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HomeMy WebLinkAbout1991-0160.Finn.93-04-27 ONTARIO EMPL 0 YES; DE LA COURONNE CROWN EMPL 0 YEES DE L 'ON TA R/O GRIEVANCE C,OMMISSION DE SEITLEMENT REGLEMENT BOARD DES GRIEFS DUNDAS STREET WEST, SUITE 2~00, TORONTO, ONTARf~, M5G tZ8 TELEPHONE/T~-L~-PHONE: (416~ 326- RUE DUNDAS OUEST, BUREAU 2'i00, TORONTO (ONTARIO). MSG 1Z8 FACSIMILEIT~'LIJ:'COPIE : (4 '16} 326- ~396 ~6o/9~. IN THE I~TTER OF ~ M~TTI~TION On4er THE CRO~ ~P~YEE~ ~L~CTI~ B~G~ZNZNG ~CT BeEore ~ BE~EN 0PS~ (Finn) erievor - ~ - The Cro~ in Righ2 o[ On2ario (~inist~ off Co.unity & Social Se~ices) ~plo~er BRFO~ B. Kir~ood Vice-Chai~erson J. Card.ers Me. er M. O'Toole Me. er FOR THE B. Ulehla GRIEVOR Counsel Cornish Advocates Barristers & Solicitors FOR THE J. Smith RESPONDENT Legal Services Branch Ministry of Community & Social Services HEARING January 11, 1993 Page 2 DECISION The Union ' s Statement stated that the EmploYer acknowledged the need for a comprehensive classification review of all the class standards in the Technical Services Category. As it did not materialize, the grievor, who holds the position of Dental Assistant in the Technical Services Category, filed a grievance on February 19, 1991. On April 5, 1991, Barry Mapplebeck, the Director of Employee Services for the Ministry asked the grievor to create a description of her current job duties.. The grievor prepared a Job Description, dated 27/06/91, which is attached to this decision as Appendix 'A'. The Employer did not dispute this description. The grievor claims in her grievance that she is improperly classified as a Dental Assistant. The Union submits that the advancement in technology has significantly'altered the practice of dentistry since these class standards were created in 1956. In the field of dentistry, there are now three levels recognized by the Royal College of Dental Surgeons, the Uncertified Dental Assistant, the Certified Dental Assistant and the Preventative Dental Assistant. The Union's counsel submits that Employer classifies all dental assistants at the first level, no matter, what level of training and responsibility the job requires. The Union claims that greater education is required to cope with the changes in dentistry and to handle the computerization of files that have since been introduced. Union's counsel submits that the class standards no longer appropriately describe the grievor's job, as the grievor has greater responsibilities, education and duties than those encompassed by the existing class standards. " Pagc 3 The Employer claims that the class standards are broad in their description and still encompass the changes that have occurred in the practice of dentistry as it affects the role of the dental assistant. Therefore the Employer claims that the grievor is properly classified. The class standard states: DENTAL ASSISTANT CLASS DEFINITION: This is semi-skilled work of a routine nature in assisting the Dentist in the clinic or laboratory of an Institution or Ontario hospital. Under close supervision of the Dentist, the employee prepares the patients, dental materials, and instruments for dentistry and keeps records of treatments and supplies. The work is checked frequently and is subject to continuous review for compliance with instructions. CHA~C~RISTIC DUTIES: Receives patients and prepares them for treatment at the dental chair; produces their records of treatment for the files. Under close supervision, prepares amalgam, cement and other similar materials as required, and mixes the fillings as required by the Dentist; prepares hypodermic syringes, surgical sponges, and maintains supplies at the dental chair; prepares utensils in preparation for taking impressions; pours moulds and assists the dentist in mixing impression plates in a laboratory. Assists the dentist during treatment by handing instruments or materials to him and assists in taking x- ray photographs. Arranges for escorting patients to and from the clinic and supervises the inmates or patient in the waiting room; arranges future appointments. Cleans and sterilizes instruments, equipment, laboratory or dental car.(sic) Under direction, performs clerical duties such as maintaining and filing records and charts; prepares requisitions and orders, daily treatment list, invoices Page 4 for laboratory work, laundry for the clinic and dental materials. Performs other related work as assigned. QUALIFICATIONS: 1. Grade 10 education, with elementary knowledge of dental materials, instruments and the fundamentals of chemistry. 2. Preferably some other experience as an assistant to a Dentist or as a laboratory assistant. 3. Ability to deal tactfully and effectively with inmates and patients; an aptitude for anticipating the needs of a dentist during treatments; dexterity; good physical condition. The griever has been an employee in the Technical Services Category of the Ministry in the position of Dental Assistant since 1974 at the Rideau Regional Centre, Smith Falls. She had a break in her employment for maternity leave and for raising her children, but has now worked continuously with the Employer since 1984. The griever has a high school diploma and is certified with the Ontario Dental Association, and retains her certification by taking continuing education courses each year. She also has her Community College Certification with HARP, (~ealing and Radiation Protection) which allows her to expose x- rays. The griever states that her job has changed. In her early years she was there to greet and seat the patient, and to take on a greater clerical role. Now there is a dentist, Dr. Girgis, and a minimum of two support staff, the receptionist and the dental assistant. She has both office duties and clinical dental duties. The griever states that the clerical role has changed as a result of the computerization of the office. There still is a clerical component to the job. The griever is still required to maintain the patient's chart, which is a hard