HomeMy WebLinkAbout1991-2968.Baron et al.95-06-28.~ffi GRIEVANCE COMMISSION DE ,',~ 'fY v' ~'~ '>~o t~'~ ~' ~'
SE~LEMENT R~GLEMENT > · ~ ,~ ·
BOARD DES GRIEFS ~'
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OPSEU ~ 92A245-51,~ 92B592-93
IN THE ~TTER OF ~ ~IT~TION
THE CR0~ EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEV~CE SETTLEMENT BOARD
BETWEEN
OPSEU (Baron et al)'
Grievor
- and-
The Crown in Right of Ontario
(Ministry of' Co,unity & Social Services)
Employer
BEFORE W.-Kaplan Vice-Chairperson
P. Ki~ Member
M. O' Toole Member
FOR~THE P. Munt-Madill, K. Whitaker
GRIEVOR Counsel
Ryder; Wright, Blair &. Doyle
Barristers & Solicitors
FOR THE J. Smith
EMPLOYER Counsel
Legal Services Branch
Ministry of Community & Social Services
HEARING January 22, 1993
October 22, 1993
March 17, 28, 1994
May 3, 1994
October 27, 28, 1994
January 26, 1995
Introduction
This case concerns nine grievances, all filed by probation officers, and all
dating from December 1991, taking issue with caseload assignments on the
basis that they are unreasonable, excessive, unfair, and detrimental to
health and safety. The grievances proceeded to a hearing in Toronto in
January 1993, and the. evidence in these proceedings continued over the
course of the following two years.
Many of the background facts are not in dispute. The grievors are employed
in two separate offices, one in Ajax and one in Oshawa, although for
administrative purposes the offices are treated the' same and will be
referred to in this award as the Durham Office. They deliver probation
services to young offenders. The gravaman of the grievors' complaint is
that their caseload, when compared to colleagues performing, the same
services in adjacent areas, particularly in the Peterborough Office, is
inordinately high, and that their health and well-being have been impaired
in the result. The grievors afso take issue with the fact that they are
formally required to meet certain Ministry standards but their caseloads
are such so as to make some of these requirements impossible to meet. In
the result, the union alleges that the employer is in breach of Article 18:1
of the Collective Agreement. For its part, the employer took the position
that there had been no Collective Agreement breach, and that none of the
grievors has ever been disciplined for failure to meet Ministry standards
where workplace demands made doing so impossible.
/
3
The Union's Case
Evidence of Paul .Peyman
Mr. Peyman is a probation officer who has worked in both the Oshawa and
Ajax offices. He began work for the employer in 1975, and has worked as a
probation officer since 1991. He told the Board about the Caseload
Equivalency chart, a form completed at the. end of each month recording thE;
various activities performed by individual probation officers. After all the
activities are tallied, including forms completed, interviews conducted and
travel undertaken, an "average workload per PO" is arrived at. In Mr.
Peyman's view, however, this figure was inaccurate because it failed to
make appropriate distinctions between probation officers on the basis of
their actual caseload. In his view, caseload, or number of clients, is a
better method of determining workload. Mr~ Peyman also pointed out that
the more clients he was required to see, the less time that he would have
available for case and non-case related activities, which were also an
important part of his job. Some of the case related activities, such as
meetings with other professionals involved with particular clients,
obviously assist in bringing a holistic approach to client care. Other
activities assist probation officers in their professional development.
Various exhibits were introduced into evidence to assist the Board in
coming to terms with the extent of the grievors' caseload, and also to
provide some basis for comparison o.f that caseload with probation officers
in other areas, notably the Peterborough Office. Suffice it to say, and 'this
will be set out in more detail throughout this award, that the grievors, at
the time of these grievances, had a significantly higher caseload then many
of their contemporaries located elsewhere.
Mr. Peyman described his duties and respo, nsibitities. Some of his
activities, such as .the preparation of the "Pre-Disposition Report," can take
as much as fifteen to twenty hours to complete. This important document
is ordered and used by the court to assist it in arriving at an appropriate
disposition for a particular young offender.
According to Mr. Peyman, along with the other grievors,' he has made his
concerns about caseload known to management.. As early as May 1990,
management was notified of expected increases in population growth in the
area covered by the Durham Office, and of the concomitant need for
additional probation officer services. As anticipated, demand for probation
services increased and management was kept aware of this growth by
reviewing monthly reports. Mr. Peyman noted that the employer did meet
with some of the grievors to discuss various solutions to the problem. He
also observed that white his caseload was growing - at one point it more
than doubled - the caseload of probation officers in the adjacent
Peterborough Office more or less remained the same.
Mr. Peyman also pointed Out that the number of cases assigned precludes
him from delivering the kind of services he would tike to his clients. He
has tittle opportunity to enjoy collateral contacts with other agencies,
parents and schools. He also finds that the sheer number of clients on his
caseload precludes him from providing the individual support to clients
which he would like to provide. Mr. Peyman needs to spend time with his
clients to get to know them, and to better assess them and their needs. He
testified that a caseload of 50, which for him is not atypical, puts him
under a great deal of stress, particularly as he'invariably becomes
concerned that he is unable to perform all aspects of his job, and he
concludes that individual ctients are suffering in the result. He told the
Board that his caseload prevents him from meeting Ministry standards.
5
The employer was made aware at a meeting in May 1 992 that probation
officers such as the grievor were being precluded, because of workload,
from meeting some of those standards. The grievor testified that he wa:s
told by Mr. Don Bent, a Ministry representative from the Southeastern
Region and ~4r. Frank Biassucci, the Program Supervisor from the
Peterborough office responsible for the delivery of probation services in
Peterborough and Oshawa, that he and his colleagues were required to meet
Ministry standards, and would be disciplined for failure to do so.
Mr. Peyman testified that he is not only concerned about his inability to do
his job - this concerns him on moral, professional and ethical level - he is
also very worried that he might be disciplined for reasons entirety out o'f-
his control. Often, Mr. Peyman cannot see clients as often as he would like.
He told the Board that the excessive workload, and the specter of
discipline, was impeding the delivery of a good probation services to his
clients. At the time of the grievance, Mr. Peyman was providing a much
reduced service to his clients then he was a year or two earlier, tn part,
this was the result of an increased caseload; in other part, it was
attributable to changes in expectations. The caseload also precludes Mr.
Peyman from presenting well to the juvenile justice community of social
workers and others, such as those in the legal system. He is so busy trying
to juggle his case overload that he is prevented from making the contacts
and obtaining the visibility that he needs to' operate well within the
system.
In Mr. Peyman's opinion, he should have a caseload of approximately 25 to
35 clients, instead of a caseload in the 4Os, 50s and 6Os, as was the
situation in 1991 and, to a somewhat lesser extent, 1992. In the past,
when he had a proper caseload, Mr. Peyman was able to deliver a high level
of' service to his clients, in 1991, Mr. Peyman felt so overwhelmed by the'
number of clients he was required to. service that he felt considerable
stress and anxiety. He became less patient and tolerant of situations he
would have previously accepted in stride, and he became extremely agitated
about the unfairness of the situation, particularly when he compared his
caseload to that of probation officers in Peterborough. He told the Board
that these symptoms have not gone away, and that he continues to confront
an excessive caseload, one that has even exceeded past levels.
Cross-Examination of Mr. Peyman
In cross-examination, Mr. Peyman testified that court-driven functions
receive first priority followed by case-related activities such as meetings
with clients and collaterals and preparing various documents. Other than
those matters which are ordered by the court, it is up to Mr. Peyman to
determine the priority assigned to his work. Some young offenders, for
obvious reasons, require considerable contact with their probation officers;
others, such as those put on probation following a relatively minor offence.
require less attention, fewer meetings, and not as much paperwork. Some
of Mr. Peyman's responsibilities are mandated by' the employer. Sometimes
he cannot, because of the press of his other commitments, attend to these
responsibilities.
At the meeting in May 1992,' Mr. peyman, 'and others, raised concerns about
the caseload. Mr. Peyman did not, however, make any suggestions about
ways 'of possibly alleviating his concerns. He testified that specifics were
not addressed, but he was advised, in response to his and other expressed
concerns about discipline for failure to meet standards, that he would have
to change the way he went about doing his work, 'and that this might involve
seeing clients less frequently. He agreed with the assertion that with one
7
limited statutory exception, there was nothing stopping a change in the
manner of conducting business. Mr, Peyman also agreed that as the
standards were ministry generated, they could be changed or modified b,.l
the Ministry.
Mr. Peyman's supervisor is Mr. David Crowe. Mr. Crowe attended the May
199;~ meeting, and he was aware of the concerns being expressed. Mr.
Peyman has never had the occasion to go to Mr. Crowe and advise him that
he could not comply .with the standards. Mr. Crowe was, however, aware of
certain lapses in the standards. Mr. Peyman's quarterly reporting was not,
for example, always up-to-date. Nevertheless, IVlr. Peyman has not been
disciplined for this breach, and he is not aware of any of his colleagues
receiving discipline for this, or any similar breach. After the grievances
were filed, some piecemeal changes were made involving a minor shift in
boundaries between the Oshawa and Peterborough offices. It was also
possible that the complement of staff increased by one in 1991. l~r. Peyman
is of the view that the genera~ problems he described could be best
addressed through the hiring of additional staff.
Mr. Peyman insisted that his caseload affected his overall well-being, and
in his mind, the one was directly relevant to the other. He agreed, however,
that he was only absent from work for 2.5 days in 1991 and 3 days in 1992.
He did not see a doctor about these absences. He told the Board that while
his work day was 36 and 1/4 hours per week, he regularly worked late into
the night, and often came in on weekends.
Evidence of Carl Baron
Mr. Baron is a probation officer at the Oshawa office, and he testified that
there were periods between April and December 1991 where, because of his
8
caseload, he felt physically and emotionally drained. During this period he
suffered from many. headaches, had difficulties with sleeping and
concentrating, experienced memory' loss, anxiety, confusion, fatigue,
blurred vision and lightheadedness, and felt generally irritable and
frustrated. He would catch himself'grinding his teeth and biting down hard
while at work, particularly during periods of pressure. At this time, Mr.
