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Home My WebLink About1989-0019.Bonner.89-10-12· ' '~ ONTARIO EMPLOYES DE LA COURONNE ' "~ CROWN EMPLOYEES DE L'ONTARtO GRIEYANCE C~OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG.;Z8- SUITE2100 TE~.EPHONE/T~'I.~-PH~NE ;$0, RUE DUNDAS OUEST, TORONTO. (ONTARIO) MSG IZ$- BUREAU2100 (416)598-0688 !9/89 IN THE MATTEK OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPS'EU (Bonner) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer Before: R.L. Verity Vice-Chairperson I. Thomson Member D. Montrose Member For the' Grievor: P. Cavalluzzo Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors Fo~ the Employer: M. Failes Counsel winkler, Filion & Wakely Barristers & Solicitors Hearing: July 14, 1989' -2- 'DECISION · , , , In ,this. matter, the g.rievor.,cl,aims,that he was .improper, ty:compensated ( for ,a., }..emp°r' .drY, .tea,c,.h.:i,n,g ,a,~s~signment:,~i,~n .~1989 c.on.trary, to: Art-icle ;.6'. lJ,1 ..of the _ Co,1 lecti v,e, A~greeme. n.t..?, .The_ p,r.'oy! s~ions~cit.ed,,-by,,the .parties ,are' as fol.loW~,:l, ,' ~ 'F :'~,i~. t,~'-~'~, . ':~ '~ ~.~"= ' ' 6.I.l Where an employee is assig'ne~ temporarily to perform :.:.~,. ;~ ., -. ~,,., · ,;. .;,.t, he,, duties., of a pq_s~i,t_ion ~i:n' a ~c,l,assification£',With a higher salary maximum for a per{od in excess of five .'. ,-'-~ -,~ -*,-~..-'l (5) cons. e. cutivq wonking., day. s;-.he ~.shall be ~paid,~.acting pay from the day he commenced to Perform the duties of ,_, , -; ',:t, , ~ .the~ .~h~i,gh~,e.r c.l.as$.ific, ati~on .~n 'accor, dance' with the next '- higher rate in the higher classification provided that ;:, wher_e...s~uc~.a .ch.ange~.resu_lts.,jn an'increase off,less than r m -- ' three percent (3%), he shall' receive the next higher :..salary .rate _ag.al . :.~ 6.3 When an employee is temporarily assigned to the duties and responsibilities of a position in a classification .,,,.I,~. .,i~, with~, a~ ,~lower,; maximum-.salar.y :where- there is work reasonably avail'able for him in the position 'from which .~ . ~.. ~. :~.,. ..].., he ~as.assi..gne~.',~ he shall .c, ontinue-to be paid 'at the rate applic_able to the classification from which .he was "' m ; ' ¢ ' ~ ~ gfie~0r, 'R-o~ Bohner, is classil~ied as an Attendant 2, Oak Ridge.. 'As"an attendant, h~' is required to provide ~us~ody and practical nursing'care to ~le patienl~"s' ¢ommi'tt'e'a .t; 't e Oak Ridge Division of '~he penetanguishene Mental Health Centre. Mr. Bonn~r also serves as one of-four co-chairpersons of the Institutioh's. tWo H'e';lth and ~afety Committees. The Union co-chairs are the - i ' , -. --':r. . . ' grievOr from the Oak Ri~gk"Division and Mich;;l taylor from the Regional Centre' · Division+ Mary Jane Deacon, Manager of Educational Services is one of the two managemen% co-chai rs. , ' ¢ '-* .*; ~* "[ ' ' -3- In October 1988 all four co-chairpersons attended a two week training course in Barrie to learn the details of recent amendments to the Ontario Occupational Health and Safety Act and alt regulations thereto (W.H.M.I.S.). W.H.M.I.S. (Workplace Hazardous Materials Information System) is a Canadian-wide program developed by the Federal and Provincial Governments in co-operation with industry and organized labour to provide basic information about hazardous materials in the workplace. The purpose of the Barrie training session was to train instructors to teach W.H.M.i.S. seminars to all employees. As might be expected, the two bargaining, unit members chosen to teach the course at Penetanguishene were the co-chairpersons of the Health and Safety Committees. The material facts are not in dispute. The W.H.M.I.S. "right to know" program is a packaged program developed for the Ontario Government, which includes an instructor's manual, several training manuals, a flip chart and audio-visual material and equipment. The grievor testified that between January 2 and March 31, 1989, he taught 24 full day seminars mainly to Oak Ridge Division employees. At Oak Ridge Division, the program