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HomeMy WebLinkAbout1991-2238.Vanderheyden.92-09-08 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTA RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TOflON'FO, ONTARIO. MSG tZ$ TELE~HONE/TEL~PHON~.. (4 1~1 326- ~3~ ~80, RUE DUNDAS OUEST, BUREAU 21~, TORONTO (ONTARIO). MSG ~Z8 ~ACSIMILE/T~L~COPIE : (~ 16) 326- ~396 2238/91 IN THE~MATTER OF AN ARBITRAT/ON Under THE CROWN EMPLOYEES. COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Vanderheyden) G~ievor - a~d - The Crown in Right of Ontario (Ministry of Health) ....... - Employer BEFORE: M. Gorsky Vice-Chairperson W. Rannachan Member M. O'Toole Member FOR THE E. Mitchell GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE L. McIntosh EMPLOYER Counsel Crown Law office - civil Ministry of the Attorney General HEARING July 14, 1992 DECISION At the opening of the hearing the parties filed the following "Statement of Agreed Facts": 1. On April 3, 1991, the Grievor filed a classification grievance [claiming] that she was improperly classified as a Psychometrist 2, and as a remedy that she be paid at the rate of a Psychologist 1 between April 2, 1990 and the date she was registered as a Psychologist in the Province of Ontario, being May 31, 1991. A copy of the Grievance Form is attached as Tab "A". 2. In a letter dated April 12, 1991, .a copy of which is at Tab "B", the Employer denied the grievance. 3. On October 30, 1989, the Grievor commenced employment at the London PsYchiatric Hospital ("LPH"). At the time of the Grievor's hire, she was classified as a Psychometrist 2. The class standard for Psychometrist 2 is attached as Tab "C". 4. At the time of her hire at LPH, the Grievor was working towards the cdmpletion of her Ph.D. in Psychology. The Grievor obtained her Ph.D. on April 1990. 5. Shortly after being awarded her Ph.D., the Orievor was placed on the temporary register pursuant to section 10 of the Psychologists Registration Act, R.S.O. 1990, c.P.36. 6. On May 31, 1991, the Grievor became a registered Psychologist pursuant to section 6 of the Psychologists R~gis~ratjon Act, at which time she was reclassified to Psychologist 1. The class standard for Psychologist 1 is attached as Tab "D". 7. On or about April 3, 1991, the Grievor became aware of the circumstances of Dr. Kirk Bates. a Psychologist at St. ~homas Psychiatric Hospital. 8. Dr. Bates received his Ph.D. in psychology in 1989. In August of 1989, Dr. Bates responded to a job advertisement for a Psychologist position at the St. Thomas Psychiatric Hospital. Among those who interviewed Dr. Bates was Ms, N. Fazackerly, Assistant Administrator, Clinical Services, St. Thomas Psychiatric Hospital. At the conclusion of the job interview, in response to an inquiry from Dr. Bates, Ms. Fazackerly indicated that the salary, should he be hired, would be the minimum rate for the Psychologist 1 position. 9.' Shortly after the .interview, Ms. Fazackerly was advised by the Human Resources Branch of the St. Thomas Psychiatric Hospital that the maximum salary that could be offered to Dr. Bates was the maximum of the Psychometrist 2 rate. Ms. Fazackerly telephoned Dr. Bates at home and advised him that the salary would in fact be the maximum of the Psychometrist 2 rate. Dr. Bates expressed discontent with the Psychometrist 2 salary and Ms. Fazackerly confirmed that the St. Thomas Psychiatric Hospital would be unable to pay beyond the Psychometrist 2 level. 10. A letter dated November 3, 1989;~ a copy of which is at Tab "E", was sent to' Dr. Bates from an Assistant Personnel Officer with the St. Thomas Psychiatric ~ospital, offering him the job at the maximum of the Psychometrist 2 rate. 11. Dr. Bates contacted Dr. Gus Schied, the Chief Psychologist with the St. Thomas Psychiatric Hospital and advised him that he had job offer in another.province at the rate payable to a fully qualified psychologist. Subsequently, Ms. Fazackerly sent a letter dated November 14, 1989 to Dr. Bates, a copy of which is at Tab "F", offering him a provisional appointment to the job at the St. Thomas Psychiatric Hospital at the minimum of the Psychologist 1 rate. Dr. Bates accepted the offer of employment and on or about'that time he was placed on the temporary register pursuant to section 10 of the Psychologists Registration Act. 12. For the purposes of this grievance, it is agreed that there was no difference in the work performed and the levels of accountability and responsibility as between Dr. Bates and the Grievor. The documents referred to in the agreed statement of facts attached as Tabs "A" to "F" are attached to this decision as Appendix 1. Counsel for the Employer also filed a document entitled "Additional Facts Relied Upon By The Employer," which is as follows: 1. Prior to August of 197B, it was the practice of the Employer to appoint persons who had completed a Ph.D~ in psychology and been admitted to (then) either Category 1 or Category 2 of the Temporary Register under the Psychologists RegistratiQn Act to positions classified as P~ychologist 1 2. In August of 1978, following a review of the use of provisional appointments, the Civil Service Commission issued a revised policy directive with respect to provisional appointments. A copy of the policy directive with respect to provisional appointments in effect at the time of the grievance is attached as Tab "A". 