HomeMy WebLinkAbout1986-1029.Kreider.89-09-29ONTARIO EMPLOY&DELA CO”RONNE
c!ROWNEMPLOYEES 0E“ONTARIO
GRIEVANCE CPMMISSION DE
%Tl~~MENT REGLEMENT
DES GRIEFS
IN TEE NATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLENENT BOARD
Between:
OPSEU (A. Kreider)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Community & Social Services)
Employer
B'efore:
For the Grievor:
For the Employer:
Hearings:
J.D. McCamus Vice-Chairperson
I. Freedman Member
W. Lobraico Member
M. Ruby
Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
W. Emerson
Employee Relations Officer
Ministry of Community &
Social Services
August 2, 1988
August 3, 1988
DECISION
These grievances contest the classification of the Grievors
as Residential Counsellor 2 (Residential Life) during their period
of service as so-called "Team Therapists" at the Oxford Regional
Centre in Woodstock, Ontario. The three grievances have been
consolidated as they are said to rest on identical facts. It has
been agreed by the parties that the grievance of Mr. I&eider should
be considered as the grievance of all three. Accordingly,
subsequent references to the Grievor and the grievance in this
award are to be taken as references to Mr. Xreider and the
circumstances of his grievance.
The Centre is a large institutional facility providing a full
range of services to developmentally handicapped individuals who
reside in the facility. There are approximately 500 residents
distributed amongst a series of residential areas. These areas are
divided up into four units, each of which is administered by a Unit
Director. The Units are, in turn, subdivided into wards. Each
ward is staffed by a group of Residential Counsellor 2's (RC-2's)
who function as surrogate parents for the residents and provide
direct care to them on a 24 hour basis. The RC-2's are supervised
by Assistant Residential Supervisors (RC-3's) who report to a
Residential Supervisor (RC-4) who reports to the Unit Director.
The present grievance arises from the creation of a special
team of RC-2's which was originally known as the Behaviour
Modification Team (B.M.T.). Initially at least, the establishment
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of the B.M.T. was a collaborative exercise of the centre's
psychology department and the residential staff reporting to the
Unit Directors to provide more specialized treatment of residents
exhibiting severely maladaptive behaviours of various kinds. The
Grievor was a member of the B.M.T. During his service on the
B.M.T. and on what appears to be a successor to the B.M.T.
established in October of 1995 and referred to as the North Park
Training Program, the Grievor remained classified as an RC-2.
It is argued onbehalf of the Grievor that the duties and
responsibilities assumed by RC-2's who became members of the B.M.T.
were such as to render the RC-2 classification no longer
appropriate. Further, it is submitted that the classification of
Psychometrist 1 constitutes the best fit with the Team Therapist
position. Although the Psychometrist Class Series of positions are
found within what might be referred to as the psychology stream
rather than the residential stream -- thus, Psychometrist l's and
2's carry out their responsibilities under the professional
supervision of a Psychologist -- the Union places considerable
reliance on the existence of a position titled Community Behaviour
.Consultant which is classified at the Psychometrist 1 level and
which, it is alleged, involves duties and responsibilities very
similar to those assumed by the Team Therapist.
It is urged on behalf of the Employer, however, that the
duties and responsibilities of the Team Therapist were not in any
material respect different from those assumed by a regular RC-2.
Although it was conceded that the percentages of time spent on
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particular kinds of tasks by the Team Therapist would differ from
those spent by the regular RC-Z's, the Employer maintained that all
of the tasks performed by the Team Therapist were within the range
of normal responsibilities of the RC-2's. A shift in the amount
of time committed to a particular sub-set of normal tasks is not,
in the Employer's view, a basis for a successful classification
grievance. Relying on Patrick and Baker v. M.C.S.S. 547/80
(Barton) at p.21, amongst other cases, the Employer argues that
the Grievor must first establish that the duties assigned to the
Grievor do not fall within the existing Job Description and Class
Standard before turning to consider whether some other
classification might not be a more appropriate one.
Evidence concerning the operation of the original B.M.T. and
the transition to the North Park Training Program model in October
of 1985 was provided by Mr. Chris Rowntree. Mr. Rowntree's
evidence was generally supportive of the Grievor's claim. The
B.M.T. had already been functioning for a period of time when Mr.