was co-ordinated by the Educational Services Department under Manager .Mary Jane Deacon. Ms. Deacon ordered the seminar materials, scheduled the one day seminars, provided the necessary equipment and course materials, determined the number of employees attending each session and kept records, tn addition, she taught several seminar sessions when the program was first introduced. Until February 2, 1989, t'he grievor was not required to perform his regular duties as an attendant. At the grievor's request, he was granted prepar'ation time on-;,dayg ~hen~;he.,did:hol~'' te'achi~JA~cdrding to his evidence, he ', ~ · .,. .~ ~.~ ;~ ,~,.';- - used that' time' to prepare' fOr'-th-e Seminarg'; .'~Ho~e~~ once the grievance was lodged ofi.Febru~ry 2,:'.1~8~, th~ ~r~ ~s~old;t~ retuCn to h~s normal duties on 'the days when he did not teach, Assistant Di.rect°r"6~., ~ursjh~~. {}Oak':' Ri:~:~ivis~on), Patrick Burns, .... ~. :72 . .~ , testified that the grievor was entitled to t'ime off between: teach.~ng~days a perk of thee· job" and because h'~6ad n~ p¢69ious~teaching exper)ence. .It was Mr. , .~' , " ,,' .~. , ~ 4 t'. ' '- ' ~. Burns' .eei'dence '~h~t he .'ne~er ' tbl'd 'th~ .grievor"th~t~-he.' had 'be~n' 'temporarily g new ,posi:ti q assi n~e~;'t6';a'- o ~ .: ..~- ~s,' Na~y '.aan~ De~o~'::i~c'M~a~ o'f'~E~ucationa] S~r~ices at the .Penetangu~shene. facil~'ty,- 'She-t'e'stif-ied' ~h~t all instructors 'at pe~anguishene are classified as Nurse 2, Nursing Education, althou~ not. at.1 instructors are registered nurses. Ms. Deacon testified that educators who were not nurses were trained in some re~ated.'fieId~ ' "~ ~'::~' ~' ' ' Th6 gri~vor'seeks c~m~enSation-du'ring the temPorary * ' ' . ..assignment at the rate of pay for Safety Instruction Officer 2. At the second stage grievance . ~ ,. .~ ~ -~ , · ~- ....... ~ ~ .-~ ~ ~ ,. ~ . . - meeting, management'adopted th~os'i'tibh 'that for"the ~ri~9~;i~ "ass~hed teaching duties" the Safety Instruction Officer 1 .class s~andard would be .appropriate. Management 'relied upd~'A[ti. E1.6~6'.3 of th~ ~ollective ~greeme~t ~'' -~n continuing t'o pay the g.rievor's salary, as an ~ttendant 2. The class standard for Attendant 2, Oak ~idge reads: -6- Attendant l, Oak Ridge plus acceptable experience as a Hospital Attendant 2 in another Ontario Hospital. 3. Ability to deal tactfully and effectively with the type of patient committed to this Division; good powers of observations; satisfactory physical stature and condition; ability to cope with emergencies; ability to maintain good working relationships with patients and co-workers alike; ability to follow simple written and oral The safety instruction officer 1 and 2, class standards, read: SAFETY INSTRUCTION OFFICER 1 CLASS DEFINITION: This class covers full-time safety promotion work in a Department with an extensive, well-developed program of accident prevention through education and instruction. These programs are designed to promote safety measures in work habits and recreation activities. Employees in this class report to the senior officer of the region or to the safety instruction officer in charge of the program. They assist their superiors in the preparation and distribution of safety information to departmental personnel and specialized non-governmental organizations. {They assist in training members of such groups in one or more of the activities of the program.) This class may also be used as the traning classification for positions of a higher level in the class series. CHARACTERISTIC BUTIES: Lecture departmental personnel and others on fundamental principles and methods of accident control, first aid, resuscitator and artificial respiration, fire prevention, driver education and traffic safety. Demonstrate the proper use of equipment and provide instruction to apecialized groups such as Rod and Gun Clubs. Inspect departmental establishments and equipment for conformance to safety standards; make recommendations to supervisors regarding improved methods. Distribute circulars, bulletins and training manuals to field staff and the public; contact groups and organizations to publicize the program, promote interest and secure co-operation. Assist in the preparation of bulletins, training manuals and demonstration sets. ,.:...,.,· ~ Assist~ ,in t~e investig, at.ion' of.',a'ccidentsr~and~,iprepare analytical Compile statistics on accidents; recommend changes in work methods, ope ati a_l s: ~ ~,. ~ , .May' ia~.t.