HomeMy WebLinkAbout1987-1850.Boone et al.93-08-05ONTARIO i EMPLOYtiSDE LA COURONNE CROWNEMP‘L .LS DEL’ONTARIO (.’
GRIEVANCE C$lMMISSION DE I
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNOAS STREET WEST, SUITE 2100, TORONKJ, ONARID. M5G TZB Ti=LEP”ONE/T~LAwmJ~~ ,” 16, 326- ,388
180, FIVE DUNOAS OUEST, EwRf?A” 2100, TORONTO ,ONT*R,O,. M5G IZB FAcSIMILE/TELs3xFE : ,26- ,396 ,416,
1213/87, 1909/87, 2516/87, 755/88, 802/88;61/89, 84/89,
X26/89, 1320,'89, 215/91, 246/.91, 434/91, 435/91, 437/91,
BETWEEN
Grievor
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Boone et al)
-, and -
The Crown in Right of Ontario
(Ministry of Health)
BEFORE: M. Gorsky
I. Thomson
A. Stapleton
. .
Vice-Chairperson
Member
Member
FOR THE
JrNION
B. Rutherford
Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE
EMPLOYER
L. McIntosh
Counsel
Crown Law Office Civil
Ministry of the Attorney General
HEARING October 17, 1989
February 12, 13., 1990
May 17, 31, 1990
June 15, 25, 1990
July 16, 1990
August 17, 1990
February 11, 12, .18, 19, 1991
April 23, 1991
May 31, 1991
June 11, 1991
December 6, 13, 19, 1991
Employer
DECISION
The grievances before us were filed in 1987 and 1988 bi most
of the Rehabilitation Officers in the Province of Ontario employed
by the Ministry of Health in Ontario at the following psychiatric
hospitals: Brockville, St. Thomas, Whitby, Penetanguishene, Queen
Street Mental Health Centre (Toronto), Hamilton, Lakehead (Thunder
Bay) and North Bay. The presentation of evidence in this case took
19 days, and counsel filed written submissions totalling 144 pages.
In order to do justice to the enormous effort put into the
preparation and presentation of the case, our decision has reached
a commensurate length. It might have been possible to merely note
the fact that the Board, while it appreciated the efforts of the
parties, could merely acknowledge them in rendering its decision.
While the Board is endeavoring to administer justice, it is also
engaged in a practical exercise. But for. certain exceptional
circumstances affecting the case before us, we would have had to
considerably shorten this decision.
The Grievors, in this case, have raised certain fundamental
questions which require our decision to be somewhat more elaborate
than would usually by the case. This case also, raises some
fundamental questions relating to whether the conventional method
of dealing with classification cases before the Board can do
justice between the parties except in the sense that there is a
"winner, " while failing to effectively deal with the underlying
-
2
problems that led to the filing of the grievances in the first
place. It is evident that events have overtaken the process, and
future awards will be much shorter.
The Rehabilitation Officers employed at the two remaining
psychiatric hospitals at Kingston and London do not form part of
this grievance.. Rehabilitation Officers employed by the Ministry
of Health at the London Psychiatric Hospital did not file their
grievances in time to join this hearing, while the Kingston
Rehabilitation Officers did file their ~grievances prior to the
grievances in the case before us: see OPSEU
dthehof an 27/84 (hereafter "Wallace and
Jackson").
The grievances raise the issue as to whether the Grievers are
properly classified as Rehabilitation Officer 2 Health ("R02"),
and, if they are not, whether their duties and responsibilities
place them in the classification of Social Worker 2 ("SW2").
The class standard with respect to the Social Worker series,
including the preamble (Exhibit 2) is annexed hereto as Appendix 1.
The class standard with respect to the Rehabilitation Officer
class series (Exhibit 3) is annexed.hereto as Appendix 2.~
3
The Union made three alternative submissions in support of its
position: i
1. That the issues in this case have already been decided in
Wallace and 'Jackson, and that the Employer has not established that
the grievances before,us represent "exceptional circumstances" to
those found in that case, nor has it demonstrated that WB
Jackson was "manifestly wrong." It was submitted that the Grievers
perform substantially the same duties as the "usage witnesses" in
that case and of Messrs. Wallace and Jackson.
2. That the class standard for R02 does not accurately describe
the Grievors'.duties and responsibilities, whereas the SW2 class
standard does.
3. In the alternative, if the Board finds that the Grievers'
duties and responsibilities do not best fit the SW2 classification
and are not within the R02 classification, a l&rry order is
requested.
4. The Employer has altered its classification scheme by
classifying two persons, Lee Haines and Jim Rodgers as SW2'and that
the Grievers perform substantially the same duties and
responsibilities as those "usage witnesses." Accordingly the
Grievers should be classified as SW2.
4
The Union also submitted that the Grievers are entitled to
retroactivity back to the date of the Wallace and JackEinn award
because it was at this point that the Employer was put on notice
that the Grievers were wrongly classified, and it has not suffered
any prejudices from having the benefit of these employees at a lower
cost.
When the hearing first commenced, on Qctober 17, .1989,,,we were
informed that all of the Grievor-s performed substantially the same
duties and responsibilities and, by agreement. Ms. Olive Watts,
who is employed at the Brockville facility, was put forward as the
representative witness whose evidence was to apply to the cases of
all of the Grievers, After Ms. Watts gave her evidence, we were
informed that we would also be hearing brief evidence from
representative witnesses from most of the other facilities, which
was supposed to relate to minor administrative differences between
the way each hospital administered patient treatment. The
differences were said not to be differences "in substance regarding
the Grievor-8' core functions and responsibilities or 'clinical'
duties." The evidence of ,the representative Grievers from the
other facilities was also to deal~with the extent of "supervision
of the Grievors through the ward treatment teams, which [was said
to be1 primarily 'clinical."' It was the Union's position that the
"administrative" supervision: '... through the Vocational
Rehabilitation Services Department structure differs among the
hospitals" with the difference being insubstantial.
5
The Union's alternative position was that if differences in
administrative supervision was found to be significant to the
classification of the core duties and responsibilities of the
Grievers, then it was significant that the Grievors employed at
Lakehead and at Queen Street Mental Health Centre do not report to
the Vocational Supervisor but to a Director, and that the
traditional shortage of psychiatrists at Lakehead was indicative of
the existence of less supervision in the case of the Grievers at
that facility. It was also submitted that it was of significance
that the Grievers at Brockville and St. Thomas were ~subject to
administrative supervision by a person filling both the Vocational
Supervisor and Director of Vocational Services positions ("that is
wearing both .'hats'.") It was also submitted that the other
Grievers' supervisors carried their ,own case loads and therefore
performed similar duties to the Grievers.
Counsel for the Union referred to the grievance of Mr.
McKenna, the representative grievor from Hamilton Psychiatric
Hospital, who "obviously possesses theoretical knowledge, including
knowledge of the 'Anthony Model,' that allows him to put academic
labels on his duties in rehabilitation techniques. Mr. McKenna, in
cross-examination, acknowledged that he ,did not draw on his
education in the performance of his duties, and it was submitted
that his theoretical knowledge did not distinguish his work from
that of the other Grievers for classification purposes, it being
submitted that they all performed the same duties, with Mr. McKenna
6
furnishing the Board with definitions of many of those. duties
(Exhibit 27). In the further alternative, the Union submitted that
Mr. McKenna's use of his theoretical knowledge entitled h.im to
classification as an SWZ.
The Employer responded to the submissions of the Union as
follows:
1. That the issues.in this case have not been decided by the
Wallace and Jackson case.
2. That the. SW2 class standard does not properly describe the
Grievers' position and that the R02 standard does.
3. The Grievers' duties and responsibilities were not
substantially the same as that of Messrs. Haines and Rodgers.
Counsel for the.Employer also submitted that if the grievances
succeeds, the usual 20 day retroactivity rule should apply.
At the outset of the hearing, the Chair informed counsel, as
he had informed counsel in Wallace.and Jackson, that the Board's
understanding of the Social Worker class series, and in particular
the class standard with respect to SWZ, 'wo~uld benef,it from the
receipt of evidence from qualified witnesses as to the meaning of
some of the‘terms set out in that class standard. In many cases
7
the meaning of the words contained in a class standard'is self-
evident and does not require further interpretation. The situation
is different where such terms terms of art as "qualified social
workers, I' "professional social work services," "psychosocial
diagnosis, ' "principles, techniques, and methods of social work,"
"knowledge of diagnostic and treatment procedures utilised by
related disciplines" are used.
Although the Employer's credentialism policy would permit a
person to be placed in the Social Worker class series without
completing "undergraduate professional education" in a faculty of
social work, an incumbent would have to provide "professional
social work services" and to be able to "use one or more social
work methods to assess, treat or prevent.the underlying cause of
social dysfunctioning, both personal and environmental." They
would also have to "develop and implement appropriate social
treatment plans and evaluate the results," as those terms are used
in the class standard. It is apparent that unless the terms are
correctly defined, many positions, based on their duties and
responsibilities, may, on first blush, appear to fall within the
language of the standard.
In the Wallace and Jackson case, the persons with whom the
grievers Wallace and Jackson were compared, who were classified as
SW2 (Mrs. Gander, Mrs. Segal, and Mr. Phillips) were all employed
bye the Ministry of Community and Social Services and were either in
the position of Rehabilitation Counsellor or Rehabil i
Officer. It was the position of the Union, in that case
.8
tation
"that
what the grievor-s did amounted to 'essentially the same thing' as
the work performed by the three employees classified as SWZ."
The. Board in W lla a found that the evidence
established that there was a substantial similarity of duties and
responsibilities between those of the grievers in that case and the
three usage witnesses who were classified as SWZ.
In the Wallace and Jackson case, which was based only on a
usage argument, the Board found no evidence to demonstrate that the
comparators classified as SW2 were carrying out their duties and
responsibilities using skills and abilities dependent on a
knowledge of the principles, techniques and methods of social work
as well as the ability to apply them-in a work situation. That is,
there was nothing to differentiate, in any significant way, from
Messrs. Wallace and Jackson.
The Board was clear in indicating its finding that:
. . . no evidence concerning the ‘incorporation in their
work, by Mrs. Gander, Mrs. Segal and .Mr. Phillips, of
professional social service and rehabilitation ~principles
normally associated with a graduate of a recognised
university social work course or that of a related
discipline. Mrs. Segal holds an MSW degree and there wasp
no evidence to cause me to conclude that she employed her
training at a level consistent with her academic
attainments. Her evidence did not demonstrate that she
was undervaluing the extent to which her job called upon her to utilize other than rudimentary social work skills.
From her evidence, I would gather that there was no need
9
to employ her higher level social work skills associated
with a graduate degree in social work, let alone an
undergraduate degree. I emphasise, that in another case,
the evidence of necessary professional understanding of
social work theory and practice might unde,rmine the%Union
position. Such evidence did not figure in thi,s case,
except as we were asked to find its existence in the
evidence presented. Upon examining the evidence, I
cannot find a basis for so finding.
In the result, in the Wallace and Jackson case, the Board
found that the grievers did essentially what the comparator
employees classified as Sw2 did. The Board was unable to
differentiate the duties and responsibilities on the basis that
those employees classified 'as sW2 did so employing the skills and
knowledge that would Abe expected of a qualified social worker I
providing professional social work services which was contrasted
with the nature of the services provided ~by the grievers.
Acknowledging the effect of the credentialism policy, the
Board recogniied that the degree of expertise expected of qualified
social workers who provide professional social work services to
clients could be carried out by persons who had attained the
~necessary skills and knowledge associated with a qualified social
worker other than through graduation from a professional school of
social work.
The Union's first witness was Olive Watts, who commenced
giving her evidence on Ott 17. 1989, her evidence being as follows:
10
1. According to her r&.ume (Exhibit 5). she has been a Vocational
Rehabilitation Counsellor at the Brockville Psychiatric Hospital
since 1975~.
2. She is responsible for the Elmgrove Unit, which services
Leeds-Grenville County, and has 600 out-patients.
3. She receives referrals from the Residential Rehabilitation
Unit, 'which is an alcohol and drug treatment centre, there being no
geographic boundaries‘to referrals received by her.
4. The purpose of-the Vocational Rehabilitation program is to
provide clients with help to develop their vocational abilities to
full potential. Patients (also referred to as "clients") are
referred to the Ward Treatment Conference, being a multi-
disciplinary conference which meets once a week and involves all
the units in the institution.
5. The disciplines involved in the Ward Treatment Conference
include psychiatrists, psychologists, social workers,
recreationists, nurses and staff involved in vocational
rehabilitation.
6. There is also a meeting referred to as "Cardex," which takes
place two times a week (Monday and ~Friday), where the present
population of a unit is reviewed and significant referrals are
11
identified. The meeting is chaired by the psychiatrist. The nurse
responsible for the patient record (also referred to as the ,
"bookkeeping system”) is also present as are all other disciplines
who may contribute as problems in their areas are identified.
7. Referrals are made to Ms. Watts where vocational problems are
identified and she can request that a patient be referred to her.
Members of any discipline can refer a patient to a member of any
other discipline.
8. Out-patient referrals are directed through the individual
teams, and the social worker (identified as the "I.ntake Worker,")
presents all out-patient referrals for the various teams. The
Intake Worker identifies the reason for the referral and how it
came about; i.e., self, family physician, etc. Out-patient
referrals are identified at conference meetings and usually occur
following a Cardex meeting. During the initial referral, a Case
Manager, who could be from any discipline, will be identified. It
is at this point that review dates are set up for reporting back on
a client's progress.
There was one out-patient conference for Elmgrove, and that
alcohol treatment out-patient information was exchanged following
regular ward treatment conferences.
12
9. There was no material difference between the programs offered
to in-patients or out-patients. She would occasionally have to ,,
find housing for clients in the alcohol treatment.program.
10. At the time of the grievance her case load was approximately
45 clients, including both in- and out-patients, with the normal
range being from 25 to 60.
11. In the case of alcohol treatment patients, their problems are
fairly obvious by the time they come into treatment. There is
usually considerable difficulty with their employment and their
jobs are usually in jeopardy. She must "liaise" with a client's
employer. She provides the employer with documentation and
recommendations as well as information about follow-up.
12. The clients at Elmgrove are made up of persons ranging in age
from young to old with a full range of handicaps: mental, physical
and psychiatric.
13. Although the psychiatrist has the ultimate responsibility for
any patient, and different responsibilities are delegated to each
discipline, once a referral is made for vocational treatment, shoe
is responsible for the client's treatment and progress.
14. When a patient is referred to her, she has an initial
interview with him/her. She performs educational and vocational
13
reviews asking questions of the client intended to draw-out
information as to what they have done in terms of employment; at ,
the same time she obtains a general history.
15. She outlines her services to the client and asks them about
their interests. Depending on what information is.given to her,
she will do a file review, speak to members of other disciplines
and may have vocational assessments performed.
16. The vocational reviews (or histories) consist of information,
such as whether the client is working, as well as the results of
available performance evaluations.
17. She will identify any work-related appropriate behaviours as
.indicators of the clients' being "job-ready"; for example, she will
record evidence of attendance, punctuality and productivity. Where
she ascertains that clients are not working or, while working, are
not doing well, she examines options for changing their behaviour.
18. She .referred to Exhibit 6, which is a supplemental
classification of factors influencing status and contact services.
She uses .this document when a person is in the process of being
accepted for out-patient services.
19. After she has completed an initia~l client interview, she fills
out a form which requires her to identify "psychosocial stressors."
(‘.,,, c. I
14
These are located under the "~62" category. This document was
identified as one circulated by the Unit Director, who is a
psychiatrist, along with instructions to use it for the purpose of
consistency when statistics are gathered with respect to "reasons
for referrals." She stated that the.identification off psycho-
social stressors is not part of a medical diagnosis. Factors noted
by her were: unemployment, housing, family status and how the
stressors relate to the vocational context. An example given was
the lack of family support or basic transportation that would
impact on a client's vocational potential.
20. The initial interview takes from one to three hours, following
which she endeavours to determine with the client what should be
done next; for example vocational assessment, job placement or
education.
21. The vocational assessment provides an opportunity to identify
a client's interests, aptitude, and his/her vocational strengths
and weaknesses. Ms. Watts employs a variety of tests, for example
the General Aptitude Test Battery (GATB). She does not administer
i, these tests, although she testified that she had done so in the
past. She identified other tests for different functions, for
example, dexterity, small hand, and full range of motion tests.
22. It is her responsibility to decide what the appropriate
vocational treatment plan should be. This his assessed by reviewing
a combinat ,i
his/her st, al
15
on of the client's work and educational history and
ted interests, in the light of her interviews with the
him/her. She takes. into account other factors such as any physical
and medical limitations. An example given was epilepsy which could
be a contra-indication to undertaking certain kinds of work. She
had to have a basic understanding of medications, medical
conditions, and medication side-effects, for the safety of her
clie,nts.
23. VRC's are also responsible for implementing the Vocational
Treatment Plan. She discusses with her clients any disability they
have, their "acceptance of the disability" and whatever limitations
are placed on them because of it. If the client has not accepted
his/her disability, she will engage in extended dialogue reviewing
available options. She will then endeavour to narrow the client's
available vocational options to help him/her learn to accept a
realistic goal.
24. Depending on a client's motivation, he/she may be encouraged
immediately to attempt to be placed in a job and/or an educational
environment.
25. Where the client is not sufficiently motivated, more time is
taken and many interviews held discussing goals and how they might
be attained. Incentives, such as wages or other remuneration, are
discussed with the client. Many clients were said to have problems
16
with motivation, especially in-patients. In addition, many clients
were fearful of engaging in a vocational rehabilitation program and
had low self-esteem.
26. .She considered the following factors in deciding whether a
client was inappropriate for a rehabilitation program:
poor communication skills;
limited physical potential;
state of physical health, existing psychological/psychiatric
condition;
history of previous unsuccessful attempts.
27. Where she determined that a client was/not employable, she
sought other resources. For example, where a client had no work
history, she would refer 'him/her for assistance under the Family
Benefits Act. If the client had a work history and was now
disabled, she determined whether s/he is eligible for payments
under the Canada Pension Plan or long-term insurance from former
employers, or for short-term assistance through Unemployment
Insurance.
28. She was responsible to report to the Ward Treatment Team on
the client's, progress. Reporting takes place both within the
Department of Vocational Services (the "Department") and the
clinical, conference (the "Team"). There 4s a regular meeting in
17
the Department which takes place once a week attended by:
vocational counsellors, vocational supervisors, Director of
Vocational Services, assessment officer and Vocational Centre
Supervisor. The'purpose of this meeting.is to gather statistics
and to advise the Department what she is doing with her clients.
29. A though the psychiatrist is at the apex of the structure and
has power to veto her treatment plan, she could not recall any
instance where this had happened.
30. Her Supervisor at the time of the grievance was Calvin
Prescott, Director of 'Vocational Services. Her supervision
invnlved the ,exchange of information regarding her case load.
Information imparted to her was for evaluation of her work and Mr.
Prescott usually informed her that she was doing very well. He was
said to rely on her judgement and her assessment of her cases and
would only infrequently make suggestions but did not impose them.
31. she did not measure the success of the Vocational Treatment
Plan by the number of clients who were successful in maintaining
long-term employment in the private or public sector, but by
whether a client was functioning at his/her optimal level. It was
her responsibility to decide when the patient was functioning at
his/her optimal level, which she did with feedback from him/her.
32. Her position specification (Exhibit 4A) with certain minor
inaccuracies, reflected her duties and responsibilities. She ,,
testif,ied as to a few inaccuracies:
(i) third line - "obtain approval for vocational programming".
She stated that this was not relevant as she did not obtain
approval and was expected to proceed to develop, implement and
carry out vocational treatment plans without prior approval.
(ii) "Participating" - She initiated rather than acted as a mere
participant.
33. She testified in some detail, elaborating upon activities
referred to in Exhibit 4A:
(i) Discharae Planning
Discharge planning took place at the clinical (ward treatment)
conference. She is responsible for identifying to the team what
her follow-up role will be with the client following discharge.
Follow-up entails the following kind of.,duties: assisting the
client with job search, return to work, education, participation in
hospital programs. On discharge a client may only be beginning the
vocational program. Her interaction with a client is based on
developing "rapport" and identifying goals. Once the relationship
has started, she will have a number of interviews and meetings with
clients.
(ii) ) Services
19
An additional program is the "Supported Employment Program"
operated outside of the hospital. The program consists of
"walking" a client through an employment situation until he/she is
able to complete the job on his/her own. The workshop instructor
is responsible for monitoring the progress of the client, and Ms.
Watts receives the evaluation prepared by the instructor.
Evaluations may be written (formal) or verbal (informal).
(iii) Work Adiustmemg
Work adjustment training takes place in the hospital or
community allowing clients to participate in various kinds of
employment so that they might identify areas of interest and jobs
for which they have some ability. In the case of in;hospital
programs, she consults with the Workshop Instructor who is
responsible for monitoring a client's progress. The Vocational
Rehabilitation Department has a formal work adjustment contract
with Canada Employment and Immigration Centre ("CEIC") for
referrals for a full range of services, such as:
job vocational assessment;
variety of work placement; and /
evaluations.
On occasion, referrals are received from CEIC, in which case she is
responsible to carry out the referral and follows 'the same
reporting process as with other patients. She reports to the CEIC
counsellor. Clients in the hospital who are part of the CEIC
program are paid a special incentive allowance, with the funding
20
coming from the vocational budget. Incentive pay is arrived at
using several factors including attendance and evaluation. A i
dispute by a client about assessment pay is dealt with .by
Vocational Counsellors.
She prepares individual vocational program plans for the
patient and Workshop Instructor, and as part of this plan the
client might be required to meet certain progress or improvement
goals prior to being placed in outside work or activities.,
Workplaces outside the hospital are not limited to those of-a
particular type and could be in any industry or service. She
contacts employers and, on occasion, asks that they assess a client
in order to obtain information concerning his/her abilities in the
community. In those circumstances the client is paid an incentive
allowance unless the placement is through the CEIC work adjustment
program. The client could also be paid through the Vocational
Rehabilitation program at the Ministry of Community and Social
Services ("COMSOC"). She sometimes refers clients working outside
the Hospital to COMSOC~ for fi.nancial assistance. A close
association exists between herself and the COMSOC Vocational
Counsellors and she maintains client information in the file and
ideas for the client's placement through COMSOC assistance.
21
Since 1987, she has led sessions of group counselling,
identified as the "Singer" program. This program involves career
counselling, job skills, life skills and interviewing techniques
and role playing devices.
She also engages in individual counselling; descrbed above,
and suggests options, as described above, compatible with any
client's disability. Where necessary, such matters such as basic
hygiene and the feasibility of available vocational services are
discussed with the client. There are occasions when she is
involved in crisis intervention counselling and engages in liaison
with employers in an attempt to correct behaviour problems in the
workplace which might otherwise require removal of the client.
When a placement proves to be unsuccessful, she endeavours to
arrange another one.
(v) -y
Although "diversional work activity" is a term that no longer
dominates the area, it is still employed for long-term patients
with little potential for community or competitive employment. It
is sometimes called "maintenance" and may involve persons who are
retired or over the age of 65. On occasion, clients will relegate
'themselves to this category through a process of self-
identification. Where a client wishes to be employed, but Ms.
Watts, on the basis of her assessment, concludes that this is not
,
6, : (...:
22
a realistic possibility, she will endeavour to assist him/her to
arrive at's realistic objective. ,,
(vi) Pr vidin I,
After-care involves the care of out-patient clients. She may
serve as the Case Manager ~for a particular out-patient. In this
capacity she co-ordinates all services for the client.
(vii) Identifvina Educational Needs
Educational needs 'may be identified as a result of
interviewing a client who expresses his/her needs through
achievement testing or through then hospital learning centre.
Resources in the community are community colleges and universities.
St. Lawrence College assist clients through offering student loan
applications and accompanying documentation. When a client is
enrolled in an educational program, she'follows his/her progress on
a monthly or bi-monthly basis. She will assist clients seeking
educational advancement by making them aware of funding that is
available through Unemployment Insurance for participation in
training programs.
(vii) Client Referrals to Communitv Resources
Ms. Watts identified the following traininq,opportunities that
are available in the community:
1. Srockville Community Workshop;
2. "Career services";
3.
4.
23
CEIC;
COMSOC. i
These community resources are all sheltered workshops located
outside of and not associated with, the Hospital. Usually such a
placement is the first step taken by the counsellor dealing with
longer term clients. These workshops are similar to the in-house
workshop located in the Hospital, and the word "sheltered" means
that there is a good deal of supervision and an opportunity for
training on a "one-on-one" basis. Movement to an outside facility
> is regarded as progress on the part of a client.
"Career Service" is an arm of the Brockville Community
Workshop and is closer to work placement, as. contrasted with a
training opportunity. The client is referred to the Brockville
Community Workshop and there is usually a four to eight week
assessment period to ascertain if he/she is ready to be placed in
a community setting. she plays a coordinating and referring role
during the placement period and engages in follow-up monitoring.
As noted above, she may assist clients further by referring
them for pension and disability benefits and she assists them with
the paperwork associated with the process, and she also will appear
as a client's advocate in the event of any appeals or hearings
associated with pension applications and the receipt of disability
benefits.
24
(ix) Liaison with Communitv ReSourCeS/PriVate SeCtOr EITIDlOVer.9
She maintains liaison with CEIC, the workshops, social /
agencies, COMSOC and Youth Employment Assistance Headquarters.
There is ~a link among community resource agencies who share common
interests, and she and representatives of these agencies have
informal "get-togethers" that are client-related. This enables
them to share information about such matters as new developments
that may have arisen in different Ministries. She also "liaises"
with private sector employers through the process of "private
sector recognition" days. She also participates in "employer
appreciation" days held in conjunction with "graduation" exercises
for people involved in the "Futures" program. She described the
special difficulties involved in endeavouring to obtain a second
placement for a~client.
lx) Promotinq Vocational Rehabilitation
She has taught at St. Lawrence College, in its Vocational
Rehabilitation Counsellor course, since 1987. In addition, as a
member of the "Youth Employment Assistance Headquarters," she
initiated "Youth Action" in 1988 on her own time. She has also
spoken at public schools on the following topics:
1. teenage suicides;
2 employer expectations;
3. the disabled in the workplace.
25
Her speaking engagements followed an inquiry from her
supervisor, Mr. Prescott, as to whether she.was interested in
engaging in this activity.
(xi) Particiuation in the Communitv
In 1987, Ms. Watts was President of Brock Cottage, located in
Brockville, being an organization for recovering alcoholics. This
was a voluntary undertaking on her part, but she kept her
department informed about it. She also discussed her participation
on boards and committees during her performance evaluations, and
she stated that her supervisor encouraged these activities, which
also included Brockville Community Workshops, Youth Employment
Assistance Headquarters, and Family Focus (an agency in Leeds-
Grenville for establishing community resources). She regarded this
kind of work as valuable to the Employer as it enabled her to place
clients with these agencies. She also regarded her activities as
representing good public relations for the Employer.
34. She did not feel that she was subject,to any clinical case
review. The only review that she referred to was a performance
review that took place less than once every two years, which did
not comprise a case by case review but represented an overall
assessment of her performance. There wasp evidence that case review
meetings involving herself and her supervisor were established
after the date of her grievance.
26
35. She identified her role as being primarily directed' at
assistintg clients to build satisfying personal relationships~ and ,'
improving their social interactions with others'60 that they.could
function better whether they were employed or not.
36. Although she did not usually perform family counselling, she
has done so on occasion.
37. Exhibit 7 was identified as the Vocational Data Sheet and
Exhibit 8 as the Vocational Service Individual Program Plan.
Exhibit 7 is the referral form used~ by her for vocational
assessment. Exhibit 8 was not in use at the time of the grievance,
although simi.lar information would be set out by her in her
progress notes.
38. She frequently emphasised inher evidence the fact that her
role as a Vocational Rehabilitation Counsellor is carried out
largely independently and she maintains a leadership role in this
area. She also emphasised that her activities are in large measure
directed by the client. Because of the nature of the disabilities
frequently affecting her clients. she has occasion to engage in
"crisis counselling." One of the techniques employed by her, after
a joint decision has been arrived at relating to the actions to be
taken, is to enter into "contracts" with her clients. These
"contracts" are frequently concerned with the "modification of some
inappropriate behaviour".
27
After reviewing the evidence of Ms. Watts and the
"representative" witnesses.from the other hospitals, we accept the I
Union's position, which was not seriously objected to by the
Employer, that "all of the Grievers perform substantially the same
duties." We also accept the Union's submission that: "There are
minor administrative differences between the ways each hospital
administers patient treatment but these differences do not amount
to any difference in substance regarding the Grievers' core
functions and responsibilities . . . .'I We believe that Ms. Watts
properly serves as a representative Grievor, and it is unnecessary
to consider the Union's alternative submission should we have
found, contrary to its original position, that the "differences in
the administrative supervision" at the various institutions were
"crucial to the classification of the core duties of the Grievor6
II . . . .
Although it took 19 days to hear the evidence, much of it with
respect to the Grievors' duties and responsibilities, we do not
find any substantial difference between the parties concerning the
description of what the representative Grievor did. Where they
differed was in interpreting how those duties and responsibilities
should be characterised.
