HomeMy WebLinkAbout1986-0051.Mallette et al.89-12-22EMPLOY.%DELA COURONNE
DEL’ONTARIO
CQMMISSION DE
REGLEMENT
DES GRIEFS
180 WNOAS STREET WEST. TORONTO. ONTARIO. t&G US- SUlTEZlW TELEPHONE/T&kPHONE
,.w, RUE CUNOAS OUEST, TORONTO, (ONTARIOJ t&C ID. BUREAU 2100 (m3,598-OgsS
51/86, 568/86, 647/86
IN THE NATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Mallette et al, Barrington et al, Howe et al)
- and - Grievor
The Crown in Right of Ontario
(Ministry of Health)
Employer
Before: E.K. Slone Vice-Chairperson J. Solberg, Member D. Montrose Member
For the Grievor; M. Ruby Counsel
Gowling, Strathy & Henderson Barristers & Solicitors
For the Employer: L. McIntosh Counsel Crown Law Office, Civil
Ministry cf the Attorney General
Hearings: October 26, 27, 1987 February 25, 1988
July 11, 12, 1988 August 23, 1988
AWARD
This is a classification grievance which calls to mind the
ancient philosophical debate, of whether a glass containing half
water and half air, is half full or half empty. The aptness of
this metaphor.will hopefully become clear later.
. ,
This hearing dealt with twenty-five individual grievances
which were consolidated upon the consent of the parties. We
heard some six days of evidence spread over a ten month period
between October 1987 and August 1988. At the suggestion of
counsel we received lengthy written submissions, the last of
which was supplied to us in February 1989. We are grateful to
counsel for these very helpful and complete submissions.
The Grievors are all Psychiatric Nursing Assistant 2's
("P.N.A. 2's") employed at the Brockville Psychiatric Hospital
("BPH"). That institution is one of a number of regional
hospitals which contains a medium security ward, in this case
referred to as "ward K". It is the thrust of this grievance
that the P.N.A. 2's who are permanently assigned to ward K, or
who have performed temporary assignments on ward K, are
improperly classified. It is alleged that the institutional
setting and the work done on ward K are so unlike the other
wards and the duties performed elsewhere in the hospital, that
some special recognition by way of a higher classification is
justified. It is specifically claimed that the appropriate
classification would be "Attendant 2, Oak Ridge", which is the
classification applied to certain staff at the maximum security
psychiatric wing of the Regional Hospital at Penetanguishene
(hereafter referred to as "Oak Ridge"). The union claims this
classification to be the best fit, but in the alternative leaves
it open to us to direct the employer to find or create a more
apt classification should we find that the current one is wrong.
To make any sense out of this grievance, one must have some
appreciation of the demands placed upon ward K and other medium
secure units, by both the health care and criminal justice
systems.
Normally, persons with psychiatric problems are the concern
of the health care system only. Under the Mental Health Act,.
persons who present a danger to themselves or others by reason
of their mental state, may be hospitalised against their will
until such perceived danger has passed. A necessary corrollary
of the power to commit is the ability to restrain an involuntary
patient from leaving the institution. Thus, locked wards are a
necessary feature of a psychiatric
hospital, and maintaining some level of security is a
necessary if only incidental function of all hospital staff
working on a locked ward.
However, once a person with manifest psychiatric
c 3
problems is charged with a criminal offence, he or she becomes
also the concern of the criminal justice system.
There are essentially three types of disposition that the
criminal justice system may make in the case of an accused
person, that will cast an onus upon the psychiatric hospital
system:
. , Firstly, the court may order an accused person at any time
to be remanded for a certain period of time in order that a
psychiatric assessment may be made. After such period of remand
the accused person must be delivered back to the court, and it
is obtious that the hospital staff is responsible to see that
the accused person is safely returned into the custody of the
court.
Secondly, the court may make a finding that an accused
person is by reason of mental illness "unfit" to stand trial.
Such person is then remanded on a Lieutenant-Governor's Warrant
("LGW") into the custody of a hospital, to be returned to the
court to stand trial if and when the accused person has
recovered sufficiently to stand trial.
Thirdly, an accused person may be found at trial "not
guilty by reason of insanity", in which case the only
disposition possible under the Criminal Code is for the person
to be committed on an LGW into the custody of a psychiatric
facility, until a Review Board determines that such person is
sufficiently recovered to be released back into the community.
