General. By way of settlement, the Grievors request reclassification to the level of Clerk 5, General, and retroactive salary at the higher classification "to the date it was first due." At all material times, the Grievors were employed in the Revenue Control Unit, as Revenue Control Clerks in the Employer's Retail Sales Tax Branch located in Oshawa, Ontario. Judy Sutherland was the only Grievor called upon to give : evidence at the hearing-. The parties agreed that her evidence would be equally applicable to each of the remaining grievances. It was also agreed that Dianne Nichol is,no longer in the position she occupied at the time of the grievance and that if this grievance succeeds she will receive compensation to the time that she ceased to occupy the position. : . The position of the Union is that the request for reclassification was first brought to the .attention of the Employer in June of 1983 and that retroactivity should be to the date of such notification. Subsequent to the filing of the grievances, a job audit report relating to the Grievers' positions was prepared by the 2.~ Ministry. As a result, the Grievors were reclassified, by the Employer, in 1985, to the classification of Clerk 4, General. In addition, a new Position Specification and Class Allocation Form followed. It was acknowledged that subsequent to the audit of the fourteen grievances filed by Revenue Control Clerks, classified as Clerk 3, General, which led to the audits, fourteen were re- classified as Clerk 4, General and seven as Clerk 5, General. The first witness called by the Union was Mira Fawcett, employed by the Ministry of Health in its Recove'ry and Collection Department for OHIP, at Kingston. Ms. Fawcett was one of a group of four Grievors who were successful, after a hearing, in obtaining reclassification to Clerk 5, General in circumstances similar to the one before us. The grievances were allowed in an award dated November 30, 1984: OPSEU (E. Borqes; Mira Fawcett " and Dianne Wylie) and The Crown in the Right of Ontario (Ministry of Health) 21/84, 22/84, 23/84 (R.-L. Verity, Q.C.), hereinafter, "the Fawcett case.” There was little dispute concerning the facts testified to by Ms. Fawcett, as substantiated in the award referred to. As . noted in that award, the mandate of the Recovery and.Collections Department was to collect, as expeditiously as possible, all debts owing to OHIP. The purpose of Ms. Fawcett and the other employees who grieved along with her is set forth in the Position Specification Form as follows: I, I’ 3 "Purpose of Position To collect monies owing to OHIP from subscriber groups in chronic arrears, bankrupt, in receivership, or ceased operations and from'direct subscribers in personal bankruptcies; to recover money overpaid to physicians, pharmacists, private laboratories, and other practitioners providing health care services; and to investigate and recover money paid out orinitiate a criminal~action as a result of intentional fraud." The Skills and Knowledge required to perform the job performed by Ms. Fawoett are as follows: "Must have extensive knowledge of a number of pieces of legislation such as Health Insurance Act and Regulations; Consumer Protection Act; Bankruptcy Act; Personal Property Security Act; Land Titles Act; Land Registry Act; Fraudulent Conveyances Act; Executions Act; Fraudulent Debtors Arrest Act; the Criminal Code; Bulk Sales Act; and Creditors Relief Act as they relate to the Recovery and Collection Department, the availability of useful information, and the securing of a creditor's interest; - considerable experience in debt collection or closely . related field; : -~ should have a working knowledge of the other areas within OHIP withy which this section must co-operate (ie. - Ally areas of Operations Branch, Finance Administration Branch, Audit Branch, Professional Services Branch, etc.~): - must possess well developed negotiation skills; - must be able to make decisions on own initiative with minimal supervision; - must be able to conduct detailed research and present findings accurately in an organized, concise manner, both orally and in writing,.with aocent on presentation of background, alternative courses of action and recommended solutions. - must be able to communicate effectively both orally and in writing with professionals as well as the general public; - must have the ability to deal tactfully in matters of a highly sensitive nature." 1 4 In the Fawcett case, the parties agreed that the Position Specification Form accurately set out the duties of Ms. Fawcett and those who grieved along with her. The details of their duties are as follows: L. I? . . Investigates indebtedness to OHIP, initiates recovery . prccedxes, investigates allegations of fraud, and maintains related records by: -receiving notification of indebtedness from internal or exten?al sources IegJLXoup Accounts, Trustee in Bankruptcy, Hospitals, Police); -originating &cover-y 6 Collection case files, file index card for the Master Log of all files receiwd, and follow-up card to record movement of file and payments received; -determining and compiling documentary proof of indebtedness: .I, -calculating the total amount of indebtedness pertaining to a case file from information gathered through own research; -sending Receivership letter, prcof of claim, and fact sheet to notify Receiver/Trustee of CHIP claim and to determine the status of OHIP's claim; -arranging~with Peceiver/hrustee for a %oup inspector frum the Financial Inspection SectiOn to gain access. .