I
28
Evidence of Calvin Prescott
Mr. Prescott, was called as the first witness for the Employer
on the eleventh day of the hearing being February 11, 1991. His
evidence is as follows:
1. He became Vocational Rehabilitation Supervisor in 1976 in the
Vocational and Rehabilitation Volunteer Service Department at the I
Brockville Psychiatric Hospital.
2. The Director of the Departmen< left in 1988 and was not
replaced. He regarded himself as performing the Director's duties
and indicated that "that remained a bone of contention for several
years. " I
I
3. In 1984 his job description1 was changed and he was
I reclassified and was officially named as the Director of the
Department. Between 1980 and June of 1987, he was both the
Supervisor and the Director of t!e Vocational Rehabilitation
Service Department. 1
I 4. He acknowledged ~that he had authorized Ms. watts to
participate in community activities such as the Board of Directors
of Family Focus and as a member of the Personnel Committee.
I
I
29
5. During his cross-examination, which commenced on the 12th day
of the hearing, Mr. Prescott confirmed that, in his view,
vocational rehabilitation represented a unique profession that was
more highly developed in the United States than in Canada where it
had not achieved a proper degree of respect.
6. He testified that as a vocational rehabilitation counsellor
MS. Watts' primary focus was on the vocational potential of her
clients.
'7. He also confirmed that Ms. Watts' client group was composed pf
persons who required vocational rehabilitation because of a range
of disabilities: physical, emotional, psychiatric, or a combination
thereof, but whose main problems were psychiatric.
8. He confirmed that Ms. Watts' duties and responsibilities
included the identification of educational resources for her
clients and that she assisted them in assessing educational
resources.
9. He confirmed that Ms. Watts had a responsibility to place her
clients in educational and training programs, actual jobs, as well
as in.pre-vocational programs.
30
10. He confirmed that Ms. Watts was responsible for assessing her
clients' employment potential and identifying suitable progr;j,ms for
them.
11. He confirmed that Ms. Watts was responsible for identifying
access to different work situations for her clients, which
situations ranged from workshops, supported employment, hospital
services employment and independent employment in the community.
12. He confirmed that Ms. Watts determines the appropriate path
for a client's vocational rehabilitation and that she recommends
whether a client should participate in in-hospital or community
programs. He agreed that it is Ms. Watts' responsibility to
monitor a client's progress through a vocational plan and that her
ongoing role involves defining the goals and strengths of a client.
13. He agreed that it was important that realistic goals and
i strategies be agreed to by the client and that between two and
three of every ten clients have unrealistic expectations about
their vocational potential. Ms. Watts' goal is to assist clients
in arriving at a realistic vocational objective, and she used
counselling techniques to achieve this goal.
14. He agreed with Ms. Watts that many clients have difficulty in
developing a realistic vocational objective because they do not
possess sufficient self-understanding and self-acceptance, nor do
31
they have an accurate perception of their abilities. He agreed
that Ms. Watts has a role in assisting ~her clients to come to a ,'
realistic (".attainable") understanding of their vocat%onal
abilities and capacity.
15. He agreed that one of Ms. Watts' objectives was to assist her
clients who had difficulty with self-understanding and acceptance
to explore their feelings, attitudes and abilities in the
vocational context.
16. He disputed the use of the term "therapeutic" to describe the
relationship between Ms. Watts and her clients, although he
acknowledged that others commonly use this term in describing the
relationship. His reason for not using the term is because of his
perception that it was inappropriate. However, he agreed that Ms.
Watts' role, in part, is to be seen by the client as understanding
and non-judgmental; that is, as an accepting figure and as a person
with whom he/she can speak without fear of rejection. He agreed
that "work is a form of social behaviour" and that "... the ability
to work . . . is a function of a complex process of socialization."
He also agreed that basic work attitudes are formed within and
outside of the family and that work behaviour involves an emotional
component.
17. He testified that Ms. Watts was not expected to work on an on-,
going basis with a client's family, but agreed that she has to
32
occasionally meet with a client's family.members and, in certain
circumstances, it is ‘appropriate for her to meet with them. An ,'
example given was where Ms. -Watts determines that one of a client's
problems in reaching his/her vocational objectives is as a result
of a lack of family support.
18. He agreed that Ms. Watts was responsible for compiling a
vocational and educational history, with the main focus being
events that took place when the client was in school and/or at
work. He stated that "the counsellor is expected to have some
sense of the family situation, medication, current behaviour, and
other things the client is involved in."
19. He agreed with the following definition of "treatment": "Any
regularly planned or scheduled or agreed-upon series of
interactions with clients and families designed to improve or
resolve defined problems.!'
20. He agreed that clients are in the hospital for "treatment" and
that "treatment" is planned during the multi-disciplinary team
meetings. He later retreated from his acceptance of the word
"treatment". His stated reason for rejecting the use of that word
was because: "I don't try to define the activity, I look at the
outcomes. It doesn't matter what you call it." He responded to
the question: "At the end of the day, what is the purpose of
planning? and the result of the activities, that is, what happens
33
to the client?" by answering: "The ultimate goal is to help the
client to improve his situation." He was then asked: "That's not
treatment?" and responded: "That is not important to me." He was
then asked: "If I call it treatment would you object?" and he
responded: "No."
21. He confirmed that Ms. Watts was an integral part of the multi-
disciplinary team and that she engages in the planning process with
respect to her area of expertise, being vocational rehabilitation.
22. He testified that he attended the multi-disciplinary team
meetings one or two times~ a year and confirmed that he did not
address clinical issues when he did attend a meeting.
23. From 1976 to 1980 he carried a case load of between .20 and 35,
and.from 1980 to approximately 1984 he had a case load of between
30 and 35. When asked when he ceased to carry a case load, he
testified that he would have to guess but thought that it was in
1984, while acknowledging that he had been involved "on and off" in
taking on case loads on an irregular basis.
24. He testified that Ms. Watts' case load fluctuated between 45
and 60 clients, and stated that it was unnecessary for her to
obtain formal approval in order to undertake a vocational
rehabilitation program. Approval was said to be informal. The
34
plan is brought to the team in the same manner as other plans
presented by members of the various disciplines involved. i
25. He could not recall a psychiatrist ever dictating to Ms. Watts
what should be contained in her vocational plan. He regarded the
position of the psychiatrist as being one of greater authority in
guiding the direction of.the program, with each discipline having
significant "weight" in their area of specialization. In the case
of Ms. Watts, she was said to have greater input and authority in
her area of expertise, being vocational rehabilitation.
26. He stated that in June of 1987 his position specification
(Exhibit 45) was not entirely accurate, as the work he was actually
doing was more in keeping with the job specification for the
Director,. which prevented him from performing all of the duties set
out in Exhibit 45. He acknowledged that there were some things he
was unable to do to the extent that he wished. He agreed with the
statement that: "Because you were wearing two 'hats,' you were not
able to do as much of these activities as you would have liked."
It would appear from his evidence that Ms. Watts was subject to
very little supervision, and he confirmed that she was appraised
only one or two times during the period from 1980 to 1987.
27. He testified that the only review of Ms. Watts' casework took
place during the audit conducted 'by him. He was .unsure as to
whether this audit took place every three months in 1987, although
35
he felt it did not take place more frequently than that. The audit
was of between five and six cases which would mean that he,,would
review, at most, between 20 and 24 cases a year.
28. He confirmed that, in 1987, there were eight counsellors on
staff and each counsellor had's case load of about 45 clients.
This would mean that he would have.reviewed, at the most, three of
Ms. Watts' cases a year.
29. He 'agreed that a vocational counsellor is a member of a
clinical treatment team and, as such, vocational rehabilitation is
a clinical service.
30. He disagreed that vocational rehabilitation fell within the
definition of "treatment modality" as "modalities are types of
treatment employed by clinicians for a certain problem, for
example, behaviour modification". However, in response to
questions asked in cross-examination, he did agree that the purpose
of vocational rehabilitation was to modify behaviour in a
vocational context, and that behaviours which are important in this
context are dependability, reliability, problem-solving skills, and
the ability to self appraise. While he did not agree that self-
reliance fell into this category because this was not, in his view,
a behaviour, he acknowledged that it is important to successful
vocational functioning and that it is subject to improvement. He
regarded the factors identified by him, above, as subject to being
36
assisted by the counsellor's role. He also acknowledged that'a
counsellor, in performing this function, possesses a number of
options, examples being work assessment, work adjustment and
education, in addition to interviewing and counselling.
31. He acknowledged that Ms. Watts was familiar with "vocational
rehabilitation modalities" and that what she does "... is part of
the overall treatment plan."
32. He acknowledged that Ms. Watts is directly accountable for
vocational~planning and that this accountability is similar to the
"accountability" section of Exhibit 45 (Position Description for
Rehabilitation Supervisor), "errors in judgment . . . which could
adversely affect programming, outcomes, etc."
33. He agreed that it is important for Ms. Watts to maintain links
with community agencies.
34. He confirmed that the vocational clinical conferences occur
once a week, that they review 80 cases (eight counsellors X average
of ten cases) during each meeting, which lasts an hour and a half.
This allows for approximately one minute per case.
35. On the 13th day of the hearing (February 18, 1991). during
cross-examination, Mr. Prescott confirmed that "case review" was
( {;,
37
not in existence at the time of the grievance, although he believed
that there was a less formal practice followed at that time. ,'
36. He testified that "supervision was less that what it should
have been" although he would not agree that the counsellors
received very little supervision. In his view it was "at best . . .
general supervision."
37. He agreed that it was important for a counsellor to be
familiar with a client's emotional and vocational problems in order
to carry out vocational planning. He added that a client does not
leave his/her social and emotional~problems at home when they leave
for work.
38. He stated that while vocational counsellors do not compile a
comprehensive vocational or educational history of a client, they
provide "the first bit of information and'that includes educational
and vocational history." He regarded the vocational counsellors'
gathering of information as amounting to "rehabilitation
diagnosis."
39. He regarded the work of vocational rehabilitation as being
"extremely work intensive and a long-term proposition to
rehabilitate the long-term mentally ill." He agreed that more
intensive vocational rehabilitation work was required in the case
of'sicker clients and that there was a "direct correlation between
38
the severity of the illness and the length of, time of the
relationship between the client and the vocational department." ,
"Diversional" activities were more frequently employed with the
"long-term mentally ill."
Evidence of Peter Carter
Peter Carter was the second witness called by the Employer on
the fourteenth day of the hearing being February 19, 1991. He is
the Chief Social Worker at BPH. The Union objected to his
testifying on the basis that his evidence would be irrelevant as he
supervised none of the Grievers or the "usage" witnesses, and, as
such, had no direct knowledge of their duties or responsibilities,
nor did he have a role in drafting the class standards. It was
submitted that he was unqualified as an expert in any of the
relevant matters at issue. The Board'ruled that it would hear Mr.
Carter's evidence and rule on its admissibility later.
Mr. Carter testified: /
1. That he had no responsibility for the Vocational
Rehabilitation Department. L
2. That he had never had any affiliation with the Ministry of
Community and Social Services.
39
3. That the Social Work Department supplied social work services
and was not involved with vocational rehabilitation. /
5. That as far as he was aware social workers were not engaged in
skills training.
6. That clients were encouraged to develop better life skills and
were assisted to do so.
7. Clients were assisted to improve their level of functioning by
social workers.
8. Be agreed that one of the goals of the treatment team for
clients was to have them'function at as high a level as .possible
but stated that this was largely theoretical and was a goal that
was frequently not reached.
Evidence of Dr. Brenda Wattie
On December 19, 1991, being the nineteenth Andy final day of
the hearing, the Employer called Dr. Brenda Wattie, who was then
employed as Director.of Mental Health Advisory Services with Hea'lth
and Welfare Canada and had occupied the position of Vice-President
of the Ontario Association of Professional Social Workers since
June of.1991, and who is also a founding member of.the College of
Social Workers of Ontario. i
The Union objected to the Board's receiving Dr. Wattie's
evidence on the basis that it was not relevant and on the basis
that she could not be considered an expert witness with respect to
the sal.ient and germane matters at issue in this hearing as she had
no expertise in the area of vocational rehabilitation. The Board
ruled that it would hear her evidence and later rule upon what, if
any, weight it should be afforded.
Counsel for the Employer submitted that although Dr. Wattie is
not an expert.in vocational rehabilitation, she is an expert in
social work, with a psychiatric specialty. It was submitted that
her evidence was relevant to assist the Board to give meaning to
the words of the class standard. The words were said to be
"clearly terms of art with specific meanings in the social work
context."
The Union called no expert evidence with respect to the
meaning of the terms of art contained in the SW~ class standard.
Dr. Wattie testified that:
1. Social work was concerned both with the internal psyche of the
individual (the "personal" or "intrapsychic") and with the full
41.
range of the individual's relat ionships to the outside world (the
"environmental").
2. Social work may treat the underlying causes and the effects of
the personal and environmental dysfunctioning. She regarded
vocational rehabilitation as addressing only the effect of the
dysfunctioning on the ability tom work.
3. The following is a summary of Dr. Wattie's evidence with
respect to the specific words used in the SW2 standard:
(i) "Social Historv"
"Social history" is a "broad and comprehensive" concept that
deals with a person's "life history, personality and social
development." In response to a question as to whether Exhibits 7,
8 and 17, which were the forms used by~various of the Grievor-s,
contemplate the collection of information of an amount or nature
sufficient to be called a "social history," she responded that
while they might be "quite appropriate" 'as the basis for a
vocational assessment, which was not her area of expertise, they
did not amount to social histories because "the range of
information was too narrow," that is, that they were "basically
data" relating to vocational history "as opposed" to containing the
"comprehensive" information necessary to make a psychosocial
i
42
assessment. She agreed that the information elicited in Exhibit 53
would constitute a social history, contrasting that information
with that which would be obtained in Exhibits 7, 8, and 17; In
answering this question, she acknowledged that vocational
counselling was not her area of specialty, but stated that.she did
not regard it to be a sub-specialty of social'work. She also
confirmed that she was not an expert on vocational assessment.
(ii) "Psvchosocial
"Psychosocial diagnosis" is interchangeable with the term
"psychosocial assessment." She adopted the definition of
"psychosocial .assessment" set out in Exhibit 64, which ,is an
excerpt from the Social.Work Dictionarv (2d ed.) edited by Robert
L. Barker and produced by the National Association of Social
Workers.
The definition is as follows:
psychosocial assessment The social worker's summary judgment as to the problem to be solved; also referred to
as the "psychosocial diagnosis." This description may include diagnostic labels (such as DSM-III-R terms and
codes), International Classification of Diseases (TCD)
terms, descriptors, from the pm-
(PIE svstem), results derived from psychological tests
and legal status, brief descriptive expressions of the
problem configuration, a description of 'existing assets
and resources, the prognosis or prediction of the
outcome, and the plan designed to resolve the problem.
Throughout the intervention process the psychosocial
assessment is a "work in progress," in that it is revised
continually as new information is acquired, as circumstances and goals change, and as progress toward
goals is made.
43
The key feature of a psychosocial diagnosis is'a "judgment" as
,' to the nature of the psychosocial problem.
(iii) _r n m le e t
"Treatment plan" in the psychiatric social work context would
involve "psychosocial therapy." She adopted the definition of
"psychosocial therapy" in Exhibit 64:
psychosocial therapy A relatlonSh,lE that occurs between
a professional and an individual, familv, w, or
communitv for the purpose of helping the client overcome
specific emotional or social problems and achieve
specified goals for well-being. Psychosocial therapy is a form of pp that emphasises the interface
between the client and the client's environment. The
psychosocial therapist tends to focus on interpersonal
and social relationshio problems in addition to
intrapsychic concerns. According to Francis J. Tuner
(Psvchosocial Therapy: ,A Social Work Perspective, New York: Free Press, 1978, p.51, psychosocial therapy also
seeks to mobilise available resources or create needed
ones and combine them with individual, group and familial
relationships. to help people modify their behaviours,
personalities, or .situations. This is done to help
attain a satisfying, fulfilling functioning within the
framework of one's values and goals and the available
resources of society.
Psychosocial therapy "is a,form of psychotherapy" .in which the
problems
original )
therapist "tends to focus on interpersonal and social relatw
in addition to intra-psychic concerns." (Emphasis in
(iv) "Social
44
Although social work is not a regulated profession in Ontario,
Dr. Wattie testified: that there was an indisputable body of
knowledge and skills which constitute professional "social work."
In referring to the "knowledge, skills, abilities and values
for social work practice," Dr. Wattie relied on the statements
contained in Exhibit 65, which is as follows:
Knowledge, Skills, Abilities, and Values for Social Work
Practice
Knowledge
Knowledge of casework and group work theory and techniques.
Knowledge of community resources and services.
Knowledge of basic federal and state social service
programs and their purposes.
Knowledge of community organization theory and the
development of health and welfare services.
Knowledge of basicsocioeconomic and political theory.
Knowledge of racial, ethnic, and other cultural groups in
society - their values and life-styles and the resultant
issues in contemporary life.
Knowledge of sources of professional and scientific
research appropriate to practice.~
Knowledge of the concepts and techniques of social
planning.
Knowledge of the theories and concepts of supervision and
the professional supervision of social work practice.
Knowledge of theories and concepts of personnel
management.
1
45
Knowledge of common social and psychological statistical
and other research methods and techniques.
Knowledge of the theories and concepts of social welfare
,administration.
Knowledge of social and environmental factors affecting
clients to be served.
Knowledge of the theories and methods of psychosocial
assessment and intervention and .of differential
diagnosis.
Knowledge of the theory and behaviour of organizational
and social systems and of methods for encouraging change.
Knowledge of community organization theory and
techniques.
Knowledge of the theories of human growth and development
and of family and social interaction.
Knowledge of small-group theory and behavioral dynamics.
Knowledge of the theories of group interaction and
therapeutic intervention.
Knowledge of crisis intervention theories and techniques.
Knowledge of advocacy theory and techniques.
Knowledge of the ethical standards and practices of
professional social work.
Knowledge of teaching and instructional theories and
techniques.
Knowledge of social welfare trendsand policies.
Knowledge of ,local, state, and federal laws and
regulations affecting social and health services.
__--_____-__-__--_______________________-----------------
.Skills
Skills in listening to others with understanding and
purpose.
46
Skills in eliciting information and in assembling
relevant facts to prepare a social history, assessment
and report.
Skills in creating and maintaining professional helping
relationships and in using,oneself in relationships.
Skills in observing and interpreting verbal and nonverbal
behaviour and in using a knowledge of personality theory
and diagnostic methods.
She also relied on the statements contained-in Exhibit 62,
being the Colle e Members' <
lfied. Cert'
Although there is no mandatory accreditation required ,of
social workers; Exhibit 62 does furnish some indication of what
"professional .competence in social work" is:
A level of professional competence sufficient to meet the
standards of membership in O.A.P.S.W. and for practice in
Ontario, ~requires an underlying knowledge base. This
base must include considerable factual knowledge gained
from a range of related academic disciplines and from the
professional knowledge of social work. Even more
importantly, this knowledge must be selected and
understood in terms of its relevance to social work
practice. The following areas are important to this
knowledge base. :
gs v'dence o -
Mr. Rogers was the first "usage" witness called by the Union,
and he gave his evidence on the seventh day of the hearing, being
June 25, 1990. Mr. Rogers testified that:
i ‘.
47
1. He is classified as a ~2 and holds the position of Vocational
Rehabilitation Counsellor, referred to as "VRS," and is employed by
COMSOC in Thunder Bay.
2. He has a three year B.A. in sociology from Lakehead
University.
3. Exhib it 29 is Mr. Roger's position specification form and he
and stated that it accurately 'represents his duties
responsibilities.
.ities 4. He has a 45 client case load with the following disabil
breakdown:
50 - 60 per cent - physically disabled;
20 - 25 per cent - psychiatrically disabled;
20 - 25 per cent - developmentally handicapped.
5. He~testified that the psychiatrically disabled cl,ient group:
. ..present a greater difficulty. Depending on the degree
of impairment, schizophrenic, manic depressive, they are
generally more volatile... . Psychiatric patients have
to be more controlled - under control of a psychiatrist,
psychotherapist - have to be taking "meds" otherwise it
is difficult to maintain progress.
6. Once a month he receives five new,referrals from the intake
worker who is one of the VRS counsellors. The referral client must
bring with him/her a Form 4 signed by a physician which will set
out:
i
I
48
general information; client's name, address;
medical information; general heading;
the disability and the limitations the,reof;
prognosis and limitations regarding self-care,
etc.; ongoing treatment and meds needed;
number of hours the client is able to participate
in training or work;
general comments that might prove helpful in terms
of employment, e.g. suitable for light employment.
The referral will, on rare occasions, be accompanied by clinical
notes from the referring physician, psychiatrist and/or
occupational therapist, but will always' be accompanied by a
referral form from a referring agency such as:
Canada Employment and Immigration Centre
,General Hospital
City of Thunder Bay Social Services
Private Agencies
7. The referral contains such general information as the name of
the client, birth date; type.of disability, educational and work
history and source of ~funding.
8. He described the supervision received by him from Ms. Deborah
Czabak, He usually met with her once a week .for her signature on
authorisation sheets or "authorities" which give him authorisation
to perform certain work for the client and spend CQMSQC funds for
this purpose. During the weekly meeting, Ms.~ Czabak and Mr. Rogers
discuss his cases and he 'I... will share any information regarding
our services in the community or any new involvement with a
potentially difficult client . . . ,"
49
9. In addition to the weekly meeting, he prepares a quarterly
case load analysis for Ms. Czabak. This process encompasses his ,
listing his cases, the date received, identifying the various
services provided by him and reviewing his opinion as to the status
of the case and its prognosis. He receives a performance appraisal
once a *ear.
10. He attends staff meetings once a week on Monday morning. The
purpose of these meetings is to share general information regarding
any upcoming changes in the department, updating on conferences,
events in the community, and finding out where everyone will be " -
during the week.
11. When he receives a referral he waits for the client to phone
him to make an appointment. Once an appointment is arranged he
will explain the services provided by COMSOC, and this role. He
will then complete a Form 1, which is the application for
vocational rehabilitation services. This form contains the
following information:
client's name, address, disability;
conditions which, limit employment;
brief educational history;
source of funding;
whether client's injuries are the result of a work-
related accident;
category if an active workers' compensation
recipient; and
whether the client isa disabled veteran.
12. The initial interview lasts about an hour and he obtains the
client's educational history along with other information such as:
50
1
client's SIN;
who referred, date referral;.
date of interview;'
age; type of disability ties);
onset of disability (ies);
physician;
specialists seen;
period(s) of hospitalization; and
any restorative needs.
lie then endeavours to obtain a vocational profile and requests
the following further information:
work history (he generally asks clients, if
capable, to bring a resume); what work the client
can do and what they want to do; i.e. indoor/
outdoor/ sedentary;
educational history; centring around high school
history, what subjects liked and disliked; periods
of disruption in schooling; whether he/she belonged
to any club or social groups; present educational
plans; any post-high school, co1 lege and/or
apprenticeship.
13. In endeavouring to obtain a client's social and family
history, ,he asks for the following information:
father's employment;
mother's employment;
number of children in family and ages;
sibling's employment;
family's attitude toward rehabilitation;
adverse influences towards going back to school;
and
current status; i.e. how are things in the family,
is the family supportive?
14. He does no.t do "family therapy" but will consult with the
family, where necessary, if the client so requests.
53
15. He assists his clients in formulating realistic vocational
goals.within their capabilities without losing their dignity.
16. After the first interview, he endeavours to obtain a sense of
a client's long-term plan by asking where he/she wants to be
vocationally six months from that time,
in a year, and in five
years.
17. BY the time of the second interview a rapport should be
developing so that he is usually able to discuss with the client
how he/she' perceive his/her disability. In addition, he will by
then have a better idea about the client's self-image and how
his/her disability has affected his/her vocational potential.
18. At this stage, where it seems feasible, he will discuss a
vocational goal with the client, the development of which may take
several months, and he will write up a Rehabilitation Plan.
19. The client is then assessed by a psychologist and/or
psychometrist. Mr. Rogers will discuss the psychological
assessments with the client to identify his/her strengths and
weaknesses. He may refer a physically d~isabled client to a
physiotherapist (through a physician). He also may refer a client
to the March of Dimes workshop for a complete occupational therapy
evaluation.
52
20. the seeks to place his developmentally handicapped clients with
community agencies for training and assessment of job readiness, or
in actual employment if the client is ready for such a placement.
21. 'At this point he will determine whether the relationship with
the client can be terminated.
22. His vocational rehabilitation treatment plans are rarely if
ever changed by anyone above him. If they are questioned by his
supervisor or one of his colleagues, he defends his position.
23. He must also submit his recommendations for COMSOC training
funds through. a selection committee process. This involves
presenting to his supervisor a complete history of the case and his
recommendations.
24. He testified about his involvement in the community where he
"liaises" with employers and is an active member of an intra-agency
vocational placement committee consisting of 10 - 20 community
agencies.
25. A representative from the Ministry of Health is also on this
committee, being Mr. Ken Wasky, who is the representative Grievor
from Thunder Bay.
53 -
26. He does not have any of the degrees listed under the "skills
and knowledge" portion of his position specification, but does have
the other skills listed.
27. During cross-examination, he agreed that~ he wars
"grandfathered" into his present classification, but on re-
examination stated that he was not certain about what that term
meant because no'one had explained it to him before.
28. Only
vocationa
20 to 30 per cent of his clients have a realistic
1 goal.
29. His overall success rate was 45 per cent, although he had less
success with his clients who suffered from psychiatric problems.
30. He has been employed by COMSOC since 1970 and had been
grandfathered into his current position for about 10 years before
the date when he cjave evidence. His previous position did not
require a degree in social work and he was then classified as a
Rehabilitation Officer 2 (Corrections). Ten years ago his'~position
specification was rewritten to require a degree in social work or
the equivalent and his position was reclassified as SW2, but he was
permitted to keep the position without having professional social
work qualifications. He stated that he was the only person in his
office occupying the position without a social work degree.
54
g
Usa e W'tnes ee Haines
Mr. Haines was called as the second "usage" witness on the
ninth day of the hearing that took place on July 16, 1990. He
testified as follows:
1. He works in Brockville for COMSOC as a VRS and is classified
as an SW2. ,He has a Bachelor of Arts with a major in sociology
from McMaster University and also has a Bachelor of Social Work
from that institution.
2. He measures the success of his clients on the basis of their
potential, and success may exist in cases where the client is
successful in obtaining competitive employment or where the client
is successful in working on a job in a sheltered workshop.
3. He stated that his case.load was made up of approximately 45
clients with the following composition:
40 - 45% - physically disabled;
35% - addicted;
10% - developmentally handicapped; and
10% - psychiatrically disabled
4. He identified his referrals as coming from the following
sources:
self-referral;
income maintenance programs, e.g. Family Benefits
and/or General Welfare Assistance; _I - insurance companies; recovery homes;
i
55
hospitals, both general and Brockville Psychiatric
hospital; and
Arthritis Society and similar organisations.
5. Before he can accept a referral he must receive a Form 4
signed by a physician. The form contains the doctor's opinion with
respect. to the type of disability, factors'affecting employment, as
well as whether the client may work or commence training.
6. He explained duty number one on Exhibit 38: 'I... diagnoses the
psycho-social consequences . ..." as involving the "internal
environment of the client and the external environment." His
mandate is to focus on the vocational goal.
7. He does not conduct family therapy.
8. He makes referrals to other disciplines, including social
workers for in-depth counselling.
9. He described the information he collects from clients: he
assembles the client work and educational history, including dates,
specific jobs performed and any problems encountered by the client.
He also collects a "social and family" history, which he stated is
"not ~necessarily terribly extensive." The history includes:
source of income;
information on family, i.e., marital status, children; and
whether.family is supportive.
56
10. He includes a list of the client's disabilities and the
functional losses from these disabilities. He tries to get the
following information from the client: ‘the implications of the
disability, and how the client perceives him or herself to be
handicapped.
11. His work entails counselling clients and planning realistic
/
vocational goals. He explained the importance of counselling is
crucial to achieve results and to establish rapport.
12. He sat on a number of community boards, such as the Advisory
Committee for Rehabilitation Worker program at St. Lawrence College
of which he was the chairperson. He regarded sitting on community
boards as being part of the functions he is expected to fulfil.
13. His supervisor, Detleff Stein works in a different office in
Kingston, Ontario.
14. He described his supervision by Mr. Stein:
When I develop a plan, assessment requests go to my
supervisor for approval. If it is for a first ,time
training program or a restoration request beyond $2,500,
the request goes to a Selection Committee - which at the
present time is comprised of two VRS supervisors and
occasionally, the Direct Services Manager. The Selection
Committee reviews the vocational goal and plan and my
recommendations. Their expectation is that the plan
would be realistic and sound.
15. In his opinion a Bachelor of Social Work degree is not
necessary to perform his job. He said it is a good background to
(:.;
57
have: however, some of his colleagues do not have a social work
degree and they function effectively in the same job ;as he
performs.
.16. He does not need a doctor's approval to implement a vocational
plan, although two to three years ago this was statutorily
mandated.
17. He consults with other disciplines if he has made referrals,
to get specific information with respect to his clients.
18. He attends staff meetings every two weeks and consults with
Mr. Stein over the phone once or twice a month.