In the case of an LGW, there is a legal obligation on the
institution to hold the person in "safe custody".
A related category of persons is those who while
incarcerated after being convicted of an offence, become
unmanageable by reason of mental illness and who are transferred
by the correctional institution to a psychiatric hospital.
It is only fair to note that accused persons on warrants of
remand or who have been pronounced unfit, have not been found to
have c'ommitted any criminal offence, but nonetheless have become
subject to~the added pressures imposed by the criminal justice
systems.
It is probably also fair to note that those persons found
not guilty by reason of insanity have in the vast majority of
cases committed crimes that are among the most
serious and violent known to our law, such as murder, aggravated
sexual assault, arson, wounding and other major offences against
the person. These are generally dangerous and unstable people.
While from a criminal law standpoint they have been found
lacking in the essential mental element to be "guilty" of the
offence - the necessary "intent" - it can hardly be a comfort
to those people who must maintain custody of such individuals,
to know that they either did not understand the nature and
5
quality of the criminal acts, or that they did not know that the
acts were morally wrong.
In the Province of Ontario, there are two classes of
institution that are equipped to accept judicial remands and
LGW's. There is the maximum security facility at Oak Ridge, and
there are a number of of medium-security facilities spread
around the province, including ward K at BPH. We heard no
evidence concerning the role, if any, played by minimum security
institutions, if such a category is even recognised.
While we heard some evidence about conditions at medium
security wards at hospitals other than BPH, we do not feel
qualified nor are we compelled to comment on those institutions
nor to generalize our findings. We will restrict ourselves to
ward K at BPH.
There is no question but that ward K observes a higher
level of security than other wards in the hospital, although
some other wards are locked and of necessity staff on those
wards must count security among their concerns. But ward K is
the only ward in the hospital that receives judicial remands and
LGW's, although again it must be observed that there are
patients on other wards that can pose equal or greater danger to
the staff.
The question for us, simply put, is whether the additional
6
demands placed on the nursing staff by the security systems and
procedures in place on ward K, cause their jobs to be
inappropriately lumped together in a single classification with
the nursing staff on other wards. The. secondary question,
assuming the initial question is-answered in the affirmative, is
whether the P.N.A. 2's on ward K can fit themselves within the
job classification of Attendant 2, Oak Ridge, or whether a
completely new classification must be created.
Before examining the job specifications, we should consider
the institutional settings of the two facilities. Oak Ridge is
clearly designed on a prison model, where the "patients" can be
locked-into their, individual cells; where there are steel bars
on the doors and windows; and where security is a paramount
concern. By and large, all of the most dangerous and
incorrigible male patients in the province are held in this
maximum-security facility. Therapy, it would appear, is a
secondary consideration, and rehabilitation in many cases a vain
hope.
Ward K, on the other hand, receives patients who are
considered less dangerous or more workable. Many have started
out at Oak Ridge and have shown sufficient progress to be
transferred to ward K (usually on a "yo-yo clause" that permits
ward K to send them back if they prove to be unmanageable). The
facility itself is designed on a hospital model, where security
- though obviously important - is not the most glaring feature
-
of the facility. Patients sleep in dormatories, separated by
half-walls instead of iron bars. There are a few female
patients on the ward, ,as opposed to Oak Ridge where the patient
population is all-male. There are strong screens instead of
bars on the windows. It is a facility where rehabilitation is a
realistic, if occasionally limited objective.
While we have focussed on the ,,forensic" patient
population, it is a fact that some of the patients on the ward
have not been sent there by the criminal justice system, but are
civil patients who have been found to require the greater.degree
of security and structure offered by the ward, usually because
of ext%eme anti-social or aggressive behavior shown on other
wards. However, on the evidence before us we must conclude that
the civil population on ward K is very small, and the vast
majority of patients are forensic, most of them being LGW's.
The patients in a medium-security setting are afforded
various privileges that patients at Oak Ridge do not enjoy.