Rowntree joined it as Clinical Coordinator in 1982, a position
which he continued to hold after the transition, to the North Park
model. Mr. Rowntree continued to hold this position at the time
of the filing of the present grievance on September 4, 1986. As
Clinical Coordinator, Mr. Rowntree was a member of the Psychology
Department reporting to the Chief Psychologist, Dr. M. Blake, and
was classified at the Psychometrist 2 level.
Insofar as Mr. Rowntree's evidence pertains to the B.M.T.
exercise prior to the establishment of the North Park Training
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Program, it is uncontradicted and offers compelling evidence of a
significant change in the duties and responsibilities of RC-2's
who became part of the B.M.T. The basic idea of the B.M.T. was to
set up a specialized unit which would not function within one of
the residences and which would concentrate on clinical and
therapeutic work with residents who were identified as being in
need of special treatment of this kind. The B.M.T. was established
in office space which contained a laboratory where residents
referred to the program could be observed. The Team was made up
of two or three RC-2's who served as Team Therapists and were
assigned, for this purpose, to the Developmental Unit, together
with one or two Psychometrists from the Psychology Department. As
well, the Team had access to and met regularly with a Consulting
Psychologist and consulted directly, from time to time, with Dr.
Blake. The Team met on a weekly basis, together with the
Consulting Psychologist, to review cases that had been referred to
the Team and to develop therapeutic strategies involving
behavioural modification techniques. 'Once a program was developed
for a particular resident, it would typically be implemented for
a period of time through visits by the resident to the B.M.T.
facility. Ultimately, however, the resident would be returned to
the ward on a full time basis and further implementation of the
therapeutic program would be carried out on the ward by the regular
RC-2's. According to Mr. Rowntree's evidence, the Team Therapists
were intimately involved in developing and implementing programs
for residents referred to the Team and in insuring that the program
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for a particular resident was continued in a satisfactory manner
once the resident had been returned on a full time basis to the
ward. In effect, then, the RC-2's who moved to the B.M.T. became
specialists in program development and implementation for residents
requiring special treatment.
Although no job description as such was prepared for the Team
Therapists, Mr. Rowntree outlined their duties and responsibilities
in considerable detail and, more particularly, attempted to
identify the ways in which their responsibilities exceeded or were
different from those of a regular RC-2. Mr. Rowntree identified
four areas of distinction. The first related to the selection,
training and supervision of‘Team Therapists. Team Therapists were
selected from the existing group of RC-2's in a selection process
involving representation both from the Developmental Unit and the
Psychology Department. Team Therapists were selected on the basis
of a demonstration of particular interest in the activities of the
B.M.T., the candidate's demonstrated ability to work with severely
disabled residents and the level of the candidate's skills in the
provision of clinical services. Once appointed, Team Therapists
received extensive "hands on" on-the-job training. It was Mr.
Rowntree's view that a Team Therapist was not fully functional
until he or she had experienced a full year of training and skills
development of this kind. Team Therapists received direct clinical
supervision from the Psychometrists and had direct contact with and
received advice from the Consulting Psychologist. In Mr.
Rowntree's view, although the administrative reporting line for
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Team Therapists went through the Unit hierarchy, the functional
supervision of the Therapists' work came from the Psychology side
of the Team's operation.
The second point of difference drawn by Rowntree related to
the virtually exclusive involvement of Team Therapists in
programming activity. The regular RC-2's were engaged in
shiftwork, providing 24-hour custodial care. As a result, although
RC-2's did have some involvement in programming activity, their
major preoccupation, it was alleged, was the provision of custodial
or parenting services. Though RC-2's were obliged to develop
programs for two clients in a given year, the evidence indicated
that this would normally involve the formal development of a
program only two times in a year. Further, it was suggested that
RC-2's spend little of their time actually implementing programs
of this kind. The Team Therapists, on the other hand, devoted
their time principally to work of this kind. They would provide
service to approximately five clients at a time. They were
involved in weekly meetings with psychological personnel. The Team
Therapists developed, in effect, a specialty in this area in an
attempt to meet the needs of residents whose problems could not be
adequately handled in the wards themselves.