3. As a result of the revision of the policy with respect to provisional a~pointments, the Ministry of Health issued a directive dated October 20, 1978, a copy of which is at Tab "B". 4. On September 30, 1979, the Civil Service Commission issued a revised Staffing Standard for Psychologist 1, a copy of which is at Tab "C". 5. On September 27, 1979, the Ministry of Health issued guidelines to the Ministry' s interpretation and application of the revised Staffing Standard, a copy of which is at Tab "D". 6. Staffing Standards ceased to be used effective November 30, 1980 and were replaced by a policy with respect to Selection Criteria, a copy of which is attached as Tab "E". The Ministry of Health continued to apply the same guidelines with respect to the Psychologist i classificatioh. 7o In 1982, there ceased' to be two categories of Temporary Register. Accordingly, an amended policy was issued effective December 1, 1982, a copy of which is at Tab "F". 8. The Ministry of Health has searched the records of its 10 psychiatric hospitals back to January 1, 1990. Of approximately 10 to fifteen appointments, Dr. Bates' situation is the only case in which an individual who is not a fully registered psychologist has been appointed to a position classified at the,Psychologist 1 level. The documents attached to the "Additional Facts Relied Upon By 4 The Employer as Tabs "A" to "F" are attached to this decision as Appendix 2, Although the "Additional Facts Relied Upon By The Employer" are not facts agreed upon, counsel for the Union indicated that she was not disputing the allegations contained therein. Both parties agreed with the statement contained in Montague 110/78 (Swinton), at p.5: The task of this Board in classification grievances is to assess whether the position has been improperly classified according to the class standards established by the government's classification system. In deciding such grievances, the Board considers not only whether the grievor's job comes in within the words of the higher class standard which he or she seeks, but also whether the grievor's duties are the same as those of an employee within the more senior classification sought (Re L_y_~, 43/77; Re RoDnd~g, 18/75; Re Wheeler, 166/78) Counsel for the Union stated that in the light of the judgement of the Divisional Court in Re O~tario Public Service Employees UniQn and the Queen i~ R~ght of OntariQ (1986), 56 O.R. (2d) 315 ~it was not pursuing a class standards argument but was relying on a usage argument. In the latter case, the Divisional Court held that the job classification of Psychologist 1 called for a permanent, and not merely a temporary, registration. The court also held that until registration as a psychologist, the grievor was not performing the same duties as a registered psychologist during his year of experience, as he was acting under supervision during a training period. 5 We are satisfied that in the circumstances the search conducted by the Employer, referred to in paragraph 8 of the "Additional Facts Relied Upon By. The Employer," was sufficient. The search disclosed that of the appro×imately 10 to 15 appointments, Dr. Bates' situation was the only one where an individual was appointed to a position classified at the Psychologist 1 level where appointment was not preceded by evidence of full registration as a psychologist. There was no suggestion that a further search would have indicated more,examples of the way in which Dr. Bates case was treated and we were not asked to put the Employer on notice that the sufficiency of its search was going to be placed in issue. We therefore take it that all other persons ' similarly situated to the Grievor and Dr. Bates, who were hired before registration as a psychologist-had been obtained, were,- with the exception of Dr. Bates,-classified as Psychometrists 2 and paid at the rate for that classification. The jurisprudence of the Board as to when a usage argument can succeed in circumstances where only one person occupies the ¢omparator position remains unclear. This situation is as a result of two decisions of the Board where the positions of the two panels dealing with this issue were in sharp disagreement. In Carv~lho, 1484/84 (Roberts), at p. 1, the Board identified the class usage argument as raising "a further issue ... whether the case for the