19. In his opinion the sort of skills he acquired in the course of
obtaining his BSW were "not necessary as an absolute requirement
because people 'who don't have it are effective . . . they learn ads
they go along . . . [I've1 seen people do good work without it."
20. The purpose of his job is to determine whether his clients
"fit the guidelines for eligibility and feasibility for funding
under the VTRehabilitationServices He estimated
that approximately 40 per 'cent of his time is spent on
"administrative work," being the writing, up of reports to his
supervisor and to the Selection Committee in which recommendations
58
are made for funding under the latter A& and in preparing for
hearings before the board which adjudicates requests for funding.
21. In direct examination he testified that he would not be
involved in therapy "in a big way." On cross-examination he
acknowledged that he would use his socialwork skills in a "general
way. "
f Evidence of Detlef e Haines
Mr. Stein was called by the Employer and testified as follows:
1. He holds the position of Social Services Supervisor in the
Kingston area office of COMSOC. Prior to being employed at COMSOC,
he was employed by the Federal Health Project for two and a.half
years, as a social worker as a primary care counsellor.
2. He holds a Master of Social Work degree from Wilfred Laurier
University and also holds a Bachelor of Arts in psychology from
that institution.
3. COMSOC is divided into four regions, his being the south-east
region with .an area office in Kingston. There are three local
offices within the Kingston area, being Kingston, Belleville and
Brockville.
59
4. He described the authority structure within the Kingston area
of COMSOC, with himself and a colleague, Carol Potter, at the
Belleville office reporting to a Direct Service Manager who is in
charge of the Vocational Rehabilitation Service program and the
Income Maintenance program for the Ministry. The Direct Service
Manager is a member of the Kingston area.management team as is Mr.
Stein. The Direct Service Manager reports to the Area Manager who
is the chief in the Kingston area (Regional Manager).
5. Mr. Haines is the only person associated with the Vocational
Rehabilitation Service program located in Brockville. There is-a
full-time counsellor working in the Perth office which is a sub-
office of the .Brockville office.
6. In 1987 - 88 he met "face-to-face" with Mr. Haines
approximately once every three weeks and on a more irregular basis
to provide clinical supervision and case consultation. He also
conducted annual performance appraisals and semi-annual case,
reviews.
7. The VRS staff meet every three weeks for one half day to'
discuss a range of issues including legislative changes and a
variety of issues involving the provision of vocational counselling
to persons with disabilities. It was not usual~ to discuss
particular cases at the staff meeting immediately above described.
60
8. He estimated that he met with Mr. Haines to conduct clinical
supervision and case consultation about four times a year, and that
each meeting took between two and three hours.
9. He estimated that he had phone consultations with Mr. Haines
about once every two weeks.
10. Clinical supervision of Mr. Haines involves an assessment of
his style and manner of counselling and the way in which he
interacted with clients.
11. Case consultation involved such matters as discussing a
client's progress.
12. The irregular meetings that he referred to could be initiated
either by himself or by Mr. Haines.
13.~ The annual performance appraisal lasts for approximately two
hours.
14. The semi-annual case review lasts for between one half to one
day, and it provides an~opportunity to look at individual cases to
determine if the counsellor is "generally on-stream . ..". Each
case handled by a counsellor was reviewed twice a year.
61
15. The telephone consultations were usually initiated by the
counsellor and took between five and thirty minutes. ,
16. In referring to the first appointment interview, Mr. Stein
testified that a large part of the information obtained from the
client "is considered psychosocial assessment." The range of
information obtained consists of:
educational background;
employment, background;
family relationship;
description of support system;
extent of personal adjustment to disability;
identification of the disability and the functional
loss related to it; history of hospitalisation;
current medication;
prognosis for the disabling condition;
economic situation;
nature and source of income; and
any background of child abuse, depression, suicidal
tendencies or addiction.
17: The purpose of the first and subsequent interviews is to
determine the eligibility of the client as well as to begin to
determine the feasibility for vocational rehabilitation.
18. He defined eligibility and feasibility. Eligibility under the
Vocat'ona < t ("m") consists of three
factors: medical description of.the disability; functional loss and
the vocational handicap as a result of the severity of the
functional loss. The description of the disability and the
functional loss is defined by the physician. Functional loss
62
refers to physical limitations of the disability and may include
severe depression and other emotional disorders. i
19. The statement of eligibility is essentially a summary
statement which combines the description of the disability,
functional loss.and the vocational handicap. I
20. The client's vocational handicap must include the relationship
between the disability, functional loss and the degree to which the
client is capable of pursuing substantial gainful work.
21. The statement of eligibility is essentially a summary
statement which combines the description of the disability,
functional loss and the vocational handicap.
22. He reviews the statement of eligibility when a counsellor
makes a request for a program for the client. The 'counsellor makes
the determination with respect to a client's eligibility and
feasibility for VRS services and the supervisor "... essentially
signs off" as the supervisor is accountable, not the counsellor.
23. The counsellor submits to him a request for a range of
programs, including assessment programs, such as employer
assessments and educational and pre-vocational assessments, as well
as training,programs and supportive services and/or restoration
63
equipment. He reviews a submission for approval based on his
assessment of the logic of the request.
24. His "deferral" rate of a counsellor's "service request"
(recommendation) was expected to be no more than five per cent. A
'deferral occurs when the counsellor's request is deferred by
his/he,r supervisor with a request. for further information or
clarification.
25. Where a request is submitted and training is required or where
over a certain amount of funds is needed ($2,.500 in 1977/88), the
matter may be sent to the "Selection Committee" which performs a
review similar to that conducted by himself.
26. The length of interviews is approximately one hour. On
occasion, the client and his/her counsellor may meet several times
a week. The average length of a counselling relationship is
between six months and two years.
27. During the early meetings in the relationship between the
counsellor and the client, the counsellor will conduct counselling
sessions where vocational goals and vocational plans are
established.
28. After a client has become involved either in an assessment or
training program, the counsellor will maintain a monitoring role
64
during which the vocational plan may have to be changed depending
on the client's progress.
29. The counsellor is responsible to determine the ongoing
eligibility of the client and the ongoing, feasibility of the
relationship being maintained.
30. Towards the end of a proscribed vocational or rehabilitation
program, the counselling sessions focus on determining when the
relationship ought to be terminated: referred to 'as "closure."
31. Counsellors may consu,lt with a number of people, including a
client's famil'y and professional agents in the community, but are
not required to do so.
32. Counsellors may employ any technique that will help the client
to determine his or her vocational goals and that will assist the
,counsellor in learning about 'the client's disability and
psychosocial background. He divided these skills into:
social work skills/practice;
vocational rehabilitation ski1
33. He defined social work skills
1s.
as follo"s:
. . . variety of psychosocial assessment skills, diagnostic
skills, ability to provide a range of counselling
services, perhaps therapeutic intervention, the ability
to be aware of and pull together community resources,
excellent communication skills, both written and verbal,
ability to grasp or understand the client's status at the
65
time of counselling session and the ability to use
whatever resources to derive a treatment plan, the
knowledge and understanding of a variety of intervention
techniques, general knowledge of human service
legislation and policies.
34. He defined "psychosocial assessment/diagnostic skills":
. . . within vocational rehabilitation assessment skills
. . . an ability to pull together a wide variety of pieces
of informationwhich would include:~
personal;
social;
family; and
economic data
and be able to synthesize~that information to derive a
picture of the client's environment.
35. He referred to diagnostic skills: II... diagnostic to the
degree that he'or she can make sense of the disability and bow that
disability relates to the psychosocial picture."
36. He defined counselling services:
. . .
typically counselling whi~ch constitutes the
development of a vocational goal and a plan of action.
37. He defined "vocational skills," as relating II... to the
development of a vocational plan with the client . ..II and ".:.
monitoring and evaluation of the rehabilitation process."
38. He explained that vocational counselling involves social work
skills as well as rehabilitation skills.
i.
c.: :
66
39. Other vocational skills are "liaising with other vocational
entities in the community . .." and interacting with employers for
the purposes of arranging employer assessments, work experience or
training-on-the-job.programs. He stated that social work skills
are more related to clinical issues such as:
depression;
a range of family dynamics which present obstacles for the
client.
40. In response to the range of problems encountered, the
counsellor's intervention may involve:
providing supportive counselling around the
depression or fears; Iiaising with a follow-up team from a psychiatric
hospital; and
looking into a supportive vocational assessment
opportunity.
41. He defined "supportive counselling":
III put that more under the roof of the social work
skills for example enabling a client or providing the
kind of counselling environment that enables the client
to speak more or less' freely around the obstacles and
issues around his or her life. To do this the counsellor
with a social work background might draw on a number of
specific counselling techniques, depending on the
sophistication of the client she or he is dealing with.
' Those techniques' could be described as reflective,
empathetic or Rogerian; essentially using a great deal
of empathy and 'mirroring' providing a client with a
maximum supportive atmosphere, non-confrontative, non-
directive approach.
The term "Rogerian" refers to a non-directive therapy approach
developed by Clark Rogers.
67
42. He also added that the variety of techniques employed by
counsellors include "reality therapy" and the "behayioral
approach."
He regarded therapeutic intervention as being different from
counsel ling.
. . He defined therapeutic interventions:
43. He stated that contact with the family was for the purpose of
That was the vocational counselling aspect. There's
extensive supportive kinds of counselling as well which
I believe differs from therapy in that therapy entails a
kind of intervention that brings about permanent change
within an individual's functioning. Although VRS
counsellors may have.the capacity and skills to provide
this kind of service, it is not expected in their job
description. Supportive counselling, that is helping the client identify issues in their lives, particularly in
relation to vocational rehabilitation process . . .
determining financial status of the client and to assist in the
determination of feasibility.
44. a counsellor would usually spend a half an hour to three hours
preparing documentation for the Select Committee, depending on the
complexity of the case. On average a counsellor will be required
to prepared documentation for one Select Committee recommendation
every two weeks.
45. Mr. Stein was cross-examined. on the eighteenth day of the
hearing being December 6, 1991.
68
46. He agreed that the focus of Mr.~ Haines' job is vocational
rehabilitation which emphasises the .vocational potential of
clients. He agreed that clients require vocational rehabilitation
because of their disabilities which include physical, emotional,
developmental, addiction and psychiatric handicaps.
47. He agreed that Exhibit 38 (Mr. Haines' position specification)
accurately sets out his duties and responsibilities.
48. He also agreed that Exhibit 39, form 4, must be filled out
before a client can receive services and that for the most part the
form will set out the client's limitations.
49. He agreed that.Mr. Haines is not required to carry out family
therapy.
50. He agreed that the focus of a social history is on vocational
rehabilitation and that a family history consists of whether the
client is married, has children, where s/he is living and whether
his/her family is supportive of the client's vocational goals.
51. His conduct of the case review of Mr. Haines' entire case
load, which occurs twice a year, is in the nature of clinical
supervision and is necessary to ensure that Mr. Haines is doing a
, proper job.
69
52. He agreed that Mr. Haines consults with other professionals
who are involved with the client. ,'
53. Where Mr. Haines determines, in the course of an interview,
that a client had a history of child abuse, depression and/or
suicidal tendencies, he can make a referral to a social worker,
with the client's consent. He agreed that Mr. Haines was not
expected to carry out in-depth counselling.
54. He defined the term "psychosocial" in the context of the
counsellor completing eligibility requirements for a client with
schizophrenia. He described the "functional loss" associated with
this disability, as "... What is it about the disability that
providesobstacles to that person in daily living which includes
relationships with others, the person's own thoughts, the person's
own. sense and feelings about themselves, the person's level of
awareness and response to his psychosocial and economicenvironment
. . . . " This area:
. . . refers mostly to the relationship that person has
with his or her family or support system and his or her mental process and feelings about his or her condition or
self; perhaps how he or she relates ~to his or her
environment, be that in a vocational or social setting.
The counsellor would also look at any prevalence of
thought disorder, hallucinations, delusional thinking,
feelings of paranoia and any .other thought processes
which would be seen as interfering with his or her daily
functioning.
55. He described what Mr. Haines does when engaging in "supportive
counselling":
70
..* hearing and listening to the client‘s issues and
concerns, responding to those concerns by' balancing the
client's needs with what is possible within the
legislation under which he [Hainesl works.
56. He defined "reality therapy":
. . . frequently clients come to him [Hainesl with a
certain vocational goal and that goal may not be feasible
and would require interaction between the counsellor and
client to determine what the realities are.~
Mr. Stein explained that reality therapy could be considered a
behavioral .approach and acknowledged that Mr. Haines was not
expected to engage fin such therapy.
57. He identified community services that Mr. Haines could refer
clients to, such as Brockville Community workshop, ARC Industries
and supported employment.
58. He defined "psychosocial assessment" as a process of
observation, ".,. gathering, facts verbally and what is observed;
Haines would also gather facts from documentation." He agreed that
the purpose of psychosocial assessment is to. gather enough
information to understand the client and his problems, He further
stated that the ultimate purpose of psychosocial assessment is to
guide treatment wisely in the vocational area. He agreed that the
vocational rehabilitation plan is a form 'of treatment, and
described Mr. Haines' diagnosis as his professional opinion about
the facts he has gathered.
71
.59. In re-examination, he clarified his earlier evidence
concerning Mr. Haines providing in-depth counselling:. i
He [Hainesl would not be expected to provide a series of
therapeutic sessions/interventions for the treatment of
depression. He would not be expected to be the agent of
therapeutic help which would render the client able.to
overcome depression. Rather, he would be expected to be
sensitive to the client's concerns around the depression
and the degree to which the depression interferes with
vocational rehabilitation.
60. In his view, Mr. Haines could determine whether the client
required in-depth counselling and that, in.his opinion, represented
Mr. Haines using social work skills to make this determination..
61. VRS counsellors are required to use social work skills and
techniques and he gave specific examples (,towards the end of his
examination-in-chief). During cross-examination, Mr. Stein stated
that the. social histories which Mr. Haines prepares following an
initial interview would not be complete if .they dealt only with
vocational and educational matters. Vocational and educational
history constitutes "less than 50 per cent" of the social history.
c Sta d rds
The Union made the following submissions in its standards
argument:
1. The R02 class standard does not contemplate the level of
independence of the Grievers. They do not perform their
72
responsibilities for the client's vocationa 1 rehabilitation, "in
conjunction with other hospital staff" (para.2).
2. The standard does not reflect: then Grievers's therapeutic
role, counselling (both individual and group) role, building
rapport, prime responsibility for vocational treatment, assessment,
follow-up and monitoring.
3. Then standard does not reflect the counsellors' role as the
vocational rehabilitation expert on the ~clinical ward treatment
team, nor does it accurately reflect their role in the community as
educators, both within and without the hospital, with reference
being made to the supervision of social work and vocational
rehabilitation students.
,A. The ,extent and importance of this therapeutics role as an
independent expert on the clinical ward treatment team is reflected
in Charbonneau et al., 1265/88 (Watters), which deals with
Recreation Therapists.
5. The SW2 standard is the appropriate classification for the
Grievors. That standard does not specifically require any academic
credentials. If it does, Exhibit 31 (the Credentialism Policy)
operates so that it is unnecessary for the Grievers to have
academic credentials as social.workers. They were said ,to work
under general supervision, conduct interviews, complete social
73
(vocational and educational) histories, and formulate psychosocial
diagnosis (or "assessment") of the personal and environmental
.causes of social dysfunctioning.
6. The Grievors were said to assess their clients' vocational
handicaps due to their disabilities, both physical, mental, and
emotional, taking into consideration the clients' own perception of
their disabilities.
7. The Grievors were said to implement vocational treatment plans
to assist their clients to resolve their vocational handicaps; -
8. They evaluate the effectiveness of the treatment plan (the
vocational plan) and modify or revise it as necessary.
9: They consult with members of other professional disciplines
and serve as members of treatment teams as well as institutional
and community committees.
10. They participate in conferences and group discussions,
interpret departmental policy and objectives, and maintain liaison
with other disciplines, jurisdictions, and community agencies.
11. Some of the Grievors assist in the training of departmental
personnel and students in social service courses.
(.I . .
74
12. We were asked to find that the meaning of "social work"~and
the meaning of "psychosocial .diagnosis" in the vocational
rehabilitation context was not assisted by the Employer's expert,
Dr. Wattie, as she had no expertise in this area.
Reference was made to the testimony and documentary evidence
put forward by both the Union and the Employer, which was said to
give ample.support to the claim that the Grievors were performing
social work. Functioning in the workplace is a social activity,
requiring interpersonal skills. The Grievors assist their clients
.in attaining maximum social functioning in the vocational context-.
13. The Grievers use "supportive counsellincj," "reality therapy,"
"contracts," and "crisis-counselling"; all of which were said to be
social work methods appropriate to the functions of the department
and service.
14. They engage in some family counselling but do not do any in-
depth counselling of any sort. Reference was made to the
Vocational Rehabilitation Service counsellors at COMSOC who were
also said not to do any in-depth counselling which was not
appropriate in the vocational context.
15. In the alternative, if the Board was not persuaded that the
Grievors should be properly classified as SW2, the Union requested
a w Order.
!:.
,
75
16. U 'on' L os't'o ilitat' is ecies
of Social Work
The evidence presented, indicated that vocational
rehabilitation counselling in Canada is a comparatively new
discipline in terms of formal recognition and availability of
training programs. The representative Grievo~r from the Hamilton
Psychiatric Hospital, Patrick McKenna, gave a brief historical
description of vocational rehabilitation, which is set, out at pp.
l-3 of Exhibit 27. He regarded vocational rehabilitation as having
a focus of assisting clients to make a proper social adjustment in
the workplace. Exhibit 27 is a document entitled Rehabilitation
Counsellino Trainina Manual and is copyrighted under Mr..McKenna's
name. The document was prepared for use in the Rehabilitation
Services Department of the Hamilton Psychiatric Hospital, and it
bears the date: September 1986.
Mr. McKenna has a Bachelor of Arts and a Master of Education
degree, although his university training was not in the area of
either social work or vocational rehabilitation.
It was the position of the Union that the focus of vocational
rehabilitation dictated its recognition as a species of social work
and as a subset oft overall rehabilitation in mental health,
reference being to the first five -paragraphs of p-17 of Exhibit 27.
The Union relied on the definition of social worker in the Oxford
9 Diet ‘o ish, ~~713, as a person engaged in
(1 ,,”
76
organized work to alleviate social problems. The Union also relied
on the statement contained at p.222 of Exhibit 64 in relation to
social workers, that they "help people increase their capacities
for problem-solving and coping . . . ."
Also relying on the definition found in Exhibit 64, counsel
for the Union submitted that social work was an amorphous category
of professional assistance to people to assist in satisfactory and
smooth social functioning. She also noted that social work was not
legally defined, nor was it a profession regulated by government.
She regarded social work to include activities along a continuum
from guidance counselling to intensive psychotherapy. She stated
that social workers'specialize in many areas, examples given being,
family, marriage, and vocationa~l counselling.
Relying on the voluminous evidence given by the various
"representative" witnesses, counsel submitted that' vocational
counselling had a specific objective being the employment of the
client to the best of his or her ability or the achievement of
maximum functioning. The objective might be met by supported
employment or recreational activities as well as by unsupported
employment. Vocational rehabilitation was said to satisfy the
underlying objective of all kinds of "social" work, being to
interact well with and have respect for people as well as oneself,
all of which requires strong self-esteem., she concluded:
I
t,. i: i:-:
77
"Consequently all social work is a process of increasing self-
knowledge and changing thought processes and behaviour."
E mpl 0 e 's S
's Standards A ments
Counsel for the Employer made the following submissions:
1. The Grievors do not perform a number of the key duties and are
not required to exercise the knowledge and skills which bring a
position within the SW2 standard. In particular:
(i) the Grievers do not "compile social histories";
(ii). the Grievers do not "formulate psychosocial
diagnos(e)s of the personal and environmental
causes of social dysfunctioning";
(iii) they do not "implement treatment plans" to
"treat... the underlying causes of social
dysfunctioning, both personal and environmental";
and
(iv) they do not employ Isocial work methods".
2. The Employer did not rely on the fact that the Grievors do not
have a degree in social work. Counsel for the Employer relied on
the evidence of Dr. Wattie as supportive of her conclusions, and
she stated that the Grievors had acknowledged that the focus of
their interviews with clients was on educational and work history.
78
3. It was submitted that the evidence had demonstrated that the
Grievors did not make judgments as to the nature of their clients' r'
psychosocial problems. They described the vocational obskcles
faced by their clients but did not purport to "formulate
psychosocial diagnos(e)s of the personal and environmental causes
of social dysfunctioning."
4. The Employer did not dispute that the Grievors make a
significant contribution to a client's overall treatment plan,~
however, it was submitted that the part of the plan developed by
them is not designed to "treat . . . the underlying causes of social
dysfunctioning, both personal and environmental." The vocational
component of a plan was said to be designed to address certain
specific vocational obstacles. It was noted that the Grievors had
referred to their production of a "vocational plan" and not a
"treatment plan." It was submitted that this was a'recognition of
the fact that a treatment plan addresses both the causes and the
effects of a broad range of personal and environmental problems and
that a vocational plan does not.
5. The R02 Standard
Counsel for the Employer made the following submissions in
response to the argument of the Union that the R02 standard does
79
not adequately capture the duties of the Grievors in the following
respects: ,
( in) it does not contemplate the level of independence
of the Grievors;
(ii) it does not reflect the counselling function of the
Grievers and their contributions to the treatment
team; and
1 it does not acknowledge the role of the R02 in the
community:
(iii
(i) the Grievers are supervised administratively and
also by the clinical team;
(ii) the R02 standard acknowledges that the Grievor8
perform a rehabilitative function; and
(iii)the RO2 standard adequately reflects the community
aspect of the Grievers' job.
(i) supe
With the exceptions noted below, the Employer took no real
issue with the facts set out in the Union's submission with respect
to the nature of the administrative supervision of the Grievor8 and
added that, generally speaking, the Grievor-s report to Supervisors
with whom they meet routinely at least weekly, and in some cases
daily, and are available at all times to discuss problem cases.
The Grievors were said to operate within a highly formal
structure, following established steps set out in the various
manuals, using detailed forms. Reference was made to Exhibits 7,
8, 12, 13, 14, 17, 18, 19, 27, 33,~ 34, 42. 48, 49. 55. 56, 58, 59,
1 supervision" of an and 60. This was said to constitute "genera
adminis.trative nature.
80
It was also submitted that the Grievors' work was "effectively
supervised by the clinical teams." "General supervision," within
the meaning of the class standard, was said not to be
"administrative" supervision alone but might also include
"clinical" supervision.
(ii) Rehabilitation in Counselling
Counsel for the Employer submitted that the R02 standard
encompasses positions in which employees, are involved in
therapeutic activities. It was pointed out that the class standard
says that: "(iln conjunction with other hospital staff, these
employees reviewed the medical, educational and work background of
individual cases; appraise aptitude; discuss tentative programs
with clinical staff .and decide on a realistic individual vocational
rehabilitation programme." This was said to represent "a concise
and accurate description of the core duties of the Grievers."
.In response to the union position that the standard does not
reflect the role of the R02 as the "vocational rehabilitation
expert" on the clinical team, because the standard uses the term
"tentative" .plans, counsel for the Employer. responded that the
i
81
standard also states that the employee is the one who "decides" on
the vocational plan that is presented to the clinical team. It was ,
also submitted that the reference in the standard to "tentative"
programmes is correct, because it is clear that the vocational plan
must be presented to and accepted by the clinical team as part of
the overall treatment plan. Reference was made to Ms. Watts'
evidence in cross-examination, that the vocational plan is
"tentative" until it has been presented to the clinical team.
The standard also says that the employees are to create
"individual" programs. The programs are to be "rehabilitatioq"
programs. The standard specifically requires that employees whose
positions are covered by it provide follow-up "counselling."
Counsel for the Employer acknowledged that the.re has been an
increasing emphasis in recent years on rehabilitation of patients
in psychiatric hospitals, and this includes vocational
rehabilitation. However, a number of witnesses acknowledged that
the hospitals are some way from ful,ly achieving that goal. It was
submitted that in the light of the realistic potential for the
exercise of a rehabilitative function, the RO standard recognises
such function.
(iii) Communitv Involvement
82
The purpose of the position, as stated in the standard, is to
prepare patients "for re-employment within the community." The ,I
standard states that rehabilitation counsellors will work not? only
with in-patients but also with "out-patients or ex-patients." The
standard expressly requires liaison with "community agencies." In
addition, the standard requires vocational counsellors to come into
contact with the "public" in order to "promote . . . understanding
and acceptance of the mentally ill or retarded."
We were asked to read the class standard in a broad, general
and flexible way, and not as a job description. It was emphasixed
that class standards are designed to describe broad categories
rather than specific jobs, and we were asked to find that the RO
standard is clearly broad enough to:encompass the position of the
Grievors.
The Usage Test for Reclassification
As an alternative position, the Union argued that if the Board
finds that the SW2 standard is inappropriate, the Grievers are
entitled to be reclassified based on an application of the usage
test. This argument was based on the claim that the Employer has
altered its classification system by classifying the "usage"
witnesses in Weand and the "usage" witnesses in this
case, Messrs. Haines and Rogers, as SW2's.
( i
83
A g Usa e elvina on the
Evidence With Respect to Lee Haines and Jim Roaers
Counsel for the Union argued:
1. That the Union had brought forward persuasive evidence that
the vocational work performed by the Grievers was substantially the
same as that performed by the COMSOC comparators Lee Haines from
Brockville and Jim Rogers from Thunder Bay. The clinical tasks or
core functions and responsibilities performed by Messrs. Haines and
Rogers were said to be virtually identical to those performed by
the Grievers.
2. Neither Messrs. Haines' nor Rogers' work required the higher
order of professional social work skills and functioning as are
exPected by the SW2 class standard.
3. Mr. Rogers does not possess a social work degree.
4. Referring to the usage witnesses in Wallace and Jackson, and
the usage witnesses, Messrs. Haines and Rogers, all of whom are
classified as SW~, it was submitted that the Employer had not
brought forward persuasive evidence that there were needs of the
client population at issue that went beyond the vocational and
which required the higher order of professional social work skills
and functioning expected under the SW~ class standard.
84
5. The only evidence said to be before the Board germane to this
issue was that of Dr. Wattie, who testified that the vocational and ,'
educational history was not a "social history" due to its lack of
comprehensiveness. It was submitted that Dr. Wattie lacked
expertise in this area and her evidence ought not to be accepted.
6. In the alternative, it was submitted that if the Board found
Dr. Wattie's evidence persuasive, her opinion of vocational
rehabilitation and social work would apply equally to the usage
witnesses, Messrs. Wallace and.Jackson and to the Grievors.
7. It was submitted that the documenta~ry evidence illustrated the
similarity in. the Grievers' duties and those of the "usage"
witnesses. Reference was made to the position specifications
(Exhibit 4A-1, Exs. 29 and 38) and the policies and procedure
documentation, namely Exs.12-14, 18, 19, 27, 33, 34, 4OA, 40B, 42,
and 60, which were said to reveal a striking similarity amongst the
Grievors' and the usage witnesses' core duties, regardless of
their place of employment; those core duties being the treatment of
individual clients with handicaps that impede their vocational
functioning.
8. The .test for the classification argument based on the "usage"
approach is whether the Grievers' duties are substantially similar.
The following cases were relied upon:
(a) QPSEU ( allace an .d
Health ?274/84), Gorsky,
0
April 29, 1987.
85
(b) vlor et al) and ustry of Heau
(478/85), Brent, October 21st. 1987.
CC
(d
1 OPSEU v. The Oueen in ReofOntario.(High
Court of Justice) 40 O.R. (2d) November 22, 1982.
) OPS U Ba I )( et a
General (891/85), Samuels, March 240,
the tto
1987.
9. It was submitted that the Grievors, the "usage" witnesses
Haines and Rogers, Messrs. Wallace and Jackson, and the "usage"
witnesses" who testified during the hearing of Wallace and Jackson,
all perform substantially the same duties. Those duties were
summarized as follows:
(i) they focus on the vocational potential and needs o-f
their client population and are responsible for
formulating the vocational treatment plan with
their clients;
(ii) their client population is made up of persons
requiring vocational rehabilitation as a result of
physical, emotional and mental disability;
(iii) they go through the same assessment exercise of
their clients and go through a similar exercise in
utilizing resources to carry out a client
assessment;
(iv) they are all responsible for identifying
educational assessment and training programs and
for assisting their clients in the vocational
aspects of the program and in moving to jobs, if
they are able to do so;
(v) they are all responsible for carrying out
placements in programs, training, job placement,
pre-vocation and life skills;
(vi) they are all responsible for assessing their
clients' potential, identifying suitable programs
and access to work situations, monitoring clients,
assisting clients to work through problems which
arise during the formation and completion of the
vocational treatment plan;
86
(vii) they all focus on the individual client's program
and are responsible for endeavouring to meet the
client's vocational needs;
(viii ) they utilise the many facilities available at.>their
respective psychiatric hospitals, and where such
facilities are not available, they are required to
seek out existing facilities in the community;
(ix) they utilize funding available through Canada
Manpower and other public funding agencies;
(x) they work with a mix of in-and-out patients, with
in-patients going out into the community to take
advantage or resources and programs;
(xi),they are subject to very little immediate
(xii
(xiii
(xiv
(xv
supervision;
they work virtually independently, with their cases
being reviewed once a month (or less or not at all
in some cases);
they obtain and exchange information during
periodic team meetings with respect to individual
clients;
they do not obtain orders or direction but are
merely in ,receipt of suggestions; and
while they most often receive referrals from the
psychiatrists, it is their responsibility to
prepare the vocational rehabilitation assessment,
to design the vocational treatment plan, and to
carry out the assessment plan and the, monitoring,
with little direct intervention.