The third point of distinction outlined by Rowntree concerned
what he believed to be a significantly more intense involvement in
the discharge of clinical duties. The duties of the Team Therapist
were described by Rowntree in Exhibit 6, in part, as follows:
(Ex. 6, p.2)
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"These duties typically begin with the administration of a
variety of complex assessment devices which are not normally
conducted by Residential Counsellors. They include
assessments of adaptive behaviour using standardizedmeasures,
functional assessments requiring prolonged direct observation,
and detailed task or performance analysis. Team Therapists
are next responsible for the direct implementation of the
therapeutic programs which they have developed. While
Residential Counsellors share the responsibility for the few
programs in their living areas, Team Therapists are fully
responsible for all phases of implementation of their
programs. The evaluative component of Team Therapist's
clinical duties also differs from that expected from
Residential Counsellors. Team Therapists maintain accurate
and complex documentation of every therapeutic session, and
are required to analyze and formally present this data to
their supervisors on a weekly basis. Residential Counsellors,
however, are expected to maintain much less complex
documentation and summarize it on an annual basis for the 2
clients which they represent."
In short, although Residential Counsellors are involved in clinical
work to some extent, the nature and extent of the clinical work
undertaken by Team Therapists was, in Rowntree's view,
substantially different.
The final distinction between the two jQbS described by
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Rowntree related to a training or consulting function. When
responsibility for the implementation of a therapeutic program was
transferred back to the ward, the Team Therapist maintained some
responsibility for insuring that the regular RC-2 was adequately
briefed with respect to the program and for providing advice to the
RC-2 as needed from time to time.
In summary, then, the evidence of Mr. Rowntree suggests that
the move to the Team Therapist position involved a substantial
alteration of duties and responsibilities and, in effect, the
development of a cadre of specialist therapists to work on
therapeutic projects that would not be found within the normal
responsibilities of the regular RC-2. Although it is true, as was
urged on behalf of the Employer, that the language of the job
description of the RC-2 (Ex. 2) includes in its statement of
purpose and in its summary of duties and responsibilities language
referring to the development of programs and their implementation,
we are satisfied, on the basis of Mr. Rowntree's evidence, that
Team Therapists working with the B.M.T. assumed responsibilities
that were not within the range assigned to the regular RC-2 and
were not, therefore, envisaged by the somewhat general language of
the RC-2 job description. Accordingly, were it the case that this
grievance pertained only to the B.M.T. operation, we would have
little difficulty concluding that the Grievor had successfully
established that the duties and responsibilities assigned to Team
Therapists lifted them out of the RC-2 job description.
9
The analysis of this problem is complicated, however, by the
fact that in October of 1985, a new structure was put in place to
accomplish the objectives originally assigned to the B.M.T. The
evidence concerning the role played by the Team Therapists in the
new North Park Training Program was to some extent in conflict and
requires, therefore, some explication.
The initial plan for the North Park Program was one of
establishing a 24-hour residential service. The evidence of Mr.
Barry Murphy, who accepted an appointment as Unit Program Director
of the North Park Unit in July of 1985, was to the effect that that
plan was abandoned on the basis that there was not adequate
staffing available to carry out as ambitious an initiative as this.
Accordingly, the plan was revised to involve what appears to have
been a modest expansion of the B.M.T. program. The new North Park
Training Program included, however, a structural change. A few
additional RC-2's were added as Team Therapists but, as well, an
RC-3 and an RC-4 were appointed for the ostensible purpose of
engaging in day to day supervision of the operation. The RC-4
appointed for this purpose, Mr. Greg Swain also testified in these
proceedings. The evidence of Murphy and Swain, together with that
of Rowntree, suggests that the B.M.T. program was continued in its
main essentials but subjected, in formal terms at least, to the
type of supervisory hierarchy typical of the residential wards.
The program continued to function, however, as a five days a week,
8 hours a day, special unit to provide clinical services of the
kinds described above to problem cases referred to the Unit from
the wards.
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It would appear from the evidence of all three individuals
that the transition to the North Park model was not entirely
problem-free. In particular, it would appear that disagreements
developed as to the nature of reporting relationships and the way
in which the program was to be operated. Little specific evidence
was presented on this point but disagreements of this kind do
appear to explain a difference in perspective, if not in factual
terms, of the evidence of Murphy and.Swain on the one hand as
against Rowntree on the other. From Rowntree's point of view,
business continued as usual under the North Park model. The Team
Therapists continued to play the same function. Their training,
selection and the functional supervision of them by the
Psychometrists and psychologists continued as before. The more
specialized nature of the clinical services continued to
distinguish their work from that of the regular RC-2's. Their
special role was manifest in special training made available to
them, and so on. Such supervision as emanated from the new
residential supervisory team was merely administrative and nominal
in nature, pertaining essentially to personnel issues.