grievor might succeed on a showing that one other 6 person who did essentially the same work as the grievor was classified at the higher level being sought in the grievance." The grievor in' Caryalhq was a BookkeePer in the Sheriff's office in Barrie, Ontario. In January of 1984 he was informed that some bookkeepers who worked in other Sheriffs' offices had been upgraded from the classification of Clerk 3 General to Clerk 4 General, around 1981. After failing to receive satisfaction, the grievor filed a grievance and the union put. the case for the grievor employing a. class standards and a usage argument. The union's usage argument was that, at p.15: · . . the employer's actual classification practices departed from the standards in cases involving bookkeepers and accordingly class usage would dictate that the grievor also merited the Clerk 4 level. At pp.i6-i7, the Board, in qaryalho, stated: Turning to the class usage argument, this brought into question application of the recent decision of the Divisional Court in Re Lowman and Ministry of TranspQrtation aa~ Communiqat~ons, Unpublished Reasons for Judgment (November 15, 1984). 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 practide of varying the Class Standard", Re Lowman _and MTC (1984), G.S.B. #13/82 (Saltman). Indeed, in line with this requirement, the Board in Low,aD, supra, decided against the 9rievors on the ground that the "practice" requirement was not 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 Lowma~, stating, in pertinent part: Having found that there was an employee performing substantially the same duties as 'the grievors 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. 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 .... (Divisional Court Decision, supra, at p. 1.) The matter was remitted' to the ~oard for further proceedings. At pp.18-19 of the Carvalho case, the Board stated: Reading the decision of the Divisional Court in _Re LQwr~an as a whole, we are led to conclude that the Divisional Court did not intend to reject the general rule of this Board that ih 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 Iiowman case, ~p_r~, was an example of special circumstances which brought the case outside the ambit of the general rule. As the ~iui~ional Court no%ed 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 grievors 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 grievors their right to grieve. In the present case, there were not any special circumstances to render inapplicable the general "practice" requirement. In the Carvalhq 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 9rievor 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 qf the grievor. As a result, the class usage argument must be resolved in favour of the Ministry. In Bah~ 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 grievors 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 grievors performed "the same or essentially similar work as [was] done by [the Senior Clerk in their office] who [was] classified as a Clerk 5 General. The employer, in the ~ case, argued, p.4, that it was not enough to show that one person performing e~sentially the 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, 9 the panel of the Board, in Bahl 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 Beals and Cain 30/79: 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 practide .... ... The purpose [of the usage test] 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 in McCourt and M~nistry of thD Attorney ~enera~, 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 one 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 Crown Employees Collective Bargaining Act, 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 system 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. (Emphasis in the original) The Board in Bah~ concluded, at p.8 that: ...if the Employer caa 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 Wright, 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 applyLin our case. The Employer did not suggest that Ms. Moore is wrongly classified as a Clerk 5-General. At p.9 of the B_ahl case, the Board stated: In Re Attorgey-qeneral .for Ontario and Ontario Public Service Emplojees Union et al. (1983}, 44 OR (2d)32, the Ontario Divisional Court upheld an award of the Grievance Settlement Board, which had granted reclassification upon proof by the g~ievor 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 of 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, we 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 grievors are doing different work. The Board in Bahl indicated that: "Perhaps the waters became somewhat muddied in ~0wman, 13/82. The Board in a~, after analysing Lowman, stated, at pp.10-11: Was the Board now saying that the old jurisprud, ence was overturned, and it was no