Loading...
HomeMy WebLinkAboutUnion 24-10-15IN THE MATTER OF AN ARBITRATION B E T W E E N: Kawartha-Haliburton Children’s Aid Society (Society/KHCAS) and Ontario Public Service Employees Union (Union) Grievances 2021-0334-007/2022-0334-003 Sole Arbitrator: James Hayes Appearances: For the Union Georgina Watts, Counsel Sarika Navanathan, Articling Student For the Society Carla Black, Counsel A hearing was held on the Zoom platform on October 7, 2024 2 AWARD Introduction 1. These grievances were initiated by experienced After Hours Workers troubled by situations that have arisen when called upon to discharge their child protection responsibilities concerning Indigenous children. 2. The Society brings a preliminary motion to dismiss the grievances because, it says, the concern lies outside the jurisdiction of a labour arbitrator. 3. Union counsel responds in labour relations terms. She maintains that KHCAS Is in breach of the collective agreement when it improperly delegates certain supervisory responsibility for employees to another employer. 4. I am satisfied that the motion must be granted for the reasons advanced by the Society. The parties advise that there may be an element remaining requiring separate determination, if pursued. 5. The motion was argued against a lengthy Agreed Statement of Facts. The ASOF followed issuance of an earlier contested production order and a Union filing of particulars and statement(s) of relief sought. The following facts have been drawn from a more detailed ASOF. Facts 6. KHCAS is statutorily required to perform child-protection functions within its geographic jurisdiction. That entails a duty to “protect children where necessary”.1 7. Dnaagdawenmag Binnoojiiyag Child and Family Services (“DBCFS”) is a multi- service Indigenous Child Well-Being Agency and, since February 28, 2019, a designated Indigenous children’s aid society under the Act. 1 Child, Youth and Family Services Act, 2017, at ss. 35(1). 3 8. DBCFS has a ministerial and legislative mandate to provide child protection services in a large geographic area that overlaps with the jurisdiction of five mainstream Societies, including KHCAS. 9. DBCFS and the Societies with which it has overlapping geographic jurisdiction have entered an Inter-Board Jurisdictional Agreement (“IBJA”) to set out the intended jurisdictions of each Society and how jurisdictional disputes are to be resolved. 10. An Indigenous child or youth has the right to receive services from DBCSF instead of another Society with overlapping geographic jurisdiction. However, some Indigenous children and youth receive services through a mainstream Society instead. For example, KHCAS continues to have jurisdiction to provide service to members of Curve Lake First Nation and those living within Curve Lake First Nation. 11. It is the Indigenous Identity of the child or youth in a family that is the primary determinant as to whether DBCFS or another Society will provide services to the child or youth. 12. KHCAS employs After Hours Workers to supplement its core Monday to Friday daytime staff. They receive referrals, complaints, information and inquiries and respond as required under the Act. 13. There are four dedicated After Hours Workers who work rotating evening and night shifts as set out in a Letter of Understanding to the collective agreement. 14. The After Hours Workers report to a dedicated Service Supervisor. However, when an After Hours Worker receives allegations that a child may be in need of protection, the After Hours Worker is required to consult with the on -call consultant (a KHCAS supervisor) about whether the child needs to be brought to a place of safety. 15. Consultation with a supervisor in certain circumstances, including when to bring a child into care, is a requirement of the Ontario Child Protection Standards. The on-call consultant is the person designated by KHCAS to have the authority to give final approval on all decisions to admit a child to care or transfer a child in care. 4 16. The After Hours Worker is required to follow the case direction provided by the on-call consultant in the moment. However, After Hours Workers are entitled to raise concerns about case direction or safety with KHCAS management after any call. 17. At present, DBCFS does not have the capacity to independently serve the Indigenous children, youth and families within its jurisdiction in the evenings and on the weekends. Accordingly, DBCFS contracts with each of the five mainstream Societies within its geographical jurisdiction to meet its after hours service obligations. 18. The DBCFS website states that “we also have an after hours Supervisor on call who supports CAS workers to ensure the best interests of Indigenous children, youth and families are upheld after hours”. 19. Accordingly, any after hours calls to DBCFS within KHCAS geographic jurisdiction are re-routed to KHCAS After Hours Workers. They receive these calls in the same manner as calls made directly to KHCAS. 20. KHCAS After Hours Workers may also occasionally be required to go out into the community to respond to urgent child protection calls related to DBCFS service recipients. 21. When an After Hours Worker receives such a call, the Worker is required to consult with the DBCFS on-call consultant (instead of calling the KHCAS on-call consultant as they normally would) to obtain instructions about the required response to be provided, including whether a child will be brought into care. 22. If the After Hours Worker cannot reach the DBCFS on-call consultant, they can contact the KHCAS on-call consultant and/or a KHCAS Senior Manager, who may escalate the issue further at KHCAS or with DBCFS senior management. The After Hours Worker is ultimately required to follow the DBCFS on-call consultant’s case direction regarding DBCFS clients, including whether or not the child will be brought into care. 23. After Hours Workers do not have any contact with DBCFS’s supervisors or managers other than consultations on DBCFS calls. 