Baron was preparing for examinations given as part of the process of
raising his probation officer qualifications and status. Nevertheless, he
attributed the various concerns enumerated above to the loss of control
which he experienced as a result of his rapidly increasing and very difficult
caseload.
Mr. Baron was asked about Ministry standards, and he identified some of
those standards which the pressure of his responsibilities precluded him
from meeting. Standards are directives which must be met, and should be
contrasted, Mr. Baron testified, With guidelines, the interpretation of which
involves the exercise of some discretion. One case management standard
provides that "Where a youn§ person with an existing disposition and
Probation Officer, is admitted to detention on subsequent charges, the
Probation Officer, when advised of the admission, must provide the
detention facility with existing documentation/information relevant to
their services (e.9., the Probation Officer's risk assessment)." According to
Mr. Baron, he has difficulty meeting this standard because of insufficient
time to complete this and all of his other tasks. The same can be said, .in
another example, of the standard respecting case management pfans: "A
Case Management Plan will be commenced by the Probation Officer within'
30 days of the Y.O.A./P.O.A. disposition, and prior to the first plan' of care
meeting following disposition (for yduth in residential care)." Other
standards were also reviewed and in each case Mr. Baron testified that the
9
pressure of workload was such that he could not meet the obligations
formally imposed on him by the Ministry.
Mr. Baron was asked some questions about the employer's system for
measuring workload, and like Mr. Peyman, Mr. Baron testified that it was
actual caseload that mattered, not some formula arrived at by the Ministry
that failed to take into account the actual number of clients that he and the
other probation officers were required to see. He also pointed out that
there was a real difference in service provided between probation officers
with large caseloads and probation officers with more modest caseloads.
Mr. Baron considers himself a professional and testified that he does not.
consider it appropriate for him to be placed in a position where he cannot.
meet the standards, and where he cannot perform all of the important
duties associated with the professional delivery of probation Services.
Mr. Baron endorsed the Ministry standards. They were, he testified, a good
thing. What he objected to was an impossibly high caseload that left him
unable to meet many of. these standards and that precluded him from
performing essential duties of his position, a number of which he identified
and discussed. He also referred to a consultant's report, "Opportunities ~nd
New Directions for M.C.S.S. Probation Services: Feedback from the Field and
Strategies for Strengthening the System," d~'ted November 19, 1986
(hereafter referred to as "the Simpson Report"). This report states that "in
a highly resourced urban area, a range of of 25 to 30 cases was viewed by
Probation Officers as tolerable" (at 17). In Mr. Baron's view, he could even
tolerate a caseload of 40. The fact of the matter, however, was that he
was regularly required to manage caseloads significantly in excess of this
amount and this was, he told the Board, intolerable.
Cross-Examination of Mr. Baron
When Mr. Baron felt confused, discouraged and frustrated in 1991, he did not
discuss it his supervisor; he did, however, raise the matter with his
colleagues. Mr. Baron agreed that in 199P_, he only 'missed two days of work
on account of illness, and testified that he never saw a doctor with respect
to his medical condition. Once, complaining of double vision, Mr. Baron saw
an optometrist who could find nothing wrong.
Mr. Baron testified that he has never been disciplined for not meeting a
particular standard, and told the Board that he was able to complete all
court-ordered tasks. Some of the tasks which he would have liked to
perform, such as attending in court to provide support to a particular young
offender and his or her family, and answering the questions of crown and
defence counsel, were not required by the standards. The fact that Mr.
Baron was not able to perform this type of task was the result of his
increased caseload which in turn precluded him from doing all the parts of
his job nece?sa.~ to its professional completion. Mr. Baron agreed that at
no time did he ever fail to comply with the requirements of governing
statutes such as the Young Offenders Act. Mr. Baron acknowledged that
some Ministry standards are flexibly applied and that his supervisor, Mr.
Crowe, has a good understanding of both the system and the pressures faced
by probation officers. If Mr. Baron had a problem he could go to Mr. Crowe
with the expectation of being able to work it out. He also agreed that some
of his non-compliance with some of the standards was of a relatively
trivial nature. Nevertheless, he was concerned by the fact that he might be
disciplined in any event.
Re-examination of Mr. Baron
in re-examination, Mr. Baron testified that he has never been told that he is
11
not responsible to comply with all of the standards, and the impression that
he received is that he is to comply with all of them. He noted that if there
was an investigation into one of his cases, and it was learned that he had
not complied with Ministry requirements, he could face discipline and other
problems. For example, if he assessed a young offender as high risk, an¢
established but failed to keep a regu(ar reporting schedule, should
something untoward occur he would, more likely than not, be taken to task.
He also told the Board that just because he was only away from work fora
few days in 199;] did not mean that he was not under a great deal of stress.
He testified that if he did not come into work, the work would just pile up,
and the strain of catching up with the work, when added to his on-going
responsibilities, would dramatically increase his stress.
Evidence of Judy Curtis
Ms. Curtis began her Ministry career in 1974. In September 1982, she
started work as probation officer in Oshawa and served in that capacity
until January 1, 1989 when she left the service for approximately 18
months. She was rehired in May 1990, and has been working as a probation
officer in Oshawa ever since. When Iqs. Curtis first began her probation
officer career she had a caseload of approximately ;].5 to 30 cases. Over the
years, Ms. Curtis's caseload has fluctuated and she testified that a caseload
in the mid-:~Os did not cause her much anxiety. In earlier years, even when
she had a caseload in the 40s, it was manageable because there was much
less paperwork to be completed and, in the result, she had sufficient time
for all of her other important probation officer functions.
The turning point, in terms of forms to be filled out, came after the Young
Offenders Act replaced the Juvenile Delinquents Act in 1 983. Prior to
~ 98:3, Ms. Curtis would write two or three Pre-Disposition Reports a year.
· Recording was limited to case notes which were subsequently transcribed
by secretaries. After the Young Offenders Act came into force, the number
of Pre-Disposition Reports which were required increased exponentially,
and when that Situation was combined with an ever-increasing caseload,
the workload, and the accompanying stress, Ms. Curtis testified, became
unmanageable. Moreover, in earlier years Ministry standards were not as
strict as they subsequently became.- Accordingly, Ms. Curtis was, even when
she had a caseload of 45, able to meet those standards. The same could not
be said at the time of the grievances.
In Ms. Curtis's opinion, her caseload, in 1991 and 1991, along with. an even
higher workload equivalency, was both high and stressful. Between April.
1 991 and December 1991, when her grievance was filed, Ms. Curtis did not
feel as if she was properly performing her position as the amount of work
made it impossible to keep up with clients and collateral contacts,
complete the paperwork, and meet Ministry standards, instead of engaging
in strategic planning on behalf of clients, and engaging in activities such as
attending, in court to support young offenders and their families, Ms. Curtis
found herself reacting to crises, and she began to realize that she was not
getting the job done in a way that was satisfactory to her even though she
was working more hours than ever before. In addition, it soon became
painfUlly clear to Ms. Curtis that wOrkload demands were undermining her
position and reputation in the juvenile justice community as she was not
able to maintain and foster important collateral contacts as had previously
been the case. Management was, she testified, welt aware of her
difficulties.
Problems at work soon, Ms. Curtis testified, into problems at home. She
told the Board that she began to experience difficulties in gettin9 to sleep,
13
and she would often wake up before the alarm went off. Because of stress,
Ms. Curtis also began to gain weight, and her menstrual periods became
irregular. Her digestion was bad, and she frequently felt physically tired
and emotionally exhausted. Ms. Curtis, who had previously exercised
regularly, ceased doing so. Eventually, Ms. Curtis was prescribed ulcer
medication. At times, Ms. Curtis would leave work feeling panicky and under
intense pressure. She noted that her ability to concentrate was impaired
and her memory diminished. She began to have headaches. During the
relevant time periods, Ns. Curtis regularly had a caseload in the 40s, and a
workload equivalency of a much higher amount.
During some of this time, Ms. Curtis was experiencing stress in her
personal life - her mother was ill - but she "testified that she did not feel
that the feelings of panic and exhaustion which she experienced were
caused by events at home. It was workplace stress, she testified, that h;d
her to take ulcer medication. Overwork, very simply, was causing the real
stress in her life, and she testified that this problem has continued.
Indeed, since her grievance was first filed, it has increased.. According to
Ns. Curtis, the caseload has left her with much less job satisfaction than in
the past, and much less opportunity to control the job and do the job. In her
view, overwork has had a profound effect on her, and she told the Board that
the caseload has impaired her health and safety. The constant stress has
been very wearing. The fact that she cannot do the job in the way she would
like, and in the manner management expects, weighs heavily on her.
Ms. Curtis testified about informal and formal discussions about workload
that have taken place. Ms. Curtis and others have suggested that new staff
be hired, but that does not appear likely given current budgetary restraints.
At one point, a contract employee was hired.. Other means of dealing with
the situation have also been explored. But at the end of the day, Ms. Curtis
is still expected to meet Ministry standards, and she knows that she might
be disciplined for failing to do so. in Ms. Curtis's opinion, given all of the
requirements of the position, and the Ministry standards, a caseload of 30
to 3.~ would be manageable and would not impair her health and safety.
Cross-Examination of Ms. Curtis
Ms. Curtis was asked a number of questions in cross-examination. She
agreed that she has 19 years of experience in juvenile corrections, and that
in April 1991, she was responsible for 46 cases and had a workload
equivalency of 58.9. Ms. Curtis agreed that it was her view that she found
.it difficult to meet Ministry standards because of this caseload and
workload equivalency. And, moreover, that. this caseload and workload
equivalency affected the general performance of her position and her status
within the juvenile justice community. While Ms. Curtis has not done a
survey, she agreed with the suggestion that, for the most part,
Pre-Disposition Reports are adopted by the courts. Ms. Curtis also agreed
that there is no statutory provision requiring probation officers to attend
in court. The probation officer job description does, however, indicate
assisting in court as one of the assigned, duties. There is also a ..
well-established practice of probation officers being present in court to
support young offenders and their families. Probation officers also used to
attend at court for probation breaches, in part to assist the young offender,
ensure all of the information was before the court and, if requested, make
recommendations to the court. There is no longer sufficient time available
for Ms. Curtis and other probation officers to engage in this activity.