longer the rule that an employee claimin~ reclassificat~o~ ~ould s~cceed 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 OPSEU vs. The QueeD in Right of Ontario et al. (1982), 40 OR (2d) 142 (Brecht's case). Having found that there was .an employee performing substantially the same duties as the grievors and that such employee had been deliberately classified by the respondent in a higher classification, the Board acted unreasonably 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. We are not sure that the conclusion arrived at by the Board in B&hl 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 ~9wman decision~ the Court ~ent 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 improperlp classified. The last quoted paragraph appears to limit the broad interpretation of the first paragraph of the Court's decision. The Board, in Bahl. then proceeded to consider the decision of the Board in Carvalho, and that panel's consideration of the decision of the Divisional Court, ahd quoted e~tensively from the Carvalho decision, at page 18. The panels of the Board in CarvalhQ and D_a_hi found different general rules of the-Board in applying the usage test. The panel in C~rv~lho, 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 same work as the grievor." At page 12 of the ~ decision, in finding the decision in Ca~valb9 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 to 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. There is apparently no case decided by the Board subsequent to Bahl that squarely addresses the difference between the rules enunciated by the different panels of the Board in Bahl and Carvalho. In McCulloch et al., 2080/87 (Wilson), Bah____!l is referred to without referring to Carvalhqo I~ Cooper 551/88 (Gorsky) only Carvalho was referred to that panel of the Board. At page 11 of the McCulloch decision, the Board quoted from page 12 of Bahl: . . .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 came, 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 to succeed in the claim for reclassification, unless perhaps it can be shown that the comparison employee is wrongly classified. And as we have already said that this exception does not apply in our case. The Board, in ~cCulloch. noted that the Board in Bah~ found "that the exception did not apply because the employer made no argument that the comparison employee had been wrongfully classified." The Board in McCulloch, at pp. 11-12, then referred to Creet, 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 14 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 ~xisted no other cases of that nature. The Board in McCulloch, after considering the above quotation from Creet, stated, at p.12: 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 grievors 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 Creet case. ' ~ It is evident in the case before use 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'' but was "an arbitrary 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 Ministry'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 Creet case," Whatever the differences between the Bahl and Carvalhq 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. .He are not faced w~th such a case. In Re Dalry~ple 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 Lynch, 43/77; Re Rounding. 1~/75; Re Wheeler, 1~6/7~). support this as an alternative approach bug 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 Montague, 110/78 and Re Wright. 24818~). 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 Vu~oje, 13/75; "However and to refer again to our earlier Rounding 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 wel~ whether she is performing functions which are virtually identical to those assigned to those employees who both the employer and.the employee ~ree ~re properly classified as Clerk (emphasis added in Dal"rymple) 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 that level 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 recognize 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 t~e 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 DalrYmPle 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 ease before us we would undermine the main purpose of a job classification, which is to promote "uniformity and equality" because to do so here, would frustrate that purpose as "fairness to one individual [would necessitate] the abandonment of the system. The tail would then wag the dog." In Re Attorney-General for Ontario and Public Servic~ Employees Union e~ al., above referred to, the reliance on a single 17 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 [the grievor] was the same as [another employee who had succeeded in a classification grievance] it would not hear evidence to show that [the latter employee] 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 MgC~lloch, "wrongly classified" can include cases where "an arbitrary decision" was made by a manager. The particular facts of a 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 ~reet case'". In the result, and for the above reasons, the grievance is denied. Dated at Toronto this 8th day of ~$epcember, ~992. M. Gorsky - Vice hairperson W. Rannacha~ - Member M. O'Toole - Member , /~ ~'~ APPENDEX 1 TAB zg G.R,.IEYANC E FORM - -=-~ -Uninn.i~ !. :,.i.' ".