10. It was submitted that the evidence of the usage witnesses and
that of Mr. Stein supported a conclusion that the Employer had
amended its SW2 standard by not requiring that SW2's who perform
vocational rehabilitation duties for COMSOC, compile social
histories, formulate psychosocial diagnoses, implement treatment
plans, or employ "social work methods."
87
11. We were asked to find, if we accepted the evidence of Dr.
Wattie, that the usage witnesses were not properly classified as 8
sw21.3, as according to her testimony their vocational histories
were not "social" histories, they did not formulate psychosocial
diagnoses and did not implement treatment plans to 'I.:. treat . . .
the underlying causes of social ,dysfunctioning, both personal and
environmental," nor did they employ social work methods. This was
said to be "the nub of the Union's usage argument."
12. It was submitted that Mr. Stein had been unsuccessful in his
attempt to differentiate .social work skill/practice in the
vocational context and rehabilitation skills. According to his
definition of .social work, the Grievor-s all perform social work
duties and employ social work methods, such as "supportive
counselling" and "reality therapy." He also stated that Mr. Haines
.was not expected to perform therapeutic interventions nor was he
expected to perform therapy as he.defined it.
13. Mr. Stein set out what information Mr. Haines collects and his
evidence corroborated that of the usage witnesses to demonstrate
that they do not compile in-depth family histories; rather the
information they collect is similar in content to that which the
Grievers collect. The family information both the Grievors and the
usage witnesses collect is information relevant in the vocational
context.
88
14. We were also asked to find that the definition of social work
skills and the definition of psychosocial assessment/diagnostic 2
skills given by Mr. Stein demonstrated that the Grievors and the
usage witnesses performed the same tasks.
15. In referring to psychosocial diagnosis, counsel for the Union
submitted that the Grievors make the same judgments as to the
nature of their clients' psychosocial problems as these pertain to
the vocational context. It was argued, in any event, that the
Grievor6 make the same kind of judgments as the usage witnesses;
for example they make judgments as to their clients' ability t-o
realistically accept their disabilities and the impact this self-
knowledge has on the clients' vocational potential.
16. It was submitted that it was irrelevant that Mr. Rogers may
have been "grandfathered," in the sense that.he was classified as
an SW2 even though he was not a professional social worker when the
other VRS employees at COMSOC were made SW2's. It, was submitted
that the, Employer had the option of arguing that Mr. Rogers was
improperly classified but did not do so. We were asked to give
weight to the fact that the Grievors perform substantially the same
duties and have substantially the same responsibilities as does Mr.
Rogers,.and that this entitles them to reclassification.
89
17. Although Mr. Rogers testified that he was the. "... only person
in the position without a social work degree," the Union submitted ,
that this was not relevant.
18. In the alternative, should the Board find that this is
relevant, we were asked to note that Mr. Haines testified that some
of his colleagues did not have a BSW degree and that they function
effectively on the job.
Bge Arquments e s and Roae
Counsel for the Employer made the following arguments:
1~. The onus is on the Union to show that the Gr i
substantially the same as those of Messrs. Haines
2. Counsel relied on E ward Ms 11/78
evors' jobs are.
and Rogers.
tilt is particularly difficult to design c.lassifications
for jobs involving paraprofessionals, the situation in
the present case. Routine jobs on a production line can
often be distinguished by brightly drawn lines, with the
job of a person responsible for the operation of a punch
press easily distinguished from the job of a person
keeping him supplied with material. In contrast, with
paraprofessionals, and particularly with regard~to those
providing services to other people, as in the welfare and
medical fields, it is often difficult to draw bright
lines between different levels of jobs. The tasks
performed by individuals in different classifications may
appear very similar, yet it must bc kept in mind that the
classifications have been designed for a purpose -
whether to reflect different emphases with regard to the
similar tasks, or to reflect greater discretion or
90
responsibility by those in one of the classifications, or
to reflect the higher qualifications.demanded of those in
the more seniorclassification." (Re OPSEU Edwards and
Molonev and Ministrv of Communitv and Social Services,
GSB #11/78 (Swinton) at p.11)
3. Counsel noted that the approach to, remedial authority of the
Board in classification cases followed in Edwards was
rejected in the Brecht case (OP U v. the 7
et al., (1982), 40 O.R. (2d) 142 (Div. Ct.)). However, the Edwards
and approach to the comparison of positions continued to be
followed post-Brecht; for example in wet 603/81
(Draper).
4. In Aikins, the proposition advanced by the union came "down to
the claim that recreational work is recreational work whenever,
wherever and for whomever it is performed and properly belongs to
one class series." The Board adopted Edwards and Molonev (at p.8)
and stated (at p.9) that: "(j)obs in broad occupational categories,
/
are commonly differentiated by qualifications, purpose, complexity,
responsibility, organisational structure and other criteria", and
that "(s)such criteria, together with the actual tasks assigned,
define the 'nature of the work performed". The Board also observed
that the Edwards and Maloney approach to the comparison of
positions had been used in &,e&& itself without criticism from the
.Divisional Court.
5. Counsel noted Mr. Haines' evidence that the purpose of his job
was to determine whether his clients "fit the 'guidelines for
i
!
91
eligibility and feasibility for funding under the Vocational
Rehabilitation Services Act." ,
6. Counsel also referred to Mr. Haines' estimate that
approximately 40 per cent of his time was spent on "administrative"
work, as above referred to in his evidence. This alone was said to
be sufficient to distinguish the job of Messrs. Haines and Rogers
from the job of the Grievers.
7. It was also submitted that in contrast to the Grievers Messrs.
Haines and Rogers do not deal with many psychiatrically disturbed
persons. It was submitted that their clients would be in the
community and. function at a higher level than the Grievor-s'
clients.
8. It was also' submitted that Mr. Haines' and Mr. Rogers'
organizational structure gave them a great deal more discretion,
responsibility and independence than the Grievers. Reference was
made to Mr. Haines being in Brockville and his supervisor Mr. Stein
being in Kingston. Mr. Haines might see Mr. Stein at staff
meetings which occur every two or three weeks and he might initiate
a telephone conversation with Mr. Stein one or two times a month.
9. Reference was made to the fact that while Messrs. Haines and
Rogers might consult with other disciplines when planning to make
(.:
92
a referral to them, they testified that they were not obliged to
consult with anyone but the client. ,'
10. While the application form is supported by a doctor's
assessment, Messrs. Haines and Rogers were not under the ultimate
authority of a physician.
11. They were not required to submit ~their vocational plans to,a
clinical team and to have the plans accepted as part of an overall
treatment plan.
12. The plans were submitted to their supervisor at a point where
funding was required under the &&. The formal approval process
was concerned primarily with eligibi,lity and feasibility and with
the cost of the goods or services requested.
13. Counsel relied on Mr. Haines' evidence during cross-
examination that he would use his social work skills in a "general
way."
14. Counsel also relied on Mr. Stein's evidence-in-chief that VRS
counsellors were required to use social work skills and techniques
and on his evidence in cross-examination that the social histories
which Messrs. Haines and Rogers were required to prepare following
the initial interview would not be complete if they dealt only with
CT i
93
vocational and educational matters, with vocational and educational
history constituting less than 50 per cent of the history.
15. Counsel relied on the fact that Mr. Rogers, who did not have
a degree in social work,.had been in a previous position which did
not require a social work degree and was classified aS RG2
(Corrections), and that ten years previous'ly his position
specification was re-written to require a degree insocial work or
the equivalent and he was reclassified as SW2, and was permitted to
keep the position without having the qualifications.
.
16. Counsel also relied on Mr. Rogers' evidence that he was the
only person in his position without a social work degree.
17. It was submitted that, in any event, the issue was not whether
Messrs. Haines' and Rogers' "work required a ,higher order of
professional social work skills and functioning." It was submitted
that even if the positions occupied by Messrs. Haines and Rogers
did not require social work knowledge, which was not admitted, that
was insufficient to entitle the Grievers to obtain the same
classification for their positions. For the Grievers to succeed on
a usage argument, they must show not only that the qualifications,
but also the emphasis, purpose, discretion, responsibility,
organizational structure, and other criteria, such as patient
population, together with the actual tasks performed are
substantially the same as those of Messrs. Haines and Rogers.
94
18. It was submitted that taking into account all of these
factors, the positions were not substantially the same. _I
The Wallace and Jackson Aroument
Submissions of Counsel for the Union
Counsel for the Union submitted:
1. That the disposition of these grievances is determined by the
result in Wallace and Jackson, 274/04 (Gorsky), which was a
decision dated April 29, 1987 involving the same Ministry..
Although this Board would not likely be bound by the strict
principles of stare decisis or m judicata, the jurisprudence of
the Board requires parties seeking ~to convince the Board that a
previous decision is not determinative of the issue at hand to show
that the previous decision was "manifestly wrong." Cases referred
to were:
(a) OPSEIJ (Alarcon et al) and the Ministrv of
Correctional Services (510/82), Roberts, September
27, 1985, pp.E-9.
fbJ OPSEU (Hobman et all and Ministrv of Transportation
land Communication (471/81), Roberts, October 21,
1987. p.1 and pp.3-4.
(c) OPSEU Walb r 1 and Ministrv ~of Correctional ( e q et al
Services (259/841, Delisle, January 15, 1987, p.2.
(d) OPSEU (Bahl) d Ministrv of Attorney General
(891/85), Samuaz, March 24, 1987, p.11.
2. The proper test, at this time, required the Employer to
establish that the grievances before us represent "exceptional
95
circumstances" in comparison to Wallace and Jackson, reference
being made to B ake et ;nand 1?76/87 .
(Shime).
3. It was submitted that the Employer had not met the above
tests.
4. The issues in the cases before us are identical to those in
Wallace and Jackson, with the Grievors being said to perform
exactly the same duties as those performed by the grievers Wallace
and Jackson; the Employer being unsuccessful in proving any ,
material difference.
5. In .further support of its "usage" argument, it was submitted
that in addition to the "usage" witnesses in this case, Wallace and
Jackson and the yusage" witnesses in that case all performed
substantially the same core duties, 'being duties (i) through (xv)
referred to above at pp. 83-4. .
The Emulover's Submissio s n.2 n
iLtfLse
Counsel for the Employer made the following submissions:
1. That this case has not been determined by Wallace and Jackson.
96
2. Wallace and Jackson was said to be a "usage" case only and not
a standards case. (See pp.1, 4, and 18 of that Decision.) ,'
3. What was said to have been determined by the Board in Wallace
and Jacksonwas that Messrs. Wallace and Jackson had substantially
the same duties and responsibilities as a number of employees whose
positions were classified as SW~. It was submitted that the case
did not determine that the position of Wallace and Jackson came
within the sW2 standard or that their position was not properly
described by the R02 standard.
4. Accordingly, it was submitted that the wand Jackson
case cannot answer the question of whether the position of the
Grievers in this case comes within the SW2 standard or whether it
is properly described by the R02 standard.
5. It was argued that for the same reason the Wallace and Jackson
case cannot decide the usage argument in this case. The fact that
Wallace and Jackson performed the same job as a number of employees
whose position was classified as SW2 was said not to mean that the
Grievors perform the same job as Messrs. Haines and Rogers.
6. There was said to be no basis for the argument that the
Grievers perform the same duties as Messrs. Wallace and Jackson.
We were asked to reject the submission of counsel for the Union
that asked this panel of the Board to accept not only the finding
97
of the Board in W e, but also the evidence upon
which that finding was based. It was submitted that the evidence ,I
adduced in Walla C on is not evidence in this case.
Accordingly, we were asked to find that there is no evidence in the
case before us that Wallace and Jackson perform the duties set out
in paragraphs Ci) to (xv), above referred to, and, therefore, there
was no basis upon which to compare their duties to those of the
Grievers.
7. Counsel regarded the Union position as being an
acknowledgement that the principle of res judicata is not
applicable in proceedin.gs before the Board and took the test before
the Board to be that one Panel would not depart from a finding of
another Panel in the absence off"exceptiona1 circumstances."
a. The Employer did not ask this Panel to depart from the finding
that Wallace and Jackson performed substantially the same duties
and responsibilities as the "usage" employees in that case, and we
were asked to find that the Grievers do not perform the same job as
Messrs. Haines and Rogers.
9. It was further submitted that, in any event, the Divisional
Court has expressed "concern" with respect to the "appropriateness"
of the "exceptional circumstances" test. In Her Maiestv the Queen
v. OPSEU (Duuuis), an unreported decision of that Court, dated May
8, 1990, the Court reiterated that it is the duty of the Board "to
1
98
address the issues before it and to make its own decision on those
issues." (At pp.2-3) I
10. It was noted that in Wallace and Jackson the Board found that
the Employer failed to adduce evidence to assist it with respect to
the difference between vocational rehabilitation and social work,
and that the case might have been decided differently had such
evidence been adduced. (See pp.20 et sea.) We were asked to find
that in the case before us there was ample evidence on this subject
from three Employer witnesses: Dr. Wattie, Mr. Carter and Mr.
Stein.
Union Reolv to the Emolover Submissions With Resoect to the
Auulicabilitv of the Wallace and Jackson Case
In her reply, counsel for the Union submitted:
1. That while the Union conceded that Wallac e cannot
be determinative of the "standards" issue, the "findings" made in
that case were clearly applicable to the case before us. Reference
was made to the Board's findings in Wallace and Jackson as to the
duties of the grievers Wallace and Jackson and as to the duties of
the "usage" witnesses called in that case which were set out as the
Board's findings of fact. We were asked to rely on those findings
to find that in the case before us the Grievers perform.the same
99
duties (duties (i) to (xv)) set out above, as the grievors and
"usage" witnesses in Wallace and Jackson. ,I
2. We were~ asked to find that the decision of the.Divisional
Court in Duouis is not a bar to the Union's argument succeeding on
the basis of a comparison of the factual findings of this case and
the facts in Wallace and Jackson. It was submitted that the
Court's comments regarding the "exceptional circumstances" test are
obiter. 1t was submitted that the Court was in agreement with the
"manifest error policy."
The Wallace and Jackson Case
The following represents some of the facts found and the
rulings made in the Wallace and Jackson case.
1. The grievors Wallace and Jackson were at all material times
employed by the Ministry of Health in the position of
Rehabilitation Counsellors and were classified as Rehabilitation
Officer 2. They grieved that they had been improperly classified
and requested reclassification to the position of Social Worker 2.
2. They relied exclusively on a usage argument. The three
"usage" examples relied upon were all employees of COMSOC and were
classified as SW2. The usage employees were: Mrs. E. Segal, who
100
occupied the position of Rehabilitation Counsellor, Mrs. B. Gander
who occupied the positlon of Vocational Rehabilitation Counsellor
I f
and Mr. Robert Philips whose position title was Rehabilitation
Officer.
3. The test applied was the "substantially the same" test and not
the "virtually identical' test. (p.2)
4. Counsel for the Union, in Wallace and Jackson, acknowledged
(at pp.2-3) that there was IIsome difficulty . . . presented by the
fact that the examples furnished were with respect to employees of
different ministries, working out of different offices with a
different mix of individuals and problems to be faced." The Board
was: "nevertheless, asked to find that the essential duties and
responsibilities of Mrs. Gander,~Mrs. Segal and Mr. Philips were
essentially the same as the Grievers in a functional sense."
5. The Board, in Wallace and Jackson (at pp.4-9) stated:
There are a number of earlier cases where a test of
virtual similarity had to be satisfied before the second
part of the test could be met. The later decisions cited
in this decision recognlze that it is not a task for task
comparison that must be met but rather a test based on
"distinctive and essential elements . . . being performed
. . . . This is how I view "the same duties."
We were also asked to find that although different words
were used to describe the functions, duties and
responsibilities of Mrs. Segal. nevertheless, in
substance, the Grievors did the same thing. We were
asked to accept Mrs. Gander's description of her duties
and responsibilitiesand those oft the Grievers as being
essentially the same. Mrs. Gander's evidence was said to
be of more weight because of the fact that she had worked
101
in the position of the Grievers as well as in her own
present position (as a Social Worker 2).
We were asked to compare Exhibit 7, being the Position
Specification of the Grievers with the Position
Specification of Mrs. Gander and Mrs. Segal (Exhibits 9
and 101 and to find that they represented the same jobs.
We were asked to find that the focus of all the jobs was
vocational rehabilitation. The same argument was made in
the case of the job performed by Mr. Philips (Exhibit
11). We were asked to find that there was, in fact, no
real distinction between a Rehabilitation Officer 2 and
a Sociai Worker 2 when the actual functions performed by
the Grievers and the three comparison employees were
examined. They were all said to fbcus on the vocational
potential and needs of their client population. Mrs.
Gander, Mrs. Segal and Mr. Philips were said to go
through the -same exercise with their client population as
did the Grievors. Their client population is made up of
persons requiring vocational rehabilitation as a result
of physical, emotional and mental disability. The only
difference, it was stated, between their work and the
work of the Grievor6 was based on such differences as
existed because of the nature of the institution and of
the .particular client population. In the case of the
Grievors, the population suffered, primarily, from
psychological and emotional disabilities including
problems of mental retardation. However, it was stated
that their client population includes, as well, persons
suffering 'from physical problems. The population
serviced by Mrs. Gander and Mrs. Segal suffers more from
mental and physical problems, with a lesser number having
emotional problems. However, in all cases, it was said,
the clients have social problems. It was noted that the
client population of Mrs. Segal and Mrs. Gander are not
as disabled-as those within the client population of the
Grievers and Mr. Philips.
In the case of Mr.'Philips, his client population suffers
from a number of disabilities, with the principal focus
on mental problems (severe mental handicap) although
other clien,ts suffer from physical and emotional
problems. This population is more severely disabled than
that of the Kingston Psychiatric facility, where the
Grievers work, and the facilities where Mrs. Gander and
Mrs. Segal work. We were asked to find that the mix and
severity of the disabilities affecting the client
population of the Grievers fell somewhere between the
client populations of Mrs. Segal and Mrs. Gander and that
of Mr. Philips. What was emphasised was that the
exercise of carrying out the duties and responsibilities
was, in all essential matters, the same for the Grievers
and Mr. Philips, Mrs. Segal and Mrs. Gander. That is,
they are said to have gone through a similar exercise in
utilizing resources to carry out a client assessment.
They are all said to be responsible for identifying
educational assessment and training programs and to act
similarly in assisting their clients in the vocational
aspects of the program and In moving to jobs if they are
able to do SOL. They are all said to be responsible for
carrying out placement in programs, training, job
placement, pre-vocation and life skills. They are also
responsible for assessing a client's potential,
.identifying suitable programs., access to work situations,
monitoring clients, assisting clients to work through
problems which arise in carrying out the job of
vocational training and placement. All of them were said
to focus on the individual client's program and were
responsible for endeavouring to meet the client's
vocational needs.
We were asked to find that the Grievers utilized the many
facilities available at the Kingston Psychiatric Hospital
and, where such facilities were not available, they were
required to seek out .existing facilities in the
community. The Grievers were able to utilise funding
available through Canada Manpower and other public
funding agencies. The Grievors worked with a mix of in-
and-outpatients, with in-patients going out into the
community to take advantage of resources and programs.
We were asked to find that there was no real difference
between the nature of the work performed by the Grievers
and the work performed by Mrs. Segal and Mrs. Gander,
although the nature of then funding was not the same.
Mrs. Segal and Mrs. Gander had funds available,to them to
purchase services in the community.
As was the case for Mrs. Segal and Mrs. Gander, the
Grievers were said to be required to be aware of relevant
legislation applicable to them, and all of them drew on
similar sources for assistance in the community.
Reference was made to the uniform resort to COMSOC and
other agencies such as Canada Manpower. The relative
similarity that we were asked to find was utilization of
common resources to provide similar services for a client
population. We were asked to find that such difference
in funding as existed amounted to a distinction absent a
meaningful' difference.
In the case of Mr. Philips, who worked within an
institutional setting, there was an acknowledgment of the
different emphasis based on the different client
population. However, we were asked to note that the
functions being carried out by Mr. Philips, including
103
objectives and techniques, the manner of proceeding and
the resources employed, were substantially the same for
him and for the Grievors.
In dealing with supervision, we were asked to find that
there was no distinction between the Grievers and Mr.
Philips, Mrs. Segal~ and Mrs. Gander. We were asked to
note that the Grievers were subject to very little
immediate supervision and that they worked virtually
independently, with their cases being reviewed once a
month. Although they obtained information during
periodic team meetings with respect to individual clients
in the institution, this was said to amount to an
exchange of information between the members of the team.
The Grievers were said not to obtain orders or direction
but were merely in receipt of suggestions. While
referrals were received by them from psychiatrists, it
was sup to them to prepare the vocational rehabilitation
assessment and~to carry out the assessment plan and the
monitoring, with little direct intervention for in-
patient clients. In the case of out-patient clients
there was no team structure set up, but exchanges of
information were effected in an informal fashion. We
were asked to'find, from the evidence relating to Mrs.
Segarl, Mrs. Gander and Mr. Philips, that the supervision
structure applicable to them was very similar to ~that
which applied to the Grievers. In the case of Mrs.
Gander and Mrs. Segal, there was no team structure in
place, however, they drew on other disciplines as needed
and meetings might be set up to deal with problems
affecting individual clients. Inter-disciplinary
resources were drawn upon to effect the best vocational
program for a client. Reference was also made to the
fact that within his institution, Mr. Philips had both
formal and informal exchanges of information with a
number of people concerning his client population. In
the case' of Mr. Philips, out-patient clients would use
the facilities of the institution and he coordinated and
structured programs to best suit the needs of the client.
In the case of discussions concerning out-patients, he
chaired the informal meetings which were held.
6. The Board in.Wallace and-Jackson also noted that Wrs. Gander,
had filed a classification grievance when she was,classified as a
R02 and, as a result, was reclassified as a.SW2 in 1981. When Mrs.
Gander testified, she emphasized that she had, while classified as
104
an R02, performed the same duties and had the same responsibilities
as the grievor-s and: i
She concluded that there was no relevant difference
between what she now does, what she did when she was a
Rehabilitation Officer 2, and what the grievers now do.
Emphasis was placed on the fact that she had performed
the grievers' functions when classified as a
Rehabilitation Officer 2 at the Kingston Psychiatric
Facility.
7. Counsel for the union in Wallace and Jackson relied on the
credentialism policy and "argued that in the light of the policy
. . . there was no requirement that the grievor6 have formal academic
qualifications in order to succeed in this grievance. It was
further noted that Mr. Philips nor Mrs. Gander had professional
social work training at the university level and that, accordingly,
the grievors' lack of formal or educational qualifications
represented no impediment to the a llowance of the grievance." (At
pp.ll-12)
8. Counsel for the employer in Wallace and Jackson, in submitting
that the grievors, in that case, did not perform substantially the
same job as the three "usage" examples, took the position:
. . . that the objectives, resources, techniques used and
the manner of functioning in the case of all of the five
persons discussed could apply~ to anyone in the
rehabilitation field, such as physicians and other
members of the clinical teams involved. The intention in
all cases was to maximize the potential of a handicapped
person. Mr. Brown argued that the most common purpose
was .insufficient to assist the Grievers. It was
submitted on behalf of the Employer that there were needs
of the client population which went beyond the vocational
and the degree to which a higher order 'of professional
functioning was expected of Mrs.~ Gander, Mrs. Segal and
Mr. Philips represented the principal distinguishing
(. (.
105
feature in this case. Reference was made to the class
standards. Reference was made to the preamble of Exhibit
6, being the Social Workers Series, which indicates that
Social Workers are within the Scientific and Profes'sional
category. We were asked to find that the Rehabilitation
Officer Series is an Administrative Services category.
9. In acknowledging a certain amount of overlap between the
Social Work class series and the Rehabilitation Officer class
series, counsel for the Employer "asked [the Board1 to note the
significant differences in the classifications as defined." (at
p.14)
10. At p.14 of Wallace and Jackson, as in the case before us:.
Emphasis was placed on the factthat Mrs. Segal and Mrs.
Gander worked with clients who had a wide range of
disabilities, primarily not of a psychiatric nature, and
that they do not function within the confines of a
psychiatric institution. The Grievors' primary
responsibility was to a client population suffering from
a variety of mental disabilities and the secondary
problems affecting their client population remained
secondary. With respect to Mr. Philips, it was observed
that most of his clients suffer from mental retardation.
11. Reference was also made to the fact that two of the usage
examples, Mrs. Gander and Mrs. Segal. were not part of a clinical
team that assisted in the counselling function and had no
psychiatrist involved as head of the team. The only conferences
applicable to them were called on an ad hoc basis. This was
contrasted with the hospital clinical team environment involving
the grievor6 where the primary focus was the psychiatric well-being
of the client. (at p.15) Mr. Philips was also said to operate
without a clinical team. (ibid.)
106
12. Counsel for the Employer in'- also argued
that the grievors, in that case, did not have, the same independence
of action as the "usage" examples, although he acknowledged that
they had a good deal of independence. The Board was asked to
examine the framework in which they operated (the clinical team),
which "indicated that they were part of a structure with a major
concern with psychiatric care; the grievor6 being involved in the
occasional rehabilitation component of a patient's care. It was
suggested that there were a number of parts involved in this care
which had to be integrated." (at p.15)
13. Counsel for the Employer in Wallace and Jackson argued that
the grievor-s were not involved to the same extent as the usage
examples in purchasing necessary outside services for clients. In
the case of the grievors, such services were usually found within
the medical clinical team and they did not determine when and if a
service would be required outside the institution. The usage
witnesses were said to have made independent decisions concerning
the use of outside assistance that was beyond the powers of the
grievors, where the decisions were made by the team.
14. Counsel for the employer in Wa e acknowledged
that there were certain common objectives and techniques employed
by the grievor6 and the usage examples,,but the Board was asked to
find that the attainment of the objectives and the techniques
employed required a different level of functioning, and in the case
197
of Mrs. Gander and Mrs. &gal "a much greater variety of problems
presented themselves because of the different nature of the
disabilities dealt with by them." They were said "to orchestrate
a successful introduction of clients into gainful employment." At
pp.16-17) The case of the grievers. was said to be different
because: "This was not the realistic purposes of [their1 work and,
in any event, their work was overseen by psychiatrists, although it
was acknowledged that such intervention as might be forthcoming
from psychiatrists was not very great."
15. At p.17 of e the Board stated:
The major point made by [counsel for the Employer1 was
that the distinction between the role of the Grievors and
those with whom they were compared was in the manner that
the Grievors exercised their responsibilities and duties,
there being a real difference in that the Grievers were
not as independent in their functioning nor as
sophisticated in their functioning as Mrs. Gander, Mrs.
Segal and Mr. Philips.
16. The summary of the Union position is set out at pp.17'18 of
Hallace and JackSQD:
Un,ion Counsel stated that the responsibilities of the
medical members of the team, with whom the Grievors were
associated, demonstrated a different focus and that in
their functioning the Grievers manifested the same focus
on objectives and the use of techniques as those with
whom they were being compared. It was the position of
Union Counsel that the Grievers represented a team and
were involved in vocational rehabilitation and might be
viewed in the same way as those with whom they were
compared. The Grievers were stated to have brought the
vocational rehabilitation component to the team. They
were said to merely receive information from~the team
which permitted them to develop a vocational program and
that in this way they were no different from Mrs. Gander,
Mrs. Segal and Mr. Philips. Resources were employed by
all of them. The resources were in the nature of feed-
back from specialists whose information assisted the
Grievors, as it assisted the others, in developing a
vocational program. The,Grievors were said to be no more
or less interested in the psychiatric problems of'.their
clients than were Mrs. Segal and Mrs. Gander. That is,
their interest in psychiatric problems was only
significant to the extent that it bore on the vocational
program to be developed. Thus, it was stated, the duties
and responsibilities of the Grievors, Mrs. Segal, Mrs.
Gander and Mr. Philips were the same, in substance, only
the sources of information were different. In all cases,
resources were resorted to and. used. The Grievors, it
was said, were no more subject to real direction than
those with whom they were compared.
Union Counsel emphasized that this case was not concerned
with the class standards (best fit) but with a comparison
of what the Grievers did when compared~ with what the
Social Worker 2's did.
Board also notes (at p.19):'
There was said to be nothing significant in the fact that
different expectations with respect to obtaining
employment was had for each client population. This
depended on the severity of the mix of problems affecting
the client population. Although the Grievers' success
would be less than that of Mrs. Segal and Mrs. ~Gander,
Mr. Philips had an even smaller percentage of successful
long term placements because of the profound mental
disability affecting his client population. The Grievers
were said to be, in this regard, "sandwiched" between
Mrs. Segal and Mrs. Gander on the one side and Mr.
