HomeMy WebLinkAbout1987-0626.Jirsa.92-01-09626/87
IN TRB RATTER OF AN ARBITRATION
Under
TRB CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Jirsa)
Grievor
BEFORE:
FOR TRB
GRIEVOR
FOR THE
EMPLOYER
HEARING
- and -
The Crown in Right of Ontario
(Ministry of Agriculture and Food)
.
Employer
R. Verity Vice-Chairperson
J. McManus Member
E. Orsini Member
S. Watson
Counsel
Gowling, Strathy.& Henderson
Barristers & Solicitors
C. Slater
Senior Counsel
Legal Services Branch
Management Board of Cabinet
October 6, 1989
June 13, 1990
November 23, 1990
June 19, 20, 21, 1991
August 29, 1991
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DECISION
The grievor,' Libuse Jirsa, works for the Ministry as
Microbioiogical Control Technician at the Central Milk Testing
Laboratory (C.M.T.L.) at Guelph, Ontario. In a grievance dated
February 10, 1987, Mrs. Jirsa alleges improper classification as
Technician 2, Chemical Laboratory. She requests that she be
properly classified and seeks reclassification in a separate series
as Technician 3, Medical Laboratory.
However, effective September 1, 1987, new classes of
Technologist 1 - 3, Medical Laboratory were established and the
existing classes of Technician 1 - 4, Medical Laboratory were
‘..
deleted.
At the hearing, the grievor claimed reclassification as
Technologist 3, Medical Laboratory or Technologist 2, Medical
Laboratory. In the further alternative, a Berry type of order is
requested.
The grievor's claim that she is currently misclassified was
based solely on the class standards approach; namely, the
assessment of her duties and responsibilities against the relevant
class standards.
The panel took an extensive view of the Central Milk Testing
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Laboratory in Guelph on the second hearing day. The present Stone
Road facility opened in March, 1985 and replaced a computerised
laboratory in Guelph constructed in 1967. C.M.T.L. is a large
multi-purpose, "state of the art" facility designed to analyse and
test, twice a month on a routine basis, the composition and quality
of raw, unpasteurized, "farm gate" milk from 9,200 Ontario milk
producers to ensure compliance with Ontario standards. Raw milk is
tested for milk fat, protein, lactose and solids-non-fat content
and the results are forwarded to the Ontario Milk Marketing Board
for payment to producers. Penalties are assessed by the Milk
Marketing Board pursuant to the regulations under the Ontario Milk
Act, based on C.M.T.L. test results, for high cell count micro
organisms, .the presence of antibiotic residues (i.e. penicillin), :
somatic cell counts and added water. It was comforting to be told
that pasteurisation destroys all pathogenic organisms in raw milk.
The grievor has worked at C.M.T.L. since 1972 using.Infra Red
technology in a variety of tasks including' chemical testing. The
first microbiological testing of milk occurred in the spring of
1985 with the opening of the new laboratory. Since then, the
Ontario Ministry of Health no longer tests producers' raw milk for
antibiotic residue. At some point in 1984, the grievor was
assigned the position Microbiological Control Technician to prepare
for future testing. In the new facility, there are essentially
three functions of the microbiological testing area of the lab:
(1) Testing for micro organisms; (2) Testing for inhibitor residue
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(antibiotics); and (3) Testing for somatic cell levels. The
microbiological testing area is composed of two parts - a large
electronic quality testing laboratory which at the time of the
grievana employed four technicians; and a smaller microbiology
laboratory where the grievor worked. The four technicians in the
quality testing lab operate electronic equipment which includes the
PETRIFOSS instrument, the INOFOSS instrument and the FOSSOMATIC
instrument and two colony counting machines called BIOFOSS.
The grievor's job is to perform a number of standardised
manual quality control tests to monitor the electronic testing
equipment and to perform confirmatory tests for inhibitor levels as
well as additional testing of samples for sterility (Vial Sterility
Testing). The quality control tests performed by the grievor are
prescribed in the fifteenth edition of the textbook "Standard
Methods for the Examination'of Dairy Products" and the C.M.T.L.
Operations Manual.
For the most part, the grievor's duties and responsibilities
are reasonably accurately stated in her Position Specification and
Class Allocation form, dated September 1986, which reads in.
relevant parts:
Purpose of position
To provide all calibration material to each of the electronic
milk quality testing instruments.
To conduct parallel tests using prescribed standard methods to
establish accuracy and reproducibility of instruments.
1
5
To perform confirmatory tests on producer samples showing
positive on antibiotics or out of range, or abnormal on bacteria count with instrument methods.