Ms. Curtis was asked about a number of other activities which she used to
perform such as community liaison. While the job description clearly
15
indicates that this function is among the assigned duties, there is no Ior~ger
sufficient time, for example, to speak to Board of Education groups, and so
probation officers such as herself are unlikely to volunteer for requests of
this nature. Ms. Curtis has not been disciplined for faifing to perform this
task, and is not aware of any disciplinary sanctions that might be imposed
for her not doing so. To meet the needs of her job, Ms. Curtis must work
through her lunch hours. She agreed, however, that~ she was a schedule 6
employee, and was not subject to maximum hours of work.
Ms. Curtis also agreed that at the time of the grievance, when she was
experiencing the various ailments described in her evidence in chief, that
she was hardly ever absent from work. indeed, in all of 1991, Ms. Curtis
was only away for one or two days. Ms. Curtis saw a doctor during this
period. Since 1991, Ms. Curtis's general condition has improved. She is not,
for example, treating her ulcer with medication. As already noted, in 1991,
Ms. Curtis's mother was iii, and there were a number of other home
stressors. This situation has generally improved, and she agreed that her
home stressors have decreased since 1991. In 1992, Ms. Curtis missed two
days from work While Ms. Curtis is receiving treatment for menstrUal and
related problems, he doctor has never advised her to take time off work.
She does not see a doctor for assistance with sleeplessness or the general
lack of energy she earlier described. There have, however, been occasions
when Ms. Curtis has not been feeling well,, but would come into work
nevertheless.
Ms. Curtis has never been disciplined for failing to comply with Ministry
standards. Some standards have been relaxed. For example, it is no longer
necessary to have personal contact with young offenders who have been
assessed as Iow risk. A risk indicator, the Risk/Need Assessment form, has
16
been introduced to assist probation officers in assessing risk. One of the
stated purposes of this indicator is 'to assist probation officers in
prioritizing their work. Ms. Curtis has used it a few times, but finds its
format difficult to roi'low. An EP, C has also recently been established.
Re-examination of Ms. Curtis
In 're-examination, Ms. Curtis testified that she has not received any
training in the use of the risk indicator and, as far as Ms. Curtis is aware,
the risk indicator does not alter the standards or provide that she will not
.be disciplined for not meeting those standards. The risk indicator is simply
a means.of classifying clients and, after certain factors have been
assessed, determining the degree of risk a particular young offender
presents.
Evidence of Tom Collins
Mr. Collins, a full-time probation officer at.the Oshawa Office since 1986,
testified. When Mr. Collins was first hired he had a caseload of between 20
and 25. He told the Board that he,.was able, with a caseload of this size, to
fully and properly perform his probation officer position, although even
then he would, on occasion, have to work weekends in order to comply with
Ministry standards. For his first few years on the job, Mr. Collins' caseload
fluctuated. While it would, at times, reach levels in the Z~0s, Jt would later
drop off giving ivlr. Collins an opportunity to catch up, Beginning in 1991,
however, the caseload stabilized in the 40s and never again dropped off.
Indeed, during some months in 1992, Mr. Collins had a caseload in the 5Os.
Between April and December 1991, Mr. Collins began to notice some of the
effects of his high caseload. He could recall specifically complaining to
one of his acting supervisors, and suggesting that his workload was
17
unmanageable. He told the Board that he began falling behind on various
tasks such as the preparation of quarterfy reports, collateral contacts,
liaison work and so on. The workload also personally affected Mr. Collins: as
he did not feel that he was doing a high quality job. He could not meet with
clients as often as in the past, nor could he .take the time to follow through
on, or analyze cases, two tasks which are indispensable to proper probation
officer work.
Indeed, Mr. Collins began to question the ethics of his doing an incomplete
job, and he described the various ways in which he was unable to provide "
proper probation officer services. He could no longer, for instance, review
Pre-Disposition reports with families, and in 'that way use this document
as a counselling tool, nor was he available to counsel families when young
offenders appeared in court. Mr. Cotlins explained to the Board why
collateral contacts were so important but have, because of workload, be-eh
greatly reduced. ..
Since 1991, Mr. Collins has found it necessary to regularly work evenings
and weekends to keep up with the demands of his job. He is aware that
between April and December 1991, he was not always in compliance with
Ministry standards. At the same time, he knew that he was obligated to
meet these standards. During this time period, Mr. Collins felt frustrated
and overwhelmed. In Mr. Collins's case, his caseload was even higher than
the numbers would suggest because he is responsible for a rural area afld a
great deal of travel is accordingly required. Since 1992, Mr. Collins's
caseload has been' in the 4Os. He has informally raised his concerns about it
to management. He is not aware of any factors from his personal life that
could account for the feeling of stress that he felt at work, and therefore
attributes that feeling to unmanageable work demands. Mr. Collins
continues to get job satisfaction from his position because he continues to
do positive things that make an impact. His job satisfaction is not,
however, as great as it was when his caseload was manageable.
According to Mr. Collins some changes have been introduced such as the risk
indicator. This form requires less time to fill out, and so assists him in
managing his caseload. For example, if the application of the risk indicator
results in a finding of Iow risk, Mr. Collins can, with his supervisor's
consent, see the client less frequently than required by the Ministry
standards. Mr. Collins told the Board that there has been some change in the
level of service over the years, but he has adjusted to the new demands and
gotten used to the idea that he can only do so much. He noted that there is a
reason for the Ministry standards, they were drafted folfowing a
determination of what made sense. And Mr. Collins testified that they still
make sense although they are no longer necessarily possibte to meet. While
Mr. Collins does not have any statistics on point, he is of the view that the
Workload has not just reduced his visibility in the courts and community,
but is also resulting in changes in the way that the system treats young
offenders. Several examples were given on point, and they clearly indicate
that Mr. Collins does not have the time, as he had in the past, to give as
much personalized attention to young offenders and their families. He also
noted that opportunities for professional development have, in recent years,
been greatly reduced.
In the summer of 1992, Mr. Collins took some stress tests which he
"passed." He Subsequently learned, however, that he had an ulcer and a
hiatus hernia. The ulcer has healed; the hernia remains but has not caused
any difficulty since the diagnosis. Hr. Collins testified that
notwithstanding ail of the Pr0biems which he outlined, he has felt
19 '
supported by his colleagues and by his supervisor. His mental health may
even have improved since his grievance .was filed because he has come to
accept that there is only so much that he could do within a given period o'1~
time. This involves a recognition that he cannot necessarily meet Ministry
standards. He is concerned, however, about this. What happens, he asked, if
something occurred and it was learned that he had not seen a client for
several months? In Mr. Collins's opinion,, a workload of 2.5 cases in his
rural setting would be safe, as that caseload would have an equivalency of
40 or more cases, and in his view, that was the maximum number that
should be assigned to a probation officer in .circumstances such as his own.
Cross-Examination of Mr. Collins
Mr. Curtis agreed in cross-examination that in most cases a young offender
appearing in court would be represented by legal counsel. He did not agree
that this made his services superfluous, and he noted that just being there
and caring could contribute a tot to the young offender and his or her family,
Moreover, just because he prepared a Pre-Disposition Report, did not
necessarily mean that counsel would consider it. If he was in court, he
could answer questions about it and use it as a counselling tool.
Mr. Collins has never been disciplined, nor has he ever received a negative
performance appraisal for failing to meet Ministry standards. Mr. Collins is
not aware of any flexibility in the application of the standards, although he
does know that the standards can be modified with the supervisor's consent.
While the number of collateral contacts has gone down, Mr, Collins agreed
that he has never had a Pre-Disposition Report rejected because of
insufficient contacts. All that the Young Offenders Act requires is that he.
meet with the young offender and one parent or guardian. He also agreed
that there is no legal requirement for him to attend in court. As far as he
knows, his Pre-Disposition Reports are heavily relied on by the courts.
Since 1991, Mr. Collins has reduced his liaison work and community
activity. This has not attracted either discipline or disapproval, and ~r.
Collins agreed that since 1991 no such work has been assigned. At one
point in 1992, Mr. Collins took ten days off work, and he testified that he
did so because of a culmination of factors of which workload was one.
While Mr. Collins did not feel that his job performance was what he wouid
like it to be during the period in question, he testified that he has not
received any formal criticism for the performance of his job, although on
one occasion a supervisor informally drew to his attention the fact that he
was not seeing a client as 'often as required in a schedule. Mr. Collins
replied that it was simply not possible, given the workload, to do
everything.
Evidence of Dr. Norman Frederick White
Dr. White, a psychiatrist and professor at McMaster University's Faculty of
Health Sciences testified. Primarily reasearch-oriented, Dr. White is an
expert in risk reduction and health promotion. He testified about his
credentials, and it is fair to say that Dr. White is an extremely
accomplished individual with expertise in behavioural medicine and in the
application of muttidisciplinary research to a broad array of contemporary
health problems. He told the Board that behaviourai medicine.utilizes
models and other methods of the social sciences in its examination of
public health concerns. Dr. White is an expert in the environmental aspects
of health, and has edited several books on this subject. Stress is one
environmental issue arising in the workplace, and it is also one issue with
which Dr. White has considerable expertise.
According to Dr. White, there have been a number of studies indicating that
21 '
human service workers are particularly vulnerable to stress in the
workplace. That term, however, is subject to a number of different
definitions. In Dr. White's opinion, it is a composite term denoting
biological overload. Stress often results because of a discrepancy between
the demands placed on an individual and that individual's ability to respond.