Essentially, the latter do not leave the ward except for court
appearances, medical appointments or emergencies. On the other
hand, ward K patients may be routinely allowed out into the
community, either escorted by a staff member, or in some cases
unescorted. Patients take part in programs such as arts and
crafts off the ward, and must be escorted there. The fact of
less restrictions on patient movement does not make life easier
for the staff, however, who must remain constantly aware of
8
patient whereabouts and must remain secur ity-minded in a variety
of different settings.
P.N.A. - CLASS STANDARDS
The preamble to the P.N.A. series (Ex.4)~ describes the
function of P.N.A.'s in the following terms:
"Employees participate in and contribute to the
treatment and rehabilitation of patients through
the provision of general nursing services and
personal care in accordance with progrcrmmes devised
by the clinical and ward teams to meet patients'
needs. They also assist with and instruct
individuals and groups of patients in therapeutic
a=ctivities such as sports, games and hobbies.
"Psychiatric Nursing Assistants have extensive and
continuous direct contact with patients and, as
members of the nursing team, they have a major
responsibility to provide continuity in their daily
programmes. They observe, record and report
patient behaviour, progress, symptomology, etc.,
noting. any indications of change. They administer
oral medications and assist with or carry out
special therapies when qualified or authorised to
do SO. As required, they assist and instruct
patients in the activities of daily livings such as
dressing, eating, personal care, deportment,
observance of health practices and safety rules.
Under the direction of professional staff or in
collaboration with technical staff, they assist
patients to participate in sports, hobbies,~ social
events, industrial or occupational training. The
work is performed on a shift basis.
The class standard for P.N.A. 2's reads as follows:
"PSYCHIATRIC NURSING ASSISTANT 2"
"This class covers the positions of qualified
Psychiatric Nursing Assistants who function as
members of the nursing team. Under general
9
supervision, they assist patients to become
oriented to the hospital environment and to
participate in the therapeutic programmes. They
instruct and supervise patients in the activities
of daily living. They administer oral medications
as required: they collect and record information
relating to patient and family; they observe,
record and report patient behaviour, symptomology,
reactions to drugs and other relevant data. Under
supervision, they may assist with special therapies
such as E.C.T. or apply behavioral techniques.
Occasionally, they may be required to assume the
duties of supervisory personnel, and be temporarily
responsible for a ward or group of patients.
SKILLS AND KNOWLEDGE REQUIRED
"Demonstrated proficiency in the knowledge and
skills of nursing care at the Nursing Assistant
level; demonstrated ability to understand and work
effectively with the mentally ill; ability to
observe and record patient behaviour; ability to
maintain good working relationships and follow
i'nstructions.
ATTENDANT, OAK RIDGE - CLASS STANDARDS
The preamble to this series (Ex.5) describes the function
of Attendants in the following terms:
"ATTENDANT, OAK RIDGE - CLASS SERIES"
"This series is intended to recognise the unique
conditions prevailing at the Oak Ridge Division of
the Ontario Hospital, Penetanguishene. This
division is physically separated from the Regional
portion of the Ontario Hospital, Penetanguishene
and is comprised of a maximum security building to
house male patients who have -
(a) been committed by the Courts as insane- under
the Criminal Code
(b) been transferred from Reform Institutions a.9
unmanageable because of mental illness
(c) been transferred, after committal to other
Ontario Hospitals, as dangerous or unmanageable to
a degree beyond the competence of a normal mental
10
institution
"Because of these conditions, the Attendant staff
at the Oak Ridge Division is required to work
continuously under the tension of a maximum
security environment and to aid in the therapeutic
program dealing with the most recalcitran,t
patients. Because of the special nature of the.
patients within this Division emphasis is placed on
their custody to a degree unknown in the other
Ontario Hospitals. Similarly, any escape from the
maximum custody of this Division is likely to have
much more serious consequences, both in the
activities of the escapee and in public reaction to
them, than would an "elopement" from a regular
Regional Ontario Hospital. This series is designed
to acknowledge this additional custodial
responsibility.
The Class Standard is as follows:
"ATTENDANT 2, OAK RIDGE"
"CLASS DEFINITION:
As qualified Attendants, Oak Ridge, under general
supervision employees in positions allocated to
this class provide custody and practical nursing
care for the male patients committed to the Oak
Ridge Division of the Ontario Hospital,
Penetanguishene. On a shift basis and following
well defined instructions and established
procedures, they carry out custodial ward routines
in accordance with accepted principles and
practices of patient custody and therapy. They are
responsible to supervising Attendants, Oak Ridge
and may assist in the training of Attendants, Oak
Ridge. They are required to exercise tact and
patience in their continuous personal contacts with
and surveillance of, the patient inmates.