Duties and related tasks
Under the guidance of the Microbiological Analysis Control
Scientist or Laboratory Supervisors
50% - making direct microscopic somatic cell counts on
standards prepared in the control laboratory on a weekly
basis:
performing parallel direct microscopic somatic cell
counts on producer samples with electronic instrument to
establish calibration level and to maintain relationship
of counts between fresh producer milks and preserved
standards;
providing comparison tests on selected producer milks
with standard plate counting procedures described in
standard methods, for calibration of automatic bacteria
plater and electronic colony counter;
performing standard disc assay with milk and antibiotic
standards to confirm levels of instrument results;
calculating required statistics on comparison of results
between standard control tests and instrument tests;
iffrequired, performing brucellosis ring tests to help
monitor instrument calibration.
50%
To perform confirmatory tests on ali,producer samples where
positive results were obtained by instrument for antibiotics
or bacteria count, out of count range by:
repeating test using standard disc assay on the next
available sample from that producer;
repeating test with selected dilution of.plate loop count
to establish actual count for producer in question;
performing differential counts, coliforms, psudomonas,
pre-do,minant organisms, staphilococci, salmonella, etc.
as required
Perform related duties such as:
preparing all media, standards, dilutions, buffers,
indicators, stains, and/or chemical solutions required
for any ,of the above bacterialogical tests and
procedures;
performing random sterility checks on re-washed
polycarbonate sample vials on a regularly scheduled basis
to monitor proper functioning of the automatic vial
washing, sterilising and capping machine;
maintaining all necessary analytical and other records;
advising supervisor of need to re-order supplies;
demonstrating procedures for employee training and to lab
visitors;
performs other duties as assigned.
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Skills and knowledge required to perform job at full working
level
Secondary school, including mathematics and science courses:
a good working knowledge of chemical/microbiological
analytical instruments gained through progressively
responsible laboratory experience; an understanding and
appreciation of classical analytical methods; alertness; keen
power of observation; neatness, good manual dexterity; and the
ability to maintain harmonious working relationships with
other staff.
At the time of the grievance in February 1987, Mrs. Jirsa
reported to Laboratory Supervisor Fred Fletcher. Several months
later in either April or May, 1987, Hill Lachowsky was appointed
Microbiological Analysis Control Scientist and a new reporting
relationship was then established. However, Mr. Fletcher continues
to provide some supervision to the grievor'as well as to some 22
other technicians and lab attendants. In Mr. Fletcher's words:
"it is a team approach".
As indicated previously, the primary function of the
Microbiological Laboratory is to provide quality control testing
and to calibrate sophisticated electronic quality testing
instruments. The grievor testified in some detail as to the
various microbiological tests she is required to perform including
the standard plate loop count for total bacteria for the
calibration of the PETRIFOSS instrument, the microscopic somatic
cell count for calibration of the FOSSOMATIC instrument and the
confirmation of the INOFOSS instrument for the presence of
inhibitors, i.e. for antibiotic positive samples by the standard
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disc assay method. Since 1986, a lab assistant has been assigned
to assist Mrs. Jirsa. According to the grievor's evidence, 50% of
her time is spent performing the disc assay test and 90% of. her
work is performed in the microbiological lab. She receives samples
from field officers (primarily the Delvotest), from dairies, and
occasionally from veterinarians. The grievor is required to
confirm all Delvotesting by using the disc assay test. At the time
the grievance was filed in February 1987, in addition to performing
numerous other tests and procedures, the grievor was required to do
taste testing of "finished" milk and cottage cheese. However,
these tests were deemed too subjective and have now been
discontinued. In September, 1990, Mrs. Jirsa was. no longer
required to do milk taste testing.
The grievor is currently classified as Technician 2, Chemical
Laboratory. The preamble to that Class Standard reads as follows:
PREAMBLE
MEDICAL AND CHEMICAL LABORATORY TECHNICIAN CLASS SERIES
KINDS OF WORK COVERED:
Positions covered by these class series provide technical
assistance to the medical, scientific, engineering, chemical
.and other professions in a variety of medical and chemical
laboratories throughout the service. Incumbents of positions
in these classes perform a variety of tests and procedures of
varying complexity, all of which require careful attention in
their performance and accuracy in the recording of data, for
quality control purposes; to provide a diagnostic aid to the
medical profession; as an aid in forensic chemistry; in
support of a scientific research programme: as a service to industry, etc.