Dr. White referred to the considerable literature establishing a link
between stress and disease. Stress can also lead to negative behaviour
changes such as smoking, increased drinking and decreased physical
activity. Obviously, this type of behaviour can cause other illnesses, both
mental and physical. Very simply, an increase in workplace stress can, Dr.
White testified, lead to disease, in particular, coronary disease. He noted,
however, that each individual is different. Some people with excellent time
management skills, or other "buffers," can react to workplace stressors
better than others.
In advance of his testimony in these proceedings, Dr. White prepared a
detailed model specifically applicable to the grievors in which he charted
how their workplace demands affected them. To prepare this model, Dr.
White began by interviewing several informants from among the grievors.
He then gathered a focus group for the purpose of discussing matters of
common concern. He then prepared his model, following which he conducted
a literature review. He completed his study by reinterviewing a number of
the informants. This process, which Dr. White explained in some detail,
contains checks and balances and is, he told the Board, standard social
science methodology.
There were some limitations to this approach, and Dr. White noted them. He
testified, for instance, that he did not examine medical records, nor was he
making a direct causal connection between the grievors' work and the
manifestation of disease. A finding of risk of disease, Dr. White testified,
was different from-a finding of a particular disease. For example, it is
well established that second hand smoke can lead to lung cancer. Similarly,
workplace stressors can lead to illnesses associated with stress. The
issue is not, according to Dr. White, whether any of the grievors have
actually become sick as a result of their increased workload, but whether
they are at an increased risk because of it.
In his evidence, Dr. White took the Board through the model which he had
earlier prepared. Suffice it to say that this model is extremely
comprehensive. Dr. White's evidence in this respect has been carefully
considered .although it is not repeated here in detail. Rather, the model, and
his testimony, can be summarized by saying that because of an increased
workload, the grievors are placed under greater pressure and are left unable
to fully and professionally perform all aspects of their job. As the
grievors' workload increases, they must work harder' but they have less
time per case, less time to spend assisting young offenders in court, and
tess time for community liaison and professional development. In the
result, ;they experience an overriding and somewhat generalized loss of
control. Instead of directing events, the grievors must respond to them.
All of this, in turn, leads to a loss of professional status, role conflict, a
reduction in the quality of services, and various negative effects such as a
rise in tension and stress with a concomitant loss in the intrinsic rewards
of a job .well done. More mistakes are made, and this further erodes any
sense of professional accomplishment, tn the meantime, instead of being
assisted by positive buffers, such as knowledge that the Ministry is behind
them, the grievors are placed under the gun because they know that they
must meet formal Ministry standards - which their workload precludes.
This is then aggravated by the fact that they are subject to discipline for
'
failing to meet those same standards.
The results of this state of affairs were numerous and included a generally
unhappy workplace and poor employee morale. Moreover, the grievors'
ability to withstand stress decreased with a resulting increase to the
grievors (and Dr. White testified that some of the grievors experienced
some of these symptoms and that some of them experienced all of them) in
insomnia, interpersonal strain, smoking, bad eating habits, depression,
fatigue, sexual dysfunction, drinking, and physical inactivity. Dr. White
also testified that these results could lead to others involving
pathophysiological change, physical disease, including increased risk of
coronary heart disease, and mentat disorder. Dr. White noted that the
grievors became probation officers because of personality attributes,
particularly the abitity to emphasize with clients. When their job demands
precluded them from meeting the needs of the client group, and Dr. White
gave numerous examples from his study indicating this to be the case, it
was only understandable that there could and would be serious
health-related consequences to the 9rie¥ors in the result. Dr. White noted
that individuals are often assisted by positive buffers; the satisfaction
gained from a job well-done is a good example on point. This was, he
testified, denied the 9rievors because they are unable to do their jobs. Very
simply, their workload makes it impossible.
According to Dr. White, it was not possible to infer anything from the fact
that in 1992 the grievors, by and large, were hardly ever away from work
for reason of illness. Neither his model, nor the conclusions which he
reached, were changed as a result of that. Dr. White observed that the value
systems of different occupational groups may result in members of those
groups refusing to admit that they under stress, or are suffering from it.
Therefore, attendance at work was not necessarily a retiable indicator' of
whether a certain employee was suffering from stress and was therefore
susceptible to the difficulties which he had earlier identified.
Having conducted his study, and based on his years of experience in the ~.
field, Dr. White opined that the grievors' caseload constituted a risk to
their health and safety, and that the increase in stress was posing a real
and substantial risk. Virtually all of the factors known to create
occupational stress were present in the gdevors' workplace - and a number
of other studies were referred to substantiating this conclusion. The
evidence also established, 'Dr. White stated, that the grievors' were
suffering in the result. Dr. White was of the opinion that a 'number of
changes would have to be made to reduce the level of workplace stress, and
he suggested that the first change that should be made was a reduction in
caseload. That change, which would give the grievors' more control, and
would, among other things, lead to greater professional development and
job satisfaction, was, he opined, an important first step. But it was' just
that. Other changes would undoubtedly also be required, and he referred to
his model to make the point that there were many contributing factors to
the occupational stress which he had identified; the model could,
accordingly, be used as a guide in the reduction of that occUpational stress.
Cross-Examination of~ Dr. White
In cross-examination, Dr. White testified that the object of his exer. cise
was to conduct a risk assessment. This led him to conclude that there was
a causal agent or condition in the workplace that was, in turn, creating a
risk to the grievors' health. This conclusion was confirmed by the presence
of various symptoms which he had earlier enumerated. Dr. White was not
saying, for example, that these symptoms were necessarily being
25
experienced by the grievors for the first time. What he was saying was
that his study led him to conclude that there was a marked increase in
these symptoms, and that increase was contemporaneous with the increase
in workload.
Dr. White agreed that the link between stress and heart disease was
extremely well-documented in the literature. He was asked whether, during
the course of his study, any of the grievors informed him that they were
suffering from hypertension or any other symptom indicating the beginning
of a cardiovascular problem. He testified that he did not look specifically
for that information; rather, what he sought was information consistent
with that condition. It was not necessary for him, in this regard, to review
any medical records, for high blood pressure for example. The fact of thE;
matter was that he did not need evidence of hypertension to find that there
were stressors in the workplace. What he needed, and what he found, were
conditions resulting in an occupational health and safety threat. He also
found evidence that those conditions and results were not hypothetical;
they were, he testified, real, Dr. White was looking for risk, not disease.
Dr. White acknowledged that workplace stress was not the only type of
stress that could lead to the symptoms he identified. He agreed that there
were circumstances where conditions at home could have effects even more
devastating on an individual than those associated with work. He did not,
however, ask any of the grievors about their home lives. He assumed thai:
they must have some stresses at home, and he agreed that there is always
some stress in an individual's life. In this particular case, the distresses
suffered by the grievors in the occupational realm were such so as to lead
Dr. White to conclude that they were being required to work at well beyond
any "optimum" stress level. Dr. White was asked how he could identify
26
workplace stress as a risk when he was not familiar with stressors outside
of the workplace, and he testified that he could do so aS a result of the
methodology which he followed. Moreover, he pointed out that the grievors
were relatively sophisticated in matters of this kind, and he believes that
they would have brought non-workplace stressors to his attention had they
thought it necessary and appropriate to do so. Dr. White added that he asked
about the impact of the workplace stress outside of work, and' in this
context would have expected to hear about other sources of stress, His job,
he pointed out, was to isolate job stress and assess the potency of the risk
created thereby, and he testified that this process was distinct from
anything else that may have been going on. By way of example, Dr. White
noted that workers exposed to asbestos are at a much higher risk of
developing lung cancer if they are also smokers, it is difficult, in these
circumstances, to assess blame for the disease. Nevertheless, that does
not alter the fact that' asbestos has been independently established as a
source of lung disease. The same could therefore be said for .the various
risks that he identified as a result of his study of this particular
..wor.kplace.
With respect to his earlier evidence that stress was created as a result of
conditions precluding the grievors from meeting personal and professional
standards, Dr. White agreed that if those standards were changed, that
could have the effect of eliminating this stressor and thus reducing any
risk. He told the Board that it would be best, however, if the grievors were
actually and actively involved in the process of determining what the
applicable standards should be, and that their concerns should be addressed
in a process that engendered trust between the parties.
27
Re-examination of Dr. White
In re-examination, Dr. White was asked to explain why he had not felt it
was necessary to ask the gdevors about home stressors, and he testifiect
that his focus was on workplace risk factors. Moreover, he noted that
during the course of his study there was a complete absence of any leads
that would suggest inquiries of this kind. He knew that the grievors were,
as a group, very much aware of the impact of home life on an individual, ;~nd
it was therefore highly improbable, had there been relevant home life
stressors, that they would have not, at some point during the course of his
investigation, been brought to his attention. Had all of the symptoms which
he found existed prior to the increase in workload, Dr. White would have
conducted his study differently. The preexistence of some of the symptoms
in some of the grievors did not affect his conclusions especially since
virtually all of the symptoms which he identified are likely to happen to
everyone at some point in their lives. Dr. White pointed out that he was not
acting as a physician collecting symptoms for the purpose of making a
diagnosis. It was not, therefore, necessary for him to take a medical
history. What he was doing was studying the workplace in order to. identify
risk factors. These factors were identified, as were results of the
exposure.
The Employer's Case
Evidence of Dale Elliot
Ms. Elliot is a'Program Analyst with the Ministry and is responsible for
programs and services for young offenders. She has held that position since
1989; her career with the Ministry began in 1974 as a probation officer.
As a result of her work, Ms. Elliot is familiar with the Simpson Report As
earlier noted, that report states "that in a highly resourced urban area, a
range of 25 to 30 cases was vieWed' by Probation Officers as tolerable" (at.