"These employees attend to the personal needs of
the patients, perform ward housekeeping duties and
carry out simple clerical and clinical procedures
compatible with their level of training and
competence. They assist other attendant staff in
providing protection to other Hospital employees
and visitors to the Division, maintaining security
measures necessary to prevent escapes, ensuring
that the patients do not secure potentially
dangerous instruments or tools: applying restraint,
examining windows, bars and locks and undertaking
11
sentry duty as required. They take custody of
patient work parties such as the farm, garden,
paint kitchen, Industrial Therapy workshop and
similar work groups. They may have temporary
responsibility for a ward or other patient grouping
in accordance with personal competence.
"They keep patients under close and constant
surveillance and note and report on any changes in
their behaviour pattern or condition and any
suspicious acts. They may be required to
participate in searches for escapees. They assist
in the orientation and adjustment of patients to
hospital life and are required to conduct
themselves at all times in a manner such as to
ensure patient custody; to promote patient therapy
and the best interests of the patients, Hospital
and the Public. They perform other related duties
as required.
"QUALIFICATIONS:
1. Grade 10 education, preferably grade 12 and
sizccessful completion of the approved course for
Nurses Aids and Attendants or an equivalent course
in nursing.
2. A minimum of two years of experience as an
Attendant 1, Oak Ridge OR a minimum of one year of
experience as an Attendant 1, Oak Ridge plus
acceptable experience as a Hospital Attendant 2 in
another Ontario Hospi.tal.
3. Ability to deal tactfully and effectively with
the type of patient committed to this Division;
good powers of observation; satisfactory physical
stature and condition; ability to cope with
emergencies; ability to maintain good working
relationships with patients and co-workers alike;
ability to follow simple written and oral
instructions; good mental health: personal
suitability."
It is striking that in the class standard for P.N.A.'s, not
a single mention is made of the security responsibilities
shouldered by the nursing staff. This stands in sharp contrast
to the Attendant, Oak Ridge definition which clearly identifies
the dual responsibilities of "custody and therapy".
12
POSITION SPECIFICATIONS
The position specification for the P.N.A. 2 that was in
effect at the time of the grievance (Ex.~), and which we
understand has subsequently been changed in immaterial respects
only, describes the purpose of the position as:
"To assist in the provision of professional nursing
care to patients of Brockville Psychiatric
Hospital."
It goes on to define the duties as the following:
"80% Assists in the provision of professional
n&sing care to patients of Brockville Psychiatric
Hospital by:
-assisting in the provision of a therapeutic milieu
through counselling patients understanding and
applying rehabilitative concepts to all dealings
with patients, assisting in the provision of dsily
living activities and specialised programs, etc.
-assisting in the development, modification and
delivery of patient specific nursing plans;
-maintaining a current knowledge of patients'
physical and psychological needs and status:
-observing and recording all pertinent physical and
psychiatric nursing data using a problem solving
approach;
-collecting and recording data through observation,
interviews etc.;
-assisting in the personal hygiene and safety of
patients by bathing, cleaning, feeding patients and
performing related housekeeping duties;
-performing a variety of nursing measures under the
supervision of a Registered Nurse e.g. taking and
recording temperatures, pulses, respirations and
other vital signs, applying dressings and
13
compresses, collecting specimens, giving skin care,
administering oral medications as prescribed in
writing by a physician, etc.
10% Maintains patient records by
-recording all relevant information according to
Nursing policies and procedures;
-completing special observation reports, flow
sheets, incident and accident reports, etc.;
-recording administration of authorised medications
and treatment;
-assisting in the documentation of admissions,
discharges, transfers, leaves etc.
10% Performs other related duties such as:
-escorting patients both inside the hospital and
outside outings, transfers etc.:
-providing health teaching to patient and family; =
-participating in ward conferences,
multidisciplinary teams, etc.;
-providing security and safety measures as
designated by Nursing and hospital policy;
-as assigned."