8
CIA!%3 ALLOCATION AND DEFINITION OF m:
While the technical complexity of the work performed at
related levels may be the same, the field of analytical
laboratory technology has been separated into two class series
in order to more clearly differentiate work areas, to provide
an equitable evaluation of related positions and to facilitate
classification procedures. It is recognised that some tests
in each field may be essentially the same; that a chemical
ana:lysis function may occur in medical laboratories and a bio-
chemical, bacteriological or a related function may occur in
chemical laboratories. However, the bulk of procedures and
tests in one kind of laboratory will differ from the bulk of
those encountered in the other. The separation may be defined
as follows:-
'JRCRNICIAN 1 - 5, MEDICAL LABORATORX: - This class series
covers positions of technicians engaged in the analysis of
predominately biological materials such as blood, sera,
tissue, bacteria, viruses, etc., by chemical, bacteriological
or related techniques. The purpose is to provide technical
assistance to the professions of medicine (including forensic
and public health medicine), veterinary science, and teaching,
and to experimental projects; as an aid t.o diagnosis for
medical or medico-legal purposes or as a check on conditions
affecting public health.
TECHNICIAN 1 - 5. CERMICAL LABORATORY: - This class series
covers positions of technicians in the analysis, usually for the identification and/or quantation of chemicals or
substances of predominantly organic materials such as soils,
plants, rocks, metals, plant products, gas, air, manufactured
products, etc. The purpose is to provide technical assistance
to research projects, as a service to the public, for quality
control purposes or to detect contaminants affecting health.
These positions encompass a wide range of technical
duties. Technical complexity, technical competence and the
ability to supervise subordinate staff are aspects to be
considered in the allocation of positions. Supervision of
technicians and other laboratory staff is an influential
factor in allocations to the upper level of the class series.
In both cases the tests performed are classified
generally into three categories of "common", "complex" and
"specialty."
"Common" tests and procedures are defined as those which
do not require exceptional knowledges, skills or judgment in
their performance because the methods are fully prescribed,
the manipulations are not difficult to perform and the results
are readily recognized. Such tests are learned after brief
9
instructional demonstrations and the employee's performance improves as manipulative skills and familiarity with work
processes are acquired through experience. This category may
be further sub-divided into "simple" and "standard" tests and
procedures. As a general rule the performance of a limited number of "simple" tests on a production line basis, following
prescribed procedures, would result in allocations to the
Technician 1 level. The performance of a number of "standard"
tests where the methods are fully prescribed but the variety
is more dispersed, some elementary judgments are made and supervision is not closely applied except when new procedures
are used or problems develop will generally result in
allocations to the Technician 2 level.
"Complex" tests and procedures are defined as those which
require highly developed skills, judgment and experience in
their performance because results may be confused with others
of similar qualities. Procedures may require modification due
to differences in batches of ingredients as determined by
results with controls. Tests may be "complex" for different
reasons, thus this category may be sub-divided into
"difficult" and "intricate" tests andprocedures. "Difficult"
in this context refers to tests and procedures, the
performance.of which require judgment in the selection of
alternatives and variations to standard procedures, the
careful execution of a series of exacting manipulations of materials and apparatus, the -operation and minor maintenance
of sophisticated and sensitive laboratory instruments and the
accurate recording of procedures and results. The performance
of a variety of difficult,tests would generally result in such
positions' being allocated to the Technician 3 level.
"Intricate" in this context means those tests and procedures
which require a large number of operations with many possible
sources of error at various stages and require a high degree
~of skill and judgment in such functions as: - utilizing
reference source to determine modifications of apparatus and
variations of procedures; selecting, modifying and adapting
test procedures to obtain optimum results; recognising and
interpreting reactions which are difficult to observe and
which can significantly affect the outcome of the test; and
computing or interpreting interim and final test results which
require the application of advanced mathematical techniques
and a sound knowledge of scientific methodology. The proper
performance of "intricate" tests and procedures requires an
understanding of scientific processes at the professional
level and employees performing such tests would normally be a
Scientist, but they may, in the absence of qualified
professional staff, be performed by a highly skilled and
experienced Technician.
"Specialty" tests and procedures are defined as those
which are carried out without definitely outlined methods,
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usually requiring frequent modifications, and where special or
modified apparatus or equipment is utilized. Interpretation
of results is based on knowledge and experience or on a
comparison with standards from reference laboratories. Tests and procedures of this nature are usually found in research
settings and normally are closely directed to professional
personnel but the technical work of a sub-professional nature
is conducted by experienced technological staff. Employees in
positions of this nature would normally be allocated to the
Technician 3 level.
Supervisory responsibility may be a function of some
positions at the Technician 3 level. Both demonstrated
supervisory and specialist technological abilities play an
important part in allocations to the Technician 4 and 5
levels. In most cases the allocation of positions to the
Technician 5 level is due solely to a lack of qualified
scientific staff.
EXCLUSIONS FROM THESE CLASS SERIES
1.
2.
3.
