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HomeMy WebLinkAbout1988-0022.Flinn et al.88-08-29 ONTARIO EMPL OY~-S DE LA COURONNE CROWN EMPLOYEES DE L ~ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO MSG 1Z8- SUITE 2100 TELEPHONE/T~-I,.~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG IZ8 - BUREAU 2100 (416) $98.0688 O022/88 iN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: - OPSEU (Flinn et al) Grievozs and The Crown in Right of Ontario (Ministry of Health) Employer Before: R.L. Kennedy Vice Chairman J. McManus Member P. Camp Member For the Grievors; Ri Nelson Counsel Gowling & Henderson Barristers and Solicitors For the Employer: L. Horton Staff Relations Officer Human Resources Secretariat Hearing: July 13, 1988 DECISION The nine Grievors are all employed by the Ministry of Health in the classification of Ambulance Officers in the Ottawa area. That position is identified in the legislation and regulations governing Ambulance work as "Driver Attendant." In late January 1988 they each filed a grievance in virtually identical language as follows: I grieve that I/or my qualifications have been improperly appraised, and I ~ave been denied the opportunity to do Employer sponsored training in a discriminatory manner affecting my classification 'and future wages. Settlement'desired: That I be allowed to upgrade my job skills through the 8 hour heart aid 1000 course. The Employer raised a preliminary objection to the jurisdiction of this Board and the arbitrability of the grievance, which objection, in our view, is well-founded. The background circumstances and facts are not in dispute and may be briefly set out. The Grievors are all long service employees who commenced full-time employment as Ambulance Officers before the first day of August 1975. Their basic qualification for their positions as'Ambulance Officers pursuant to the provisions of Regulation 14 issued under the Ambulance Act R.S.O. 1980, c. 20, is that they were "grandfathered" in the position pursuant to the provisions of Part III, Section 7(2) of Regulation 14. Pursuant to Section 7(3) of the said Regulation, persons who commenced full-time employment as Driver Attendants subsequent to August 1, 1975 must possess the formal qualification as an Emergency Medical Care Assistant (EMCA) in order to function in that capacity. The basis of the EMCA qualification is set out specifically in Section l(e) of Regulation 14 and is obviously a much more extensive and rigorous prequalification than that which is required pursuant to provisions of Section 7(2) of Regulation 14 dealing with employees who have bean "grandfathered". The EMCA qualification requires completion of a course in ambulance and emergency care administered by a College of Applied Arts and Technology in addition to a formal examination and evaluation and a period of on-the-job experience. There are a large number of Driver Attendants employed throughout the Province of Ontario who are in a similar position to the Grievors' with respect to formal qualifications by reason of the legislative changes that occurred in 1975 implementing upgraded qualifications. Many of those employed as Driver Attendants at that time have, in fact, upgraded their qualifications to EMCA standard subsequently. course that is given by supervising hospitals pursuant to guidelines issued by. the College of Physicians and Surgeons purportedly under the authority of the Health Disciplines Act, R.S.0. 1980, c. 196. The course i~volves the appropriate training of persons other than members of the medical profession in the use of an automatic defibrillator. The use of that equipment by Driver Attendants comes within what is described as advanced life support skills and is in substance the type of medical act customarily performed by a physician. Pursuant to Section 50(k) of the Health Disciplines Act, physicians'~ regulations can be issued authorizing persons other than physicians to perform specified acts in the practice of medicine under certain conditions. We were advised by counsel that in fact no regulations existed in this area, but rather there were guidelines issued by the College of Physicians and Surgeons dealing with the type of persons generically referred to as Paramedics wherein, under the supervision of a hospital, training could be given and the acts performed. The Heart Aid 1000 course administered and supervised by a hospital qualifies a Driver Attendant to perform defibrillation. To be eligible to take that course, it is a requirement of the supervising hospital pursuant to the guidelines that any candidate possess the basic EMCA qualification. The Grievors were denied the right to take the course because they did not possess that qualification. Under a salary note to the collective agreement, any employee who is authorized and required to perform defibrillation receives an additional annual allowance of $900.00. It was argued by the Union that the Grievors do exactly the same work in the same manner as the EMCA qualified Ambulance Officers and that they are EMCA qualified in every respect except ~they do not have the formal certificate. It was suggested this B~ard could deem them EMCA qualified. With respect to the guidelines and the hospital administration of the course in question, it