copy of the Page 5 information relating to the patient's visits. In addition to maintaining the chart, the grievor uses a LOTUS program to maintain the patient's profile by creating a database. She maintains each patient's information for a statistics file, and prepares a monthly report. The grievor used the Lotus program to revamp the record system, to allow the office to determine which patients require care in the following month. The grievor uses a Word Perfect program for correspondence which was previously done by a secretarial pool and for reports required by the department. The grievor spends approximately 25% of her day using the computer. If Dr. Girgis is away, and a patient requires dental care,, the grievor arranges for that care by a community dentist and prepares the reports. The grievor states that. Dr. Girgis is out of the office a minimum of 25% of the time. Dentistry is performed about..5/Sths of the time, of which about 75% of that is supervise~. The grievor claims that she is not closely supervised by Dr. Girgis, but work as a team. The grievor states that her work in the office is not supervised and her clinical work is not closely supervised, but is generally supervised. The grievor states that in her early years as a dental assistant, the dentist did most of the dental work himself and practised "two-handed dentistry". The grievor states that in two- handed dentistry, the dental assistant assisted the dentist by giving the dentist instruments as required, but was frequently in and out of the dentist's operating room. Now "forehanded dentistry" has developed to relieve the stress on the dentist and to allow the dentist to remain in a sitting position. The grievor states that this has limited the dentist's ability to get his tools and has affected the role of the dental assistant by requiring the presence of the dental assistant. The grievor states she takes an active role in the mouth. The grievor's certification allows the grievor to hold back tissue, use suction, give "in the mouth' instruments. The dental assistant's role now Page 6 allows the dentist to have an unrestricted ability to give 'in the mouth' care. The grievor states she has to keep a Medical Emergency Kit on hand, which she was not required to do in her early years. The grievor asserts that this is important as many of the patients are on medication. As many of the patients are pre-medicated, the grievor ensures that the patient's breathing, heart rate etc. remain satisfactory. The grievor also claims that handling developmentally handicapped patients requires knowledge of restraints, and use of psychology. The grievor states that the Health Disciplines Act has affected the manner dentistry is carried out. Now she has to wear gloves and be aware of barrier controls. It became important with the outbreak of hepatitis in 1980 and with the public's concern with the spread of the HIV virus. The standards for cleaning and sterilization are higher. As there is more hepatitis at the Centre than in the community, Dr. Girgis likes the grievor to follow the Quality Assurance Tests suggested by the Royal College of Dentists and emphasizes proper sterilization and the use of the light curing instruments. The grievor uses light curing instruments. The grievor, provides information to Dental Social Workers who are doing their placement for the Community College programs. The class'standard was drafted in 1956 and was drafted in broad terms. Although the Ontario Dental Association recognizes three levels of dental assistants, the question that this Board must address is whether the class standards as drafted encompass the duties and responsibilities that the grievor performs, not whether there is a better way of delineating the levels of dental assistants. A class standard is not a Job Specification and is not intended to set out all the particular Page 7 duties of the job. Rather, it is a description that is broad enough to cover varying situations and often different ministries, and sets out a standard into which the duties and responsibilities of a particular job are measured. This Class standard refers to 'patients' and 'inmates' and therefore depending upon the location of the work, the class standard may require various degrees of psychology and good communication skills. Looking at the context where the grievor practises as a dental assistant, the Rideau Regional Centre is an institution for the developmentally handicapped. Although the residents of the Rideau Regional Centre are handicapped, we find that the knowledge of restraints and the use of psychology which the grievor uses flows from the reference to 'patients' in this class standard. Although the computer functions that the grievor performs are not supervised, we still find that the clinical functions that the grievor performs are closely supervised. Our role is not to assess the quality of the grievor's performance but to determine the nature of the position. Therefore, although in the grievor's situation, the grievor only requires direction with the introduction of new clinical procedures and her skills and abilities allow her to perform clinical functions with a minimum of supervision, the nature of a dental assistant working hand in hand with the dentist, assisting him in the procedures is to work as a team, but under his close supervision. We find in this aspect the class standard accurately describes the relationship between the dental assistant and the dentist. The nature of dentistry has changed with the development of forehanded dentistry. As a result, some of those tasks that had been formerly done by the dentist are not doae by the dentist, but are done by the dental assistant. The dental assistant no longer just "prepares amalgam, cement and other similar materials as required, and mixes the fillings as required by the Dentist; Page 8 prepares hypodermic syringes, surgical sponges, and maintains supplies at the dental chair; prepares utensils in preparation for