17). Ms. Elliot was responsible for .r..eviewing this report for the Ministry,
but she did not conclude from this assertion that this was an appropriate
Caseload for probation officers. Rather, what she concluded was that
probation officers considered such a,, caseload to be tolerable. What the
Ministry. concluded from the report considered as a whole was that a large
number of factors needed to be addressed, including the development of a
coherent and shared mission statement outlining expectations and goals in
the delivery of probation services to young offenders. In 1990, as a result
of extensive consultations, a mission statement was promulgated.
According to Ms. Elliot, the Ministry. has never set a standard caseload level
for probation officers, in part, this was because of the. uncertainty
resulting from the transition to the regime introduced by passage of the
Young Offenders Act. It was necessary to look at the impact of changing
legislation on the roles and workload.of probation officers. Ms. Elliot noted
that the Ministry has no means of controlling intake into the system as the
number of young offenders given probation is determined by the courts.
There is,. Ms. Elliot testified, considerable workload variance across the
province, and because of this variance, again occasioned by factors beyond
Ministry control, a system of workload 'equivalency was developed. A figure
of 42 cases, based on this system was established in one region as
something of a benchmark, but Ms. Eiliot told the Board that the matter of a
standard has not been finally determined. This, in part, results from the.
fact that admissions to Young Offender services have been annually
increasing across the province.
The delivery of Ministry services is decentralized, and Ms. Elliot testified
that if a pocket of high workload equivalency is identified a number of
29
different options may be pursued. Additional unclassified staff might be
hired on contract. Existing staff might be redeployed. Probation officers.
might be transferred between offices. There has been an effort made to
identify better business practices and introduce better management
techniques. The advent of the risk indicator is an example of a tool that
was developed by the Ministry with the intention of assisting probation
officers in better managin9 their workloads by providing, as appropriate,
different levels of services.
Cross-Examination of Ms. Elliot
In Ms. ElliotIs opinion, there was nothing in the Simpson Report that
indicated that a caseload of ?_5 to 30 was optimal. She did not agree with-
the suggestion that the author of that report must have concluded this to be
so for Ms. Elliot took the position that all that the report did was record
views expressed by probation officers. The fact that these views were not
rejected did not suggest to her that they had been implicitly endorsed by
the author of the Ministry-commissioned report. Ms. Elliot noted that the
author of the report was a consultant who had never worked a caseload nor
even spent a day with a probation officer. There was no possible way for
that individual to know what constituted a proper caseload. Moreover, the
wording of the section of the report relied on 'by the union suggested to Ms.
Elliot that the report was merely recording the observations of some
probation officers. Ms. Elliot contrasted this with a finding supported by
reasons.
Ms. Elliot did not dispute the suggestion that those probation officers who
described a caseload of 25 to 30 as tolerable were telling the truth, and
that this assessment undoubtedly reflected their experience and views.
However, Ms. Elliot rejected the suggestion that this assertion was
.anything more than a particular opinion at a certain time and place. She
noted that the study was conducted during a period of transition, and that
further changes in the delivery of probation services have subsequently
occurred. Many variables should also be considered. A caseload of 40
clients living in training schools was, Ms. Elliot testified, much different
than a mixed caseload of that number. Caseload figures were, in Ms. Elliot's
opinion, a simplistic measurement tool and one that was subject to many
deficiencies. Ms. Elliot atso pointed out that she had served as both a
probation officer and as a supervisor of probation officers. She was,
therefore, well acquainted with the delivery of probation services and, in
her oPinion it would be "tolerable" to have a caseload significantly in
excess of 25 or 30.
While the Ministry has no ability to directly control intake, it does have the
ability to indirectly control it. Probation officers can influence judicial
outcomes through their Pre-Disposition Reports. However, if the courts put
a young offender on probation, there is nothing that the Ministry can do but
provide that person with appropriate probatioi~ services a difficult task,
Ms. Elliot testified, in a period of diminishing resources. Ms. Elliot did not
accept the assertion that a workload equivalency of 42 was reasonable or
appropriate, and she rejected the suggestion that it had been adopted by the
Ministry as some kind of standard. All that the 42. figure constituted, in Ms,
Elliot's view,' was the professional opinion of some professional staff of an
appropriate workload. She noted that the figure was arrived at several
years ago, and suggested that intervening events undoubtedly changed at
least some of the assumptions underlying it.
According to Ms. Elliot, in the absence of sufficient funds to obtain more
resources and to hire additional probation officers, the Ministry, and
31
regional offices, must redeploy what resources already exist. Only
Management Board, she testified can approve the hiring of new staff, a most
unlikely situation in this instance given that the Ministry was required to
respond to reduction targets in the prevailing climate of economic
restraint. The Ministry has not, accordingly, applied for new staff; rather
it has attempted to manage with its current resources. The message from
Management Board has been clear: manage from within. While there are
procedures to allocate monies within a program or Ministry, Ms. Elliot is
not aware of those procedures being followed to reduce the workload of the
grievors in this particular case.
The development of the risk indicator was, however, one strategy that the
Ministry pursued in its effort to manage from within. This system-was
under development for a number of years, and was implemented on July 1, "
1994. The level of risk determines the type of probation services received.
Young offenders assessed at low risk receive much less supervision than
those assessed at higher risk. The risk indicator does not replace
professional judgment, and Ms. Elliot testified that probation officers must
still carefully assess young offenders. They were expected to do so on an
on-going basis. Given that this system has only recently been introduced,
Ms. Elliot suggested that it was too early to tell what differences it would
make to the delivery of probation services or to the workload of probation
officers.
Evidence of David Crowe
Mr. Crowe, the grievors' supervisor, testified. He has 29 years of service
with the Ministry, and has been in charge of the Durham Office since 1991.
Mr. Crowe has been aware for some time of workload concerns among
probation officers, and on February 6, 1992, he wrote a memorandum to
32 '
probation officers in which he attempted to address some of these
concerns. As a result of his concerns, and because of his initiative, one of
the boundaries was changed allowing a probation officer in Port Hope to
pick up half a caseload. This change was in effect between April 1 993 and
April 1994. In addition, in ApriJ 1994, or perhaps some time earlier, a
probation officer from Peterborough was transferred to the Oshawa office
expanding the complement there, and also reducing the caseload of existing
employees. E~ecause of these and other measures, Mr. Crowe testified that
there was-a narrowing in the workload equivalency of Probation Officers in
the Durham Office as compared to the Peterborough Office.
For example, in 1991/92, probation officers in the Durham Office had an
average workload equivalency of 56.6, while those in the Peterborough
Office had an average workload equivalency of 47.5. By 1993-94, the
figures were 65.9 and 61.8 respectively. While it was too early to reach
any ~t~'~r'inite conclusions about the impact of the risk indicator, Mr. Crowe
testified that it has decreased workload from an administrative or
paperwork point of view. Probation officers no longer need to write the
long narratives required in the past.
Mr. Crowe was asked a number of questions about the standards probation
officers were required to meet. in his view, the standards establish broad
guidelines and articulate established practices. According to Mr. Crowe, if
a probation officer is unable to meet one of the standards, he is is more
than willing to discuss the situation with the employee concerned, and then
deal with it on an individual basis. I~r. Crowe referred to several standards
and explained his flexible approach. For instance, he testified that a
particular standard may require that certain actions "commence" within
thirty days. In appropriate circumstances, he will give that word a broad
33
interpretation so as to ensure that individual probation officers have
sufficient time with which to comp{y. He has never disciplined a probation
officer for non-compliance where workload precluded meeting a Ministry
standard.
Cross-Examination of Mr. Crowe
Mr. Crowe was asked a number of questions in cross-examination. In his
view, the workload of the grievors has. decreased somewhat as a result of
the various measures he had earlier outlined. A reduction of approximately
five cases per probation officer was significant, Mr. Crowe testified. Mr.
Crowe did agree that the risk indicator sought much of the same
information that probation officers were previously required to furnish,
What had changed was that less'documentation was now required and the
information being furnished was more succinct. The amount of
investigation time,, however, has probably remained the same.
Over the years, Mr. Crowe has attempted to increase staff complement in.-
his office and .to obtain equalization within the region. He took many steps
to secu~:e 'new employees - several of which he described in detail - and did
so because of his realization that the workload in the Durham Office was
too high. Mr. crowe testified that everyone involved in the delivery of
probation services, including himself, feels pressure, but he was reluctant
to isolate workload as the only cause. While Mr. Crowe did not dispute any
of the evidence that the grievors who testified felt considerable stress
because of overwork, he noted that this stress had not manifested itself in
excessive absenteeism.
In Mr. Crowe's view, the stress associated with the job was.likely to
continue. The population served by the Durham Office was increasing
34 '
annually, and as it did so too, inevitably, would be the number of young
offenders put on probation. Mr. Crowe has no short- or medium-term
expectations of any increase in complement. That message had been
delivered loud and clear. His job, therefore, was to cope, and to assist
probation officers in doing so. Mr. Crowe emphasized that he has never
disciplined anyone for failing to meet Ministry standards; nor has he ever
told anyone that they may be subject to discipline for failing to do so. Mr.
Crowe agreed that some standards could not be met because of workload,.
and strictly speaking employees could be disciplined in the result. However,
Mr. Crowe suggested that there was a big difference between willful
defiance of a standard and a probation officer who was genuinely unable 'to
meet a standard because of the other requirements of his or her job. The
probation officers in the Durham Office were, in Mr. Crowe's opinion,
professionals, and they were treated as such.
Evidence of Frank 13iassucci
Mr. Biassucci, a Program Supervisor .with the Ministry with years of
experience in probation services, testified. In May 1992, Mr. Biassucci
attended a meeting called to discuss implementation of some new
standards the Ministry had recently developed. Compliance with these
standards was among the issues discussed and, in response to a question,
Mr. Biassucci stated that the Ministry expected the standards to be
complied with. He also told the probation officers in attendance at this
meeting that he expected that normal managerial practices would apply in
cases of non-compliance, and what he meant by that was that the
circumstances would be considered and the reasonabfeness of any
non-compliance examined. As far as Mr. Biassucci is aware, no probation
officer has been disciplined for non-compliance.