Philips on the other. The Union denied that the Grievor-s
were unable to decide the programs for their client
population within the institution. We were asked to find
that there were certain controls affecting Mrs. Segal,
Mrs. Gander and Mr. Philips in the choice of outside
specialists to assist them;
Board in Wallace and Jackson concluded, at pp.20-22:
After reviewing all of the evidence, I cannot find a
realistic basis for finding a sufficiently significant
difference between the real functions performed by the
Grievers, Mrs. Gander, Mrs. Segal and Mr. Philips. There
was no persuasive evidence concerning the higher
professional social work standards required of Mrs.
Gander, Mrs. Segal and Mr. Philips, as alleged by Counsel
for the Employer.. As Mr. Brown emphasized,' social work
109
can be performed by a wide varie,ty of people with varying
degrees of training. In some cases, ~a degree of
professional sophistication is demanded which is, to some
extent, a function of professional standing and
education. This is recognized in the Employer
credentialism policy, even though no special source may
be required for attaining skills and knowledge.
I would be prepared to find, in a proper case, that
experience alone cannot be relied upon as a basis for
finding the existence of certain professional skills; in
this case professional social work skills. A para-medic
or nurse clinician may be shown to perform some of the
same functions as a person with a medical degree and,
statutory requirements aside,' it could be easily
demonstrated that they were not performing the same work
for job classification purposes.
Similarly, there may be a case for showing that a higher
level of professional social Work training is required in
order to qualify for and function up to the standard qf
a particular social work position, even if direct
observations would tend to show two positions to be
essentially the same. For example, nurses in a
psychiatric setting, may give psychotherapy, including
group therapy. This does not, putting aside the question
of formal credentials, make them into psychiatrists. In
this case, the work performed by the Grievers, Mrs.
Gander, Mrs. Segal and Mr. Philips was insufficiently
differentiated on any level. The claims made on behalf
of the Employer, that the Grievers had less decision
.making control, had a different role, functioned
differently and in a less professionally sophisticated
manner, were insufficiently established to overcome the
evidence of similarity which was adduced.
I heard no evidence concerning the incorporation in their
work, by Mrs. Gander, Mrs. Segal and Mr: Philips, of.
professional social service and rehabilitation principles
normally associated with a graduate of a recognised
university social work course or that of a related
discipline. Mrs. Segal holds an M.S.W. degree and there
was no evidence to cause me to conclude that she employed
her training at a level consistent with her academic
attainments. Her evidence ~did not demonstrate that she
was undervaluing the extent to which her job called upon
her to utilise other than rudimentary social work skills.
From her evidence, I would gather that there was no need
to employ higher level social work skills associated with
a graduate degree in social work, let alone an
undergraduate degree.
110
I emphasise, that in another case, the evidence of
necessary professional understanding of social work
theory and practice might undermine the Union position.
Such evidence did not figure in this case, except'as we
were asked to find its existence in the evidence
presented. Upon examining the evidence, I cannot find a
basis for so finding.
In the circumstances, the grievances succeed on the
secondtest involving substantial similarity of duties
and responsibilities and I need not consider the first
test. On the evidence, I would find that the Grievers
,ought to be awarded the classification of Social
Worker 2.
A review of cases decided by the Board discloses that the
jurisprudence has now reached a mature state, and certain common
themes can be discerned that are of .assistance in deciding the
grievances before us.
1. The basis for classification is reviewed in A m,
1336/91 (Finley), at pp. 18-19:
Under the Public Service Act, [R.S.O., 1980 cap. s.41,
the Civil Service Commission is assigned the duty of
classifying positions and establishing salary ranges for
positions in the classified service. It may also
authorise deputy,ministers to classify positions which
are designated by the Commission. Under this
classification system, a group of duties is combined to
create a position which is then given a position title
and.a position code. The position title is usually
specified 'in terms of the person who would hold the
position, for example, Auditor - Desk, Financial Officer
2. A 'Position .Specification & Class Allocation' is
drawn up specifying the number of places, the number and
positions to which group leadership is provided, the
class allocation and title, as well as the class code and
occupational group number. Information is also provided
0* the title and position code of the immediate
111
supervisor of the position. The purpose of the position
is spelled out as are then duties and related tasks, the
skills and, knowledge required to perform the job at full
working level and the reasons for classifying the
position as it has been classified and certification that
the classification is in accordance with the Civil
Service Commission Classification Standards. It has
become usual for the class allocation to be used to
described the rank of an individual employee, whereas,
strictly speaking, a position is classified and an
individual is assigned to a specific classified position.
Employees are normally compensated according to a salary
scale which relates to the position which in turn relates
to the class allocation.
2. In Adams et al., 1970/87 (Keller), the Board stated, at p.6:
For a class standard argument to succeed, it must be
demonstrated that the essence of the job does not fit
within the assigned class standard: that the core duties
are somehow sufficiently different so that another job is
being performed. When it is argued that another class
standard is more appropriate, it must be proven that the
core .function of the job and the class standard are
essentially and substantially the same. In the instant
case, the class definitionfor MO2 describes, with a
considerable degree of accuracy the principle core
functions of the grievor. Although there may be some
dispute relating to some of their minor, ancillary
functions, there can be no argument that they do not do
the work as described in the class standard.
In EElrick et al. lo)85 etc. (Dissanayake), the Board stated, at
p.9:
. . . The Board has held that in order to succeed, a
grievor must persuade the Board on a balance of
probabilities, that his "significant job duties" (&
Hilson, 535/84. Roberts) or "the core of the duties" c&e.
Freeman, 393/81, Verity) are beyond the duties assigned
to his present classification.
In Marshall et al., 1797/89 etc. (Keller), the Board stated, at
pp.8-9:
The
out
jurisprudence of the Board is replete with statements
.lining the test used to determine whether a class
standard is appropriate or not. Essentially they state
that the core of the definition of the classification
must apply to a job. What that has been interpreted to
mean is that the Board must satisfy itself that the
functions which are an integral part of the class
standard - what makes that class standard unique and
distinguishes it from other class standards - a re
performed by the gr~ievors. In the instant case it is
clear that they are not. the core functions of the
grievor's job bears no relationship to the legal surveyor
class standard. In fact, to the extent that the O.L.S.
held by the grievers precludes them from doing legal
survey work, and 'given that the core function in the
class standard requires the performance of legal
surveying, it is difficult to see how the class standard
applying to. a legal surveyor could also apply to the
grievor=.
In Barklev/Jones, 1520/87, 1521/87 (Kirkwood), the Board stated at
pp.3-4:
The Board in the Ennis Schuller [17/85 (Kirkwood)] case
summarized the tests that are to be applied when
determining whether the grievers are properly classified,
when the Board stated at pages 3 and 4 of the decision:
As stated in the decision of _(OPSEU (Roundina) and
TheCrown G.S.B. 18/75
(D.M. Beatty), the onus is upon the union to prove
that the employer is not conforming to the
classification system which has been established or
has been agreed to. Therefore the union must
establish on a balance of probabilities that the
grievor=' jobs do not conform to their job
classification.
In order for the grievers to obtain a higher
classification, the Union must persuade the Board
that significant job duties are beyond those
assig.ned to the. present classification and
constitute significant duties of the higher
classification that the grievor6 seek. (n
) Hilson inistr
of Education) G.S.B. 535/84O (Roberts). OPSEU
(Beworth) and The Crown in Riaht of Ontario
G.S.B. 26/80 (Roberts), wan) and The
3. The
113
Crown in Rig \L of Onta '0
G.S.B. 323/81 (R.L. Verity)).
As found in many of the cases of the Grievance
Settlement Board, and as referred to in OPSEU (M.
Parker) and The Crown in Ri ht o -y
of Environment) G.S.B. 107/83 (P.M. Draper), if the
Board finds that the grievor6 are not properly
classified, the board must accept the
classification system as it is and interpret and
apply the classification system. The Board may
either place the grievor= into the appropriate
category or if there is no appropriate category,
order the employer to reclassify the grievor=.
Therefore the issues are as follows:
1. What duties do the grievers perform;
2. Do the duties conform to the Maintenance
Electrician's standard;
3. If they do not fit the class standard of the
Maintenance Electrician, is there a better fit
within another class standard, such that there
are significant duties which the grievor6
perform which are assigned to the higher
classification which the grievor6 seek;
If there is not an appropriate class standard, the
employer must be required to create a new rzlassification
to meet their job functions, in accordance with the
decision of the Divisional Court in w and The Crown
f i i ht o Onta it and Social
Services).
Therefore, in order to determine whether the grievor6 are
properly classified as Maintenance Electricians, the
Board must compare the duties which they perform and
compare them to the class standard.
Board does not hold the Employer to a standard of
perfection in classifying positions. In Ei.eaxa. 949/89
(Dissanayake), the Board stated at p.10:
In all of the circumstances the Board finds that the
grjevor's duties and responsibilities do not fit
reasonablv within the MM 2 class standard and that
therefore his position is improperly classified.
1
I--
!,
114
[Emphasis added].
This is stated in another way in wet 39/89 CSlone)
at p.19:
What the cases clearly require us to do is, first, look
at the class standards in relation to the grievers' jobs.
If the jobs as performed can fairly fit within the
general language of the assigned standards, .then that
part of the analysis is at an end. It would not matter
that the grievers' jobs might also fit into another class
standard. . . .
The need for there to be a "substantial difference" .in the
nature of the duties and tasks for a position to be reclassified is
also set out in Thaleshvar, 1659/90 (Knopf), at p.5:
. . . The following cases were cited as authorities from
this Board for the proposition that reclassification
ought not to be' ordered unless there is a ."substantial
difference" in the nature of the duties and tasks: &r&s
and Ministrv of Natu ra, GSB File 2417/87
(Dissanayake), November 19, 1990, Booth and Ministry of.
Transuortation, GSB File 192/90, (W. Low) November 30,
1990, ROY and Ministrv of Natural Resources, Board File
946/89 (Knopf), March 19, 1990, Evans and Ministry of
TranSDOrtatiOn, GSB File 1531/90 (Samuels), May 24, 1991
and Dumo d an 1, GSB File
1822/90 (Kaplan), July 22, 1991.
The Board in Thaleshvar, pointed out an error that it had made
in a previous case (Behrsin, 1363/90 (Knopf)) and stated, at pp.6-
7:
As mentioned above, the same panel of the Board ruled in
the Behrsin case that the language of the Class Standards
with respect to Purchasing Officers should be interpreted
contextually and that this leads to the conclusion that
P.O. 2's are not expected to supervise subordinate
Purchasing Officers. Further, in the Behrsin decision,
we also indicated:
. . . the Union can also achieve some success in the
grievance if it can show that any of Mr. Behrsin's
115
duties and responsibilities can take him outside of
or beyond the P.O. 2 classification.
In light of those conclusions, it is not surprising that
the ,Union has brought this grievance on behalf of Mr.
Thaleshvar. However, the behrsin decision cannot be read
outside of the context of other GSB jurisprudence. It is
rare that a panei of the Board gets an opportunity to
clarify a previous award and to better assist the parties
in interpreting how the principles ought to be applied to
a fact situation. Quite frankly, our earlier statement
that the Union may be able to achieve .success if it can
indicate that "any" of the grievor's duties and
responsibilities take him outside of a particular
classification must also be read in light of the Board's
jurisprudence that indicates that a reclassification
ought not to be ordered unless those duties amount to "a
substantial difference betweeen [sic1 the duties
performed and the duties referred to in the Class
Standard." See Dumond, m at page 19 [1822/90
(Kaplan)].
In the Dumond case, referred to in Thaleshvar, the Board
stated at p.17:
For a classification case to succeed, a grievor must show
that his or her job does not fit within the relevant
class standard. We agree with the finding in Aird
that "the class standard must necessarily contain some
general language, but it must not be phrased in such
generalities as to make the description meaningless" (at
4). We are also in agreement with the view expressed in
Fenske 494/85 (Verity) that:
Class standards are, of necessity, generally worded
statements which are intended to constitute a
general outline of duties and responsibilities.
These standards are absolute in the sense that the
Board has no jurisdiction to alter or amend them.
The Board is obliged to treat the Class Standards
in light of the current circumstances as though
drafted with the Grievor's position in mind (at
13).
This was also the finding in mder et al,, 803/88 etc. (Verity)
at p.8:
116
Class standards are of necessity generally worded and
must be taken as read, and interpreted as a whole.
Although not meant to be a job description, the class
standard must cover at least the significant elements of
the job. The first question, then, is whether the
grievor is properly classified in ,his existing
classification.
This was also stated in Jaooer et al., 696/89 (Knopf), at p.4,
referring to Anderson 497/85 (Roberts), where it was said:
. . . an employee may be properly classified even though he
or she does not perform all or a majority of the duties
described in a Class Standard. We accept that Class
Standards must, by nature, be general in scope and there
will be significant variations in the concentrations of
the. duties of employees who are properly classified
thereunder.
4. Questions shave arisen in determining, as a matter of fact, if
there is a substantial difference between the duties being
performed~ and the duties described in the class standard, whether
~this is a matter that can be decided by reference to percentages.
In Annis et al., 1872/90 (Roberts), the Board stated, at pp.13-14:
. . . counsel referred the Board to Re Tomassoni and
Uinistr Y of Communitv and Social Services (1989),
G.S.B. #807/86 (Verity). where the board issued a Berry
order rather than reclassify the grievors into a claimed
classification because there was at least a 10%
difference between the jobs. The board said it agreed
"that a 10% difference in job does not demonstrate
substantial similarity." Ld. at p.18. By the same
token, then, counsel submitted, it would be improper to
retain the grievor8 in the Welfare Worker 2 class
standard if at least 10% of the job of ES1 Counsellor
fell outside it. In this case, it was submitted,
significantly more than 10% fell outside the four corners
of the class standard.
117
In Dumond (suora); the Board, in referring to the
determination based on reference to percentages, stated at pp.19-
20:
There is a long line of jurisprudence at this Board that
for a reclassification order to be given the Board must
be satisfied that there is a substantial difference
between the duties performed and the duties referred to
in the Class Standard. In the authorities cited by union
counsel, the Board was apparently satisfied that there
was a substantial difference between the duties being
performed and the duties described in the Class Standard.
That, of course, is a matter of fact to be determined in
each case. It is not, in our view, a matter that can be
determined by reference to percentages :(although they may
be helpful).
If 'such a method were exclusively followed, where would
one draw the line? Would it be sufficient to say that if
a grievor wasperforming duties not included in her Class
Standard 10% of the time that constituted a substantial
difference? What about if she was only performing duties
snot included in her Class Standard 9% of the time?
Would
that fail to meet the test? What about if she was
performing duties not included in her Class Standard only
5% of the time, but those duties involved significant
responsib~ility well beyond that ever envisaged in the
Class Standard? What about if the duties were of an
infinitely more complex character than those in the
standard? What if the duties required a significantly
greater degree of skill and training than that required
in the Class Standard. What if the duties were unrelated
in any way to those described in the Class Standard?
These questions illustrate the difficulties inherent in
attempting to resolve these questions with percerrtages.
The cases, at least those cited by union counsel to the
Board, depend to a great extent on their facts Andy appear
to have been decided on that basis.
There is no reason, in our view, to interfere with the
longstanding jurisprudence of this Board that a
substantial difference between the job being performed
and the job described in the Class Standard is a pre-
requisite to a Berry Order. Whether or not there is a
"substantial difference" and what constitutes a
"substantial difference" will be a matter for the Board
to determine on the facts of each case.
5. In Leworthv, 26/80 (Roberts), the Board stated at p.7:
,-
i. i
118
At the hearing, there appeared to be little dispute
between the parties as to the principles of law that
apply to a case such as the one at hand. As to,the Class
Standard for the Clerk Supply Series, both parties'appear
to agree under that settled law, a position ought'to be
accorded the classification in which the duties to be
performed in that position meet the compensable factors
differentiating that classification from the one
immediately below it. The parties, however, differed
markedly in their application of the Class Standard for
Clerk 3 Supply to the facts of the case.
Further, at the bottom of that page, the Board stated:
. . . in order to fit within this paragraph 12nd paragraph
of the class standard1 the position of the grievor must
involve all- of the compensable features required by it
and that the one compensable feature that is not accorded
the position of the grievor is that the grievor be "in
sole charge", with responsibility for "security of the
stockroom . . . .
6. In French/Kioroff/Flaherty, 279/88 etc. (Wilson), at p.21, the
Board stated:
I decline to apply best fit to the Clerk 5 because in my
view that approach is modified by the Be.rxy rule. I find
that it is a non-fit so far as the Clerk 4 is concerned
but deviates too much from the Clerk 5 ,to justify
ordering it to be specifically classified as such.
Furthermore, I wish to avoid further distorting a
classification system which has long been out of
alignment.
7. From its earliest decisions, the~Board has stated that it must
accept the classification system as it is found (Re Parker. 197/83
(Draper) This "can lead to some strange conclusions," and that,
notwithstanding, the "board is also a prisoner of this system." 3.e
Armstrong, 1190/87 (Gorsky) at p.37. The significance of this fact
was noted in w,~ 595A/90, where reference was made, with
approval, to Be Elrick et al, lo/S5 (Dissanayake), at p.13:
119
It is important to note that the role of the Board is not
to examine the higher classification claimed, to see if
the grievers' positions equally fit that higher
classification. Before reaching that step, the':Board
must first satisfy itself that the position does not
reasonably fit the existing classification.
In Lurm. at pp.13-15, the Board noted the argument of union
counsel that ~+&xY conferred:
. . . jurisdiction on the Board to place a grievor in a
higher classification, even though he properly fits
within hiss current classification. She disagrees with
the Board's findings~in the past, that it must accept the
employer's classification system as it finds it. She
points to two decisions of the Board, Re
(supra) and Re Barklev and Jones (suoral and m
and Jones (a) as instances where the Board went on to
consider whether the grievor's position fit a higher
classification, even though it had concluded that the
position reasonably fits within the existing
classification. She urges the Board to follow that
approach.
In the two cases cited by counsel,,the Board did indeed
find that the grievors' position fit within his existing
classification, but then proceeded to consider whether
the position also fit the claimed higher classification.
In each case the Board concluded that the position did
not fit the higher classification. There is no
discussion in either case about the Board's authority to
award a higher classification in the circumstances. We
do not consider either decision as authority for the
Board's jurisdiction to award a higher classification,
when the grievor's position is currently properly
classified. Rather, we see the inquiry by the Board in
those cases as obiter dicta, simply intended to reinf~orce
that the grievor would not have been entitled to the
higher classificationclaimed in any event.
If those decisions represent a departure from the Board's
established practice, we prefer the latter practice as
being the one correct in law. In Re 24/85
(Brent) at p. 5 the Board stated:
"It is therefore the opinion of the Board that in
dealing with a classification decision unfettered
by Article 5.1.2 of the collective agreement it
must first determine whether the grievor has proven
on balance that he is improperly classified. this~
c
120
determination can be made in accordance with the
principles established in the jurisprudence of this
Board as it existed before the Divisional Court
decision in BerrV since we do not consider: that
that decisions dealt with how one determines whether
an employee is improperly classified. If the
employee has not satisfied this Board that he is
improperly classified, then the matter is at an
end. If the employee has satisfied the Board that
he is improperly classified, then the Board must
fashion an appropriate remedy, which may or may not
be to award the grievor the class~ification which he
sought in his grievance."
In Re Braund (m) at p. 19 the Board stated as
follows after a review of the Board's jurisprudence:
What the cases clearly require us to do is,
first, look at the class standards in relation to
the grievors' jobs. If the jobs as performed camn
fairly fit within the general language 'of the
assigned standards, then that part of the analysis
is at an end. It would not matter that the
grievers' jobs might also fit into another class
standard. Only if the assigned classifications in
this case were seen to be wrong, would we have to
look at the Industrial Officer series, to decide if
the appropriate remedy were 'to assign the grievers
to classifications.within that series. We are not
at that point.
We agree. In the standards approach the Board may
find that a position is improperly classified because the
grievor's core duties do not fit the class definition as
written. In the usage approach the Board may find that
while the position fits the class definition as written,
the classifications established by the employer by
practice, makes it improper. In both cases the Board
must find that the grievor is improperly classified.-
before considering a,remedy.
In our view, this state of the Board's jurisdiction
is not affected by the Court decision in Ele.rxy. . . .
8. 1n the case before us, as in many other classification cases,
,issues arise as to when the addition of new duties take a job out
of its original classification. In Byrd, 1349/87 (Slone); at p.8.
( :
121
the following passage was quoted with approval from &y, 946/89
(Knopf) at p.8: i
. . . the addition of new duties may take a job out of 'its
original classification, but only where those duties are
of such a kind or occur in a degree as to amount to a
different job altogether. See for example Baldwin and
LYD!3, GSB 539/84 (Palmer) and Fenske, GSB 494/85
(Verity). As these and other cases show, the propriety
of the classification is a factual issue to be decided on
the merits of each case.... The onus is on the grievor to
show that he is actually performing a job, the essence or
core duties of which do not fit within the class standard
to which it has been assigned by the employer. ;..
Where a grievor% 'duties and responsibilities change, there
will be a point where the fit in his assigned classification is no
longer a "comfortable fit." See Fenske, 494/85 at pp.14-15. I"
addition, as was also noted in Fenske (ibid.), the Board must
determine whether the change in the duties of a grievor affect
his/her "degree of responsibility, independence and judqement"
beyond those called for in his/her assigned classification. Also
see Beags et al, 453/88 etc. (Wilson), in this regard.
The Board has been sensitive to the fact that the task of
classifying the Civil Service is a,difficult one. There are
thousands of different positions across the Province and it is both
unworkable and unnecessary to expect that each individual job
attract a specific classification. Accordingly, general
classifications are necessary, and each job does not have to have
an "exact" fit with the classification assigned to it. The Board
has adopted, the "core functions test" set out in then Keluskv
122
t1098/86 (Wilson)], KM [85/89 (Verity)] and Jaqqer [696/89
(Knopfll cases. . . . . .
9. The cases are replete with examples where the personal
characteristics of a grievor indicate that he/she possesses skills
and qualifications that exceed those required by the duties and
responsibilities of the class standard to which he/she has been
assigned. Nevertheless, the test for the Board is based on the
requirements of the position and not the characteristics of the
grievor. In Hoffman-Fitz et al., 293/91, 2787/91 (Knopfl, the
'Board stated, at pp.8-9:
The responsibility of this Board is to determine whether
the grievor6 are properly classified. ,As the GSB has
articulated many times, in deciding ~classification cases,
the Class Standards are to be read in a broad, general
and flexible way so as not to impose upon the employer
the impossible task of specifying every element of each
job. The provincial civil service is ~simply enormous and
Class Standards are designed to give broad categories
rather than specific job descriptions for every type of
.job. In order for the Union to succeed in a
classification grievance, the onus is upon it to satisfy
the Board that the fundamental or core duties of the
grievers are not adequately reflected in their present
classification. Thus, the task of a Board of Arbitration
is to compare the duties and responsibilities of the
qrievors with the Class Standard to see if the Class
Standard recognizes the expectations the Employer has of
the qrievors.
In a case such as this, given the high degree of
~professionalism and independence of the grievers, this
Board has to be careful that we do not analyie the job in
terms of the individuals who hold the job. As was stated
early in the Board's history in the Gerrard case, GSB
File 521/81 (Joliffe) at page 26:.
1n reaching this conclusion we are not taking into
account the grievor's lqng experience or high
123
qualifications for the position the1 now ho1d.s. It
is well understood thatwhat must be classified is
the position itself, the duties and
responsibilities required, and not the merits of
the incumbent.
Thus, in making the following analysis and coming to the
following conclusions, we have done so'qn the basis of
the duties and the expectations of the positions, not on
the basis of the vase individual expertise, competence
and experience that the grievors possess [sic].
In quoting the Ho case, with approval, the Board,
in wet 88/90 etc. (Gorsky), noted that the evidence
may disclose that a -grievor might' be performing functions not
actually assigned to him/her "as part of his regular duties and
responsibilities" because "there was no expectation that he shouid
perform it . ..*~ (at p.44). It is a question of fact, in each case,
whether a grievor has had certain duties and responsibilities
assigned to him/her or whether ~they have been assumed because they
add a certain fillip to the job. There was evidence before us that
a person could perform vocational rehabilitation counselling at a
rudimentary level and that there were community college diploma
courses and university programs in that discipline to the Ph.D.
level. The evidence disclosed that many of the Grievors had a
number of university degrees, .while some of their supervisors
merely had grade 13. They had a lively intellectual interest in
their work and many of them e~ndeavoured to bring to theirwork a
higher l~evel of functioning based on their individual qualities.
We are .satisfied from the evidence that the Grievers' supervisors
were pleased to enable them to introduce a higher order of i
sophistication into their job functioning. Each case must be
124
decided on its own facts, and there may be cases where employees,
have
leve
than
1
been led to believe that they were expected to perform at a 2
requiring greater skills, qualifications and responsibility
is provided for in their position specifications.
Although the philosophical goal of the institutions where the
Grievers work has undergone a significant change whereby the
emphasis of the programs conducted are no longer narrowly custodial
and diversional but are genuinely structured so as to aim for the
integration of the client .population' into the community, the
evidence was clear that only a minuscule number of the Grievor?'
client population could, expect to be placed in regular gainful
employment. It is a tribute to the work of the Grievor? that the
program has striven to give the clients the very best chance of
succeeding in other than diversionary activities or in sheltered
employment.
We have only the highest regard for .the effort, skill,
dedication and integrity' manifested by the Grievors. Their
sincerity was evident, and their desire to offer more assistance to
their clients is commendable. However, as we have stated earlier,
we are as much prisoners of the classification system as they are.
In this regard see Zakrewski, 90/88 (Samuels), at p.14:.
Generally, this Board has made it clear that it is the
job which is classified, not the incumbent. An incumbent
may be over-qualified for the job, but this does not make
any difference to the classification. But in this case
125
the general rule does not work. This is a job with a
very flexible top end. The environmental officer is
called on to deal with contamination. -I
ALSO see &ZQ, 1021/89 (Roberts), at p.14.
The above discussion of the law is concerned with general
statements applicable to a wide range of fact situations. What
follows is a discussion of some of the legal principles applicable
to the special facts of the grievances before us.
Throughout the hearing, the Board invited counsel for the
parties to provide it with assistance so that the members of the
panel could understand what was meant by various terms of art found
in the socia.1 worker class series. For example, the term
"professional social work services" found in the preamble:
"Provision of professional social work services in provincial
programs of social development, adjustment, prevention and
rehabilitation." Another term of art found in the preamble is
"social work methods" in the sentence: "Employees use one or more
social work methods to assess, treat or prevent the underlying
causes of social dysfunctioning, both personal and environmental."
The term "professional social work services" is also found in the
class standard for Social Worker 2. Another term that we wished to
have explained, also found in the Social Worker 2 class standard,
is "formulate psychosocial diagnoses of the personal environmental
causes of social dysfunctioning.'" The term "social work methods"
is also found in the Social Worker 2 class standard. The term
126
"methods of social work" is also found in the "knowledge and skills
required" portion of the Social Worker 2 class standard. ,.
It is evident that the Social Worker 2 class standard involves
not merely social work services. but professional social work
services. Given the placement of the onus, it was for the Union to
satisfy us, on a balance of probabilities, that the Grievers
provided professional social work services. In Hoffman-Fitz
(a) the grievers were Investigative Social Workers in the
Office of the Official Guardian, classified as Social Worker 2's,
and claimed that the unique nature of their duties ad
responsibilities were such that the SW~ .classification was
inappropriate to their positions, and sought a m order. In
'describing their duties and responsibilities, the Board emphasiz.ed
those duties and responsibilities that represented "social work
skills". Reference was made to certain “Social Work Agents," who
worked on a per diem basis for the Official Guardian, whose work
was supervised, to some extent, by the grievers. The Social Work
Agents were said to also be "professional social workers." (p.3)
At p.5 of the Hoffman-Fit2 case,.the Board noted, at p-5:
As Ms. Heisey [the grievers' supervisor] herself said,
"When I hire a Master's degree, I am hiring judgment as
well." Thus, Ms. Heisey explained that she relies on the
professionalism and the expertise of the Investigative
Social Workers tthe grievorsl to know when and in what
circumstances they need to consult her about their own
reports or about fundamental, legal or po'liCy problems
with a Social Work Agent's report.
127
At p.10 of the Hoffman-Fits case, the Board focussed on the
fact that: i
The Social Worker 2 Class Standard indicates that the
Class covers 'the position of qualified Social Workers
who provide professional social work services to clients.
. . .
In dealing with what is a social work technique, the Board, at the
same page, noted its finding that a particular technique
(Alternative Dispute Resolution) was "taught in schools of social
work as social work techniques."
At p.11, of Hoffman-Fitz, the Board stated:
The Social Worker 2 Class Standard envisions. that people
wquld "supervise and review the work of Social Work
Assistants, Child Care Workers, Residential Counsellors
and.other staff in the area." Filed before the Board
were the Class Standards for the Social Work Assistants,
Child Care Workers and Residential Counsellors. All
these positions envision undergraduate degrees or
certifica,te programs. The Social Work Assistant is
something quite distinct from the professional Social
Worker or Agent that these grievers are called upon to
supervise.