~' "~:'"'i':, Public / I ST COPY: TO BE GIVEN TO MANAGEMENT ~T ST 1 . ..,_;. m~;..,,,,~' c~ ~ ~ D c ~ Icoo~ ~ATEME~ ~ sE'rTLF. MENT DESIRED SIGNATURE ~ ~ I HEREBY S~IT THE ABOVE GRIEVANCE TO: (PLEASE PRINT) AT STEP I SIGNATURE OF G~IEVOR OR 1~ Y~GE STREET TELEPHONE TOLL FREE (AREA 416) TOLL FREE (AREAS 519. 6~3, & 705~ A: ENDIX i TAB B ~th b ~nta au 4.1 ~4Hi Ontario Mr D. VandoAeyden ¢/o P.~.hologv Department ~ P~ H~p~ I ~ ~ ~dp o[~ ~~ ~d A~ ~, 1~1 ~i~ ~ the ~~ ~ of a P~hom~ ff a p~on hm be~ h~ ~o.t~ M~ ~ the ~e ~ ~n It ff M~~ ~n ~ if th~ $tmmton ~ ~ ~ ~ ~ ~olated m~ ~ do~ ~ m~ ~ ~ M~ p~a~ h~ c~ed ~r do~ one . Youn Dr. S. Katarian D/rector, Pachologic~t Sevic~ APPENDIX 1 TAB C 09570 - O~ PREAMBLE PS¥CHO~ET. RTST CLASS St~lgS_ The duties of positions ~llocated to this series are carried out by Psychometris~s under the professional supervision of a Psychologist. Duties include the collection of test data on individuals or groups of patient~ or i~tes as part ~f ~ overall progr~ of p~ych~logical servicc, either for psychiatric treament or rehabilitation ~ refcm pur~ses. ~ic~ly, the a~ui~tr~ti~n ~f psychological test~ such a~: ~tellige~ce (Wechsler ~d B~et tests); vocational (Differential tests); ~rson~lit~ (M~ne~ota Multi~asic Personalty %~ventcO- ~d the Rcrschach tec~ique) is included. Assist~ce to psych~lcgi~t~ in gatheri~ ~d process~g data for research'studies and i~ tra~g acn-profes~ional staff ~y also bc ~cl~ded. ~CMISiON5: Positions ~ere s~lar qu~ifications 'md experience are or d~sirable, but ~ere the d~ties ~rfomed are not directly related professional psychologic~ ~ork in a medic~ or refom institution sc~t~, are excluded fram this series. ~ul~' lg65 PS YgSO,~9]'R I$ T 2 CLA.~S PEFIN1TION: ' ' ': lnc~bencs of positions allocated to this class, under the supervision of a psychologist, in 'an Ontario Hospital, Mental Health Clinic or Correctional Institution, assist in identifying emotional malad}ustments, behaviour patterns and the mental level of patients, students or iamates by administering, scorint and interpreting a variety of intellitence, personality, acadea£c, occupational and aptitude tests. Work assignments are regultrly reviewed by th~ ' supervising psychololist who provides professional guidance and establishes the limits of responsibilities assigned. These employees may make reco.nrnendations on the treltment, training and placement of patientst students or ir~nates, subject to approval by the super vasarit psycholotist. They prepare reports, incorporating their test findings, ~hich assist in the diagnostic and therapeutic decisions of psychologists, or psychiatrists. Similarly, they may participate in the collectin[ and processing of research data. These employees intervie~ patients, students or inmates and establish the test procedures to be used. ~hey administer, score amd interpret tests of intelligence, aptitude and personality such as ~echsler, Binet, Differential Aptitude~ ginnesota ~ultiphazic Personality Inventory amd Rorschach techniques. Under supervi~on, they participate in psyc~otherapeutic and activity program~es of an individual or group nature; assist ia the application of research techniques and ia the training of non-professional staff. QUALIFICATIONS: 1. Graduation from a University of recogni'~ed stax~ding amd a Master's degree in psycholo~-. 2. Preferably some },revious related experience. 3. Personal suitability, ability to establish harmonious working relationships with professional personae] and patients, students or inmates. Jut¥ 1965 APPENDIX 1 TAB CLASS STANDARD: 09380-~3 . PRE~IBLE PSt'~OL~IST SERI~ The duties of positions allocate~ to this cla~s series are carried out by Psychololists registered under the Psychololists' Relistration Act. These entail responsibility for the application of the kno~/edie, principles techniques of psycholo~ in the diagnosis, care and rehabilitation of patients, residents, ~ards, students, in~tes and ~y include counsellint of empl~ees. Included is the use of complex psycholo&ica2 assess~nt techniques; intervte~in& of patients, students or in~tes; the development of and ~rticipacion in psychocherapeutic or behavioura2 modification programs for individuals or &roups and the develop~nt and erianization of as veil as participation in pro&ra~es of ~lieu and ~baviour therapy. Planning and participation in the inst~ction ~d c~nse~in& of both ~rofessiona2 and ether staff