The position specification for the Attendant 2 at Oak
Ridge (Ex.11) describes the purpose of the position as:
"To provide nursing care to mentally ill patients
in a Maximum Security Hospital and to assist with
the administrative duties of assigned ward."
The duties and responsibilities are as follows:
"25% Participates in therapeutic activities
designed to rehabilitate patients by:
-as a member of the treatment team, participates as
a group leader in therapeutic programs, i.e.
Behaviour modification, Social Therapy, Industrial
Shop Therapy and Activity Centre;
-assisting with the planning of programmes either
i
14
for individual patients or for groups, providing
feedback on existing programmes, attending ward
meetings and patient groups, evaluating patients on
the Behaviour Modification Program verbally and in
writing:
-participating in conferences when in charge of
ward or otherwise assigned;
-recording in Daily Report Book unusual occurrances
or incidents re: patient behaviour or physical
needs when in charge of ward;
-maintaining a harmonious climate with patients in
order to gain and hold their confidence;
-recording patients' progress on nursing notes;
-ordering prescribed medications;
-administering and recording prescribed oral
medications and verifying that all prescribed
medications are accounted for;
-=returning all out of date and non-essential
medications;
-ensuring that the medication cupboard is. clean and
double locked at all times when not in use;
-assisting with the examination of patients;
25% Provides care to patients and assists other
staff by:
-supervising and assisting patients with personal
grooming habits, e.g. bathing, feeding, shaving,
cutting finger and toe nails, cutting hair, etc.;
-taking and recording T.P.R.'s on appropriate
record;
-anticipating possible disturbances and removing
antagonists before trouble develops;
-assisting other staff in the performance of all
duties related to nursing and security;
-answering or referring appropriate patient
requests to appropriate people, e.g. duty counsel,
information, application for review board.
45% Performs security and ward administrative
duties by:
15
-carrying out admission, discharge or transfer
procedures;
-observing patients' behaviour and reporting all
unusual incidents to person in charge;
-supervising patients in the dining room, assists
with the serving of meals, checking table utensils
and ensuring that count is correct;
-checking all eating utensils on ward before and
after each meal period;
-reporting all damaged or malfunctioning equipment
on ward to the supervisor;
-performing routine checks of bars, grilles,
windows and doors on ward and reporting unusual
findings to the supervisor;
-carrying out routine searches of patients and
their personal effects for contraband materials;
-'receiving and relaying telephone and other
messages;
-assisting patients with housekeeping duties, e.g.
making beds, tidying up and cleaning rooms, sorting
clean and dirty laundry:
-escorting patients in and out of hospital, e.g.
medical and dental appointments, hospitalisation,
court appearances and transfers;
-accompanying patients to airing court, overseeing
activities and reporting suspicious actions;
-assuming charge of ward when assigned;
-assisting with the physical restraining of
disturbed patients and completing required reports;
-maintaining a current knowledge of policies and
procedures relative to security and nursing
programs, e.g. fire drills, disaster plan, hostage
taking, treatment programs;
-checking incoming and outgoing laundry;
-responding to emergency alarms.
5% Related duties."
16
To ascertain whether the job specification and
classification are adequate, we must consider what the employees
actually do on a day-to-day basis. We heard a great deal of
evidence from current and former staff on ward K, which evidence
will not be recited in great detail, but will be summarieed.
The differences between the versions offered by the various
witnesses were slight and in respect of immaterial matters only.
We found the witnesses to be credible and we have no difficulty
in accepting the gist of what they said.
There are two forms of security systems that must be
maintained, the so-called perimeter security and the internal
security. The perimeter security prevents unauthorised access
to or egress from the facility itself, while the internal
security is required to maintain control over the patients
within the facility. Insofar as perimeter security is concerned,
the following is a list, not exhaustive, of what must be done:
1. The~ward K staff must maintain a double-locked door
system.
2. Tight control must be kept of the limited number of
keys.
3. The P.N.A. on door duty must scan all visitors with a
metal detector.
i
,ing staff may need to 4. Searches of visitors and some incom
be performed.
5. Visitors meet with patients in a special lounge between
the two locked doors, and must be, observed by a P.N.A. The room
is searched after each visit.