Thus, although we are bound by the Employer's credentialism policy
and recognise that a person can fulfil the role of a professional
Social Worker without having graduated from a school of social ~work
with either .a Bachelor or Masters of Social Work degree; one
acquires certain knowledge and skills based on the academic program
given in a school of social work. These must be identified in
order to be able to establish that the Grievers, none of whom is a
graduate of a schoo 1 of social work, has acquired the skills and
128
knowledge of a professional social worker notwithstanding the
absence of formal credentials. 8
Professional social workers can function in that capacity in
a large number of different settings. Although persons in a large
number of different positions may be carrying out duties and
responsibilities that appear to be the same as those carried out by
professional social workers, does that make them professional
social workers? For example, within psychiatric facilities, such
as those where the Grievers are employed, many different kinds of
~professiona~ls perform group therapy:, psychiatrists, registered
nurses, social workers, occupational therapists, registered
psychiatric nursing assistants, psychologists. To a casual
observer,~.and in fact to a patient, group therapy is group therapy.
To an expert, however, the techniques employed would owe a great
deal to the training and knowledge of each discipline. While each
group therapist w.ould be conducting group therapy, the nature of
that therapy would be greatly affected by the background of
education and knowledge particular, to, the discipline of the
therapist.
The Board can ignore credentials, in the sense that it is
required to do so because of the Employer's credentialism policy.
It cannot, however, ignore the base of knowledge 'and training that
stands behind a person's credentials. There would have 'to be clear
and cogent evidence to establish that a grievor, absent the usual
129
credentials associated~ with a classification, had acquired that
level of trainings and knowledge, in some other fashion. Registered >
nurses, paramedics, and medical doctors may perform similar medical
procedures. However, when they do so, they would be expect'ed to
manifest, in the absence of other evidence, that degree of skill,
knowledge and training associated with their separate disciplines.
The same situation would apply to many other professional
relationships. Thus, many para-legals perform legal work oft a kind
that is also performed by lawyers. In the absence of other
evidence, it would not be proper to state that a legal para-
professional .is a professional lawyer. The examples given take
into consideration that in some of the situations described, it is
not legal to. practice the profession without a professional
designation. This, however, does not change the validity of the
example.
A case that furnishes some guidance in dealing with the issues
created by the grievances before us is that of Anderson et al.
605/80 (Stewart). I,n that'case, there were four grievances,~ and by
agreement of the parties, a representative grievance was heard.
The grievers claimed that they were improperly classified as Social
Workers 1. At the time the grievances were filed, the grievers
were case workers in the Home for Special Care/ Community After-
Care Program employed at the London Psychiatric Hospital and were
classified as Field Worker 1, but, after the grievances were filed
they were reclassified as Social Worker 1. The grievers claimed
130
that they were still improperly classified and claimed that they
should be reclassified as Social Worker 2, Nurse 3 General or ,I
Rehabilitation Counsellor 2. The alternative claim made 'by the
grievers was that if none of the classifications sought by them
were found to be appropriate, the Board should order that the
matter be remitted to the employer for the establishment of an
appropriate classification in accordance with w. The employer
took the position that the grievers were properly classified as
Social Worker 1.
The Homes for Special Care program deals with clients who are
mainly chronic schizophrenics, whose illness is under control but
is still debilitating. The clients of this program are able to
live and function in the community with supervision and support.
The representative grievor was a Registered ~Nursing Assistant
and a Psychiatric Nursing Assistant who also had a diploma in
community mental health, which she received after completing a two-
year course at a community college. She also took university
courses in psychology and sociology as well as a number of one- or
two-day seminars dealing with various aspects of mental health.
She commenced her employment with the London Psych~iatric Hospital
in 1968 as a Registered Nursing Assistant and was employed for ten
years on an adolescent unit in the hospital where she carried out
counselling and case work with adolescents and their families.
!
I 131
This work was carried out under the supervision of the nursing
department.
The representative grievor was employed in the HSC program
commencing in 1980. Much as the representative Grievor in the case
before us:
She testified [at pp.2-31 that her work is not directly
supervised as, by and large, she functions independently
in carrying out her responsibilities. Weekly meetings of
the HSC unit are held, at which time problems are
discussed .in a collegial manner. Case load assignments
are based on the location of the client. The case load
,is varied and Ms. Anderson testified that assignments are
not selected to provide for development of skills. The
HSC programme is part of the social work department.
However, there are no representatives of the social work
department present at the weekly meetings of the HSC case
workers and no direct involvement or supervision of the
HSC .programme comes from the social work department. Ms.
Anderson stated that her involvement with the social work
department is limited. The case workers and social
workers attend monthly departmental ,meetings. Mr.
Sussman, director of the social work department, does not
provide any day to day supervision but Ms. Anderson
stated that if there was a matter such as an unusual
purchase or a change in funding ,she would refer the
matter to her supervisor who, in turn, would refer it to
Mr; Sussman.
At pages 8-9 of the Anderson case, the Board noted' the
evidence of the representative grievor:
. . * while the orientation of the HSC programme was
originally to provide housing, rehabilitation is now
being provided to some extent by the case workers.
Presently, approximately three clients per month are able
to move to a programme that requires less support or to
independent living., Ms. Anderson stated that
approximately 25% of her clients have potential for
employment and that she is involved in vocational
rehabilitation on their behalf but that the needs of her
other clients relate more to basic living skills.
132
In dealing with the way in which the grievor was classified in
the Anderson case, the Board noted, at pp.9-10:
Bryan Neale, the regional personnel administrator with
the Ministry who is responsible for the preparation of
job specifications and the evaluation of those
specifications against the class standards testified that
he was involved in the decision to classify the HSC case
worker position as Social Worker 1. He stated that he
felt that the existing classification of Field Worker 1
was inappropriate because of the extent to which the
duties and responsibilities of the position had expanded.
He stated thathe examined the Social Worker series as
well as the Rehabilitation Officer series and that
neither of these series fit the position "hand in glove".
He stated that he felt the Rehabilitation Officer series
was inappropriate because it appeared to be designed to
encompass positions which primarily involve vocational
rehabilitation. He was also concerned about the
appropriateness of the Social Work classification because
of the reference to a social work degree which is
contained in that series.
Ultimately, the grievers in Anderson were classified as Social
Worker 1 by the employer because certain persons having similar
positions were so classified within the Ministry at the St. Thomas
Psychiatric Hospital, Hamilton Psychiatric Hospital and Kingston
Psychiatric Hospital (at pp.lO-11).
That there are difficulties in establishing where to classify
persons performing duties and responsibilities that are performed
across a spectrum of classifications is made clear from the
following statement found at p.11 of the Anderson case:
The Union alleged and the employer agreed, without
requiring the Union to adduce evidence, that there were
certain differences with respect to the programmes that
the case workers were involved in at these other
institutions. In particular, with respect to the St.
Thomas programme, it was agreed that clients with
rehabilitative potential are not placed in this
133
programme. At Kingston Psychiatric Hospital 75% of the
clients are mentally retarded rather than mentally ill.
At Hamilton Psychiatric Hospital there is a personother
than the case workers who is responsible for recrea'tional
programming for that programme's clients. In Whitby the
HSC case worker position is classified as Nurse 3
General. In North Bay and Thunder Bay the persons who
perform the HSC case worker duties are classified as
Social Worker 2.
In concluding that the grievor-s, as case workers in the HSC
program, did not fall within the Social Worker 1 class standard,
the Board noted, at p.12: "As the preamble to the Social Worker
series indicates, it.is intended to apply to professional social
workers. The Social Worker 1 classification is the entry level
position which is to provide training and experience under close
supervision for newly graduated social workers."
Referring to the Social Worker 2 class standard, the Board
noted, at2 p.13:
This class standard is intended to apply to "qualified
social workers" who provide "professional social work
services" and "formulate psychosocial diagnoses of the
personal and environmental causes of social
dysfunctioning". Clearly, it does not encompass the work
performed by the case workers in the HSC programme.
While the classification ,of case workers at other
institutions as Social Worker 1 makes Mr. Neale's
decision to classify the grievors as Social .Worker 1
understandable, this evidence does not establish that the
grievor-s are properly classified. In addition, given
that the duties of the grievers are not identical to the
duties of the employees at these institutions and that
case workers in other institutions are classified as
Nurse 3 General and Social Worker 2, the fact that some
case workers involved in a Homes for Special Care
programme at other institutions are classified as Social
Worker 1 is of little assistance in resolving the issue
at hand.
134
In considering the Rehabilitation Officer 2 classification,
the Board stated,~ at p.14: ".,. This classification is orJented
exclusively toward vocational rehabilitation services 'which
comprise only one aspect of the duties performed by the grievor-s.
. . , It
met 176/89 (Knopf ) is another case indicating
how a number of different classifications will give rise to similar
duties and responsibilities in circumstances that are significant
ii
in the cases before us. In the latter case, the union claimed that
Psychiatric Nursing Assistants (PNA'S) at two provincial
psychiatric facilities were improperly classified. The grievor-s,
who were recognised as health care professionals, were trained at
the Community College level and accredited by the College of Nurses
of Ontario, as Registered Nursing Assistants. After taking
additional specialty training at psychiatric facilities they
qualified as PNA's. The union alleged that because of the level of
responsibility and tasks expected of the PNA's, they were
improperly .classified'and should be classified as Nurse 1 General.
Then latter classification covered, for the most part, graduate
nurses who had not achieved registration with the College of,
Nurses.
The case proceeded by way of representative grievors from the
London Psychiatric. Hospital and the St. Thomas Psychiatric
135.
Hospital. Among the duties testified to by one of the grievers was
her participation (at pp.Z-3): ,
. . . in several therapeutic programs for the patients
including family counselling, drug and alcohol abuse,
life style programs, medication awareness, discharge
.planning, group therapy, adolescent groups, activity
groups' (leisure time) and abuse groups (rape and incest)
and assertiveness training. The PNA's may get involved
leading such groups on the adolescent 'unit. The PNA's
are not required to lead any groups but where a
therapeutic group is being held in an area of expertise
in which the PNA has an interest or specific training,
s/he may if s/he.wishes may be assigned to lead such
group.
MS. Sullivan also testified regarding the PNA's
responsibility to provide reality orientation to patients
to help them gain an awareness of time, place or person
and to dispel delusional, behaviour. They also must
perform grief counselling when a chaplain or social
worker cannot be found to help a distressed patient.
Further, at p.8 of the SB cake, the Board noted:
It was submitted that the PNA's are now required to
exercise professional judgment and expertise, are
actively responsible for the treatment and care of
patients and that these are not contemplated by the
original Standards. This was said to be evidenced by the
new concepts of Primary Nursing and the evolution of
Nursing Care Plans and the PNA's responsibility on the
multi-disciplinary teams.
The multi-disciplinary team is referred to at p.3 of the
decision:
In addition, the PNA's participate in a multi-
disciplinary team and treatment plan. This team consists
of a psychiatrist, occupational therapist, social
workers, psychologists, recreational therapists, nurses
and PNA's. The team meets in conference four to six
weeks after the admission of the patient to focus on the
"overall picture or plan of care for a particular
patient." The PNA has a great deal of inputto give the
team because of his/her direct contact with the patient
on a continuous or regular basis.
136
At pp.13-14 of the decision, the Board concluded:
Finally, the PNA's simply do not have the educafional
requirements of the Nurse I Generals. Given the
different level of medical responsibility of the N&se I
General with respect to administering of medication,
sterile dressings, oxygen, intravenous, care of
unconscious patients and ordering intrusive ,procedures,
the Employer has satisfied the Board that the higher
education requirements are necessary to fulfil the added
medical responsibilities of the nursing series. We
recognise that the specialised psychological component of
the PNA's training equips them well for their tasks and
that they develop an invaluable expertise and specialised
knowledge from their continuing professional development.
But we accept the Employer's evidence that the further
depth achieved in the accredited nursing course of at
least two years' duration is a valid job requirement for
the Nurse I General position.
While, in the case before us, it may not be necessary for a
Person to have graduated from a professional school of social
worker to carry out'the duties Andy responsibilities required of a
Social Worker 2. where this isnot the case a grievor claiming the
SW2 classif'ication must demonstrate that he/she has, .in some
manner, acquired the "further depth" that would be achieved upon
graduation from an accredited professional school of social work
where in order to obtain a bachelor's degree, a student must
satisfactorily complete four years of academic and placement
training, and in order to obtain a master’s degree the applicant
must complete two post-graduate years in a recognised professional
school of social work. A graduate of a four year Bachelor of
Social Work program may attain the master’s degree after one year
of study.
(.:
!
137
Using the example of group therapy, merely because a
registered nurse, for example, may lead group therapy sessions,
and, on other occasions, the sessions may be led by a psychiatrist,
psychologist (from the Bachelor's to the Ph.D. level), a social
worker either BSW or MSW, or an occupational therapist, does not'
mean that they are carrying out the function in exactly the same
way. The background of theoretical knowledge and specialized
practical experience of each of the disciplines will affect the way
in which they carry out the common responsibility. It is the
special attributes of a training program for a specialiied
discipline that will usually determine wh,ether a person is
functioning at a professional level within that discipline. So, a
professional social workerusing professional social work skills is
carrying out his or her functions in a way that can be
differentiated from the way in which another professional, such as
a registered nurse, will carry out the same function. A lay-
person, without formal professional qualifications, carrying out
functions that can be carried out .by any number of different
professionals may be,emulating all, some or none of them. It would
take significant cogent evidence to satisfy us that a non-
professional ,had, in some fashion, acquired the skills and
knowledge to carry out a particular function associated with a
particular profession up to the level expected of such a
professional.
138
The grievances were, in part, motivated by certain changes
which were introduced into the BPH (and other like institutions)
which have been referred to in other cases including v
&, 1265/88 (Wattersl. Some of the history recited in the latter
case is relevant to the grievances before US. In Charbonneau et
al,. grievances were filed by 12 employees at the BPH,~all of whom
were Recreation Therapists classified as Instructor 2's. Recreation
and Crafts (I.2 R.C.). The parties could not agree on a
representative grievor, and one case was heard with the other
claims being deferred until after the release of the Charbonneau
award. The grievor whose grievance was heard in charbonneav was-a
Mr. Newcombe.
At p.1 of Charbonneau, some of the history at the BPH is set
out :
B.P.H. is a four hundred and ninety (490) bed facility
serving Eastern Ontario. It is~ comprised of twelve (12)
wards, eight (8) of which are focused on patient
rehabilitation. The others are designed to treat persons
whose stay in the hospital will be for the longer term.
Care and treatment is provided by a cross section of
disciplines including psychiatrists, psychologists,
social workers, nurses, pastoral care workers, and
recreation therapists.
There was a similarity between the position of the Grievers in
the case before us and that of the grievor in Charbonneau, where
the Board stated at p.3:
The grievor testified extensively about his duties and
responsibilities subsequent to his placement on Ward 5A
in, late 1985. He also described his work in the
Recreation Department prior to such placement.
Generally, it was his position that his job had changed
.
over
139
the years in a qualitative sense. More
particularly, the grievor asserted that this change
occurred as a consequence of a modification to the
hospital's mandate. Both parties agreed that as of late
1985, the B.P.B. committed itself to the objective of
community re-integration. The grievor stated that this
change 'of focus had a significant affect on his work
after 1985.
In applying the tests applicable to class standards cases, the
Board stated at pp.3-4:
The Board elects to initially describe ~the grievor's
duties as they developed in the period 1985 to 1988. It
is these duties which must be assessed in order to
determine whether the job falls within the scope of the
class standards. We will then detail the changes which
the grievor experienced over his entire period in the
Recreation Department. At the outset, we wish to make
clear that the mere fact of change does not in itself
justify a reclassification. It is incumbent on the party
relying on a change oft duties to show that they have
qualitatively affected the position such that it is no
longer caught by the language of the class standards.
La.stly, we will summarize the, evidence led by the
Employer. Simply put, it was the thrust of such evidence
that while the job of .Recreation Therapist might have
changed, it continued. to be properly classified at the
1.2, R.C. level.
In the WU case, the grievor testified that the
emphasis in his work changed in response to the Hospital's
commitment to community reintegration, so that he spent about 80
per cent of his time setting up individual treatment plans far.
patients with only 20 per cent of his time being devoted to patient
participation in pre-set activities (p.4).
The grievor contrasted the situation existing prior to the
change in focus in 1985. He described his delivery of recreational
services prior to 1985 where patients were assisted to engage in
140
pre-set activities of a diversionary nature (p.5). The Board found
that the program at that time "had a custodial element" (p.>J.
As in the case of the Grievors before us, the grievor in
Charbonneau testified that he was an integral part of the ward
treatment team whose composition and activities were described as
follows (at pp.5-9):
The above-described situation was contrasted with that
existing prior to 2985. It was the grievor's evidence
that he then delivered recreational services out of the
West Activity Centre. There were several similar centres.
located throughout the hospital. The grievor, and the
other Recreation Therapists working in the centre, did
not have offices at that Idcation. The grievor stated
that groups of between twentg-five (25) and forty (40)
patients, from a number ,of wards across the hospital,
would be escorted to the centre to engage in pre-set
activities such as pool, shuffleboard, table games and
crafts for periods of up to three (3) hours. This group
of patients would include those persons who had been
specifically referred to the grievor by the psychiatrist
for the ward to which the grievor had been "linked". The
grievor described the activities occurring in the
activity centre as having a "diversional objective". At
the conclusion of same, the patients would be escorted
back to their respective wards. It is apparent to us
that the program had a custodial element as the centre
was considered to be a "secure area". Additionally, a
"sharp count" was undertaken before the patients departed
for their wards to minimize, the possibility of subsequent
injury to residents or staff.
The grievor testified that he was an integral part of the
ward treatment team while in Community Placement. That
team included the professionals previously referred to.
While it was 'conceded that the psychiatrist had the
ultimate responsibility for treatment, it was the
grievor's assessment that the team functioned on the
consensus model. He testified that all of the team
members' opinions would be solicited and respected. From
his perspective, all of the care and treatment pr~oviders
had an equal amount of input into the development of the
treatment plan for a particular patient.
(;l.. : (:
141
The ward treatment team would conference weekly to review
its existing caseload and to familiarise itself with new
patients.
disciplines
It was the grievor's evidence that any pf the
in attendance, including. the Recreational
Therapist, could elect to work with an individual
patient. More specifically, he stated that he would
decide if recreation therapy could be employed to satisfy
the~particular needs exhibited by a patient .on the ward.
This decision to intervene did not require the prior
approval of, or a referral from, the psychiatrist. While
a revised referral form, (exhibit 12) was in place as of
October, 1985, it was the grievor's recollection that its
use decreased with the passage of time. Indeed, he
asserted that patients were not generally referred to him
bY the psychiatrist. Rather, he would initiate
involvement during the ward treatment conference. In
addition to isolating the needs of particular patients on
the ward, the team would meet regularly to monitor their
progress and to discuss the general direction of the
rehabilitation program in view of the current mix of
patients. It also would deliberate vis a vis patient
discharge. In summary, the grievor stated that he, as a
Recreation Therapist, operated as a peer or professional
equal in terms of the work performed by the team.
The grievor distinguished the above-described role from
his earlier involvement in the interdisciplinary
treatment conferences. It was the thrust of his evidence
that the physician-psychiatrist would generate a referral
to the Recreation Therapist through the completion of a
referral form (exhibits 8, 12). This form would
indicate, albeit not in great detail, the purpose of the
referral; limitations affecting recreational activities;
and long and short-term objectives relating to potential
discharge. The grievor stated th,at, generally, direction
was given therein as to how he should work with the
patient. He ~would then accept the referral in most
instances and would proceed'to carry out the plans set
out by the psychiatrist. He viewed this role as that of
a subordinate.
The grievor testified that, after his placement in Ward
5A, he was extensively involved with the development-and
implementation of the recreation component of individual
treatment plans.. The initial .stage of this process
required that he engage in an interview with the patient
to complete a ten (10) page Leisure Assessment Form
(exhibit 13). This document., which was first implemented
in the spring of 1988, had four (4) components, these
being: (i) Client Interview & Interest Survey; (ii)
Assessment-Observatidn; (iii) Creation of An Individual
Recreation Plan; and (iv) Monitoring and Evaluation. The
( :::
142
first stage of the process served to isolate the
patient's interests in areas such as sports activities,
part-time activities, spectator activities, arts, c,rafts,
hobbies, clubs or group activities, and trips and travel.
The aforementioned interview would permit the grievor to
survey the patient's interests in these areas and would
allow for the development of rapport necessary to the
ultimate success of the treatment plan.
The Recreation
Therapist would next place the patient in one or more of
these activities in order to observe and assess their
social interaction, emotional expression, cognitive
performance and abilities, and physical 'performance.
Following this assessment, the grievor would then
formulate a series of treatment. goals. The resulting
treatment plan would be canvassed with the patient to
ensure that they were willing and able to become 'fully
,involved with same. The ward treatment team would also
be apprised-of all of the developments throughout this
process. .Indeed, to be effective the recreation plan had
to be consistent with the overall treatment plandevised
by the team. The patients progress in treatment was
continually monitored and charted. This could result in.~ some modification to the recreation plan.
The 'grievor expressed the opinion that the primary
function of the Recreation Therapist was to assess the
.patient and to thereafter prepare and implement the
recreation component of. the treatment plan. He stressed
that such plan was individualized in that it would
address the peculiar needs of a given patient on the
ward, The grievor suggested that this type of
responsibility was materially different, in both a
quantitative and qualitative way, from that engaged in at
the activity centres when he worked with larger groups.
He conceded that the types of activities available to
patients were similar during both periods. He
emphasized, however, that after 1985 the program selected
was tailored to the individual needs of the patient. It
was the grievor's assessment that his work in Ward 5A and
in the Elmgrove Unit was significantly more therapeutic
in comparison to the tasks performed within the activity
centres. As noted above, he characterised the latter
work as diversionary in nature.
The Board, at p. 11, also referred to the evidence of the
grievor's supervisor, from 1985 to .the date of the grievance, whose
evidence supported that of the grievor:
143
Indeed, he expressed the opinion that the Recreation
Therapist was responsible for the entire recreation plan
and for all decision making in respect of same. From his
perspective, the grievor was expected to show gieater
initiative once he became ward based.
The Board also referred to the evidence of a head nurse at BPH
who supported the evidence of the grievor and who also stated:
While Ms. Millar agreed that the psychiatrist was
ultimately responsible for medication and ~establishing
~the "privilege level", she suggested that~ every
discipline had a significant'responsibility as part of
the team. She stated that the "exclusive territories of
any one discipline tend to get blurred." Ms. Millar
stated that award 5A was unique in 1985 in that it was the
first ward to change the thrust of, its approach to
rehabilitation.
The Board .also referred to the evidence of Professor Adrienne
Gilbert, a Lecturer in the Department of Recreation and Leisure
Studies at the University' of Waterloo, who gave evidence on behalf
of the union and who was accepted as.an expert by the employer who
could testify on the subject of therapeutic recreation. In
examining the class standards, Professor Gilbert concluded, at
p.13, that they did not deal with the person engaged in
"therapeutic recreation" but related to a person primarily involved
in "diversional activities."
The significant conclusion of the board in Charbonneau is set
out at p.29 of the decision:
After fully considering the evidence and argument
presented by both parties, the Board has concluded that
the 1.2 R.C. class standards no longer encompass certain
significant aspects of the Recreation Therapist position.
This has resulted from the fact that the standards, last
revised in 1969, have not kept pace with the developments
144
which have occurred at B.P.H. since 1985. More
particularly, they fail to reflect the grievor's core
duties as a Recreation Therapist subsequent to the
hospital's change in mandate. For reasons ex@i-essed
below, we find that the institution's commitment to
community reintegration led. to several related changes in
the grievor's job, all. of which were of a qualitative
nature.
The Board (at p.30) regarded the class standard as providing
"for activities of a purely diversional nature." Although the
Board (ibid.) did not find the class standards,to be "entirely
diversional in substance," and would "cover positions which would
be somewhat involved in rehabilitation therapy," (ibid.) it found
(ibid 1 that: A
The Board 'is unable to find, however, that the class
standards adequately describe the role of the Recreation
Therapist as it developed subsequent to 1985. From that
date on, the grievor's fundamental purpose while onward
5A was the provision of therapy and rehabilitative
services such that the patient could be successfully
returned to the community. In our judgment, the current
standards ,fail to sufficiently describe the extent of
therapy offered by the Recreation Therapist. Indeed, we
are satisfied that all of the core activities of the
grievor's job can be linked to a therapeutic objective.
The Board also reached a similar conclusion (at p.31) with
respect "to the formulation and execution of individual treatment
plans." This was viewed as part of the "overriding objective . . .
to assist in the formulation and execution of an effective and
comprehensive treatment plan." The Board concluded (ibid.1 that
"on a review of the class standards Iit was1 not satisfied that
they contemplate a therapeutic role of that magnitude."
1. \ ~, _.
4nnis et al . ,
,.~-
( :.
145
1872/90 (Roberts) is another. case involving a
grievance claiming improper classification within a classifiyation
that contains references that might be found in a social? work
category. The'grievors in that case were classified as Field
Worker 2's and occupied positions "of a hybrid nature." They were
a group of four provincial employees working in the Employment
Support Initiatives Program (ESI). The thirteen other counsellors
in the ES1 program were municipal employees. 1n the circumstances,
the grievers had been seconded to the municipality and performed
the same duties and responsibilities as those employees working for
the Municipality. The placement of the grievers was originally as
Welfare Worker 2'9, as this was the closest classification "salary-
wise, to the ‘salaries being paid to the municipally employed
counsellors."~ (p.2 )
The grievances
salary levels for
arose because of the widening gap between the
the two groups of employees, while the
counsellors still did exactly the same work.
The purpose of the ES1 program was to encourage sole Support
parents who were on welfare to improve their "employability" (p.3).
"Its major component was counselling and advocacy to prepare
clients for a future of self-sufficiency" (p.3).
The counselling function of an ES1 counsellor was two-fold:'
(1) vocational and employment counselling; and (2) supportive
146
counselling. The latter form of counselling "involved counselling
regardiny anything in the client's personal situation acting as a i
barrier to accomplishing her employment goal -- health, prdb'lems
with,her spouse, problems with her children, poor housing, lack of
self-confidence, cultural problems, racial problems, and literacy
problems" (p.4).
Vocational employment counselling: "involved assisting the
client to make a realistic assessment of her needs at that
particular time. It involved assessing her interests, abilities,
values, and motivation to begin the process" (p.4).
It is significant that in the &nn.& case the Board felt that
it could not ignore "express references to a particular type of
work" found in the grievers' class standard (at p.16). The Board
was also affected ,(at p.161 by the fact that: '@By specifying' in the
opening sentence of the class definition that it dealt with those
who determined eligibility of applicants under welfare allowance
programs, the drafters 'zeroed in' on a very specific area. We
know of no principle of construction that would dllOW us to expand
that area beyond those confines."
.Another case that demonstrates the range of classifications
involving different training and skills that might be involved with
patients in psychiatric settings is Norton, 2181/87 (Stewart),
where, in considering the Scientific and Professional Services
147
category, the Board noted that the Category included: "...
positions involving the psychological diagnosis, assessment :,.. and
rehabilitation of patients in psychiatric . . . and rehabilitation
settings . . . .(( This was done in the context of a grievance
involving a psychologist classified as Psychologist 1 who held a
Ph.D. in psychology.
In B$, 39/89 ,(Slone) the Board, at p.16, referred
to l&n&~, 43/77 (Adams), at p.5, where the Board, in referring to
the usage test stated:
. . . ,the application or purported applications of those
standards ~to other positions involving identical or
nearly identical work to that which the grievor performs.
This latter consideration is relevant because the actual
classifLcation practices of the employer may
substantially modify the documented standards relied upon
and because the treatment accorded other employees is
very often the underlying reason for grievances of this
kind.
Further, at pp.16-17 of Braund, the board stated:
More recent cases have not altered this test in any.
respect material to this grievance. In u,
891/.85, Vice-Chairperson Samuels summarized the law with
respect to the usage approach as follows, at p.8 of the
award:
"Thus, it is suggested that, if the Employer can
show that the employee with whom the grievor is
comparing himself is in fact wrongly classified,
then it is not sufficient for the grievor to show
that his tasks are the same as this other higher
classified employee. And this suggestion is
reiterated in Wrisht 248/81... But this is the only
exception suggested to the general rulethat it is
148
sufficient to compare the grievor's job with the
job done by one other higher rated employee....
In McLean 499/82, the Board said that the claim for
reclassification would succeed if 'the Gri'evors
were performing the same duties as those of other
employees within the higher classification sought'
(at p.11). While it might be said that this
suggests that the comparison must be made with more
than one employee, the authority relied on for this
statement is Roundina. Lvnch. Wheeler, Montaaue and
McCourt. And we have seen that these authorities
say it is sufficient to make the comparison with
One other employee, subject perhaps to the
possibility that the employee to whom the grievor
is compared is wrongly classified."