-end, LConf. erences and~ short courses=to. 'learn, up-to-date methods. QUALIFICATIONS: >;"': ' ,l.~.- -~, -- · Grade ,12..education~;,.extensive knowledge of Department and equipment in use. 2. 'Experience in safety practices either on the job or under, taken: · ,,~ ,..~ , 3,, ~, Ability to speak and writer~l'early;.teach and persuade, .~ good:.:powe, rs~of observation',~tact,'.good judgment. SAFETY INSTRUCTION OFFICER This class covers full-time safet'y promotion work in a Ministry with an extensive, well.,deve.loped?.programme',of 'accident prevention through education and instruction, These programmes are designed to promote 'safety measures in work habits and recreati6n~l'ac~iv'ities. Employees in this class may be in charge of' One sp~ci~l~zled activity of a -:.. ':~ .programme. such.as. Hunter.-Training.;for-.the Province with responsibilty r ~.- ~.-;:. for securi'ng-compliance,~. In-.'these positions, duties, i.nclude the ,r..:,.-..~ 'eval.uation.of equipment,' the deve}opment and distribution of safety material and the training of departmental personne! and members of' .....,=....- .interested;groups~'.'. . It may~also~cover technical supervision of other .. -- -safety instructors.'. In other=posi, tions, such as those of the Accident Prevention Organizers in . .the,' "Ministry of Transportation and Communications, the' employee is respons!ble for the implementation of :~ ,. .._th.e complete'safety.~programme in an.assigned district. They publicize .: ~. ,,...a~d promote~..interest.in all ~aspects of the programme by distributing .. ~. .saf;e. ty.materi'ats,-addressing groups, .arraning for any demonstrating equipment, and i:n inspect,ing areas requiring special measures. TheSe employees are supervised by a senior officer at Head Office or the senior, official of the region, ' CHARACTER I sT I C 'DU1= I E s: ' 'Trai'n and supervise subordinat~e officers in all phases of the programme. ' ' , .... -8- Contact line supervisors, educational groups, municipal councils and other specialized groups to publicize the programme, promote interest and secure compliance or co-operation; provide information and material; address interested groups. Lecture Ministry personnel and others in the fundamental principles and methods of accident control, first aid, resuscitator and artificial respiration, fire prevention, driver education and traffic safety. Demonstrate the proper use of equipment and provide instruction to specialized groups such as gun clubs and sports groups. .: Investigate accidents and prepare analytical reports. Compile statistics on accidents; recommend changes in work methods or legislation and may revise training manuals. Inspect Ministry establishments~ and equipment for conformance to safety standards; issue safety instructions. Prepare or assist in the preparation of bulletins, circulars, training manuals and demonstration sets. Arrange sepcial competitions. Attend conferences and refresher courses. QUALIFICATIONS: 1. Grade 12 education; extensive knowledge of the Ministry and equipment in use combined with special training directly related to the work to be undertaken. 2. A minimum of two Years' experience in ~afety training and promotion in the specific programme or in related work outside. 3. Ability to analyze; facility of expression in speech and writing; abili..ty to maintain harmonious relations with supervisors at all levels; good powers of observation; persuasiveness; tact. The parties agree that under Article 6.1.1 the onus is on the Union to establish three criteria; namely, (1) that the grievor was assigned temporarily to assume duties in another position {2) that the job performed was for a period in excess of five consecutive working days, and (3) that the grievor performed duties -9 of'a higher" ci~ssiFicai;ion.