Prom the perspective of Murphy and Swain, however, the
supervision provided by Swain in particular was anything but
nominal. It was their view that Swain supervised the day to day
operations of the Program, trained the Team Therapists, supervised
their work, evaluated their performance and, in all material
respects, functioned as their effective supervisor. The role of
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the Psychometrists and psychologists was that of a consulting
nature only, in their view. Swain and Murphy also offered their
opinion to the effect that the work undertaken by Team Therapists
in the program was not materially different from the regular work
of the RC-2's in the individual wards.
Our own view is that the evidence, in its totality,
establishes that the day to day work of the Team Therapists was
not substantially altered by the move to the North Park model.
Thus, it is our view that the work of the Team Therapist continued
to manifest those characteristics identified above that appeared
to set it apart, if only to a limited degree, from the work of the
RC-2's. On the other hand, we are satisfied that the presence of
a residential supervisory hierarchy did have, or was at least
intended to have, some impact on the reporting relationships of the
Team Therapists. If the supervision emanating from~the residential
.hierarchy was nominal during the B.M.T. phase, we are satisfied
that it was more intense in the North Park phase. Nonetheless, we
believe that the Team Therapists continued to report in a
functional manner to the psychology hierarchy and to receive
.training and instruction from the Psychometrists and psychologists.
In short, we are satisfied that such changes as
were effected by the transition to the North Park model did not
significantly undermine the claim made here that there were
significant differences between the duties and responsibliities
assumed by RC-2's who were appointed as Team Therapists and those
of the regular RC-2's working in the residential wards. It is on
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this basis that we find that the position of Team Therapist was
not, at the date of the grievance, September 4, 1986, accurately
classified as RC-2 (Residential Life).
It is further argued on behalf of the Grievor, however, that
a proper claesification for the Team Therapist position would be
Psychometrist 1. In support of this proposition, it is argued that
the job description for the Community Behaviour Consultant, which
is classified as Psychometrist 1, is reasonably similar to the
actual duties and responsibilities performed by Team Therapists.
Accordingly, it is argued that inasmuch as the Psychometrist 1
classification has been used for a reasonably analogous position,
it ought to be considered the best fit for the Team Therapist job.
Such evidence as was led with respect to the Community
Behaviour Consultant job failed to persuade us that it was
sufficiently parallel to the Team Therapist position to warrant a
conclusion of this kind. The principal function of the Community
Behaviour Consultant is to provide support services to community
agencies, agents, families and developmentally handicapped clients
in a defined geographical area of the c,ommunity. Although recruits
to this position were typically drawn from the RC-2's, it is our
view that the clinical and service functions be performed by the
Consultants are of a more burdensome kind than those assumed by the
Team Therapists. The Consultants functioned with greater autonomy
than the Team Therapists. They were expected to work on their own
away from an institutional setting and to meet the needs of clients
in a variety of settings in the community at large. Although the
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Consultants reported to and received supervision from psychological
personnel, they did not work under the close degree of supervision
afforded to the Team Therapists either in the B.M.T. phase or in
the North Park phase. Further, the Consultants were engaged in
providing consulting services not only to developmentally
handicapped individuals themselves but to others in the community,
including their families, in need of such advice. Again, this
introduces a dimension of responsibility not present in the Team
Therapist's job.
On the basis of the foregoing analysis, our conclusion is that
although the Team Therapist job is not properly classified at RC-
2, neither is it a job which should be classified at Psychometrist
1 on the basis of the analogy put forward by the Grievor, the
Community Behaviour Consultant position. Although the Grievor has
thus not persuaded us that a proper resolution of the grievance is
to order that the position of Team Therapist be classified at the
Psychometrist 1 ,level, this does not end the matter. It is now
well-established, as a result of the decision of the Ontario
Divisional Court in OPSEU and Carol Berrv et al. vs. The Crown in
Risht of Ontario (Ministrv of Communitv and Social Services)
(607/85, unreported) that the proper remedy to be awarded by the
Board in circumstances such as these is to require that the
position of Team Therapist be properly classified by the Employer.
The parties are in agreement that the remedy should be awarded
effective 20 days prior to the filing of the grievance.
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The Board remains seized of jurisdiction to provide whatever
assistance may be necessary to the parties in implementing this
decision.
DATED at Toronto this 29th day of September,i 19!?.
J. McCamus, Vice-Chairpersont _'
,,h. LOljr%CO, Member