In dealing with the degree of similarity that must be found to
allow a usage argument, the Board in Robinson, 1817/91 (Kirkwood)
stated at p.13:
. . . ,the test has been modified such that the Board
presently accepts the "substantially similar" test as set
out in Beals and Cain t30/79 (Draper)]. Although the
grievor-s in .Bors [283/91, 13971811 met a higher standard
in that the work between the two comparators was
essentially the same, the Board ,points out the
underlining philosophy of the usage argument to apply the
concept of fairness and equal~ity of treatment, both in
status and in wages, of people performing essentially the
same work. The Board adopts the reasoning in 'the Beals
and Cain case and quotes:
It may be assumed that among the objectives of the
employer's classification system are the
achievement of uniformity in policy and consistency
in practice throughout the public service, and
equitable treatment of individual employees. It
follows that it is an abuse of the system and
unfair to employees where the positions of
employees who are performing substantially similar
work are placed' in different classifications. By
intervening where that condition is found to exist
the Board, rather than frustrating the intent of
undermining the operation of .the classification
system, is preserving the legitimacy and
credibility of the system.
149
Beals and Cain has been applied time and time again,
. a,. . Where the work between the two grievers and
employee being compared is the same, they ought .to be
classified the same. There ~may also be situationslwhere
there are dissimilar elements, but the core functions and
responsibilities are similar. Inherent in the concept of
"substantially the same" is that the essential elements
of the job must be substantially similar. We ,must then
consider whether Mr. Robinson's job is substantially
similar to Mr. Schrader's.
Questions have arisen in usage causes as to the number of
employees there must be performing substantially the same work in
a higher classification for the argument to succeed. In Carvalho,
1484/84 (Roberts), the Board stated at pp.16-17:
Turning to the class usage argument, this brought into
question application of the recent decision of the
Divisiorral Court in Re Lowmpn andt
; ans
for ..Iudgzent
ications, Unpublished Reasons
(November 15, 19841. Prior to this
decision, .it was the position of the Grievance Settlement
Board that in order to succeed on class usage, it was
necessary for the Union to show that in practice, the
employer had varied.the written Class Standard in such a
way as to encompass the work of the grievor. The Board
took the position that there "must be a consistent
practice of varying the Class Standard", Re Lou
&E (1984), G.S.B. #13/82 ,(Saltman). Indeed, in line
with this requirement, the Board i'n Lowman, saxa,
decided against the grievers on the ground that the
"practice" requirement was note satisfied by showing that
only one,employee in a higher classification performed
the same work.
Upon judicial review, the Divisional Court quashed the
decision of the Board in Cowman, stating, in pertinent
part:
Having found that there was an employee performing
substantially the same duties as the grievers and
that such employee had been deliberately classified
by the respondent in a higher classification, the
Board acted . . . without jurisdiction in failing to
find that the grievor would be properly classified
in the higher classification.
150
The higher classified employee and the four
grievers are the only persons in the public service
performing the function of remote sensory
supervision. In the circumstances we are b~f the
opinion that it does not assist the respondent to
argue that the senior employee may have been
improperly classified. . . .
(Divisional Court Decision, m, at p. 1.1
At pp.18-19 of the Carvalho case, the Board stated:
Reading the decision of the Divisional Court ,in Re Lowman
as a whole, we are led to conclude that the Divisional
Court did not intend to reject the general rule of this
Board that in order to succeed on a class usage argument
the Union must show the existence of a consistent
practice of- varying the Class Standard. Absent special
circumstances, it does not satisfy this "practice"
requirement to show that only one employee in a higher
classification performed the same work as the grievor.
The Lowman case, sJg.E&, was an example of special
circumstances which brought the case outside the ambit of
the .yeneral rule. As the Divisional Court noted in its
decision, it would have been impossible for the grievors
to.show that.more than one other employee who performed
essentially the same work was classified at the claimed
higher level. In the entire Civil Service, there were
only five persons performing similar work-- the four
grievers and the higher classified employee with whom
they sought to compare themselves. It seems to us that
the Divisional Court recognized that to apply the
"practice" requirement of. the Board in these
circumstances would be tantamount to denying the grievers
their right to grieve.
In the present case, there were not any special
circumstances to render inapplicable the general
"practice" requirement.
In the &X&J& case the Board found that (at pp.19-20):
The only higher classified job which was shown to be
substantially similar to that of the grievor was that at
Whitby. But, as has been indicated, in the absence of
special circumstances the existence of one substantially
similar job in a higher classification does not show that
in practice, the Ministry varied the written Class
Standard so as to encompass the work of the grievor. As
151
a result, the class usage argument must be resolved in
favour of the Ministry.
In Bahl et al., 891/85 (Samuels), there were eight grievors,
all classified as Clerk 4 general, who claimed that they ought to
be classified as Clerk 5 general because the Senior Clerk in their
office was so classified and the grievers stated that they did
essentially the same work as the Senior Clerk.
The Board found, at p.4, that the union had established that
the grievers performed "the same or essentially similar work as
[was.donel by the Senior Clerk in their office [who was1 classified
as a clerk 5 general."
The employer, in the .&&LL case, argued, at p.4, that it was
not enough to show that one .person performing essentially th,e same
work had been assigned to a higher classification and it was
submitted that the union must show that there are a number of
employees who are in the higher classification who are doing the
same work as the grievors.
After reviewing the jurisprudence of the Board on the point,
the panel of the Board, in m, concluded, at p.5, "it is clear
that the comparison need be made with only one other employee."
The Board, at pp.5-8, quoted Extensively from pages 11 and 12
of Bealsn, 30/79:
i
,
i
152
It may be assumed that among the .objectives of the
employer's classification system are the achievement of
uniformity in policy and consistency in practice
throughout the public service, and equitable treatment of
individual employees. It follows that it is an abuse of
the system and unfair to employees where the positions of
employees who are performing substantially similar work
are placed in different classifications. By intervening
where that condition is found to exist the Board, rather
than frustrating the intent or undermining the operation
of the classification system, is preserving the
legitimacy and the credibility of that system.
. . . the employer must accept to be held to the
consequences of departures, in particular cases, from
settled policy or practice. . . .
. . . The purpose [of the usage test1 is to establish
either that the employer is conforming to its
classification standards or that the employer has, in
effect, modified those standards.
. . .
A recent award by another panel of this Board elaborated
on this second line of enquiry on McCour t
e, te 198/78. If another employee doing
work identical to the grievor is classified at a higher
grade, it may indicate that the employer's actual
classification practices differ from the written
classification standards. It should be noted, however,
that the concern is with the proper application of the
employer's classification system. Therefore, it may not
be conclusive for a grievor to show that m employee in
a higher classification performs the same tasks, for it
may be that such an employee has been improperly
classified. In dealing with applications under Section
17(2)(b) .of the C-p1 e eg
A.&, S.O. 1972 c. 67. or grievance regarding
classification under the collective agreement, the Board
is not directly concerned with discrimination between
employees in the application of the classification
system, unless the differential treatment demonstrates a
change in the classification svstem from the written
'standards. The Board's concern is with the question of
whether the grievor's job has been improperly classified,
when that job is measured against absolute standards.
Often, the description of jobs of employees in the higher
classification will only serve to illustrate. the
application to particular cases of what are necessarily
generally worded standards.
[L’ .,
(Emphasis in the original).
(i:
153
The Board in u concluded, at p.8, that: i
. . . if the Employer can show that the employee with.whom
the grievor is comparing himself is in fact wrongly
classified, then it is not sufficient for the grievor to
show that his tasks are the same as,this other higher
classified employee. And this suggestion is reiterated
in Wriqht, 248/81, at pages 5 (at the top of the page)
and 6 (about 2/3rd the way down the page). But this is
the only exception suggested to the general rule that it
is sufficient to compare the grievor's job with'the job
done by one other higher rated employee. And this
exception does not apply in our case. The Employer did
not suggest that Ms. Moorer is wrongly classified as a
Clerk 5 General.
At page 9 of B&l. the Board stated:
In Re Attorney-General for Ontario and Ontarlo Public,
Service EmDlOVeeS Union e t al. (19831, 44 OR (2dl32, the
Ontario Divisional Court upheld an award of the Grievance
Settlement Board, which had granted reclassifications upon
proof by the grievor that he was doing the same job as
another employee who was higher classified. The Employer
had argued that the latter employee was wrongly
classified as a result of an earlier award by the
Grievance Settlement Board. The Court decided that the
Employer should not be permitted to reopen the earlier
case by means of a challenge to the reclassification of
the new grievor. Mr. Justice Osler said (at page 36):
"The board has developed as the 'law of the contract' the
view that employees in the same ministry doing identical
work should be treated identically in the matter oft
classification". Caution was suggested by Mr. Justice
Steele so that we do not adopt a policy which means that
one error will result in the automatic reclassification
of many employees to an incorrect classification (at page
37). We agree that there is need for such an exception
to the automatic reclassification of an employee. But in
our case, wee reiterate that the Employer did not argue
that Ms. Moore was wrongly classified. Indeed, the
Employer's position is that she is correctly classified,
but the grievers are doing different work.
154
The Board in Bahl indicated that: "Perhaps the waters became
somewhat muddied in Lowman 13/82." The Board in E&&l,.. after
analysing Lowman, stated at pp.lO-11:
Was the Board now saying that tke old jurisprudence was
overturned, and it was no longer the rule that an
employee claiming reclassification would succeed if he
showed he was doing virtually the same job as an employee
who was higher rated? If this was what the Board said,
and we are not sure that this is what was meant by the
panel which decided Lowman, then it is clear that the
Ontario Divisional Court would have none of it. In its
unreported hand-written decision of April 22, 1985, the
Court quashed the decision of the Board.
In our opinion the Board erred in failing to apply
the second test in 7
Ontario et al. (1982), 40 OR (2dy e14; (Brecht's
case). Having found that there was an empl,oyee
performing substantially the same duties as the
grievers and that such employee had been
deliberately classified by' the respondent in a
higher classification, the Board acted u,nreasonably
and without jurisdiction in failing to find that
the grievors would be properly classified in the
higher classification.
It couldn't be clearer. An employee must be reclassified
if it is found that he is' performing the same. job as
another employee who is higher classified.
In Vanderhevdeq, 2238/91 (Gorsky), the Board stated at pp.ll-
12:
We are not sure that the conclusion arrived at by the
.Board in u was as clear as it appeared to the members
of the panel. In the unreported hand-written decision of
April 22, 1985 .where the Court quashed the Uwman
decision, the Court went on to state:
The higher classified employee and the four
grievors are the only persons in the public service
performing the function of remote sensory
supervision. In the circumstances we are of the
opinion that it does not assist the respondent to
argue that the senior employee may have been
improperly classified.
I
155
The last quoted paragraph appears to limit the broad
interpretation of the first paragraph of the Court‘s
decision. ,
13:
The panels of the Board in Carvalho and l&&l found
different general rules of the Board in applying the
usage test. The panel in Carvalho, at p. 18, found that
the general rule was that, "in order to succeed on a
class .usage argument the Union must show the existence of
a consistent practice of varying the Class Standard.
Absent special circumstances, it does not.satisfy this
'practice' requirement to show that only one employee in
a higher classification performed the s&me work as the
grievor. n
At page 12 of the l&z&l decision, in finding the decision
in Carvalho to be "manifestly incorrect", the panel
concluded:
It is clear from the review of the jurisprudence we
have conducted here, and from the decision of the
Ontario Divisional Court in the Lowman case, that
there is no requirement that the Union go beyond
showing that one employee in a higher
classification performs the same work as the
grievor. This is enough tom succeed in the claim
for reclassification, unless perhaps~ it can be
shown that the comparison employee is wrongly
classified. And we have already said that this
exception does not apply in our case.
,The Board, in m, went on to deal with the fact
that, to that time there was apparently no case decided by the
Board subsequent to &&l that squarely addresses the differences
between the rules enunciated by the different panels of the Board
in l&&J and Carvalho. The Board stated, at pp.13 -17:
At page 11 of the McCulloch decision, the Board quoted
from page 12 of B.&l:
. . . It is clear from the review of the
jurisprudence we have conducted here, and from the
In .the Vanderhevden case, the Board further stated at pp.12-
156
decision.of the Ontario Divisional Court in the
Lowman case, that there is no requirement that the
union go beyond showing that one employee in a
higher classification performs the same work &.s the
grievor. This is enough to succeed in the claim
for reclassification, unless perhaps it can be
shown that the comparison employee is wrongfully
classified. And as we have already said that this
exception does not apply in our case.
The Board, in McCulloch, noted that the Board i.n w
found "that the exception did not apply because the
employer made no argument that the comparison employee
had been wrongfully classified." The Board in &C&&,&I,
at pp.ll-12, then referred to m, 35/78, at p.4:
The evidence does establish that the employer
does, in fact, have one probation officer 2 in its
employ who has not passed the set of examinations
that were specified as of December 1964 to
constitute the requirement to progress from
probation officer 1, and who was being paid at
Stage 5 of the probation officer 2 category. The
present director of Probation and Parole Services
,testified that this has been an arbitrary decision
made by a predecessor director, and that it was not
a decision that the incumbent director would have
made. He stated categorically that it had been
wrong and contrary to known and stated policies of
the Ministry. There existed no other cases of that
nature.
The Board in McCullogh, after considering the above
quotation from Creet, stated, at p.12: I
That decision indicates that the board has
recognized that "wrongfully classified" does not
refer solely to "slip-ups" as union counsel
contended but also to an arbitrary decision by a
manager. However, in our case the decision by the
predecessor Ministry to reclassify the grievers as
Correctional Officers was NOT arbitrary - but a
deliberate thought-out decision made by the
Assistant Deputy Minister himself in light of a
Grievance Board Decision - not at all comparable to
a director disregarding the rules of his own
Ministry as in the Greet case.
It is evident in the case before us that the decision to
hire Dr. Bates as a Psychologist 1 and to pay him at the
Psychologist 1 beginning rate (Tab "F" Appendix 1) was
not an error nor a "slip-up" butwas an "arbitrary
i;:.
,.
i;.
157
decision by a manager." This was not a "deliberate
thought-out decision made" at a higher Ministry level so
as to indicate a change in the M,inistry's view of the
requirements for the Psychologist 1 position.,; The
decision in the case before us was "comparable \to a
director disregarding the rules of his own Ministry as in
the &e& case."
'Whatever the differences between the Bahl and Carvalho
cases, success on a usage argument must be limited to
those cases where it is clear that the Ministry has, in
practice, altered the standards whereby employees are
'classified. We are not faced with such a case.
In Re Dalrvmple 79/77, at pp.5-7, the Board stated:
The grievor's principal argument before the Board
lies not with the assertion that her job comes
within the words of the higher class standard which
she seeks but rather because her duties are the
same as those of employees who do have the higher
classification'sought. Previous decisions of this
Board (Re; Be Rounding. 18/75; &z
Wheeler. 166/78) support this as an alternative
approach but it must be remembered that evidence of
others in a higher classification doing
substantially the same work as the grievor is only
important when it is seen to reflect the actual
practice of the employer. The actual
classification practices of the employer may not
truly be evidenced in the documents describing the
classification system and if that is the case the
grievor is, of course, entitled to be measured
against the actual practices as opposed to any
mythical practices which have since been abandoned
(see Re.ontaaue. 110/78 and Re Wriaht. 248/81).
It is not enough for the grievor to demonstrate
that others are classified at a higher level and
performing,the identical duties. As noted in Re
Vukoie. 13/75;
"However and to refer again to .our earlier
Roundinq award in determining whether Mr.
Vukoje should properly be, classified as a
Clerk 3, this Board may consider not only
whether she is performing the duties assigned
to 'that position but as well whether she is
performing functions which are .virtually
identical to those assigned to those employees
who both the emplover and the emnlovee agree
e as Clerk 3's." ar ro
(emphasis added in Dalrvmole)
158
Within the grievor's Department there are two
employees, Lorenz and Donofrio, who are classed at
the Clerk, Grade 5 level. It seems apparent that
Lorenz and Donofrio were classified at thatelevel
at a point in time when the actual classification
system used by the employer was modified by some
managers who believed in the elevating of employees
as a reward for good performance. It is obvious
that such a subjective approach over any period of
time could nullify any classification system as the
objective criteria of job duties is abandoned.
This would lead to great inequalities throughout
the bargaining unit as classification would .be
dependent on individual assessments without any
overall concern for uniformity. When the
committee, including the outside consultants,
reviewed the 3200 employees within the bargaining
unit in its entirety we see that within their
anomalies list are Lorenz and Donofrio who they
would regard as better fitting the level of Clerk,
Grade 3. The employer according to the evidence
has adopted a policy that it will not reclassify
people down and the while they recognise both
Lorenz and Donofrio as being classified at too high
a level they prefer to deal with this problem
through attrition. This may appear as unfair to
the grievor who admittedly performs the identical
duties, and according'to the employer performs them
very well, but to reclassify the grievor to Clerk,
Grade 5 would be to exacerbate the lack of fairness
between employees within this Department and other
employees within the bargaining unit who are
performing the same duties and who are not
similarly classified. The main purposes of a job
classification system, to promote uniformity and
equality, would be frustrated if fairness to one
individual necessitated the abandonment of the
system. The tail would then wag the dog.
Although the facts of the Dalrvmole case are different
from the ones in the case before us, the Board, in that
case, accepted that a usage argument had to support a
conclusion that it reflected "the actual practice of the
employer." If we accepted the Union's argument in the
case before us we would undermine the main purpose of a
job clas.sification, which is to promote "uniformity and
equality" because to do so here, would frustrate that
purpose as "fairness to one individual [would
necessitate1 the abandonment of the system. The tail
would then wag the dog."
159
In R 5 - n ubli
Employees Union et al., above referred to, the reliance
on a single case by the Board, which was upheld by the
Divisional Court, was based on the application',of a
policy that applied a varied form of issue estoppel; In
that case, Steele J., in agreeing with the decision of
Osler J., indicated his concern, at pp.36-7:
In the present case the board adopted a policy
which was open to it to say that once it has
admitted that the work done by Ithe grievor1 was
the same as [another employee who had succeeded in
a classification grievance1 it would not. hear
evidence to show that [the latter employee1
classification was in error. In so doing, it may
in fact be adopting as a policy that one error can
mean that numerous, if not hundreds, of other
employees, doing identical work, will be
reclassified automatically to an incorrect
classification. . . .
On the facts of the case before us, we do not find that
the Employer has introduced such a practice as would
indicate that it has departed from the requirements of
the class standard for appointment to the 'position of
Psychologist 1. As was pointed out in Mcculloch,
"wrongly classified" can include cases where "an
arbitrary decision" was made by a manager. The
particular facts of the case will disclose whether the
rules of a ministry have been changed by "a deliberate
thought-out decision" or by an individual at a lower.
level within the ministry, “disregarding the rules of his
own Ministry as in the w case".
What the court meant when the Lowman decision was quashed on
judicial review was dealt with inTavlor et al., 478/85 (Brent).
There, as was observed in He e, 48/88 (Dissanayake), at
p.19:
The Board held that the Court does not state that an
employer can never successfully argue error when it held
that the employer in that case could not argue error in
the circumstances of that particular case.
f:::
!I ;
160
The Board in e H then went on to quote extensively
from Tavlor, commenting on its view of~the law following the court i
decision in w:
Following the Lowman decision, it is our view that the
Employer is precluded from pleading error or anomaly
where there is a deliberate decision to classify
substantially similar jobs differently. :It would appear
that the overriding consideration, in view of that
decision, is that the classification system be applied
uniformly and consistently so that positions which are
alike in all relevant respects are classified alike. The
Court did not consider, a situation where the Employer
recognised an error and then did something to restore
consistency~ and uniformity to its classification system
by applying~the class standard as written.
It is our view that for a classification system to work
properly and to ensure that the same work attracts the
same pay there must be a mechanism for correcting the
errors which will.inevitably arise in the application of
the system. No classification system can hope to achieve
even. a semblance of equity and fairness if errors must be
frozen for evermore. If the Employer recognizes an error
and then does nothing to correct it, it would appear that
since Lowman it can no longer refuse to acknowledge that
the Ilerror" has in effect become a relevant standard of
comparison. Where the Employer recognises that a mistake
has been made and acts to correct it, then surely it has
restored consistency and uniformity to the system and can
once again rely on the class standard as written as being
the applicable standard against which to measure the job
which is the subject of the classification grievance. In
our view, it is irrelevant~ that the error was not
corrected by the date the grievance was filed, and in
this case the fact that the Employer was engaged in
correcting the error at the date of the grievance and
subsequentIy did correct it is sufficient to show that it
was applying the class standard as written and did not
intend to vary it through application.
It would be strange result, indeed, if the'effect of this
decision were to force the Employer to reclassify a.job
which is classified correctly according to the class
standards simply because it was substantially the same
job asp one which had once been improperly classified
higher than the grieved job but which was now properly
classified in the same classification as the grieved job.
If we were to do this we would be forcing the Employer to
perpetuate a mistake it had already corrected and leave
161
it vulnerable to claims for reclassification from every
employee occupying jobs classified as Operator 2
Microfilm. Such a result would not benefit anyone
interested in encouraging a reasonable, fait and
equitable application of a"Y system of% job
classification.
At p.21 of H me, the Board stated:
As held by the Board in ReTavlor, the fact that the
employer had corrected the improper classifications shows
that it was applying the' class standard as written and
did,not intend to vary it through application.
.In the circumstances, to allow the grievor to now rely on
a wrong classification is to force the employer to
perpetuate an anomaly which has already been corrected.
As the Board in Re points out such a result does
not benefit anyone interested in encouraging a
reasonable, fair and equitable application of any system
of job classification.
Reference ~was also made to A-., 1970/87 (Keller),
where an argument was made on behalf of the grievers (at p.8-9):
.*. that so long as they are able to show at least one
person in the higher classification performing the same
work as the grievers then regardless of the reason, the
grievor must be reclassified. .1n particular, they rely
on the decision of the Divisional Court in Re: Attorney
General for Ontario and Ontarao l?ublFc Ser vice w
Union et al, 440 O.R. (2d) 21. That judgment, we are
told, stands for the proposition that even if a mistake
is made in reclassifying someone to a higher position, or
if that action is an anomaly, that position may be used
for comparison purposes. The Board was also referred to
the decision of A.J. Jolly 1162/88 (Fraser) as supportive
of that proposition.
In.the w case, the Board'found that the single example
relied upon by the union was one where the usage example employee
had been (at p.9) "appointed to the higher level on a personal
incumbent ~only basis. His 'classification' changed, not that of
the position. ,.."
162
In Bohrs et al., 1283/91, 1397/91 (Barrett), the grievers were
performing essentially that same work as the usage employees, while 2
operating under different class standards, both of which accurately
reflected their duties. The grievers earned 74c per hour less than
the usage group. At p.6 of m, the Board followed Beals and
&& and referred to the proposition stated at p.13 of the latter
cause: "that a grievor's position is improperly classified if it is
not placed in the highest classification in the system hierarchy to
which his work, measured against the work of employees -whose
positions are in related classifications, entitles him."
In Bent/Mahler, 2091/91 (Waisglass),~the Board stated, at p.8:
We accept the holistic approach, but it is our view that
in order to succeed the onus is on then Union to prove
that the grievor's job, the job as a whole, is
substantially similar to the class usage job in all of
its distinctive and essential elements or components'
which comprise the core duties. We agree with Vice-Chair
Gorsky: "... it is not a task for task comparison that
must be met but rather a test based on distinctive and
essential elements being performed..." [in Wallace and
Jackson {cited above1 at p.41 Thus, we must find in the
evidence that all of the essential elements and
components that are present in the comparator positions
[for the class usage claim1 must also be present in the
position of the grievor, and that the latter must not be
deficient in resvect to anv one of the distinctive and
essential elements or comwonents of the comparator
position.
(Emphasis in original)
Atpp.12-13 of Bent/Mahler, the Board notes that there may be
an apparent overlap of duties and responsibilities but it is
necessary to look at those duties and responsibilities to see
whether those undertaken by the. usage examples "are broader in
163
scope and at a higher level than those carried out by the
., grievors." :,
In Bellemare et al., 2273/90 (Knopfl, in dealing with the
usage argument, the Board noted, at pp.ll-12:
However, on the unusual facts as revealed in this case,
and given the clear evidence that the classification of
the [usage examplel.was clearly an anomaly within the
Province and in no way affected the way the Employer was
applying the classification system with regard to
Operators, this is simply not a case where it is
appropriate for the Union to be able to sustain a usage
argument. This is especially so because the Union was
advised even before this grievance was filed that the
Employer has realised its error and wished to rectify the
situation.
Ins-, 27138/90, 2713C/90 (Stewart), a number of
the grievors had brought prior grievances which were pursued on the
basis of a "standards" argument and no “usage” argument was
advanced. These grievances were dismissed. Subsequent to the
hearings with respect to those grievances, the Board~heard the
grievances of other persons similarly classified to the grievors
where the union did advance a "usage" argument, comparing the work
performed by those grievers to the work of employees in the
Industrial Officer classification, where the union was successful.
It was this reclassification that the union now wished to rely on
in support of its "usage" argument. The decision was a preliminary
one based on an application by the employer that the Board should
decline to hear the grievances on the basis of issue estoppel and
B iudicata.. The Board denied the motion and was prepared to hear
evidence with respect to the comparators.
I. 164
A similar issue arose in Denapoli/Munroe -I 24.1/84, 273/87
(Fisher). At p.1 of the latter case, the Board noted that:
Factually speaking this case is similar to a previous
decision by the same panel entitled Laycock (0241/84).
In fact it is the Employer's contention that this case is
so similar to Laycock that the same decision should be
reached, namely the grievance should be dismissed.
The Union admits that a certain portion of the Grievor's
job, namely the processing of claims is so similar to the
task performed in Laycock that that aspect of the
Grievor's job is properly classified. However the Union
contends that due to the fact that a significant portion
of the Grievor's job entails direct dealing with the
public, that this factor alone takes the Grievor's job
d,uties out of the Clerk General 3 classification and more
properly puts her into the Clerk General 4
classification.
In Georoes 1439/90 (Wattersl, the Board, in dealing with the
usage case, stated at p.32: "The prevailing jurisprudence suggests
a comparison to a single employee in a higher classification is
sufficient unless it can be established that such employee is
wrongly classified," reference being made to.the conclusion of the
Board in Bahl -* at p.11.
In ~Georaes, the Board stated at p.33 that:
The Employer in this case did not allege that [the usage
witness1 was improperly classified at the material time.
We conclude therefore, that 'the Union is entitled to
restrict its comparison to Ms. Gagnon, even though she
was a recent hire. The fact of her being a relatively
new employee is not, in our judgment, determinative with
respect ,to the issue before us. The length of her
tenure, and the breadth of,,her experience, is~ simply part
of the larger question, this being whether she and Ms.
Georges perform work which is ,subrrtantially similar in
nature.
At p.34 of the Georges case, the Board concluded that:
165
, . . overlap cannot defeat a usage based claim if it
renders the jobs substantially similar. TO hold
otherwise, would serve to undermine the very foundation
of the usage test as recognized by this Board. Tn the
final analysis, despite the existence of an area of
permissible overlap, the ,Board must still determine if
the work performed by the two (2)~ employees is
substantially similar. If the answer to this question is
in the affirmative, it does not then matter that the
class standards contemplate certain tasks as being common
to the two (2) classifications.
In the G%~~EE case the usage witness (at p.34) acknowledged
that she performed virtually all the duties listed in the grievor's
position specification and. the Board concluded, at p.35, that it
was "simply unable to find that a qualitative difference exists in
the way the grievor and [the usage witness1 perform these duties:"
In,referring to the areas of "policy development and budget
preparation" performed by .the grievor .and the usage witness,,the
Board concluded, at p.35, that it~had not been persuaded: "that the
type of policy development undertaken by Ithe usage witness1 is of
a more complex or sophisticated nature.” And, at p;36: "Further,
we have been left with the impression that neither employee is
autonomous in matters of policy." The Board reached identical
conclusions with respect to the other significant duties and
responsibilities carried out by the grievor and the usage witness.
Although the Board noted certain differences between the
grievor and the usage witness, it stated, at p.39, that it was
"unable to find that the differences referred to above relating to
collection development and evaluation support a conclusion that the
166
work of the two (2) employees substantially dissimilar. To the
contrary, we have been persuaded that their work is substantially
similar. It, therefore, follows that the Union's claim, premised
on the usage test, must succeed."
In conclusion, the Board stated, at p.39:
. . . Finally, it should be clear that the result in this
case is not based on the content of the class standards.
Rather, the Board has compared the duties of the
employees and has found them to be substantia'lly similar.
This, pursuant' to the jurisprudence of th!e Grievance
Settlement Board, supports the reclassification sought.
Given that our decision is founded on the distinct facts
of this case, our ultimate conclusion is inecessarily
limited to the work performed by Ms. Georges and Ms,
Gagnon.
We have concluded that we have the right to examine previous
cases, such as Wallace and Jackson to see whether [there is a
sufficient elucidation of the duties and responsibilities of
Messrs. Wallace and Jackson and the usage witnesses in that case to
see whether the duties and responsibilities of the Grievprs in the
I case before us are reasonably similar so as to support the same
I
finding. !
Discussion I
"Classification Disputes at Arbitration" /
/
I
1. Because of the ~extraordinary length of time that was taken up
in presenting this case and because of the cons~iderabli efforts of
counsel to canvass every potential aspect of the several issues
/
,
t i
167
that were put before the Board, we believe that our final decision
must be placed in a certain perspective. We were greatly assisted >
by the article of Paula Knopf, "Classification Disputes at
Arbitration" which is found in The Labour Arbitration Yearbook 1993
edited by William Kaplan, Jeffrey Sack, Q.C. and Morley Gunderson.