my also be included. Duties also include responsibility for reviewing the development of ne~ techniques and investi&ation of their potential usefulness for application in the relevant york environment, ~ployees in posit~ons allocated to this series are expected to intr~uce ne~ develop~nts in psychological kno~icdge and practice and to evaluate their ~orth. In so~ positions psycholoiical research my be the prl~e responsibility. Supe~ision of Psychometrists my be required of all positions in this class series. m Revised January 1969 CLASS STANDARD: 09380 PSYCHOLOGIST I .] Positions allocated to this class entail complex and responsible psychological duties in a hospital~ educational, training~ correctional or : research setting. Incumbents plan and co,]duct or supervise individual ar i group therapy or behavioural modification programs and ad. dnister, evalu- ate and interpret a complete range of psychological tests. They generally · function 'in collaboration vith, and provide professional supervision to, · members of treatment staff from a number' of disciplines. They utilize a vide variety 'of psychological procedures, both stand- ard and experimental in assessing, describing and measuring dysfunction, disability or impairn~nt;'..'they interpret the disabilities and special needs of patients, students or inuates .to institution staff, teachers or parents a~{d plan and apply appropriate techniques of psychbtherapy .co,t- stantly appraising the efficacy of treatment and reitabilitation programs. In Department of Health incumbents of positions allocated to this class are usually responsible for planning and providini.t{;e psychological services for a specific uuit or clinic and receive, supervision from the senior psychologist of the facility or from a. Regional Co-ordinator of Psycholoiica,1 Service. In such a setting they develop a psycholo&ical service havi,g regard for the specific needs of the patients served and par- ticipate with other members of treatment staff i*~ diagnosis, treatme,t and rehabilitaion of patients,. In a research setting incumbents plan, develop and conduct responsible and co{nplex applied or basic research projects subject to the approval of a senior psychologist. They originate ney study methods and conduct critical cc,~parative studies of .lev methods of behavioral evaluation, treatment or rehabilitatio~, prepare reports and recon~end .application of such methods. In tile Department of Correctional Services they assess 'cards, students or inmates providing services as required, working under supervision of a senior psycholoiist, and advise and train correctional and teaching staff in best methods of achieving desired rehabilitation of Wards, students o,' inmtes. They may be required to provide a Psychological service, on a part-time basis (e.g. via re§ular or irregular visits) at facilities other than at the location where they are nor~ally based. 1~ Registration as a Psychologist in the Province of O. tario. 2.-' Ability to organize~ co-ordinate and supervise psychological services, 3.'- Personal suita~/lity. Revised .lam~arl- 1969 APPENDIX 1 TAB E · ~.~ ,[~.r~.~ Ministry ld~nirti~e St. Th~ N~l~t ~.o. ~ ~ Nov~er 3, ]~g ! - 7]g University Ave, W. Windsor, ~tarlo NgA $~8 ~ar Or. kte$: ~: Psychologist Cnr, c~e~tttoa # HL 33-.4ll89 Z am pleased ~o confirm an oFFer for ~he above posi:lofl with the Ministry of Health, St. ThoMs Psychiatric Hospital. The . effective d~te of your appoln~nt ts negotiable. The position ts c~ass[fte~ at the .Psychologist I level with a hour week]. You vt~l however, be pai~ at the maximum of the ~gis~raC~on by ~he OnCarto Board of [x~iners. You~ salary will ~e Set3.74 ~er week (S42,4S9 annuaJlyl. Please note, that e requi~nt of a Psychologist is ~g~stration wit~ the Ontario 8oard of Examiners iff Ps~choJogy. A con~tion ~ eIJgIbil~ty for cont[nue~ emplo~ent Is t~t, for t~e duration of ~our appoln~flt, you wilI maintain ~our expense, on an ongoi~g ~esis an~ p~vide =~of o+ cur~nt stltus to your ~]oyer. FaiI~re t~ maintain cur~ registra- tion will ~uI~ ~n act~=n being taken ~ te~na~e your appoint- T~is Js 8 bargaining unit position, subject to union dueS. PItase c~ntact ~ur supervisor tD ~,t~Jne t~e name of your local Union You~ 8pD~intMnt ~S Dr~at~nary for a perio~ of o~e year. After ~[s probationary Der~=~ you viii bm appoJnte~ to regular staff contingent upon satisfactory ~erfo~ncm. As ~scuss~ ~n your intorview, we w~I1 c~ns$~er relocation expenses, Pitase ~ubmit itemlze~ estj~ ~rom throe'~vJng companies. T~ese estima~s wiII be fo~ar~ed t~ our ~an ~tsou~cts ~ranc~ in Toronto ~or con$Idtretlon. bJ~ c~?ftca~e an~ soc~l~ ~nsu~ce car~ for Canadian c~zenshtp, lande~ t~g~ant s~a~s o~ a v~ld work ~em~, as we~ as a sa~tsfac~orV Md~ca~ ex~m~naC~o~ f~m I~ ad~tton, pIease be a~vtse~ that you ~ttl ~cetve your salary be 'direct ~epos~t". ~l:h d~ct ~pos~:, ~our b~-~ekIy pay ~tll be ~e~ostte~ into ~tc~ever account ~ou choosa. sta~lng date. On beha]~ of ~e ~lect~on Boar~ I ~uld ~ke to ~ank Vou for coming to your lnterv~ev. We look ~o~ard to ~ce~v~ng a Favo~rabZe ~sponse ~o ~is o~fer. Yours truly. Star,on. Personnel Of?leer H~$:cr eno2. cc: Or. G. So,eld 4 '..