Laboratory positions, filled by fully qualified
personnel, involving the interpretation of analytical
test results which require a professional knowledge of
the work area. Such positions would be allocated to the
Scientist, Research Scientist, Physician or other
professional,class series.
Laboratory positions involving non-skilled staff performing non-technical tasks. Such positions would be
allocated to Laboratory Attendant, Caretaker, Labourer or
other classes depending on the duties performed.
Laboratory positions involved with the determination of
the strength, durability, composition, resistence, etc.
of materials or equipment by visual examination and
standard test procedures. Such positions would be
allocated to the Technician, Physical Laboratory class
series.
DESIGNATION OF DEPARTMENT OF HEALTH. ERALTE LABORATORIES
1. Class "A" Laboratory - a regional laboratory processing over 500,000 units,
specimens and examinations per
annum.
2. Class "B" Laboratory - a regional laboratory
processing over 250,000 but
less than 500,000 units,
specimens and examinations per
annum.
.
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3.
Class "C" Laboratory - a regional laboratory processing less than 250,000
units, specimens ana examinations per annum.
TECRNICIAN 2, CHEMICAL LABORATORY
CLASS DEFINITION:
Employees in position allocated to this class conduct a
variety of common tests and procedures, under supervision,
with responsibility for the accuracy of techniques and the
reliability of results. In addition they may assist more
senior technicians or scientists in conducting a variety of
complex tests and in technical demonstrations for trainee
technicians.
They conduct a variety of common tests and procedures
such as: - the extraction of silver by fusion methods: the
extraction of gold by acid method; determination of mineral
and pigment content in paints; alcohol and nitrogen freezing
of semen; the preparation of samples of tocopheral extractions
for analysis by chromatographic methods; determining.the water absorbency of paints; theobarbituric acid test for fatty acid
peroxides; so,lvent fractionation: the preparation of samples
for the quantitative determination of enzyme activity; the determination of energy or chromic oxide content in
feedstuffs; the determination of specific gravity and
absorption of fine and course aggregates; measurement of free
silica in samples by chemical means; the measurement of radium
in water by Radon de-emanation method and alpha counting, etc.
They may assist senior personnel, technical or
scientific, in the performance of complex tests following laid
down procedure or verbal instruction. The.level of the tests
-and procedures in which they assist are exemplified by the
following; testing acids by filtration and paper chromatography; chemical analysis of meat to determine content
* of moisture, fat, protein, and acidity; preparation of
electrodes containing materials for spectrographic analysis;
observing and recording bio-chemical reactions in inoculated
media; nitrogen determination by kjeldhal techniques; etc.
Under general supervision they clean and set up
laboratory equipment and prepare specimens, reagents, plates,
tubes, etc., for common laboratory tests. They keep detailed
records of results of tests, noting variations from expected
results. They assist in the training of trainee technicians
and other laboratory staff and may supervise a small number of
subordinates performing common tests on a production basis.
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They maintain the cleanliness of their work area and perform
other duties as may be assigned.
QUALIFICATIONS:
1. Junior Matriculation, including Grade 12 courses in
mathematics and science and a minimum of four years'
experience in laboratory work,
An acceptable combination of education, practical
experience and self teaching recognized by Civil Service
Commission as being the equivalent.
2. Alertness; keen powers of observation; skill and care in
the operation of .laboratory equipment; accuracy;
integrity; neatness: ability to work co-operatively with
other staff; good judgment.
At the hearing, the classification sought together with the
Preamble reads:
TECHNOLOGIST 1-3. MEDICAL LABORATORY
The Technologist, Medical Laboratory series covers positions of employees who provide a range of technical services to the
pr,ofessions of medicine, veterinary and forensic science as an
aid to diagnosis and treatment of disease, as a check on
conditions affecting public health, in support of forensic
investigations, or in support of medical/scientific research.
Work is performed in provincial hospitals and institutions,
Public Health laboratories, veterinary laboratories and
forensic facilities.
Medical Laboratory Technologists are primarily responsible for
conducting a variety of tests, analyses, examinations and
other laboratory procedures, ranging in complexity from
moderate to specialised, by using microbiological, ,culture,
chemical and/or related techniques.
Responsibilities for laboratory procedures typically include:
collecting specimens from patients/animals/
cadavers;
operating and maintaining laboratory equipment and
_. .~ . . .-
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apparatus, including photographic materials where
indicated;
recording activities, test results or observations,
and preparing reports;
examining a wide variety of items of physical
evidence to identify and locate significant areas,
items, points; teaching or demonstrating laboratory techniques to
other technicians;
participating~ in research/experimental programs or
in new method development:
using and monitoring quality control programs;
maintaining cleanliness and sterility in the
workplace.