- ' ' The Union argued that,the 9r~evor qualified for payment under Article 6:1,1':at ~he-r~e of Safety I~t~uE~o" Offic'er '2 for the entire three month 'temporaCy assi~nm~t'.~. .':'Iff:'th~ alte¢~ative, ~h6 9rievor was entitled to" full payment u'ntiq ~ebrua~y'"2 and thereafter foe ~h teachin9 day at th~ high;r~ rate. The Union cited'~wo'Z:auth'a~ities: fr'om~"~h6 private seEtor: Re Win~so~ P~blic Uti'l'~t'ies 'Commiss'ion and 'International__otherh60d of Electrical Workers, Local (Adams); Re Health Labour Relations' Association of British Colo~b'ia (C~n'br'ook-~nd Di~tri'ct ho'spi__l:) and Hospital Employees Union, LOcal 180 (1984)~ 1~ L.A.C. (3d)"~'03 (Germaine). " '(he [mploye~ ~ontenaed that the g~ievance must be dismissed because the Uni'oh' P~iled to establish ah}' o'f ~he:crite~ia required in Article 6.1.1. Alternatively} it was argued that the ~rievan~e mu~t be ~ismissed in that the 9rievor'; a~'-'best; 'W'6u'ld'~u~l~f) ~or th~' 'Safe~Y Instr'uctio'n Officer 1 class Standard. " The Boar~ is persuaded thaic 'the 'Union's~claim has merit. In these 'p~¢'~'cular cifcum'stances, we fin'd i~h~t-t'he grievor was assigned' to a teaching role 'that"was n'ot. part o~ his 'r~¢ular job. '~ That ¢~)le was chosen by the Joint "OccupatiOnal Health and Safety Committees with the ~pproval of management. 'bbvi°'usly, the grievor performed t~e teaching assignment for"a period in excess of five consecutive working da~s at least between the period January 2 and February 2 respectively. -lO- The real issue is whether or not the grievor was performing the core duties of the higher classification, as alleged. On the evidence adduced we are satisfied that he was indeed performing the core duties of the Safety Instruction Officer 2 class standard during the three month period of the temporary teaching assi§nment. The Board must broadly apply the class standards in a realistic fashion, recognizing the fact that in a temporary assignment there will seldom be a perfect fit. In the instant grievance, the grievor actively taught or trained departmental personnel and was in charge of one specialized activity; namely, the W.H.M.I.S. program. On the evidence adduced, it cannot be said that the grievor "assisted in training" as spec!lied in the Safety Instruction Officer t class standard. The evidence established that it was the grievor rather than Mary Jane Deacon who performed the major teaching assignment at Oak Ridge Division. Indeed, through a technicality, Mary Jane Deacon did not hold the requisite certificate to teach the course. We are satisfied that the grievor met the qualifications for the higher class standard with the exception of the requirement for a grade 12 education. In our opinion, that minor flaw is not an adequate reason to deny the remedy sought. In these particular circumstances, the grievor does not warrant the higher rate of pay for the entire three month period of the temporary assignment. The appropriate remedy is compensation to the.grievor at the higher rate of pay (Safety Instruction Officer 2) from January 2 to February 2, 1989, and thereafter at that rate of pay for actual teaching days until March 31, 1989, together with interest. The Board retains jurisdiction in the event of any difficulty -ll encountered in calculating the appropr.iate compensation.l.~j, ~- DATED ~kT'Brantford, Ont~ari°,'thi's 12th da~ of 'O~t' , A: D.,' 1989. R. L. VERII'Y, ' - VICE-C)q~IRP£~S~)N MEMBER -- -~-~ ~'~'~' ,~r _ (Addendu[~ '~ ~ attached) ~ D. MONIRDSE - )~EMSI~R " ADDENDUH 19/89 OPSEU (Bonner) ~ Ministry of Health I agree with the majority of the Board with the exception of the classification level. The grievor although teaching departmental personnel, was not in my opinion, "in charge of one specialized activity"~ thus would qualify for the Safety Instruction Officer I level. Douglas C. Montrose