taking impressions; pours moulds and assists the dentist in mixing impression plates in a laboratory." The dental assistant is also working in the mouth, albeit under close supervision. Although the duties set out in the class standards are characteristic duties, the 'in the mouth' duties represent duties of a different nature than those described in the class standards. None of the characteristic duties involved working in the patient's mouth. These duties constitute a substantial change in the functions of this dental assistant. These duties are now a necessary function of the grievor's job. The grievor does not perform any of the additional duties that a Preventative Dental Assistant performs and therefore those duties are not relevant to this grievance. The grievor no longer assists the dentist taking X-rays. The grievor is now responsible for taking and exposing x-rays. The dentist does not take x-rays. She is licensed under HARP to take x-rays so long as there is a dentist on the premises and she is required to do so. Therefore this duty is beyond the description referred to in the class standard. The educational requirements that the Employer incorporated in the class standard for the dental assistant, as necessary for the job, are beyond "Grade 10 education, with elementary knowledge of dental materials, instruments and the fundamentals of chemistry." The certification that the grievor requires to perform her job is at a Community College Level. As Dr. Girgis performs ' forehanded dentistry', the grievor could not carry out her job as now required without her certification. The level of skill that is now required of an employee in the grievor's position is greater than that contemplated by the class standard. Frequently new technology is introduced but does not affect the existing class standards, such as in Re Wilson Page 9 Concrete Products Ltd. and United Cement, Lime & Gypsum Workers, Local 424 (1973), 3 L.A.C. (2d} 32. In that case, the class standard described the job in terms of general tasks and the introduction of new crane equipment did not create a substantial change in the job. Similarly, in Re Sperry Inc. and United Automobile Workers, Local 641 (1985) 20, L.A.C. 385 (Hinnegan) it was found that a new job was not created when the same duties are performed with new technology. These principles created the basis for OPSEU(A~kinson et al.) and The Crown in Righ~ of Ontario (Ministry of the Attorney-General) G.S.B. 173/88 (Emrich) in which the Board found that the introduction of the computer-assisted stenograph machine did not change the essential nature of the job, it merely allowed the job to be performed more efficiently. When we apply these principles to the grievor's role relating to the sterilization of instruments, we find that the essential duty of the job remains the same, although the tools that the grievor uses may have improved the level or type of sterilization. Therefore, the class standard still captures the nature of the grievor's sterilization functions. Similarly, with the consciousness of the affect of hepatitis, AIDS and the HIV virus, greater precautions, such as the use of gloves are required. This however, does not change the essential nature of the grievor's functions, which is to carry out her duties in a clean and safe environment. It would be negligent to carry out the duties in any other fashion. Such care is inherent to carrying out the dental assistant's functions, at any level. Therefore, .this requirement is not a responsibility that falls outside the class standard. These principles when applied to the office functions that the grievor performs create a different result. "Under direction, performs clerical duties such as maintaining and filing records and charts" describes the clerical functions that the grievor has maintaining the patient's written charts and filing the material, although the grievor is not supervised. However, Page 10 the office skills that the grievor has had to develop as a result of the computer are more sophisticated, and have gone beyond this description of clerical skills. In many cases, as i n OPSEU(Atkinson et al.) (supra), the description of secretarial- clerical skills will include the use of either a manual typewriter or a computer, and therefore will not be affected by a change in technology. In this case, the clerical skills required initially were not oriented towards typing skills. Typing had been sent to to typing pool and the grievor's functions were limited to more menial and manual tasks. The grievor has had to develop new computer skills to create and maintain computerized records and to create databases. Although the grievor stated that the employer did not require her to take computer courses, she could not have carried out her job without these new skills. The computerization of this office added to the type and number of tasks that the grievor must perform and did not merely allow the grievor to perform the same duties more efficiently. It substantially changed this aspect of the grievor's job. The grievor had to develop skills that are outside the clerical duties described in the class standard. Therefore there have been substantial changes to the grievor's duties and responsibilities that fall outside the class standards as presently described. The grievor could also not have performed these additional duties and responsibilities without more education than is required of the existing class standard. It is unfortunate that there has been no revision of the class standards since 1956. The practice of dentistry has changed radically. If the Employer had put its mind to the task, it would allow for a more uniform and consistent approach than if a series of Berry orders are made. We hereby make a Berry order and order the Employer to create a classification that properly describes the grievor's job duties and responsibilities within ninety days of the issuance of this decision. The grievor is to be compensated with interest for