Technologists in forensic facility are required to
work within the requirements of examination or
continuity of evidence, security and identification
as imposed by the Courts and the Rules of Evidence;
they mav be required to testify in court to prove
continuity of evidence and to describe the methods
and procedures used. Veterinary Laboratory
Technologists also mav be resuired to testify in
court to prove continuity of evidence and to
describe methods and procedures .used, e.g. in
insurance and forensic cases where animals are
burned, poisoned.
Allocation Factors:
The allocation of positions to the three levels is based on evaluation of the following compensable factors:
Skills and Xnowledse
The following criteria are used to differentiate levels:
the depth of knowledge of medical, biological,
forensic and/or veterinary laboratory tests,
procedures and principles;
the level of dexterity required in the manual
manipulation of tissues, organisms, reagents;
instrumentation, etc.;
the variety and complexity of instruments operated
and related skills required;.
group leadership skills.
The following criteria are used to differentiate levels:
the extent of supervision and technical direction
received;
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the degree to which test results are/are not self-
evident and requiring of interpretation;
the selection of alternatives/number of decision
points within a procedure;
the degree to which test reliability can be
confirmed by control comparison;
the extent to which established guidelines,
procedural instructions and precedents are
available to aid decision-making.
Accountability
The following criteria are used to differentiate levels:
Responsibility for:
technical operations carried out - quality,
accuracy, formal signing authority;
handlinq pathogenic/toxic substances;
group leadership;
meeting the requirements of
continuity of evidence,
identification; testifying in
Levels:
There are three levels of work within
follows:
Technoloaist 1, Medical Laboratory
examination or
security and
court.
the series, as
Working level positions conducting standardized, well-
established, moderately complex laboratory tests and
procedures, for more than 50% of the time.
Technoloqist 2. Medical Laboratory
Senior working level positions conducting complex
laboratory tests and procedures having a network of
interdependent steps and variables for at least 50% of
the time; and/or group leaders responsible for a small
laboratory or section of a large laboratory where
moderately complex tests are carried out.
Technoloaist 3. Medical Laboratory
Specialist level positions conducting advanced/
specialized laboratory tests and procedures with many
sources of variation and error in multiple stages for
more than 50% of the time.
Note: Not all of the allocation factor elements
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apply to each individual test carried out at a
given level; however, the elements must be
present in the strength described across the
full range of work performed at a level, for
the indicated percentage of time.
Definition of Terms:
Moderatelv coniolex tests/procedures:
test results are self-evident;
a limited number of decisions in the selection of
alternative procedures are required;
the reliability of the test can be validated by
controls;
tests/procedures have been standardized to the
extent where most or all aberrations have previously been identified.
Comnlex tests/procedures:
a variety of alternative results are usually
considered to arrive at the final result;
a variety of decisions regarding the selection of
al-ternative procedures are required to solve
unanticipated problems: the reliability of the test can only be partially
validated by the use of controls, requiring some
assessment within established criteria;
test/procedures have general guidelines and
precedents available but have not been standardized to the extent where most/all aberrations have
previously been identified.
Advanced snecialized tests/orocedures:
test results are not clear or well-defined;
the number or combination of subsequent steps to be taken, based on results of preceding steps, must be
determined;
tests and procedures are not amenable to the
routine use of controls; test reliability is
assessed by applying general technical principles;
tests are not standardized, have few or no
precedents available and often require
modification/adaptation.
TECRROLOGIST 3. MEDICAL LABORATORY
This class covers employees in specialist level positions
conducting advanced/specialized laboratory tests and
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procedures; they may also provide group leadership to working
and senior working level technologists, as assigned.
Advanced/specialized tests are carried out more than 50% of
the time, i.e. the following allocation factor criteria must
apply to more than 50% of the work carried out.
Skills and Knowledoe:
extensive knowledge of laboratory tests, procedures
and practices to carry out specialized work with
many sources of variation and error in multiple
stages and to develop/modify procedures where no
appropriate ones exist; knowledge of the
requirements of examination and continuity of
evidence, security and identification plus skills
related to testifying in court as required, to
prove continuity of evidence (applicable to
positions in a forensic facility or veterinary
laboratory);
highly developed dexterity skills to perform a
series of exacting and delicate manipulations on
laboratory equipment/instruments, each of which
could significantly affect test results, e.g. mass
spectrometry, column chromatography;
well-developed technical skills to operate and' '
maintain advanced experimental or highly variable
instrumentation/equipment, e.g. mass spectrograph;
group leadership skills to co-ordinate complex work assignments of assigned staff and provide technical
guidance in conducting complex and specialized
tests and procedures.