~ Ontario Dr. Jclrk la,es 2 - 739 Uflfverslty Ave. W. Windsor, O~tmr)o NgA SP~ Dear Or. aires: &mt Psyc~ologist 1 C~tft~m f HL 3S-41/89 ~ls 2s fu~her ~ ~. Staddon~s letter of ~arle ~a~ of ~t~ers ~n Psychology. You ~st ~ta~n your S4S,865. to S5S,724. ~r ~. Your se2e v~zz be $4S,86S,oO Please accept/decZl~ ~?s salaey o~er ffl wrltLn~ ~or our ~coKs. 3~ ~ have iny ~sttons o~ coheirs, p2eese advise. Yours ~ $y, Ks, #. Irl2ickerXe~, Assistant Administrator o :lJnZca2 Services, JUL, 9 '82 18:10 ' 528 455 4725 ?AG~:.023 APPENDIX 2 TAB A Admini.tr~tion ASSIONHEI~$ IN THE CLASSIFIED SERVICE PROVISIONAL A$SIG1OiZNT 'Provisional Assign~ent' i provisional asst~ru~ent is ~sde when a person is assigned to n ~si~ion ior iich ~~de~c.and experience r~uire- ~s~v~ ~en obtained, bu~ for~l certification is l~king, ~uch ~: · a required license from or ~rship in ~ associa- tion; or · official certifica~ion for acade~c ~equire~en~s ~ready successfully ~le~ed~ Assl~n~nt Crt£eria: A provisional assignment my b~ mde only if the person is assigned the full duties and responsibilities of the position. 1) l~rovisional assi~n~nt c~nno~ ~ mde: . vhece the~e Is a legal requirement, i.e. statutory rciulr~n: :ha: the ~rson ~ssess /or~l certifi- cation prior to ~ing permitted to perform the full duties of the position; . v~ze ~ expe~lence ~tquire~ut i~ lacking or vhere~ all acade~c qualifications are ~t successfully co~leced. So~ cases vould normally ~ covered by In ~d~rfill ~sl~n~ (see page vhere the person is in ~he sradu~ln~ year of a cer~lfica~e or de~ee ~anclnS acade~c lns~l~ucion. In ~hese c}ses, ~he offer ~de"~o ~he studen~ con~in~en~ upon ~he s~udenc's producln~ evidence for~l cer~lflca~ion vi~hln six ~nchs from c~ dace .of usi~nc ~o ~he ~si~lon In ~he ~nis~ry. ~racion of ·  ~sitnmen~: ~ lens~h of ~he provlaional ~sisn~nC Shall no~ exceed one yeaz. In ex~eptional cizcu~tances~ h~ever, rich the approval of the RecruiC~nC Branch, Civil Service ~--~ssion~ a provisional assi~ment ~y ~ extended ~yond the one.ear ~rtod. 5-45-1 31 Aug 84 APPENDIX 2 · ' OCT 2 6 Psychology Graduates As a resul~ of discussions w£~h the Civil Sezvice Commie. sion le. lading to =ev~s$on of ~e ~po~n~en~ pOI$~ on Augus~ 4, lg78, (~e~e~ence. Hanu~ of A~n$$~rs~S~. Vol. 2 Sec, S-4S), ~he following -. regis~O~toa examinations. ~re exams have " ye~ bee~ written, appol~n~-should be ~o '.2. Psyc~levXs~ 1 , A Ph~D. graduate la~k~g ~e pe=io~ o~ supe~iaed ' ~.. expe~ience.=o~i~d ~ ~e On~a=io Boats of .. . ' =xaml~e~s z~ ~sMaholo~ be~oFe siCCing ~e~is~a~lon . exam~na~ions, should be a~oAn~ - classifica~ion, ~ a~v~c~n~ ~o ~e Psycholog~s~ . i level.only upon f~ ~e~lStra~ion, paMch~l~$s~8, i.e., ~liglble for i~edia~e revisionism, ~y be appointe~ as pet pas~ p~acCice. X~ is fel~ ~ha~ ~e ~o~ m~a~ pcoced~es a~e mos~ ~ui~lu in vi~ .o~ ~u zemval o~ ~viaional s~a~vs now bel~V made ~e~zo~c~ivelM im ~1 cases 'f~om ~a da~e o~ initial appoin~n~ ~o p~zi~'. Please be 9~e~ ~M ~o~$ng when appoinCin~ suc~ s~a~f in future. Senior Personnel Officer : SS/nh Psychi&~ric Hospital's Unit ., EDU:ATI. ON: 'Eet~red on the ":emporar¥-r~giscer" by the Og~[ario ~oard of £xamlners i, Psychology ~end in active pursuit of full regis:ration. NOTE: No indivldua) shall be permitted to re~a~n i~ a position of Psychologls: upon removal of status from the "temporary register" by the O~tar~o Board of Examiners in Psychology for failure to meet the 'requirements:Of the 6oard. EXPERI£NC£: Evidence of ability to organize, co-ordinate and supervise psychological services. PERSONAL SUITABILITY: Maturity; :act; ability to gain confidence of clients, staff and supervisors. APPENDIX 2 TAB D ~""%~ M~mstry F~e ~o ................................................... ' J ~'[;~-~' of · Health ~,, September 27, 1979 Ontario ......................................................... .~MernOrandum to ; From ...~.g.~,.~.~..~. [..~. ~.~.~.~.~.:[...~,.4~..~. n;i..~..~,~..~.t..~ ~ s .... . ................. ~,....Os~. ...... : ................................................... ................. ~.~...~..e,.~..o..~.~..~..:.s...=..~mq..h ............... Re ........... ~e.c3:.ui1:me~ The zev~ev by the C£v[l Service Co~ssion~ the Y~Ln~st;/es o~ Coventry and Soc~a1 Sezvlces, Co=zect- ~onal Se=v~ces ~d ouzsel~s of ~e application of ~e ~syc~oZo~st ~ staffing s~da~d ~d the =evSse4 p~ov~s~onal appo~n~en~ pol~ has now ~ea~e~ 'a ~n- cl~on. , The C~v[L Service C~ss~on ~tl[ issue a revised s~afff~nq st~dard for ~e class of PsYcho[og~s2 ' w~11 ~n~icate that ~e min[m~ recruitment standard , will ~ 'en~e=e~ ~ ~e T~pora~ ~gfster by the ~ ~J On=ario Board of Examiner~ in Psychology an~ in active -- pursuit of-full registration~ The following guidelines reflec~ our Ministry's tnterpre=ation and application o~ the revise~ ~ ~. PSYCHOLOGIST 1 ~ . 