35
Cross-Examination of Mr. Biassucci
In cross-examination, Mr. Biassucci agreed that he did not recall exactly
what was said at the May ] 992_ meeting he earlier described. He could,
however, recall the discussion and the content of the remarks. And he
agreed that he said. that supervisors would continue to exercise discretion
in deciding whether to impose disciplinary sanctions for non-compliance.
All probation officers were told to comply with the standards; no one was
given any asSurance that they would not be disciplined if they failed to
comply.
The evidence having been completed, the case turned to argument.
Union' Argument
In the union's view, the issue to be determined in this case was whether
Article 1 8.1 of the Collective Agreement had been breached. Article 18.t
provides: "The Employer shall continue to make reasonable provisions for
the safety and health of its emPloyees during the hours of their
employment. It is agreed that both the Employer and the Union shall
co-operate to the fullest extent possibte in the prevention of accidents and
in the reasonable promotion of safety and health of all employees." In the
union's view, this provision had been infringed.
Counsel noted that workload and caseload has been a concern in the Durham
Office for many' years; indeed, it had been raised on numerous occasions.
long before the instant grievances were filed. The 1986 Simpson Report
illustrated this concern and also, in the union's View, established a
benchmark for a reasonable caseload. Nevertheless, counsel argued, by the
time the grievances were filed at the end of 1991, management had
36
permitted caseload to increase, so much so that the grievors were required
to work in an atmosphere of excessive stress.
The fact of the matter was that because of.' the nature of their job, any
increase in workload considerably increased the grievors' work-related
stress, and counsel referred at some length to Dr. White's model and his
evidence in this respect. Counsel noted that Dr. White testified that this
increased stress raised potentially serious health consequences to the
grievors. And given that Dr. White established that this increased stress,
and the resulting increased risk, was directly related to the workload
demands, the union took the position that Article 18.1 had been breached.
Even l~r. Crowe, union counsel pointed out, acknowledged that the grievors
were required to work under a lot of pressure in an atmosphere of
considerable stress.
In the meantime, the grievors, as committed professionals, were struggling
to perform their jobs in a professional manner. They were, nevertheless,
subject to discipline for failing to meet I~inistry standards. It was hardly
fair, counsel argued, to establish standards but then make it impossible for
the grievors to comply because of the press of other commitments. There
was a solution to the problem, and that solution was an increase in
staffing. The employer has, however, refused to add to the complement, and
counsel noted that t~s. F_liiot made it clear that there was no money
available to increase employee ranks. While Mr. Crowe made some efforts
to ameliorate the situation, the union took the position that relative to the
size of the problem the efforts which were made were relatively
insignificant. It was true enough, in this respect, that the risk indicator
was developed, but, counsel pointed out, it was far too early to tell what
impact, if any, it had, or would have, on the volume of probation officer
37
work.
Looked at in the overall, counsel argued that the Ministry has not properly
responded to the evidence led by the union establishing the existence of a
real and substantial risk to the health and safety of some of its employees.
The only explanation that was ever provided, counsel noted, was in the
evidence of Ms. Elliot during which she indicated that money to increase
staffing was not available, and was unlikely to become available in the
future. However, that excuse, and that is how the union characterized it,
was just that~ The employer was the Crown, and it could, if it wished,
make the funds available to hire additional employees and, in that way,
comply with Article 18.1.
There was really no doubt, in the union's submission, that the caseloads
imposed on the grievors were too high. Counsel noted that many years ago
it was established in the Simpson Report that a caseload in the 30s was
excessive, and counsel noted that there was nothing in the Simpson Report
indicating any disagreement with the information provided by. probation
officers as~-ito what constituted an excessive amount. In the aftermath of
the Simpson Report; caseloads, however, Continued to grow and all of the
grievors had, at the time of their grievances, and since, caseloads weJl in
excess of this already established excessive amount. Referring to the
evidence of the grievors who testified, counsel noted the many similarities
in their testimony about how the excessive caseload was causing stress.
Even though the grievors brought their concerns to the attention of
management, no real steps had been taken to deal with them.
Counsel spent some time discussing Or. White's evidence. Suffice it to say
that Dr. White was an expert and, counsel pointed out that he opined based
:38
on his study of these grievors and this workplace that the excessive
caseloads presented a real and substantial threat to their safety and health..
Counsel noted that this expert opinion was confirmed to some extent by the
grievors' own evidence with respect to the manifestations of the stress in
their personal lives. The conclusion was inescapable, counsel suggested,
that the excessive caseloads were compromising the grievors' health and
safety. The conclusion that this stress caused a health and safety risk
must, counsel emphasized, be put in its proper context. The union was not
saying that an increased workload will, in every case, lead, for example, to
coronary heart disease. What it was saying was that in this case, given
who the grievors were, and given the nature of their jobs, that a threat to
health and safety had not been hypothetically established, it had been
proven. And, counsel observed, even though it was unnecessary for the
purposes of Article 1 8.1 to establish a health and safety breach, the fact
that one had been proven made the breach of this provision all the more
serious. Counsel also pointed out that the employer did not call any
evidence challenging Dr. White's expert assertions, and therefore took the
position that the Board had no basis upon which to refuse to accept Dr.
White's evidence and the conclusions that he reached.
In marked contrast, counsel suggested that the evidence of. Ms. Elliot wa.,;
hardly reliable. Counsel noted that Ms. Elliot would not accept the
conclusions of the Simpson Report, and even had difficulty accepting the
generally established benchmark of an appropriate caseload of 42.. The fact
that the Ministry, which was one branch of government, never even bothered
to ask another branch for additional resources to deal with an urgent and
pressing problem was, counsel suggested, highly questionable, as was the
reason Ms. Elliot provided for the Ministry's failure to do so. In addition,
while the employer may not control the number of young offenders direct,~d
-' :39
* to probation services, it could control the 'manner in which those services
were delivered. There was therefore no basis to find in this case that the
employer was meeting its Collective Agreement obligation of making
"reasonable provision" for the health and safety of its employees. Nor was
there any reason to find that the employer was cooperating to the "fullest
extent possible in the...reasonable promotion of safety and health of all
employees." The introduction of the risk indicator was, counsel suggested,
a piecemeal and unproven response to a very serious situation, and one with
continuing averse consequences for the grievors. In the union's view, and
counsel pointed out that' Mr. Crowe agreed that the workload was at the very
least one of the causes of the grievors' stress, an increase in complement
could turn the situation around. In the meantime, the grievors were ...
susceptible to discipline for circumstances beyond their control.
...- Turning to the case law, counsel referred to a number of authorities
including Stockwe(I 1764/87 (Wilson) and Watts/King 1367/90 (Kaplan). It
is provided in these and other cases that to establish a breach under Article
18.1 the union must prove that the employer has not made reasonable
provisions for the health and safety of its employees and, in the result, that
the employees have been placed in jeopardy. Actual harm need not be
established; the union can succeed simply by showing the potential of harm.
The authorities also establish that 'the obligation to take reasonable
precautions for the safety and health of employees does. not require the
employer to take every precaution. What is reasonable depends on the
circumstances of particular cases, and counsel argued that in this
particular case management's response to the grie¥0rs' concerns hardly met
the requirements of this test. indeed, counsel again pointed out that the
employer failed to explain or justify its failure to take action given the
uncontradicted evidence with respect to the effect of the increased
40
workload on the health and safety of these employees. In the union's view,
once it established an increased risk to health and safety, the employer wa.s
required by the jurisprudence to explain the necessity of that increased
risk. No explanation was ever given as to why increased funds could not be
obtained in order to reduce the excessive workload of these probation
officers. Indeed, the evidence established that the employer, insofar as
senior management was concerned, was not even willing to acknowledge the
connection between the excessive workload demands imposed on the
grievors and the increased risk to their safety and health.
This situation, counsel concluded, cried out for a remedy, and counsel asked
that the grievances be a~lowed and a declaration issued that the employer.
was in breach of Article 18.1. Counsel suggested that the parties be
directed to construct a remedy for that breach, and that the Board remain
seized with respect to that matter should the parties prove unabfe to agree.
Employer Argument
Employer counsel began his submissions by referring to the nine identical
grievances filed in this case. In each case, the grievance takes issue with
the distribution of work suggesting that this distribution is detrimental to
health. The remedy sought is also identical in every case: equalization of
workload. In the employer's submission, the evidence established that the
apparent inequalities in workload between the Peterborough and Durham
Offices had been corrected. Accordingly, the employer had taken steps to
deal with this matter and, on this basis alone, counsel asked that the
grievances be dismissed.
In this regard, counsel referred to Hr. Crowe's evidence about the steps he
had taken, and in doing so rejected the union's assertion that these steps
41
were of a minimal and inconsequential nature. As already noted, in
1991-92, the Peterborough Office had a workload equivalency of 47.5, while
the Durham Office was ranked at 56.6. In 1993-94, the respective figures
were 61.8 and 65.9. This difference, counsel suggested', was
inconsequential and fully answered the grievances before the Board.
Giving those grievances a.broader reading, however, counsel argued that
there was absolutely no evidence that various medical complaints raised by
two or three of the nine grievors were linked in any way to their caseloads.
The Ministry did not deny that the grievors who testified about various
medical problems were, in fact, suffering from those problems. What the
employer took issue with was the attempt to link those problems with
caseload. There was simply no evidence before the Board establishing that
the problems identified were caused by conditions at work. To establish
this fact it was incumbent on the union, counsel argued, to lead direct
medical evidence, including case histories, proving that the conditions
complained of were connected in some way to events in the office. No such
evidence,' Counsel pointed out, had been introduced. The caseloads began to
increase in the early 1990s. Accordingly, medical charts could have and
should have been introduced demonstrating the onset of the symptoms with
the increased caseloads. Instead, the only evidence the union led was the
evidence of several grievors who, not surprisingly, made a link between
their symptoms and the amount of work.
tt was true enough that two of the grievors, for example, had suffered from
ulcers. In both cases, however, the ulcers healed. How, Counsel asked,
could that be if the stressful conditions remained? Moreover, counsel noted
that in at least one case, the grievor testified that there were other
stressful circumstances in her life other than the conditions at work. The
42
inference was irresistible that more than one factor led to the stress that
was being felt by the grievors who testified in this case, The absence of
medical evidence made resolving issues of this kind even more problematic.