Judaement:
employees work under general supervision of
medical/professional scientific staff; minimal
technical direction is required;
test results are not clear or well defined;
considerable judgement must be exercised in making
determinations, e.g. differentiating the individual
members, of a group/family of organisms which
characteristics may be grossly overlapping;
differentiating normal cytogenetic variants from
aberrations with adverse health consequences;
judgement is exercised in determining the number or
combination of subsequent steps to be taken based
on the results of the preceding procedure, to reach
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a final result;
tests and procedures at this level are not amenable
to the routine use of controls, e.g. microscopic
identification of rare and unusual parasites; significant judgement is exercised in assessing the
reliability of test results by applying general
technical principles;
- tests are usually not standardized, have few or no
precedents available for reference, and often
require adaptation/modification to resolve unusual
problems and obtain optimal results.
Accountabilitv:
employees are accountable for the accuracy and
reliability of the advanced/specialized tests and
procedures used, where applicable, for quality
control of laboratory products produced and/or
purchased for use throughout the major laboratory
system, e.g. production of antisera for serotyping;
for evaluating and improving testing;
employees in these positions are required to handle
class 4 organisms (as defined bye Health and Welfare Canada with respect to level of pathogenicity) and
highly toxic substances, e.g. botulinus toxin,
rabies;
where assigned, employees provide training to
subordinate staff in carrying out advanced and
specialized procedures, and provide technical
supervision to assigned staff on a regular or
project basis, including accountability for the
quality of work generated by them;
employees in a forensic facility or veterinary
laboratory are accountable for meeting the requirements of examination or continuity of
evidence, security and identification, as imposed
by the courts and Rules of Evidence, and are
required to testify in court to prove continuity of
evidence and describe methods and procedures used.
TECHNOLOGIST 2. MEDICAL LABORATORY
This class covers employees in senior working level positions
conducting complex laboratory tests and procedures having a
network of interdependent steps and variables, for at least 50% of the time, i.e. the following allocation criteria must
18
app:Ly to at least 50% of the work carried out; m group
leaders responsible for a small laboratory or section of a
large laboratory where moderately complex tests are carried
out; x a combination of both roles.
Skills and Knowledaet
sound knowledge of laboratory tests, procedures and
principles to perform complex tests having a
network of interdependent steps and variables;
knowledge of the requirements of examination and
continuity of evidence, security and identification
(applicable to positions in a forensic setting or
veterinary laboratory);
well-developed manual dexterity skills to carry out
manipulations of tests/equipment necessary to
obtain required results, e.g. injection of animals,
electron microscopy:
technical skills to operate and maintain
sophisticated equipment/instruments, e.g. gas liquid chromatographs, electron microscopes,
computerized equipment;,
and/or
group leadership skills to co-ordinate work
assignments of others and provide technical guidance to assigned staff performing moderately
complex tests and procedures (Note: full-time
wow leaders possess technical skills and
knowledge described in level 1 plus these requisite
group leadership skills).
Judaement:
employees normally work under general supervision
of senior technical and/or scientific staff and may
seek technical direction from more senior staff on
highly unusual results;
variety of alternative results are usually
zonsidered to arrive at the final result, e.g.
identification and quantification. of drugs from
blood and urine;
a variety of decisions regarding the selection of
alternatives to standard procedures are required to
resolved unanticipated problems;
the reliability of a test can only be partially
validated by a control, e.g. complement fixation
test; some judgement is exercised in assessing the reliability of test results within established criteria:
tests/procedures performed at this level have general guidelines and precedents available 'for
reference but they have not been standardized to
the extent that most or all aberrations have
previously been identified;
and/or
as group leaders, judgement is required to provide
technical guidance in resolving testing problems,
in reviewing reports for completeness and in
ordering further testing as needed.
Accountability:
employees are accountable for the accuracy and
reliability of complex tests and procedures, for
ensuring that proper techniques are utilized and
that work output meets established standards;
employees are required to handle class 2 and 3 organisms (as defined by.Heal‘th and Wel'fare Canada
with respect to level of pathogenicity) and
moderately toxic substances, e.g. staphyloccal enterotoxin equine encephalitis, psittacosis;
employees in a forensic facility and veterinary
laboratory are accountable for meeting the
requirements of examination or continuity of
evidence, security and identification as imposed by
the Courts and Rules of Evidence, and may be
required to testify in court to prove continuity of
evidence and describe methods/procedures used;
and/or
as group leaders, employees are accountable for
ensuring that all work of assigned staff meets
accuracy and reliability requirements, and for
providing training in complex testing procedures.