1) inat~duals who are assessed as cap.la of indepen- - ~n~ly parroting the full duties ~d resgonsibili- ' ~es of ~e position will be appointed as Paycholo- gists 1. This will no.ally apply to [hose applic~$ who have post-~oc~oral e~e=~ence, who ~e 9~ Ca~e~o~ 2 of ~he T~orary Regis=er or have obtained full regiSt~at~on~ .PSYCHO~TRIST 2' 2) Individuals who are not considered ready independently perfo~ =he full duties and responsibilities of ~e.~osttion, no.ally inclu~iag those who =eqa~re at least one ~ea= of supervised experience {i.e. on Category 1 o~ ~he Tem~orar~ Register) prior ~o being eligible for full ~gis=ration. wzll be range. They wtI1 be ap~oin[ed =o the Psychologist 1 level effec=ive [he ~a=e they receive full registration as dete~ined by the Ontario of Examiners in Psychology. -2- 3) Where the qual£fica=ions of an individual have not been assessed by ~e Ontario Board of Examiners in Psychology, the applican~ will be appointed to the Psychome=rist 2 classification a~ ~he max~ of ~e salary range. Boar~ s~sequen%l~ ae~e~ines that the in~iwi~ual will be entered ~ the Te~ora~ Register Catego~ 2, he/she will be appointed to the PsychologiSt i classification retroactively the da~ of It is ~por~t ~at ali poten=ial can4idates from other J~isdictions ~d employees comple=ing their Ph.d. req~re~n~s.make application to Boar~ for assess~n= ~a pla~e~n= on the Temporary Re~ister wit~ou= ~lay. 4) No lnaividual w~ll be all~e~ to remain in a Psychologist i level position following the loss of temporary or f~ly registered sta=us. 5) a) The revise~ staffing 8tandar~ and these g~de- lines will be effectiwe .October 1, 1979 for all new recruits. b) Employees presently in Ca:egory 2 of the. Te~ora~' Register who are ~derfilling at the Psychome%ris~ 2 level may to'Psychologis~ 1 effmc~ive October 1, 1979. These guidelines are intended to reflect a job- oriented approach an~ Do~ just academic achievement. They meet the legisla~ed requirements of Psychologists Registration Ac~ and a= :h~ s~e time , address the cre~en~ialism policy. The guia~lines have als8 been reviewed ~rough a rep=esenta=ion of to be workable. APPENDIX 2 -' TAB E' Ontario Id nual of Administration OLZC Stafftn~ ' '~lec~Lon Cr~r~a' ~iec~on ~cer~ are the requiremn~e ~ a ~8~C~on e~reooed In te~ ~ Cb ~led~e, ex~rien~ ~d ~rsonal ~rac~erieCic~ ~cesoa~ for effec- S~&~e~n~ ~lLcy: ~lec~Lon crL~erLi ~sed on position r~uiremn~e: o) ohll b'~veloped ~ the the ~ario ~bli~ ~rv~ce; b) ohll b ~he hsis for all ~c~l~mn~ ~d selection ag~rtisin~ the ~ucy ~creenin~ ~pp~catlo~ ~.velop~ng que.c~on. conduct~n~ selection inter~e~ r~ttn~ and rs~in~ ~ndi~tes ~ ~ng~ selectl~ ~cislon. Criteria: ~lecti~ criteria reflect C~ contents ~ c~ p~ltion description ~d are: . deter~ned' ~en a vacancy occurs, . the selection process; . de.loped ~ a~lyzin~ t~ job to dete~ne the skills, ~bllities ~d k~ovled~e ~quired; . t~llored for e~ p~ition; . ~l~ht~d tn te~ of their ~latt~ t~oztan~ to the perfomn~ of ~ job; . job~elated, ~tput oriented ~d ~asur, ble. ~c classes In ~he classified oer~ w~ ileted ~fec- ttve ~~r ~, 1980. APPENDIX 2 TAB F 'i ~f¢~.cttve ~Ct~ber 1, 19~ (issued Novecber B, lg~J, the follo~n~ ~tlC~ was issu~ b~ the Civil $ervtce C~tsslon. ~t e~t n~ Trea~nt 'Appo~ n~en t ~ ~ ~tar$O Board of F In ]. Te~q~orary This ts ~ual?y an The maxim~ rate To be proeoted Reatster tndtvtduiT ~ has of the silir~ to Ps~ho~ogtst ~der Super- race, ely c~pleted range of i i the full date vtston, the Ph.D. exm. Ps~h~etrtst ~, awarded reg11* Such an $ndtvldu~l Underf111 trltton. has ~t ~t appotntment. icqv~ red the mandatory ~ar ~st-doctor41 ~ has not ~t c~p~e~ed ~t teen ~ard ex~tnatlons, and for the oral ex~tnatlon set by the ~lrd. ~. T~orar~ The ~pllcant has Mtntm~ rate of Provis~ona~ Register already c~leted Ps~hologtst ~, Ippoqfltment i~att$n9 at least ~e ~ar Provisional r~ved on date e~tnJtS~fl, of ~st-dDctoral appotn~nt, ~t awarded full su~rvq sed elt gq ble for re91 strait on. exx~tence met1 t increases. acceptable to the Board, has ~t '~t c~pleted the ~ard~ s ~$ teen ex~ natton, If reQutPed, an~ has oral ~inatlon. 3. Reqlstered Has ~pleted Ps~holo91~t ex~rlenttal ~ Ellgtble for exam1 natt on marl t Increases. re~uSr~ents of the BOBr~ and his INor~e~ full regt stratl o~. Status not Either 2) or ~) as In We interim In accordance ~et above, untl 1 regt s- ~ th the determined tratton status ts decision of the by the Board confirmed, as the Ontario 8oar~ of of ~utm~ rite of Ex~tners tn Ex,triers. the $allr~ range Ps~hology. of I Psych~- ' etr~ st ~, U~erfl 1~ status. NOTE: No individual All be permitted to rematn tn t imsttlon of PsyChologist ! fo)Io~nQ, the loss 0¢ temporar~ Or fultjF re;lstered Status.