6. Incoming mail and parcels are opened and checked.
I. Maintenance staff coming onto the ward are escorted and
briefed by a P.N.A.
8.=~ Special checks of the exercise yard must be done prior
to the patients being permitted to use same.
9, All incoming admissions to the ward are thoroughly
searched.
10. Patients with off-ward privileges are frequently
escorted by a P.N.A., who remains in communication with the ward
by means of a walkie-talkie.
11. Regular inspections of windows, fence and door locks
must be carried out.
Insofar as internal security is concerned, the duties of
18
the P.N.A. include the following:
1. Constant vigilance and security-mindedness is required
in all situations.
2. Random searches of living areas, clothing, fixtures
and curtains are performed roughly once per week to ensure that
no weapons or other contraband are being concealed by the
patients.
3. The staff must be thoroughly familiar with the alarm
systems, the location of trigger points and the proper
proced&es to be employed in a crisis.
4. Up until recently, a count of cutlery in the dining room
had to be performed after every meal. Now, plastic cutlery is
used and disposed of after every meal.
5. Staff keep custody of all shaving equipment, and
supervise all shaving activity.
6. Accurate ward patient counts must be done thrice daily.
I. Staff must notify local police whenever a patient has
been granted off-ward privileges.
8. Staff dispense lights for patients' cigarettes.
19
9. Staff must maintain specific behavioral guidelines as
set out in the unit manual. For example, there are strict
limits to the display of any intimacy with patients.
10. Staff keep continuous observation through mirrors
strategically placed'in the ward.
11. Elaborate procedures must be followed in the event of an
escape, not the least concern being the anticipated reaction of
the community at large to the presence of an escapee in their
midst.
=
Insofar as the duties focus on or involve these security
functions, is it at all fair to slot these into the 10% of I
related duties set out in the job specification? That section
of the job specification includes "escorting patients both
inside the hospital and outside outings, transfers etc." and
"providing security and safety measures as designated by Nursing
and hospital policy", but includes other non-security-related
duties.
The short answer to that question is "no"!
Several of the witnesses were asked to estimate the amount
of time that they spend on security. We heard estimates of 40%
and 50%. Other witnesses simply stated that the security focus
20
on ward K is much higher than elsewhere, in the hospital. The
employer's evidence did not succeed in challenging these
assessments. While percentages cannot be expected to be precise
to any degree, we accept the overall thrust that the security
duties occupy a significant percentage of the P.N.A. 2's time
and responsibility, by any measure. The job specification and
the class standards give no clue whatsoever to the extent that
such concerns exist on ward K.
The function of a classification system is to identify with
reasonable accuracy the core duties or essence of the various
classified positions. Where the essence of a particular job, as
actually performed, is'not captured by the class standard or
even by the job description, the inescapable conclusion is that
the job is wrongly classified. The P.N.A. 2 classification is
simply too one-dimensional, and while it may be perfectly
adequate for P.N.A.'s in other wards, it fails to mirror the
true essence of the P.N.A. 2 on ward K. That job's dual
responsibilities for therapy and custody are almost equal
partners, while the class standard would have one believe that
the custody function was at most a tiny minority shareholder.
It is argued by the Union that one could take the job
specification for Attendant 2 - Oak Ridge, and with relatively
minor modifications, adapt it to fit the P.N.A. 2's at BPH.
That document (Ex.ll), sets out the purpose of the position in
the following terms:
5
21
';
"To provide nursing care to mentally ill
patients in a Maximum Security Hospital and to
assist with administrative activities of assigned
ward."
With the necessary substitution of medium for maximum
security, that description is quite apt.
The Summary of Duties and Responsibilities for that
position is broken down into four sections:
25% is assigned to therapeutic activities;
25% is assigned to patient care and assisting other staff
(including in security matters);
inistrative dut 45% is assigned to security and ward adm ies;
and
5% is assigned to related duties.
This specification, in our view, goes just a little
too far to be considered the perfect fit for the P.N.A .2's at
BPH. On the evidence, there is a greater emphasis on therapeutic
activities at ward K than at Oak Ridge, which does not allow for
a straight equation of the core duties of the two positions.