In her article, Ms. Knopf indicated that her purpose was to
convince labour and management to stop referring classification
cases to arbitration because no matter what result was reached,
both parties would lose. She identified why classification
grievances are brought: because they determine compensation and
status. Ms. Knopf's discussion of the legal principles which are
applied by arbitrators in the determination of classification
.disputes are in keeping with those here described. She noted that,
with few exceptions, classification grievances are not frivolous
and, as in.the case before us, are usually filed by the best,
brightest and most productive employees. ,This is where the
problems identified by her begin: For management to win at
arbitration, it must "attack" the employee, and for the union to
win, it must "attack" the employer. Yet, at the end of the day,
both parties, who must continue to work together, will have lost no
matter who has "won."
2. Ms. Knopf identifies a general problem of classification cases
'that clearly applies in the~public service. She notes, at p.81,
that:
. . . too often, classification cases come forward based on
classifications that were drafted 20 years ago when
m- c ( (
168
systems, technology and environments in the workplace
were quite different than are currently being
experienced. Thus, it seems obvious that one easy way to
avoi'd classification disputes would be to', keep
classification systems current and up-to-date. ~Given
that the designation of classifications is often solely
within the discretion of management, .this can be done
relatively easily. It is in management's long-term best
interest to ensure that the system is kept timely and
current.
She notes, at p.82, that where the purpose behind., the
grievance is to achieve a higher wage rate, as appears to be the
case here, there is a responsibility on both the union and the
employer to ensure that the classification is receiving an
appropriate wage rate in the hierarchical structure of the
collective agreement. Because this is a joint responsibility, it
should be addressed in negotiations over the renewal of collective
agreements. "Classification disputes are not and should never
become indirect interest arbitrations regarding one set of. job
functions within an entire wage structure. Thus, if the
classification grievance really means that the employees are to be
,satisfied with their wage level, the proper forum for such redress
is at the bargaining table, not before a board of arbitration."
At p.79 Ms. Knopf states:
1.. by virtue~of their personal skills, long experience
in a job and ability to adapt to evolving needs of an.
employer, these employees find themselves undertaking
greater responsibilities, more complex tasks and a
greater variety of tasks to the employer's benefit.
Clearly, they will not win a classification case if they
have undertaken these greater levels of responsibilities
without the employer's authority and consent. But in
cases where the expanded nature of the work is condoned
by the employer as the organization has evolved over
(.~ - c !
.I
169
time, the purpose of the grievance will be to seek
recognition for the employees' contribution.
,
An important point made by Ms. Knopf (at p.83) relates to the
frequently considerable periods of time taken up in establishing
the duties 'and responsibilities of the position. Before the
Grievance Settlement Board, this is now usually accomplished
through the exchange of the position statements of the parties
pursuant to the directive of the Chairperson. In this case, there
was no exchange. At p.83, Ms. Knopf states:
To be quite blunt, there is no excuse for any factual
disagreement as,to what the job is. Surely the parties
should be able to agree on this. To facilitate such an
agreement, there should be full disclosure by both sides
prior to the hearing as to what they consider the nature
of the job to be and what aspects of the job the union
claims take it beyond the classification. Similarly, the
employer should disclose to the union the position the
employer will be taking in response to the union's
assertions. The evidence need focus only on the
particular areas of conflict. . . . It will also go a long
way to assisting the arbitration board in understanding
what the job is really about.
Properly presented, a classification case should take an
arbitrator only one day to hear. The parties should be
able to present to the arbitrator a straightforward
presentation of the nature of the job and the
classification system. There should be a focus upon the
areas of disagreement as to the nature of the job duties
and responsibilities that take the job beyond the
confines of the classification. Only then is the
arbitrator truly able to make a determination of what
work is actually being done and apply the standards and
the classification. This depersonalizes the
classification grievance process and ensures that the
arbitrator will be applying a classification scheme
rather than assessing or evaluating the personalities
involved.
c; !
170
Depersonalizing the classification grievance is important
because of the "dil,emma and irony of job classification casesU
identified by Ms. Knopf at pp.79-80:
Herein lies the dilemma and the irony of job
classification cases. Employers can defend such cases
only by cross-examining the grievers and eliciting
evidence to establish that the grievers' work is not as
complex as the grievers perceive it to be, as important
as they believe, as independent as they have assumed, or
as valuable or unique a" asset as they assert. Thus, the
arbitration hearing becomes a stage of conflict where the
value and the quality of work being done by a" employee
or group of employees must be challenged. But these are
often the very people whom the employer ~would otherwise
"ever have had reason to attack. The result is that a"
employee whose work has been valued.and relied upon by
the employer finds him or herself at a" arbitration
hearing having to hear the employer's counsel argue that
the employee's work is not as complex as has been
asserted or as highly skilled as the employee believes.
All too often, cross-examination of employees in these
cases mirrors the type of cross-examination one would
expect to find in a discipline case involving a"
employee's competence. Grievers find themselves being
skilfully cross-examined by employers' counsel who
disagree with how the job has been described and who try
to diminish the importance of the work being done.
Conversely, cross-examination of a" employer becomes a"
attack by union counsel on the supervisory skills and
knowledge of the employer and a" attempt to embarrass
supervisory staff in front. of their staff and upper
management.
Sadly, the result of this conflict is that no one wins
classification cases. Even though a" arbitrator will
give a bottom line that "the grievance fails" or "the
grievance succeeds", and one side may "win the battle",
the fact is that the war fought at the arbitration table
.results in both sides doing irreparable harm to each
other. Otherwise valued and respected employees will
have to withstand cross-examination and hear submissions
that essentially belittle their role in the employer's
organisation. Similarly, the nature of the employer's
supervision and delegation of authority will have been
criticised by the union. Usually, it will be upper
management who will be opposing 'the grievance. But it is
the direct supervisors of the grievers and the grievers
who have been pitted against each other at the
arbitration by their respective counsel. What might have
171
been an harmonious or viable working relationship prior
to the arbitration is intolerably strained by such
proceedings.
All this has serious.repercussions in the long run;~ The
way these cases are handled and resolved can act as a
serious inhibition of innovation and the attempt to
achieve excellence in a job. The best employees are the
ones who strive to excel and improve their work methods~
and skills. Why'should they bother trying if their
efforts wills be met by an employer belittling their
accomplishments and devaluing their work at an
arbitration hearing? Employees, as human beings, have
difficulty appreciating that the arbitration board is
called upon to evaluate their jobs, not the employees
themselves. Because all of us tend to find personal
value and identity in our jobs, it is very difficult for
any person not to feel insulted when the value of his or
her work is challenged or not respected or acknowledged
by others. How can an employee go back to his or her job
with any enthusiasm or positive 'motivation after
withstanding a cross-examination in a classification case
and/or receiving a negative award from an arbitrator?
Even where there is agreement that a position specification
accurately states the duties and responsibilities of a grievor,
much time is frequently taken up in.having the grievor, who has
agreed to the statements with respect to the duties and
responsibilities as set-out, then go over most of the items
recorded after each "bullet point" by way of "explanation."
What usually follows is lengthy evidence from the employer's
witnesses with respect to the accuracy of the "explanation."
The arbitration of classification cases has taken up a
considerable amount of the Board's time and resources. We believe
that the parties may obtain muc'h useful guidance from an
examination :of Ms. Knopf's article, especially the portions
172
entitled "Alternatives to Arbitration" and "Improving the
Arbitration Process."
We would add that in "pointing out that there are much better
ways of resolving classification disputes than proceeding to
arbitration" (at p.84), Ms. Knopf does not ignore the fact that
(ibid - 1 that arbitrators can resolve classification disputes "with
professionalism and dignity by ensuring that [they] understand the
classification system that the parties work under and by ensuring
that, .to the greatest degree possible, we understand the job duties
being performed." And that "[arbitrators1 can give the parties .a
fair hearing and provide them with an award that reflects that
[they] have understood what [they] have been told, and that [they]
appreciate the nature of the work that is being done." Her
suggestions, while not an attempt to undermine the adequacy of
arbitrators, attempts to.point out a better way.
T,he Relationship Between "Social Work" and "Vocational
Rehabilitation Counselling"
1. Fundamental to the Grievers' class standards and usage
arguments is an understanding of the meaning of social work, and
related terminology, in the SW2 classification.
173
2. From the evidence presented by the Uni.on witnesses, including
that contained in Exhibit 33 entitled --ofor
Vocati nal an < R c e t'onal i,atri
w and in Exhibit 27 ,entitled Rehabilitation Counselling
Trainina Manual, being a document prepared by one of thee Grievors,
P. McKenna for the Rehabilitation Services Department of the
Hamilton Psychiatric Hospital, it is evident that vocational
rehabilitation counselling is an identifiable discipline with
training courses being provided at the community college diploma
level, and at the Bachelors, Masters and Ph.D. level at
universities, primarily in the United States.
3. Exhibit 3.3 is a 1976 revision of a previous manual issued by
the Mental Health division of the Ontario Department of Health for
the establishment and operation of vocational and recreational
services in the Ontario Psychiatric Hospitals, "its purpose being
to outline the organisation of a department in an Ontario hospital
to be responsible for the full range ,of authorized therapeutic
activities for patients."
4. The evidence of Dr. Wattie was accepted by us based on her
education and experience in the field of social work. Although she
has not performed clinical social work since 1974, she had
extensive experience in both the practical and theoretical aspects
of social, work and knows what it is. The fact that she is
unfamiliar with vocational rehabilitation counselling,' in the sense
i ( \.
174
that she has never performed that kind of work, does not undermine
her evidence. She did not regard vocational rehabilitation
counselling as being part of professional social work, and this is
consistent with the way in which personswho wish to enter the
latter field obtain formal accreditation. From an educational
standpoint, persons who wish to become professional social workers
will usually attempt to gain admission to a school of social work.
Persons wishing to become professional rehabilitation counsellors
would become aware that professional training in that discipline is
given in faculties~ devoted to such training. Given the
credentialism policy of the Employer, it would be possible for-a
person. to operate at the professional level of a social worker
without obtaining a formal degree. However there would have to be
significant cogent evidence that the kinds of skills and knowledge
associated with training furnished at' professional schools of
social work had been acquired in some other fashion.
5. There was no substantial evidence to show that'the Grievers
acquired professional social work skills so as to be able to assess
whether they were carrying out duties and responsibilities that
fall within the SW2 classification.
6. We-wish to make it clear that the Grievors demonstrated that
they are skilled practitioners of vocational rehabilitation
counselling. We make no judgment as to whether their skills and
abilities in carrying out their duties and responsibilities are
175
less onerous and intellectually demanding than those required of a
person properly classified as sW2. On the evidence before us, we i
must conclude that vocational rehabilitation counselling is
distinguished from professional social work.
7. The issues presented to us are particularly difficult of
resolution because social workers may be found in a variety of
areas. In fact, the evidence disclosed that persons holding
degrees in social work worked in vocational rehabilitation
counselling at COMSOC. Merely because a person holding certain
professional qualifications occupies a particuIar position does nqt
necessarily mean that they are operating at a professional level in
the discipline with respect to which they hold qualifications A
lawyer, being a member of the bar and entitled to practice law in
a particular jurisdiction, may be working in industry in a capacity
which either does not require him/her to function at a professional
level or only to a minor extent, so that it cannot be said that
he/she is providing professional legal services commensurate with
their professional designation. Similarly, a person holding a
Professional Engineer's qualification may function in many
positions without having to provide professional engineering
services to an extent where it could be said that they are
functioning in their professional engineering capacity. This does
not make their work any less demanding or complex. It merely
indicates that they are not functioning at a professional level
associated with their discipline.
(..I ‘> ,7 L .’
176
1n the case of trained professional social workers, where they.
function in a discipline that has been differentiated by i5.s own
leading practitioners from professional social work, a~nd where
they, by their own admission, are not required to and do not
significantly draw on their professional social work training in
carrying out their duties and responsibilities, they cannot be said
to function as professional social workers, although they may be
functioning as professional vocational rehabilitation counsellors
etc.
8. There may be cases where the significant core duties and
responsibilities of persons employed as professional vocational
rehabilitation counsellors involve other than vocational
rehabilitation goals as a primary focus. In those circumstances,
it might be possible to say that they are providing professional
social work services in the manner set out in the SW2 class
standard. On the evidence presented, none of the usage witnesses
agreed with suggestions that they were using the kinds of skills
and abilities called for under then SW2 class standard in any
significant way, but were adamant that they were using those skills
and abilities directed at achieving the ends which are the primary
focus of vocational rehabilitation counselling.
9. It was evident that the Grievers take great pride in the work
they do, have an extraordinary dedication to the goals of
vocational rehabilitation counselling and shave engaged in numerous
177
efforts to improve their qualifications so as to be able to better
deliver vocational rehabilitation services to their clients. The I.
Employer is indeed fortunate to have such a dedicated and devoted
group of employees.
10. Because of our conclusion with respect to the difference
between professional social work and vocational rehabilitation
counselling, it would not be possible for the Grievers to rely on
the Social Work 2 class standard as a basis for reclassification.
Discussion With Respect to the R02 Class Standard
1. Although by no means a perfect fit, the class definition for
Rehabilitation Officer 2 furnishes a reasonable fit for the duties
and responsibilities of the Grievers. Their supervision is on the
outer limits of general supervision and they do furnish "a complete
range of industrial rehabilitation services to prepare patients,
out-patients or ex-patients at a psychiatric hospital . . . for re-
employment within the community."
Although they have a considerable degree of independence, they
do not operate entirely alone and we would conclude that they
function: "in conjunction with other hospital staff" to: "review
the medical, educational and work background of individual cases;
appraise attitudes; discuss tentative programs with clinical staff
,
178
and decide on a realistic individual vocational rehabilitation
program." There was also evidence that: "They collaborate and 2
maintain liaison with other provincial and federal agencies in
matters such as: vocational or on-the-job training and maintenance
allowance; job placements and they provide follow-up counselling
and obtain assistance from community agencies as required. They
also promote public understanding and acceptance of the mentally
ill or retarded."
2. The evidence also disclosed that: "These employees may assist
in obtaining contracts for industrial therapy workshops and may
participate in their operation. They may supervise and instruct
rehabilitation officer trainees and clerical staff. They prepare
reports and qualifications asrequired and perform related duties
as assigned."
3. The Grievors may operate (at the date of the grievances in
1987 and 1988) at the upper limit'of the R02 classification but,
nevertheless, they did then fit within it. I
4. There was considerable evidence demonstrating how the Grievor-s
had continued to increase their knowledge base and to incorporate
their increased knowledge into their functioning, with the apparent
approval of their supervisors. There were many examples given in
,individual cases, such as the incorporation of the Anthony model of
vocational rehabilitation. Although the evidence did not disclose
I-. !: i (I:
179
that the full Anthony model was being incorporated, it was also
evident that the Grievors, in a variety of ways, operated at a ,
fairly sophisticated level. We'are bound to consider.the matter as
at the date of the filing of the grievances in 1987 and 1988, and
cannot comment on what our decision would be based on such changes
as have occurred since that time. However, on the basis of the
evidence that was properly before us, we must deny the claim based
on the standards argument for the reasons set out above.
Discussion With Resuect to the Usage Arguments
Concernina Wal.1ac.e an-
1. owe are satisfied that the Grievors were performing
substantially the same duties and responsibilities as Messrs.
Wallace and Jackson and the usage witnesses referred to in WaL&x
and Jackson. The evidence of the usage witnesses in the Wallace
a-Jackson case indicated that they were functioning as vocational
rehabilitation counsellors and were not, in any signkficant manner,
called.upon to employ the duties and responsibilities associated
with the provision of professional social work services as set out
in the SW~ class standard. While the duties and responsibilities
of the Grievers in Wallace. and Jackson and the usage witnesses in
that case may not have been identical to those of the Grievers.
they were substantially.the same.
180
2. There was no evidence to demonstrate that the Employer had
ever taken steps to correct what it regarded as a mistake in the
classification of the usage witnesses in Wallace and Jackson: all
of whom regarded themselves as functioning as vocational
rehabilitation counsellors without having to draw on the skills and
knowledge associated with the practice of professional social work.
3. We find no significance in the fact 'that we are acting on the
factual findings of the Board in Wallace and Jackson and this has
been done by other panels of the Board in othe,r cases as above
noted.
4. It was of. some significance in Wallace and Jackson that Mrs.
Gander', a usage witness in that case, had worked with the grievers
Wallace and Jackson when classified as an R02 at Kingston
Psychiatric Hospital, and was familiar with, what they did and,
certainly was familiar with what she did. She testified that on
the basis of her experience and understanding of both what Wallace
and Jackson did, and of her then present and previous positions,
they all did the same thing in the same way. That it, they
functioned as vocational rehabilitation counsellors and :not as
professional social workers and had essentially the same duties and
responsibilities.
5. AS is evident from some of the cases canvased,above, it is not
unknown for the Employer to classify persons who were found by the
Board not to fall within the social work classification as socia1
workers. z
Discussion of the Llsaae Araument - Messrs. Haines and Rooers
1. Similarly to the usage witnesses in W 11 c a,
Messrs. Haines' and Rogers' evidence was consistent with their
functioning as vocational rehabilitation counsellors, performing
the duties and responsibilities associated with that classification
and not as persons providing professional social work services.
Any compiling of social histories and formulation of psychosocial
diagnoses of .the personal and environmental causes of social
dysfunctioning and the implementation of treatment plans to assist
clients to resolve their problems and ,to develop their ,maximum
potential were not. being carried out using the'skills and knowledge
employed in providing professional social works services. In this
sense they were reasonably similar to the Grievors. They were all
functioning within the area of a discipline other than professional
social work; they were all functioning as vocational rehabilitation
counsellors.
2. The duties and responsibilities of Messrs. Haines and Rogers
might not have been identical to those of the Grievors, but they.
represented a sufficiently reasonable approximation so as to make
differentiation a hair-splitting task.
181
182
3. On the totality of the evidence we do not' find that Mr.
Haines spent the substantial ,amount of time attributed by him to
eligibility and when his' evidence is closely examined he is 'doing
essentially the same work as the, Grievor-s. In any event, the
evidence of the other usage comparators did not disclose such a.
heavy involvement in the eligibility function.
4. As in the case of Ms.Ssegal, in Wallace and Jackson, Mr.
Haines in the instant case, who had professional social work
credentials, did not regard himself as utilizing his education and
experience as a social worker in carrying out his vocational
rehabilitation duties and responsibilities in any significant
manner.
5. We do not find the fact that Mr. Rogers was .,"grandfathered" to
be significant. It was open to the Employer to refuse to do so
based on his actual duties and responsibilities. There was no
evidence that the Employer had classified any of the usage
witnesses by mistake and was taking steps to remedy its error.
6. Such differences.as existed in the kind of supervision of
Messrs. Rogers and Haines and the,Grievors were not sufficiently
significant so as to cause .us to alter our view of the matter. All
of them had significant independence in carrying out their duties
and responsibilities, and there was no evidence of any significant
intervention by their supervisors, who were content to rely on
c : c
183
their subordinates' judgment in carrying out their duties and
responsibilities. In some areas, the Grievers had less superyision
than Messrs. Rogers and Haines in the area of approving their
assessment of eligibility. Such differences as existed were
insufficiently significant. The Grievers' involvement with
hospital staff, while significant, also disclosed that they were
the vocational rehabilitation experts and were accorded a large
degree of autonomy. Their involving the various clinical teams was
more as a means of furnishing information as .to the vocational
rehabilitation component of a patient's treatment than as a means
of reducing the autonomy of the Grievers.
7. Accordingly, we find that the Grievers also succeed on the
usage argument relating to the usage witnesses Rogers and Haines.
8. On the basis of the Board's jurisprudence we do not find that
there is any significance in the number of usage witnesses that
might alter our view of the usage argument.
Counsel for the Union submitted that given the Board's award
in Wallac e on, this was a case for departing from the
"usual 20 day rule," according to the rationale in Hillman, 2007/89
184
(Kaplan), a decision of the Board dated November 22, 1990. Counsel
submitted that the Employer had been put on notice on Aprl,l 29,
1987, being the date of the We decision;. that
R02's working in psychiatric hospitals in Ontario were wrongly
classified, and should be properly classified as SW2. It was added
that there was no prejudice,~to the Employer, and it would be
"grossly unfair" if the Employer was given the benefit of the
Grievers "at a cut-rate cost."
Submissions of the Emulover as to Retroactivitv
Counsel .for the Employer submitted that there was no reason to
depart from the usual rule that retroactivity would be limited to
20 days prior to the date upon which the grievance was actually
filed. Counsel stated that: "In the classification cases in which
the Board has extended the'retroactivity, there has been conduct by
the employer which led the employees to believe that it would not
be necessary to file a grievance. There is no allegation and no
evidence of such conduct in this case."
Discussion With Respect to Retroactivitv
1. In Hillman, the Board held.that there were other ways for an
employer to be put on notice that a claim for reclassification
would be forthcoming.
185
2. In Hillman,, the grievor had worked as a senior construction
technician since 1980 in the Ministry of Transpo.rtation's Nqrthern
Region. In January of 1990, he learned from another employee that
a decision of the Board, referred to as the Tm decision
(93/88), had been issued. In Truchon, some 35 senior construction
technicians in the Ministry's Northern Region sought
reclassification. The Board found the Truchon grievers to be
improperly classified and granted a Berrv order requiring the
employer to properly classify them.
3., In E.illma~, at pp.6-9, the Board noted the position of counsel'
for the union that the employer had been effectively been put on
notice by the. filing of the Truchon grievance, and that senior
construction technicians in the northern region considered
themselves to be improperly classified. The Board also noted that
while the grievor in Hillman did not personally bring his complaint
to the attention of management, that complaint had been formally
brought to management's attention by the filing of the various
Truchon grievances. The Board noted that this was not a case where
the employer could say that it was caught unaware of the. complaint
and to extend retroactivity to the grievor would not create any
unfairness to the employer.
4. In allowing the grievance, the Board in Hillman stated at
pp.ll-12:
. . . we are of the view that there are circumstances in
this case which would make it inequitable~ tom limit
186
retroactivity to 20 days. . . . we reach this result based
on our finding that this is one case where it would be
equitable to extend the period of retroactivity beyond
the 20-day period generally awarded in classification
cases.
5. At p.12, the Board stated:
We find support for this result based on the line of
cases which have held that where the employer has been
put, on notice of the complaint prior to an actual
grievance being filed, the period of retroactivity may be
extended where circumstances warrant. In this case, the
employer was put on notice by the filing of the Truchon
grievances.
6. In the case before us the Unionargued that the Employer was
put on notice by the rendering of the decision in Walla'ce and
Jackson.
7. The Board in ~Hillman also noted at p.12:
It can hardly be said that the Ministry was taken unaware
by the instant grievance. It knew that the
classification of senior construction technicians in the
northern region had been brought into issue, and it knew
that should those classifications be found wanting that
u senior construction technician would have to be
reclassified. It would defy logic, common sense and
fairness to deny the grievance i.n this case for to do so
would mean that some senior construction technicians
would receive reclassification, and presumably better
compensation, for their work, while their fellow
employees, performing exactly the same duties at exactly
the same time would not receive reclassification and
compensation for the period in question.
a. We cannot find any significant difference between the
reasoning in the Hillman case and in the case before us so as to
deny retroactivity to the Grievers from the date of the release of
Wallace and Jacks- being April 29, 19B7.
187
Decision ,
Accordingly, and for the above reasons, we order that the
Grievers be' reclassified to Social Worker 2 with retroactivity to
April 29, 198
Dat d at Toronto this 5th day of August, 1993.
M. Go_rsky - Vice Chayrpersbn
A. Stapleton /'Member
.” I-- /
:LISS STAJDARD: t: APPENDIX 1
!
\ 10102-04
This class series covers positions in the field of.socid welfare w&h
involve the provision of professional social tmrk services in provincial ‘.
programs of social development, adjusuwlt, prevention and rehabilitation:
These direct services assist individuals, families, groups, and comaunities
to achieve and&&ntain effective personal development a$ social functioning,
satisfying inter-relationships and a better social order. Eznployees use one
or more social work methods to assess, treat or prevent the underlying . muses of social dysfunctloning, both personsl and environmental. They develop and dn$lenent appropriate social treatment plans and evaluate results.
Social work services are given in a variety of cosusuni ty and institutional
settings.
SOCIAL WORKER smm
socm w@KER 1:
The entry level for recruits with minimm qualifications and no
experience.
SKIU WoRKm 2:
The full working level for qualified social workers.
July 4. 1971
.
SOCIAL bmm4 1 .
This class covers entry level positions of social workerr,uho are
gaining casework experience following comple.tion of undergraduate professional
education. bployees receive instruction on departmen+al programs and
policies from a senior social vorker who assigns and supervises work. Under
close supervision, they conduct interviews, compile case histories, assess
problems, and recommend supportive.treatment. They provide counselling and
utilize appropriate comnunity resources to meet clients’ needs. In all ’
positions at this level, assigmnents are selected to provide scope for the
devel opncn t of competence. Senior social workers provide professional
-uidmce and review social treatient decisions. ._)
WOWl.ISKE AND SKILLS WQUIRlZD:
Good knowledge of the principles, techniques and methods of social work
and ability to apply them in the work situation; general lmowledge of
departmental programs and policies; personal suitability.
Revised. luly 4, 191
Y
,
(1:: . 10104
CLASS STANDARD:
This class covers the positions of quslified social Vorkers vho provide
professional social work services to clients under the general supervision
of a senior social worker or other professional or administrative official.
They conduct interviews, compile socia histories and formailate
diagtosis of the~personal and environmental causes of social
pSyCbsoc~
I
dysfuuctioning. They implement~treatment plans to assist clients to resolve their problems
and rievelop their marirman potential. They provide service by any one or i
a combination of the social work methods appropriate ta the functions of the
deparunent and servfce. They evaluate the effectiveness of the treatment
plan and modify or revise as necessary. They consult with members of other
professional disciplines and may serve as members of treatment teams,
inst:.tutional and comaunity comittees. They may supervise and review the
work of social vorkassistants, child care workers, residential counsellors
and other staff ti the area. They participate in conferences and group
discussions, interpret departmental policy and objectives, and maintain
liaison vith other disciplines, jurisdictions, and cosanuui ty agencies.
They may bassist in the training of departmental personnel and students in
social service Courses.
KNOWLEDCE AND SKILLS REQUIRED:
Thorough lmowledge of the principles, techniques, and methods of social
work and ability t&apply them in t&e work situation; ability to fozmlate
psychoqocial diagnoses and skill in implementing than; knowledge of diagnostic
and treatment procedures utilised by related disciplines; good knovledge of
departmental plpgrams and policies; ability to develop co-operative working
relationships vitb other professional staff; personal suitability.
Revised, luly 4. 1971.
,(. APPENDIX z . - ("
~li4RXLITATIO~iOFFICER 1, HEALTH
e3 7 CLASS DEFINITION:
This class covers positions of employees under training in industrial rehabilitation work in a psychiatric hospital or mental
retardation facility. Under supervision,'they perform any or all the duties of.a Rehabilitation Officer 2, Health and receive on-the-job instruction in the techniques and procedures involved
in effecting the se-employment of persons who have been mentally ill or are mentally retard.ed.
QUALIFICATIONS:
1. Grade 12 education: preferably a.degree in one of the social
sciences from a university of recognised stallding.
2. Preferably some prior, related work experience.
3. Mental maturity: a genuine interest in and ability to work with the mentally disordered or retarded and ex-patients;
ability to communicate effectively with hospital staff,
patients, employers and the public; patience; tact: sound
judgement: personal suitability.
Hcviscd Jinuary 1969
T.C. Jul./ 1, 1972
(. C 10204
RE&BILITATION OFFICER 2, HEALTE .
CLASS DEFINITION:
Under general supervision, employees in positions.in this
class use a complete range of industrial rehabilitation services
to prepare patients, out-patientsor ex-patients ‘at a psychiatric hospital or mental retardation facility, for r&employment within
the community. ,
In conjunction with other hospital staff, these employees
review the medical, educational and work background of individual
cases; appraise aptitudes: discuss tentative programmes with
clinical staff and decide on a realistic individual vocational
rehabilitation programme. They collaborate and maintain liaison with other provincial and'federal agencies in matters such as: vocational or on-the-job training and maintenance allowance: job
placements and they provide follow-up counselling and obtain
assistance from community agencies as required. They.also promote public understanding and acceptance of the mentally ill
or retarded.
These employees may assist in obtaining contracts for
industrial therapy workshops and ma participate in their operation. They may supervise and 1 nsttuct Rehabilitation
Officer trainees and clerical staff. ,The prepare reports and - correspondence as required and'perform related duties as assigned.
QXUIFICATIONS:
1. Grade 12 education; preferably a degree in one of the social sciences from a university of recognized standing.
2. At least one year's experience in rehabilitation work in the Ministry of Health, or directly related experience acceptable
to the Civil Service Commission as the equivalent.
3. Ability to work effectively with the mentally disordered or
retarded and with ex-patients; ability to communicate effectively with employers and'the public: tact: sound
judgement; patience.
- Revised January 1969
T.C. JuI Y 1, 1972