was argued that, in the absence of a proper regulation, the whole system and the restrictions imposed had no legal validity, and we had the authority to require equal treatment for the Grievors. Simply stated, the argument of counsel for the Employer in support of the preliminary objection was that the grievance did not raise any matter covered in the collective agreement; it did not raise any matter pursuant to which a right of grievance was given to an employee pursuant to Section 18(2) of the Crown Employees Collective Bargainin~ Act, R.S.O. 1980, c. 108, and the only issue that it did appear to r~ise was one relating to training and development which, by the Specific provisions of Section 18(1)(b), was an exclusive function of the Employer and could not be the subject of collective bargaining or come within the jurisdiction of the Grievance Settlement Board. With each one of those contentions we would agree. The relevant section 18 reads as follows: 18. (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes'the right to determine, (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions; and (b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. (2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; (b) that he has been appraised contrary to the governing principles and standards; or (c) that he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19. It is quite true that the grievance has been drafted with a view to giving the appearance of jurisdiction by the references to appraisal, classification and discrimination. Notwithstanding the use of that language, however, it is clear that the sole issue between the parties is that the Grievors have not been permitted to take a specific training course, and the only relief conceive of any issue that is more clearly and exclusively an issue of training and development, which by reason of the specific provisions of Section 18(1) cannot come within our jurisdiction. If authority were needed, reference can be made to OPSEU Union Grievance 672/84 (Palmer) and Brick and Roth 244/82 (Roberts). On the appraisal aspect, even if we were inclined to interpret the basic requirement for taking the course as constituting an appraisal, it is again clearly not the type of appraisal that has been rendered subject to review pursuant to the provisions of Section 18(2)(b) of the Crown EmPloyees Collective Bargaining Act. It.relates to no subjective , evaluation on the part of the Employer as it is an unchallenged fact that the Grievors are not EMCA qualified. Any Jurisdiction under the section is limited to a finding that the appraisal is contrary to the governing principles and standards. It is clear on the facts of this matter that EMCA qualification is, in fact, a part of the governing principles and standards of the Employer and of the authorities having jurisdiction over the provision of and training for ambulance services. There is no jurisdiction in the Board to challenge those principles and standards for any appraisal. Again, the jurisprudence of this Board clearly establishes that the jurisdiction under Section 18(2)(b) applies only to a formal appraisal of the Grievor in his existing job. Reference may be made to Isaac and MacIsaac 742/83 (Kennedy), Cloutier 20/76 (Beatty), and Cunninqham 279/79 (Joliffe). With respect to the reference in the grievance to the matter affecting the Grievors' classification, it is again clear on the agreed facts that the classification will be unaffected by the training in question. There is, therefore, no argument under Section 18(2)(a) that the Grievors have been improperly classified. There is undoubtedly an anticipation in the Grievors that if they can achieve the successful completion of the course, they will bring themselves within the requirements of the salary note, but if that is their wish they must first get the pre- requisite to the course, being the EMCA qualification. Before' they achieve the various advanced life support qualifications, they must meet the threshold qualification of EMCA. The provisions of the Regulation have "grandfathered" them into the job, but that does not, in our view, deem them to have what is obviously a much more extensive level of formal training than they actually possess. They may do the work, but the formal qualification and training address themselves to the degree of understanding that is brought to the work and provide the foundation upon which the more advanced training can be built. We would further note that the particular course in question is~ not under the control and supervision of the Employer, and its entrance requirements and evaluation are not controlled by the Employer. All those aspects are under the control of the base hospital and are'subject to the guidelines of the College of Physicians and Surgeons, neither of which organizations is likely to De particularly impressed by any order of this Board. Accordingly, apart from any issue of jurisdiction, there would appear to be no practical basis upon which to grant the relief requested. For all the foregoing reasons we conclude that we are without jurisdiction in the areas raised by the grievance and the type of relief requested. The grievance is, therefore, dismissed. DATED this 29[n day of August, 1988 irman P. Camp,'~Membe r