Scientist Bill Lachowsky testified on behalf of the Union. He
commenced work at C.M.T.L. in May 1984 and was then classified as
20
a chemical technician. Subsequently, he became a Scientist after
obtaining a Bachelor of Science Degree (Honours) in Microbiology at
the University of Guelph. His duties include the supervision of
all procedures in both the Microbiological Control Lab and the
Electronic Quality Testing Lab and providing assistance to
technicians. Mr. Lachowsky testified that the grievor works with
"living organisms" on a daily basis and that microbiology is the
study and isolation of "micro" living organisms. He explained that
the Chemical Control Lab does not deal with living organisms but
rather with chemical compounds.
Mr. Lachowsky confirmed that the grievor's job, at least in
'1987, was "fairly unique" and that she was a competent employee who
for the most part worked autonomousiy. According to his evidence,
the grievor devotes the majority of working hours to antibiotic
testing and that accurate microbiological test results, as recorded
by the grievor, are essential to the Milk Marketing Board for
penalty assessment purposes. Mr. Lachowsky confirmed that the
grievor is required to use judgment in interpreting test results
and that the preparation of slides for somatic cell standards is
"finicky" work.
Two witnesses testified on behalf of the Employer - C.M.T.L.
Laboratory Supervisor Fred Fletcher and Dr. Jim Henry, currently
Director of Veterinary Laboratory Services for the Ministry. Mr.
Fletcher is an economist by background (University of Guelph) and
21
until April 1, 1991 had been C.M.T.L. Laboratory Supervisor for 24
years. Apparently Mr. Fletcher is now on special assignment.
Although not a microbiologist, he was instrumental in establishing
microbiological testing of milk at C.M.T.L. in 1985 based on his
observations and'on the experience of the Scottish Milk Marketing
Board.
Mr. Fletcher maintains that C.M.T.L. is required to deal on .lY
with producers milk at the farm gate and accordingly has no.direct
mandate for public health. He stressed the fact that Health and
Welfare Canada has the authority to withdraw products from the
marketplace and that C.M.T.L. has no such authority.
Mr. Fletcher reviewed each of the tests performed by the
grievor and concluded that none of the tests were complex, but that
in his opinion the direct microscopic somatic cell count was a
"finicky" process. He stressed the fact that the tests were not
new and that the direct microscopic somatic~ cell count was
developed in 1913, the test for micro organisms (standard plate
count) appeared at the turn of the century and that inhibitor
testing started with the discovery of penicillin in the mid-1940's.
The thrust of Mr: Fletcher's evidence was to the effect that all
tests performed by the grievor were "well prescribed" in the
"Standard Methods"~ Text and the C.M.T.L. Operations Manual. He
acknowledged, however, that accuracy and consistency in testing
procedures were essential. In cross-examination, Mr. Fletcher
-\
22
.
I confirmed that all C.M.T.L. technicians were classified initially
as Medic:al Technicians until 1974 when they were reclassified as
Chemical Technicians. In addition, he confirmed that the INOFOSS,
the FOSSOMATIC and the PETRIFOSS instruments were not in use at
C.M.T.L. when the Chemical Laboratory Class Standards were
established in 1965. Similarly, in cross-examination, he
acknowledged that the grievor performed none of the tasks referred
to in paragraphs 2 and 3 of the grievor's current Class Standard.
Dr. Jim Henry described the purpose and structure of the
Central Veterinary Laboratory at Guelph. The Guelph Lab provides
a diagnostic service to veterinarians and the livestock industry.
Dr. Henry explained that the Guelph Lab provides the same service
as a hospital pathology department would for humans and'offers
services in microbiology including bacteriology, virology and
serology. The Guelph Veterinary Lab employs 15 veterinarians and
numerous technicians classified as either Technologist 1 or 2,
Medical Laboratory. The Guelph facility is divided into sections
which specialize in various disciplines, i.e. diagnostic
bacteriology section, mastitis section, serology section and
virology section. Dr. Henry described the type of tests performed
at the Guelph Veterinary Laboratory using the old Class Standards
for Technicians 2 and 3, Medical Laboratory and characterised each
of those tests as biological or chemical in nature. In cross-
examination, Dr. Henry reviewed the grievor's Position
Specification form together with the current Class Standard of
L.5
Technician 2, Chemical Laboratory. On the basis of that
documentation, he agreed that there was a strong biological aspect
to the grievor's job and a strong chemical aspect to the grievor's
current classification. In re-examination,, Dr. Henry agreed that
some technologists at the Veterinary College are performing
strictly biological tests, while others perform strictly chemical
tests and others perform a mix of both.