22
The settings of the two wards and the different patient
populations housed therein, determine to a great extent the
nature and essence of the jobs performed by the two staffs, and
they are not the same. Oak Ridge occupies one end of the
spectrum. At the other end are the wards which exist in any
hospital and would have their sole or at least primary emphasis
on therapy. Ward K is in the middle; the hybrid, the
"half-full, half-empty vessel" of our earlier metaphor. To say
that it is the same as Oak Ridge is to argue that it is half
full. To deny the similarity is to argue that it is half empty.
It should also be observed that the Attendant 2, Oak Ridge
classiTication was clearly created for that particular
institution, and it could be quite confusing to apply it to
staff working in other facilities.
Thus, we cannot give effect to the argument that the
proper classification for the ward K P.N.A. 2's is Attendant 2,
Oak Ridge. But that is not to demean in any way the important
work done on ward K, nor is it to say that the ward K staff are
or ought to be considered inferior to the Oak Ridge staff. On
the, evidence before us, we are persuaded that the pressures of a
medium serurity unit are considerable. The effect of a slight
relaxation to the security system is increased responsibility
and a greater stress level on the staff. It is easier for the
staff to rest easy knowing that there are elaborate security
systems in place, which will protect the staff from the
23
patients, or which will ensure by electronic means that patients
are kept from escaping or roaming at large. We heard evidence
from some of the witnesses that the recent policies of the
hospital administration, designed to humanize the ward and relax
the visible element of security, have caused an increase in the
stress level of the staff. It was suggested that this
relaxation of security was the real reason that these grievances
were brought. There may be some truth to that suggestion. It
is possible that the increased burden on the P.N.A.'s caused
them to be unhappy and look around for some' greater recognition.
If they have truly discovered that their classification is
wrong, however, there would be no reason to deny them a remedy
because they only awoke to the fact by reason of some other,
unrelated management action.
REMEDY
On the matter of remedy, we are not limited to finding that
the Grievors ought to be classified in the particular
classification claimed. We have the jurisdiction, indeed the
duty, to fashion an appropriate remedy when we find an employee
or group of employees to be wrongly classified. In the
unreported case of Re OPSEU and Berry and the Crown in Riuht of
Ontario (Ministry of Social Services); Mar.13, 1986, the
Honourable Mr. Justice Reid of the Ontario Divisional Court
stated at p.13 of his reasons:
24
“The question that does arise is whether the Board
had power to require the employer to find or create a
classification for grievers. I think it had that power.
Its authority under s.19 of the [Crows Employees
Collective Bargaining] Act is untrammeled. It ‘shall
decide the matter’. Simply to dismiss the grievances
when it acknowledges that the grievers are wrongly
classified is to empty the grievance procedure of any
meaning. It is a cossonplace of the law that the
existence of a right implies the existence of a,remedy.
“The employer initiated the process which led to
grievers being wrongly classified. The employer alone
can create classifications yet it has failed or refused
to do so and seeks to take advantage of its failure.
Classification is not a mere matter of title, it is a
matter of money. The employer has given grievors added
responsibility yet refuses to compensate them
accordingly. ’
Thus, there is no longer any doubt in law that this Board
has the jurisdiction to make an order requiring the employer to
find or create a classification that is more appropriate than
the one currently in effect. We accordingly are prepared to
grant the alternative remedy requested by the grievers. In
order that the grievors are not left waiting indefinitely for
such to take place, we feel that a time limit should be placed
on the employer. While we did not receive any specific
submissions on the point, we feel that a period of four months
ought to be adequate for the employer, in consultation with the
union, to come up with a new classification that gives proper
recognition to the hybrid role that the ward K P.N.A. 2's
perform, including in almost equal measures, security and
therapeutic components. If this time is considered by either
party to be inordinate , we are prepared to entertain.further
submissions, and, accordingly remain seized of the matter for
the purpose of dealing with that and any other matter relating
25
to the implementation of this award. We note that counsel have
specifically asked us not to deal with any of the monetary
issues that arise out of the reclassification, and we
accordingly leave those to be worked out by the parties, to be
dealt with by us only if required.
In the result, therefore, the grievances are allowed and
the employer is ordered to reclassify the grievers within four
months of the date these reasons are released.
Dated at Toronto this 22nd day of December, 1989.
=
Eric K. Slone, Vice-Chairperson
t.1 n b-3
D.C. HontAxe, Member