It was possible, counsel suggested, that the. ulcers, for example, had some
other cause. The fact of the matter is that without medical evidence the
Board could not conclude that caseload was the culprit.
Employer counsel did not take issue with the hypothesis that increased
workload could result in an increased risk to safety and health. What
counsel objected to was the self-serving evidence of some of the grievors
which, considered alone, failed to establish that the ailments they
described were connected in any way with conditions at work. Counsel
noted that Dr. White, in preparing his model, did not speak to the grievors as
a physician; rather, he spoke to them as a social scientist conducting
research, and that research did not include a review of their prior medical
histories. While various tools were used to .identify and locate causes of
stress, counsel noted that almost everyone will, at some time or another,
experience stress, and that it was incumbent on the union, in the employer's
submission, to establish a direct causal link. And, in this regard, counsel
noted that many of the symptoms listed by Or. White in his model are
experienced by virtually everyone at one point or another. It was simply
inadequate, counsel argued, to identify a condition and then claim that it
was connected to some stressor at work. The fact of the matter is that at
the end of the day, in the employer's view, there was no evidence
establishing any link between conditions at work and an increase in risk 'to
safety and health. Moreover, there was no evidence whatsoever indicating
that the conditions at work could or would lead to some future increased
health and safety risk.
One of the reasons for the absence of this evidence, in the employer's view,
was the manner in which Dr. White went about his research.. He did not
conduct medical research. Rather, he conducted a social science study, and
obtained all of his information from interested parties. After obtaining
anecdotal evidence-. (and medical complaints unaccompanied by a review of
medical files was, counsel argued, just that), Dr. White added it all up and
came to some broad conclusions that an increase in health and safety risk
to all of the grievors had been created by conditions at work. it was also
'important to note that many of Dr. White's findings were based on the
grievors' reports about how they used to do their work. They used to spend
a great deal of time in court. That changed because of workload demands.
But the existence of that change led Dr. White to conclude, among other
things,~ that that change resulted in the grievors losing status in the
community and, ultimately to find that their stress had increased and that a
health and safety risk had been establi~'tied. It simply did not make sense,
in the employer's view, to attribute much weight to a model that led to this
type of conclusion following a change in the manner in which probation
services were delivered. The model was, very simply, a house of cards and
it fell apart as soon as one of the cards was removed.
There was no doubt but that the grievors' caseload had increased, but at the
same time, changes were made to the manner in which work was performed.
The grievors may no longer enjoy as many collateral contacts as in the past,
however, they continued to have such 'contacts as were required, for
example, 'in'order to complete the Pre-Disposition Reports. Other changes
had taken place, but these changes had the effect of reducing parts of the
grievors' work so that there would be more time available for the increased
number of. cases. Other steps, such as the' development of the risk
indicator, were taken to reallocate resources and to make more time
44
available for work, and to also change the manner in which young offenders
were served.
Counsel conceded that one of the stressors identified in this case was tile
requirement of compliance with lVtinistry standards and the prospect of
discipline should those standards not be met. It would be absurd, counsel
argued, for management to guarantee that no one will ever be disciplined
for failing to meet those standards. There may, counsel noted, be
situations where non-compliance was not the result of workload and where
discipline would appropriately be applied. What the employer had done, and
counsel referred to Mr. Crowe's evidence on point, was indicate that
appropriate flexibility would be applied with respect to compliance with
the standards. This evidence was confirmed, counsel noted, by Mr.
Biassucci.
Ultimately, counsel argued that notwithstanding Dr. White's expert
evidence, the necessary causal link between conditions at work and a threat
to health and safety had not been established. None of the work practices
had changed; what had changed was the number of cases and the emphasis
placed on certain aspects of the services to be provided, rvlanagement is
fully entitled to adjust the emphasis to be placed by the grievors on certain
of their duties and responsibilities. Given that fact, and given the absence
of any probative evidence establishing a link between the nature and extent
of the work being performed, and some present or future threat to safety
and health, counsel asked that the grievances be dismissed.
Union Reply
In reply, union counsel emphasized that there was expert evidence in this
case, and that evidence established a link between conditions at work ancl a
real and future threat to the safety and health of this group of employees.
On this basis alone, counsel argued that the grievances must succeed.
Counsel pointed out that the employer had an opportunity to challenge Dr.
White's methodology and conclusions, and suggested that employer counsel
had failed to do so and was bound to accepl~ the conclusions that Dr. White
reached. Moreover, counsel observed that Dr. White testified about likely
future events caused by stress. These events may.. or may not occur; the
fact of the matter, however, was that his opinion about them was based on
the inquiry he made and was wholly consistent with the literature on point,
all of which were explored' in some detail in these proceedings. Dr. White
was a clinical psychiatrist and it was completely inappropriate, in the
union's view, to characterize his evidence as "social science." Counsel also
took issue with the employer's suggestion that it would be absurd for the
grievors to seek assurances that they would not be disciplined for failing to
meet the Ministry standards. Obviously, those assurances would have to be
made in context, and the context in this case was a failure to meet
standards occasioned by a high caseload. 'And counsel noted that the stress
that the grievors testified to resulted, in part, from the specter of
discipline for matters truly beyond their control. In conclusion, counsel
again asked that the grievances be allowed.
Decision
Having carefully considered the evidence and arguments of the parties, we
have concluded that the grievances should be allowed in part.
Without a doubt, the evidence establishes that l~he grievors have been
required to manage heavy caseloads for a considerable period of time. The
evidence further establishes that the grievors work in a very stressful job.
No 'doubt the increase in caseload has increased the level of stress.
46
However, for the reasons that follow, and subject to the very limited
exception set out below, we are not of the view that Article 1 8.1 has been
breached.
Management is entitled to change the grievors' duties and responsibilities.
In this case, one of the results of that change is that the grievors no longer
enjoy the same number of collateral contacts as in the past. Moreover, they
no longer have as many opportunities for professional development as
previously. These and other developments have obviously changed the
manner in which probation services are delivered and this job is performed.
These changes are a direct result of the increase in client numbers, and the
direction from management to refocus efforts away from some of the tasks
previously performed in order to provide basic service for an increasing
number of clients in a time of governmental economic restraint.
It is true enough that this refocusing of the Position has, as was evidenced
in the testimony of several of the grievors, resulted in a significant toss of
job satisfaction and has also undermined employee morale. It is completely
understandable why the grievors - and those who testified impressed us
with their professionalism and their commitment to assisting young
offenders - would also be unhappy about their loss of status in the juvenile
justice community, not mention some of the other implications of the
reorientation of their duties and responsibilities. This is not, however, a
basis for a finding that Article 1 8.7 of the Collective Agreement has been
infringed.
We did hear evidence indicating that several of the grievors began to
associate various disorders with the increased caseload. We have no reason
to doubt the legitimacy of the various symptoms that were described, but
we are nevertheless cautious about reaching conclusions with respect to
them and their relationship to an alleged breach of Article 18.1. First, the
evidence was unsupported by any medical documentation. Those grievors
who testified in this regard, particularly Mr. Baron, Ms. Curtis and
Collins, could have, had they wished, introduced medica~ records ,in'dicatJng
that the onset of the various symptoms which they described was
contemporaneous with the increase in caseload. No such evidence was
introduced. Indeed, no corroborating medical evidence whatsoever was
presented to the Board. The absence of such evidence concerns us,
particula, rly given the severity .and duration of the symptoms as described
by two of the grievors. In addi'~iSn, a number of other factors affect the
weight to be given to this evidence.
There is no reason to believe that the stressors at work were the only
stressors being experienced by the different grievors at the time that their
symptoms arose. Ms. Curtis, for example, testified that one of main
stressors in her life was the serious illness of her mother. There is no
doubt but that the conditions at work caused Ms. Curtis stress;
nevertheless, we are somewhat reluctant to find, for example, that her
caseload was the main cause of the many symptoms which she described.
While Mr. Collins tool< a considerable time off of work in 1992, in an6ther
example, he quite candidly acknowledged that he did so because of a
culmination of factors of which workload was but one. Had there been
supporting' medical documentation establishing a link. between caseload and
the onset of these various symptoms, this evidence would be somewhat
more compelling. In the absence of any such evidence, and given the
inevitable existence of other stressors in all of the grievors' lives - in
everyone's life for that matter, as Dr. White freely acknowledged, we
simply cannot find that the caseload itself was responsible for the
48
conditions three of the nine grievers described.
It should also be noted that the attendance records of all of the grievers do
not, with one exception, indicate the existence of any attendance problems.'
Indeed, if anything, they indicate that this group of employees is
remarkably heafthy. Again, however, these excellent records may simply
reflect the commitment and professionalism of the grievers. Whatever this
evidence may stand for, it certainly does not add any further support to the
c~aim that overwork has led to such stressful conditions so as to constitute
a' breach of Article 18.1. The fact that a number of the grievers did not
testify at all about their experience with stress in the workplace simply
buttresses the general conclusions we have reached.
Having said all of that, it is appropriate to make some comments about Dr.
White's evidence. It should be noted at the outset that Dr. White was
obviously a very impressive and knowledgeable witness with much to say
about how workplace conditions might result in the eventual onset of
certain conditions. Nevertheless, considered as a whole we have some
concerns about his methodology and, ultimately, about the conclusions he
eventually reached. Or. White did not, for example, question the grievers
about other stressors that may have caused the circumstances they
described. He testified that he thought, because of {heir background and
experience, that should such other stressors exist, those grievers who
reported symptoms to him would have also reported the presence of these
other circumstances.