~ to the payroll records of coqenies in receivership or bankrqitcy, as ~11 as arranging inspections with Company Official in situations such as Ceased Operations or Arrears, inorder to determine total amxntof indebtedness as applicable; -tracing/locating debtor as necessary by using information available frcm other provincial ministries, Federal Cepartmants, credit bureaus, banks, internal records (eg.-medical claims history, Canadian ?ledical Director, S&S files), newspapers, etc., and follo6bg up hatever leads 90% develop from these and other$ources; -king initial contact with debtor by telephone (or by mail if unable to contact by telephone) to advise him of his indebtedness and to decide upon an arrangement with the debtor or his repre- sentative through negotiation for recovery in the shortest possible time period., having assessed the alternatives; -writing to debtor to confirm verbal agreement and diariztig file for follow-up to determine response or la,ck of response from debtor; -d&ing on an spprcpriate course of action in cases of nb'?esponse fro-n the debtor on the basis of age of debt, debtor's ability to pay, and an assessment of the tackground of the debt tie.-writeoff, Refer to Legal Uranch, Refer to Collection Agency, initiate civii 'or criminal action); -securing e debt by obtaining co&lateral security or writ of execution against personal or real property; -monitoring those cases on which an arrangement is mde for ccxpliance with the arrangement and finalizing ard closing the file tien the indebtedness is fully paid; -responding to enquiries fran debtors or their represen- tatlves leg.-solicitors, receivers, trustees in bankruptcy) by pro&ding details about specific mounts owing and resolving problems including inquiries of a customer service nature: -making recormendatiohs to &.nager with regard to alternative courses of action available for particularly difficult cases after all efforts have been exhausted and all alternatives have been assessed: -amlyzing medical claimLhistory and other available information lie.-SAS, Ihcorre Tax Verification, etc.) to detenine ti-e nature and atent of fraud, and referring matter to appropriate authorities (ie.-R.C.H.P. and O.P.P. Fraud Squad) for criminal action; -developing new procedures where none previously existed omthe basis of past experienca in the field: -conducting,legal research such'as available remedies to a problem or omparison of various pieces of legislation: -reumending changes to procedures, policies and legislation as deemad appropriate from periodic review and grcq discussions; -representing CHIP at creditors' lreetings or legal proceedings as required; -.performs field calls as required. 2 . Processes Kmies Received and Updates Related ' Records By: -receiving cheques, entering receipt in leg as appropriate tie.-Fraud Recovery Ledger) entering wymant in &ster File Index Card, and rmnitoring for cmpliance with arranqemqt: -cwplettig receipt and forwmsh.ng to payer as appropriate: :. -preparirq appropriate input cb&xmts a&3 fomrdirw dccummts and payment to Cashiers Section or t4dical Claims Paymant Section in Finance and,Acmuhttig 6 5% Branch as appropriate; -.mintaining control of post-dated cheques and processing as Lk)1 ccxw due; ,, -mnitoring S.C.P. mnthly reprts on Medical/Ccntal/ Prnctitioncr Rcvicw Committo: Rccovcries and Private Laboratory Recoveries for compliance with arrangements for rcpayrrcnt made by physician/practitioners and private laboratories: -closi&recovery files tien debts fully paid or written off. 5% 3. Performs Other Rrlated Duties As Assigned." -As in the Fawcett case, the Ministry, here, acknowledged that the Grievors were improperly classified on the date that the grievances were filed and the Ministry tbok'the posit'lon that all the Grievors were subsequently appropriately classified as Clerk 4, General. As in the Fawcett case, the Grievors, here, maintain that they should be appropriately classified at the Clerk 5, General level. As in the Fawcett case, the relevant Class Standards are as follows: "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 judgment in dealing with variations from established guidelines or standards.' Normally, employees receive specific 7 instructions 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, 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 authorising 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." "CLERK 5, GENERAL CLASS DEFINITION: "Employees in positions allocated to this class perform responsible clerical work requiring detailed knowledge of both of regulations, statutes or local practices, together with a thorough understanding of the objectives of the work unit. Decision-making involves judgment in the interpretation and application of policy or administrative directives to problems where the intent of existing instructions is obscure in specific cases. This frequently necessitates modifying work processes or the