5 Relief Sought 24. The Union seeks: • An Order that KHCAS employees report to and/or take direction from KHCAS supervisors when attending DBCFS client calls [for clarity, an Order allowing KHCAS employees to seek case direction from their KHCAS supervisor(s) regarding what to do in relation to a child in care if they have concerns or questions regarding the direction they have received from the DBCFS consultant. For example, if directed by the DBCFS consultant, to leave a child in a home and/or circumstances that are, in the worker’s assessment, unsafe.] • An Order directing the Employer to notify KHCAS staff of upcoming DHCFS scheduled shifts, where possible (i.e. holiday and days in lieu of holidays), one month in advance. • An Order directing the Employer to provide KHCAS staff attending to DBCFS’s after hour calls with a list of DBCFS placement options should a child or youth within DBCFS’s jurisdiction require removal. • An Order prohibiting DBCFS staff from performing the work of KHCAS bargaining unit members. Submissions Union 25. The Union maintains that the essential character of the dispute lies within the collective agreement, thereby invoking arbitral jurisdiction. It refers to the Article 6.01 Management Rights clause and Letter of Understanding #11 headed “Re: After Hours Model”. 26. The Union submits that the contested direction to employees is unreasonable once exposed to a “KVP analysis”. It argues that the collective agreement prohibits Society delegation of supervisory responsibility to another agency - employer. It says that neither the Society’s “Jordan’s Principle” policy nor the After Hours Worker job description contemplate such delegation – although it acknowledges the job description reference to “consultation with the consultant 6 on duty”. The Union submits that delegation also violates supervision standards set out in the Ontario Child Protection Standards (2016). 27. Relying upon Bell Canada, 2016 CanLII 11573 (ON LA) (Surdykowski) at para. 45, the Union emphasizes that “an issue or dispute is not excluded from the scope of a collective agreement or exposure to arbitral oversight merely because it is not expressly referred to in the agreement”. Reference was also made to Re Metropolitan Toronto, (1988), 3 L.A.C. (4th) 97 at pp.108-109 (Solomatenko) and Toronto Police Services Board, 2006 CanLII 50481 (ON LA) (Surdykowki) at paras.14-15, 20. Society 28. KHCA submits that the Union response to the jurisdictional objection fails because it mistakenly conflates client case decision-making with workplace direction. The latter may be subject to arbitral review, the former is definitely not. 29. There is no room to confuse what the Union seeks here. As was explained in a recent e-mail, counsel advised the Society lawyer as follows: “The employees of KHCAS seek an Order allowing the KHCAS employees to seek case direction from their KHCAS supervisor(s) regarding what to do in relation to a child in care if they have concerns or question regarding the direction they have received from the Dnaagdawenmag consultant.” 2 (bold added) 30. The Society emphasizes the distinct context and circumstances underlying Indigenous child protection most recently addressed by the Supreme Court of Canada: Reference re an Act respecting First Nations, Inuit and Metis children, youth and families, 2024 SCC 5; see also Kina Gbezhgomi Child and Family Services, 2020 ONCJ 414 at paras. 42, 43 per Wolfe, J. 31. Responding to the Union submission grounded on Bell Canada, the Society points to two recent awards wherein respected arbitrators have concluded that the “essential character of the dispute” lay outside of the labour relations statutory regime. The first dealt with nuclear safety: Ontario Power Generation, 2021 CarswellOnt 10640 (Gedalof) at para. 78. The second, an alleged breach of the University of Guelph Act: University of Guelph, 2023 CarswellOnt 12354 (Wright). 7 Discussion 32. I have no doubt that these grievances were initiated by senior After Hours Workers in good faith. It was clear during prehearing case management that they have serious child-focused concerns about directions given by DBCFS consultants in some cases. As Union counsel stated (colloquially) in Reply: “If KH staff adopt a policy to rubber stamp a DB decision, then so be it. But we want to go to our staff and hear that decision from our own managers.” 33. To say more than that “fraught” does not begin to describe Canadian history around the treatment of Indigenous children would be entirely gratuitous. And it is plain that everyone at KHCAS and DBCSF has more expertise than any ad hoc labour arbitrator with respect to this subject. No arbitrator should shrink from an unusual challenge. But nor should any invitation be accepted even if that invitation, skillfully in argument, is painted as a labour issue. 34. The grievors’ concerns were advanced, with trademark verve, by Union counsel as well as possible. But, with respect, a decision in this case does not present a close call. 35. There is nothing in the collective agreement or the documentary record that prohibits or restrains child protection instructions to After Hours Workers coming from the DBCFS consultant on duty. These are directions, after all, with respect to Indigenous children coming from an Indigenous child prote4ction agency. Nor does the collective agreement or anything in the record confer an affirmative right upon KHCAS employees in the field to appeal or question that consultant’s judgment once made. 3 36. As Bell Canada teaches, it is not necessary to find a specific ‘hook’ in a collective agreement to ground arbitral jurisdiction. However, OPG and University of Guelph, on quite different facts, illustrate that there are limits. No arbitrator has free rein. 37. The parties agree that After Hours Workers do not have any contact with DBCFS supervisors or managers other than consultations on DBCFS calls. 4 However, in these grievances, they bring concerns about the judgment of DBCFS consultants in individual cases. That this dispute is that narrow is disclosed unmistakably by 3 I do not mean to suggest that an After Hours Worker could not reach out to a superior afterward. See para. 17 above. 4 See para. 24 above. 8 the relief sought. 5 It makes plain that the “essential character” of this grievance is a dispute over the determination of after hours Indigenous child protection – when a professional disagreement about particular client case direction emerges. 38. A dispute over who should make decisions about Indigenous child protection, untethered to any provision in a collective agreement, lies outside the jurisdiction of a labour arbitrator. Disposition 39. Insofar as the principal relief sought is concerned, the grievance is dismissed for want of jurisdiction. . 40. The parties will advise if there is anything further to adjudicate and I remain seized for that purpose if so required. Dated at West Vancouver, British Columbia, October 15, 2024 ____________________ James Hayes 5 See para. 25, first bullet.