It is far from clear whether Dr. White interviewed even griever. What is
clear is that virtually everyone faces stressors caused by personal
circumstances. It is hardly sufficient, it seems to us, to simply catalogue
certain symptoms and attribute them to conditions at work without
conducting a thorough investigation.aimed at determining what other
stressors might be present in an individual's life. After that process was
completed, an expert, like Or. White, 'might be in a position to attribute
certain symptoms to certain occupational events or conditions. In the
absence of following through on' that process, which, one would think would
also involve a search for and review of any corroborating evidence such as
medical files, it is hardly fair to attribute all the symptoms complained of
to conditions at work to an entire group of employees. 8ut this, of. course,
iS what Dr. White's model did.
Likewise, Dr. White opined that the stress in this workplace would lead to
an increased risk of disease, particularly heart disease. It seems.to us"that
for the model, and his opinion, to be more than academic he might have at
least conducted some tests to indicate whether there was any evidence
which suggested the onset, or was at least consistent with the arrival of
such disease. Dr. White did not conduct any such tests; he insisted that he
did not have to for his job was to assess .risk, and in his view, the presence
of risk was clear and established, in our view, however, it is not sufficient
to establish risk simply on the basis of the self-serving evidence of one's
client group, particularly where the job is intrinsically stressful, where
some important questions went unasked, where all relevant records were
not reviewed, and where the means exist to medically test for supporting
evidence, but where those tests were not conducted. Simply put, we accept
the assertion that workplace stress could, in some circumstances,
constitute a breach of Article 18.1 of the Collective Agreement. However,
before making that finding, it is our view that all available evidence should
be examined, and all relevant leads pursued. That did not occur in this case.
50
Dr. White did give evidence in an effort to explain this concern. He
testified, for example, that his model, and ultimately, his opinion, was
predicated on an examination of medical records. Rather, his opinion wa.,;
based on his analysis of the job which, in turn, led him to conclude that
there was link between the demands of this workplace and some of the
long-term effects of occupational stress such as cardiovascular disease.
The evidence is incontrovertible that certain occupations carry with them
the greater risk of specific occupational diseases. The link between a job,
workplace stress and the eventual onset of specific diseases is, however,
somewhat problematic given that. all jobs are stressful, and the very nature
of this job makes it more stressful than most. Moreover, it is, as noted
above, quite difficult to identify the cause of stress given, as was the case
with Ms. Curtis, for example, the inevitable presence of multiple stressors
in an individual's life. In this case, notwithstanding Dr. White's evidence,
we can only conclude that the union failed to establish a link between the
symptoms described by several of the grievors and conditions at work, and
to further establish that the stress did present a threat to occupational
safety and health, or demonstrated"some failure to make reasonable
provision for the safety and health of this entire group of employees,
subject, of course, to the exception set out below. It is again worth
mentioning that only four of the nine grievors testified in these
proceedings.
While Dr. White opined that the link was established to his satisfaction we
cannot, given our concerns about, his methodology and the facts as found by
us in this case, accept this view. The evidence simply does not support the
conclusion that the health and safety of the grievors, and we note again
that nine individual grievances were filed in this proceeding, has, by the
employer's actions, been unreasonably jeopardized. Nor is there sufficient:
51
evidence, subject to the limited exception set out below, establishing that
the employer has faited to make reasonable provisions for the safety and
health of its employees.
In this regard, some comment should be mad(~'about the various assertions
in evidence as to what constitutes an appropriate caseload. We should start
by saying that we do not find that the statement in the Simpson Report is
anything other than a record of the observations of some:-probation"officers
and that those observations were tied to a particular time and place. They
certainly do not indicate any "official" or "agreed" understanding as to a
"proper" caseload. What the evidence establishes is that there is no
benchmark. If probation officers are expected to perform certain duties and
tasks the appropriate caseload will be quite different than if they are
expected to perform other duties and tasks. It all depends on the nature of
the job.
Certainly, at some point a caseload may become incapable of being
performed at even the most basic level. In such a case, excessive workplace
demands may lead to stress causing, or raising the prospect of causing, a
reat risk to the health and safety of a group of employees, in such a case,
proven with appropriate and persuasive evidence, we would be prepared to
find a breach of Article 18.1, and to direct or devise an appropriate remedy
to deal with that breach. In other cases,' such as this one, some workplace
demands will cause unnecessary stress and will, in that way, be
inconsistent With the employer's obligation to make reasonable provision
for the safety and health of its employees.
In this case, the evidence ' establishes that the numbers of clients has
increased, but that other expectations placed on the grievors had
52
commensurately decreased. The wisdom of this decision in terms of
assisting young offenders does not concern us. As noted above, management
is entitled to decide how the work will be done, and there is nothing in its
refocusing of assignments, which is' consistent with the cutbacks generally
in government, that strikes us as unfair or contrary to any provision of the
Collective Agreement. Obviously, reorientations of this kind may take some
getting used to, and may, as we see here, demoralize employees who were
used to performing their jobs at the highest professional levels. But that
does not mean that changes of this type cannot be made. That is a decision
for management to make. Nevertheless, the eVidence establishes that the
grievors are formally required to meet certain standards in the delivery of
services to young offenders, but that the increase in caseload may, on
occasion, make it impossible to meet those standards. In such a result, the
9rievors may be subject to discipline.
In these proceedings, the grievors who testified made their respect for
their immediate supervisor, Mr. Crowe, quite clear. There is no reason to
believe that Mr. Crowe has, or would, arbitrarily impose discipline for the
failure to meet a standard where the cause was caseload. Indeed, all of the
evidence is to the exact opposite effect. However, the grievors should not
have to depend on the integrity and good will of a particular supervisor. No
employee should be in a position where he or she is formally required to do
certain things but, as a result of the work assigned to that individual, is
unable to do so and may be disciplined in the result. This is an added,
unnecessary, and completely unjustifiable occupational pressure.
In considering this matter, some thought was given to issuing an order
directing the employer to rewrite the standards so as to eliminate the
specter of discipline in the circumstances as described. The problem,
53
however, with such an order is that several of the grievors agreed in their
evidence that the standards were appropriate. Moreover, there is no
evidence whatsoever that any employee has, or would be, disciplined for
failing to meet a particular standard because of workload. The situation is,
to date, hypothetical. This is not to say that the grievors' concern about
discipline is unimportant - their concern is both real and understandable.
The problem has not yet arisen, however. Accordingly, in our view, it is.
sufficient to now observe, as l~r. Crowe made more than clear in his
evidence, that discipline imposed in those circumstances would hardly be
just. ..
Still, the prospect of discipline exists, and the evidence established that
the concern about discipline in these circumstances is genuine. This
situation is unnecessarily stressful, and 'is thus sufficient, in the
particular circumstances of this case, to constitute a breach of Article
18.1 of the Collective Agreement. One way of remedying this' limited'
breach and'alleviating the concern of the grievors, and thereby reducing an
obvious and unnecessary cause of stress, is to direct that the.grievors' job
descriptions be rewritten so as to accurately set out the duties and
responsibilities that the grievors are in fact expected to perform. The
expectations of the. employer will thus be made c~ear, and the grievors 'will
work with the confidence of knowing that they are doing their job.
Accordingly, we direct the employer to prepare a new job description
within a reasonable period of time. To this extent, therefore, the
g~ievances are allowed.
in conclusion, one final observation is in order, it is easy to un. derstand the
frustration felt by the grievors in this case. Undoubtedly, on.e of the causes
of this ;f~st~ation was management's failure to make clear at an early
54
stage its position with respect to discipline for failure to meet Ministry
standards. Another reason, undoubtedly, is the fact that the grievors'
workload was extremely high, especially when compared to that of
employees in the neighboring Peterborough Office. Management has taken
some positive steps, the advent of the risk indicator is an example on point,
although its long term significance remains to be assessed. More could,
however, be done. The recent establishment of an ERC bodes well and will
undoubtedly facilitate communication between the parties - parties, we
note, who are jointly committed to delivering the best probation services
they can even in a period of increasing demand accompanied by economic
restraint.
Accordingly, and for the foregoing reasons, the grievances are allowed in
part. We remain seized with respect to the implementation of this award.
DATED at Toronto this 28th day of June 1995.
William Kaplan
Vice-Chairperson
Member
M. C~'Toole
Member
?
~ GSB 2968/91, 2976/9t - OPSEU (Baron et al) and Ministry. of Community
and Social Services
ADDEND~ OF UNION NOMINEE
I do not agree with the ~air'~ finding that Dr. Whitens expert
report is flawed to the extent that it's conclusions are incorrect.
Dr. ~ite is an eminently qualified exper~ in his field and in
the methodology to use in a study su~ as the one he presented to us.
No tangible contrary evidence was before us fo challenge~and refute this.
Dr. ~iters detailed study finds that there has been significant
stress from the escalating work load and this has i~eased the'detriment
to the probatio~ officers' health and safety.
Accepting this. what is a reasonable response required by the
employer under Article 18 of the 'Collective Agreement?
~e probation, officer job inherently has a' significant degree of
stress. ~e issue for us to decide is whether 'the additional risk imposed
by the increased ~tress due to the rising work load is unnecessary and
violates the emploYer's obligation to make reasonable provisions for the
health and safety of these.probation officers.
~is is a difficult question in an era when job responsibilities are
being changed in the midst of major government cutbacks' and that which was
no,al before is no longer so.
Although ~he question m~'be difficult, this should not be a deterencD
from taking whatever steps are possible and reasonable to reduce or eliminate
stressors...
Ih this case,the remedy proposed is to attempt this by more clearly
redefining~the duties expected to be p~rfo~ed and thus reduce the'worry and
stress over any perceived failure to carry out one's expected professional job.
In order to accomplish"the intent of the remedy proposed, it is expected
that anew'job description'should give substantial weight to input from the
probation officers themselves regarding perfo~ance of essential duties and
possible elimination of stressors.
In the circumstances of this case, I join my colleagues on the Panel in
the remedy ordered.
Peter Klym