development of new methods. Although the work is carried out with a large degree of independence, it is reviewed for consistency of decision-making. Difficult technical questions, or those involving policy determination are referred to supervisors. Tasks typical of this level include responsibility for a significant non-supervisory, clerical, or clerical accounting function involving the interpretation, explanation and application of a phase of departmental a legislation or regulations and requiring the ability to make acceptable recommendations or provide functional advice; supervising a group of 'journeyman clerks' performing clerical duties of varying complexity or a smaller group engaged in more specialised work by planning, assigning Andy reviewing work, deciding priorities, maintaining production levels and carrying responsibility for the total performance of the unit. QUALIFICATIONS: 1. Grade 12 education, or an equivalent combination of education, training and experience, preferably completion of additional training such as related correspondence and university extension courses; thorough knowledge of office practices and procedures. 2. About six years progressively responsible clerical experience or an equivalent combination of experience and higher education. 3. Ability to evaluate the effectiveness of clerical procedures and.staff performance; ability to supervise the work of other employees;, ability to interpret regulations and instructions into procedures and practice; ability to prepare effective correspondence, instructions and reports." At p.8 of the Fawcett Award, it is stated: "Mrs. Fawcett testified at some length regarding her job responsibilties and presented highly credible evidence that the three Grievors combined their collective talents to prepare an extensive procedural manual on collection procedures with some input from Department Manager Wilfred Wiseman. On the evidence, there can be no doubt that the Grievors perform the tasks set out in Exhibit 7 and referred to above. [See duties commencing at p.4 of this Award.] Similarly, there is no doubt that they are aggressive and . competent in the performance of their duties. s On the evidence, there is no doubt that Mr. Wiseman has given each of the Grievors broad discretionary powers to effect all settlement of 'claims." At pp.ll-12 of the Fawcett Award, it is stated: "The appropriate test used by arbitrators in classification .grievances have been extensively canvassed in numerous awards and by the Courts. The Ontario Divisional Court considered those tests in a judicial review of OPSEU (Michael Brecht) and Ministry of Community and Social Services, 171/81, in an oral judgment of Mr. Justice Callaghan dated December 21, 1982 as follows: '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 classy standard comes within a 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.' "In this matter, the two ClassStandards that we must consider have Been in existence, unrevised, for a period in excess of 20 years. Inevitably, there is some degree of overlap between the two Class Standards in question. Both Class Standards deal with certain common elements, namely knowledge required, decision-making and judgment required, supervision and typical tasks. The difference between the two Class Standards is essentially a matter of degree~of complexity of the assigned responsibilities or the degree of independent judgment required in the performance of those duties. "The Board is ~of the view that it would be indiscreet on our part to review the methods and techniques employed by the Grievors in the execution of their job.responsibilities~. Suffice ~i.t to ~say that'the'position in question requires~ a large measure of tact, sensitivity, aggressiveness and firmness in addition to detailed knowledge and experience in collection procedures. Clearly, the Grievors are highly successful in.the performance of their duties." As above.noted, the Grievor, Judy Sutherland, gave evidence which was to represent that of all of the Grievors. When comparing the evidence given by Ms. Fawcett with that given by MS. Sutherland, as to the substantial similarity of their performance of collection functions, I found that the method of negotiating arrangements for settkements were similar even though the amounts of money were not the same and the limits applicable in the different Ministries were not the same. The forms and documentation employed by both sets of employees were very similar and the skills, knowledge base and the approach to the use of legislation and the kind of legislation were also very similar, although one group would have greater reference to the Health Insurance Act and the other to the Retail Sales Tax Act. Ms. Fawcett testified as to her involvement in the development of office procedures and a manual of procedure when the Kingston office commenced operations. While Ms. Sutherland was not involved in the preparation of a manual, she was involved in setting up the Qshawa office, devising arrangements with respect to the security of files, the preparation of certain form letters, preparing forms dealing with field office reports and skip tracers and in making recommendations for changes in the systems within the