The Union contends that the core duties of the grievor's job
do not fit within the current Class Standard of Technician 2,
Chemical Laboratory. Mr. Watson argues that although the health
mandate of C.M.T.L. has not~been reduced to writing, there is a
strong health component to the work performed. He contends that
the .grieiror would. be properly classified within the new Medical
Laboratory Series at either the Technologist 3 or 2 level
(preferably Technologist 3) to properly reflect the micro-
biological nature.of the grievor's duties and responsibilities. AS
a last resort, the Union suggests a Berry order. In support, we
were referred to the following authorities: OPSEU (Swibb~et al)
and Ministrv of TransDortation 1107/87, 2036/87, 0186/88 (Watters);
OPSEU (Jameson, Leblanc. Smith) and Ministrv of Agriculture and
Food 390/87, 391/87, 429/87 (Verity); OPSEU (Beoos et al) and
Ministry of Agriculture and Food 453/88, 492/88, 493/88, 494/88,'
512/88, 513/88 (Wilson); OPSEU (Ennis. Schuler). and Ministry of
Correctional Services 17/85, 1396/88A (Kirkwood); OPSEU (Zinger et
al) and Ministrv of Correctional Services 0004/85 (Brent); and
.
24
OPSEU (Braund et al) and Ministrv of Correctional Services 39/89
(Slone).
The Employer maintains that the grievor was properly
classified both at the time of the grievance on the basis that she
performs bacteriological tasks in a chemical laboratory. Mr.
Slater argues that while C.M.T.L. has a concern for health, the
mandate for public health is elsewhere and that C.M.T.L. is
involved in quality control work and is not involved in medical
diagnosis and has no public health mandate. The Employer contends
that the Class Standard Technician 2, Chemical Laboratory is
extremely broad and that the tests described are not meant to be
definitive. Mr. Slater adopts the position that there was no
evidence that the grievor performs significant duties which fell
outside the Class Standard and that a Berry order should be granted
only as a last resort. The Employer referred us to two decision:
QPSEU (Palmer et al) and Ministry of Revenue 2017/86 (McCamus); and
OPSEU (Samir Messieha) and Ministrv of Environment 0387/86
(Springate).
There is really no dispute between the parties as to the
nature of the grievor's actual duties and responsibilities.
Similarly, there is no dispute that she is a competent and
dedicated employee. It may fairly be said that her position is
unique at C.M.T.L. in the sense that she is the only
Microbiological Control Technician. On the evidence, we find that
25
she performs a multiplicity of primarily microbiological tests in
which she is required to interpret and record those tests results.
Indeed, the results obtained from .the microbiological laboratory
are forwarded to the Ontario Milk Marketing Board for the purpose
of imposing penalties under the Regulations to the Ontario Milk
Act.
We ,agree that the Chemical Laboratory Technician Class
Standard dated July 1965 is designed to apply to a wide variety of
positions. However, the evidence of Mr. Fletcher established that
the grievor's current duties as a Microbiological Control
Technician differ significantly from the tasks described in the
current Class Standard. Similarly, Dr. Henry acknowledged that
there is a strong biological aspect described in the grievor's
Position Specification form and a strong chemical aspect
contemplated by the current Class Standard. C.M.T.L. is a large
multi-purpose facility containing both a chemical laboratory and
microbiological laboratory. On all the evidence, we find that the
grievor's primary focus on microbiological testing duties is not
reflected in the Technician 2, Chemical Laboratory Class Standard,
and that accordingly we must conclude that she is misclassif ied.
However, on the evidence adduced, we are not persuaded that
the grievor is entitled to reclassification in the Medical
Laboratory Class Series. Mrs. Jirsa does not provide technical
services "to the professions of medicine, veterinary and forensic
26
science as an aid to diagnosis and treatment of disease" as
contemplated by the preamble to the Technologist 1-3, Medical
Laboratory Class Series. The nature and purpose of C.M.T.L. is to
test raw milk for composition and quality control to ensure
compliance with the Ontario Milk Act and the Regulations thereto.
While there are obvious health concerns in the multiplicity of
tests performed at C.M.T.L., that facility is not involved in the
diagnosis and treatment of disease and has no direct public health
mandate.
In the result, this grievance is allowed and the Employer is
directed to find or create a proper classification for Mrs. Jirsa
within 90 days of the release of this Decision. Further, the
grievor is entitled to,compensation for any.difference between.the
two classifications for the period commencing 20 days prior to the
filing of the grievance and the effective date of reclassification.
This Panel shall remain seized in the event of any difficulty
encountered in the implementation of this Decision.
DATED at Brantford, Ontario, this 9th day of January. 1992.
R. L, VERITY, Q.C. - ~cE-CHA~RPE;(SON
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
SIN1 - MEMBER