branch. I. find ,that the level and scope of decision making available to Ms. Fawcett and Ms. Sutherland was functionally the same in such areas as recommending to their Supervisors which accounts' should be written off. Both of them signed demand letters under their own signatures and both of them had certain discretion in negotiating settlements. I also find that recommendations made by Ms. Sutherland, while not binding, were apparently always effective. Ms. Sutherland's Supervisors appeared to make only the most cursory checks of her work. At p.9 of the Fawcett case, it is noted that her Supervisor, Mr. Wiseman, retained carriage of "sensitive collections", however, in the vast majority of files he permitted the Grievors, there, to function largely without supervision. :.. .:‘,~ .::. ‘.I. . :.. : 11 Notwithstanding the great similarity in job functions, between the Grievors in this case and in the Fawcett case, the Grievors in the Fawcett case were functioning Completely autonomously in effecting certain settlements, unlike the Grievors in this case. While the Grievers' Supervisors in this case had great confidence in them and appeared always to rely on their recommendations, and only reviewed their recommendations in a cursory fashion, this did represent a difference between the two cases. Having compared the evidence of what the Grievors did in this case with what the Grievors did in the Fawcett case, I find only one possibly significant difference: that the Grievors in this case did not have full authority to negotiate appropriate settlements. The Grievors in this case, however, acquired skills which enabled them to handle all relevant government procedures, regulations and policies as did the Grievors in the Fawcett case and I can find no real difference between the actual functioning of the two groups, save for the one area referred to. The Grievers' immediate Supervisors in this case functioned more as resource persons. In the result, the full authority enjoyed by the Grievors in the Fawcett case to negotiate certain settlements was very little different from the effective result'achieved by the Grievors in this case. When Ms. Sutherland's Supervisors went over her recommendations, there was no serious review of her analysis. Certain obvious mechanical errors might be noted, although it was not indicated whether any were found, and that is the only rev ,iew of her judgment that took place. 1:: 12 As in the Fawcett case, I find that Ms. Sutherland, here, as the representative Grievor, performs responsible clerical work which requires detailed knowledge of legislation and local practices. The judgment component of the job requires the interpretation and application of policy which also involves the development of new methods. The work performed by Ms. Sutherland was carried out with a large measure of independence, as is contemplated by the higher class standard, and the typical tasks performed by her require the interpretation and explanation of departmental legislation, in particular the Retail Sales Tax g, although many other statutes are frequently relied upon. I find that Ms.. Sutherland performs job responsibilities which fall within the Clerk 5, General classification, and in any'event, performs work which is functionally the,same as that performed by the Grievors inthe Fawcett case. As in the Fawcett case, where a comparison was made with Ministry of Government Services Collection Officers, while it could not be said that the Grievors, here, perform the same job as do the Grievors in the Fawcett case, the central core of duties are substantially similar. The Grievors function as Collection Officers within a single' Ministry. There are, as has been noted, differences between the two positions, but having compared the positions specifications and having had the benefit of the evidence of Ms. Fawcett and Ms. Sutherland, I am satisfied that the Grievors, here, perform the essential core duties of the 13 Grievors in the Fawcett case, who have been classif.ied as Clerk 5 General as a result of the Verity Award. I would add that while all of the witnesses gave evidence in an honest and straightforward fashion, I was particularly impressed with the evidence given by Ms. Sutherland. Her evidence, which was unshaken, provided the Board with an excellent description of what work she did and was responsible for. In the result, and for the above reasons, the grievances succeed and the Grievors are entitled to retroactivity plus interest in accordance with the rule ennunciated in Re Smith and Ministry of Community and Social Services (1985), GSB i!37/81 (Roberts), which "would limit retroactivity to 20 days before the date' of filing of, the grievance." ,g. at p.5.~ There are no circumstances which I find to raise an equity against the Ministry's reliance on this rule. Interest is awarded upon retroactive payments in accordance.with the formulations set forth in Re Jones and Ministrv of Correctional Services (1984), GSB 537/82 (Joliffe). The Board will retain jurisdiction of this matter pending implementation by the parties. DATED AT London, Ontario this 25th day of June 1987. M. R. Gorsky Vice Chairman ~W *I. J. omson Member "1 dissent" fmasons to f0llOWl P. D. Camp Member