HomeMy WebLinkAboutUnion 17-01-16BETWEEN:
IN THE MATTER OF AN ARBITRATION
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
LOCAL 479
MUD
ROYAL OTTAWA HEALTH CARE GROUP
GRIEVANCE RE ADVANCED PRACTICE CLINICIAN
JANE H. DEVLIN
WASSIM GARZOUZI, FOR THE UNION
MARIE -PIERRE T. PILON FOR THE EMPLOYER
SOLE ARBITRATOR
The issue in this case is whether the Advanced Practice Clinician ("APC")
in the forensic treatment unit at the Royal Ottawa Mental Health Centre has been
improperly excluded from the bargaining unit on the basis that the position is
managerial. The recognition clause of the collective agreement between the Employer
and the Ontario Public Service Employees Union ("OPSEU") is contained in Article
2.01, which provides as follows:
Article 2.01 - Scone and Recoanition
The Hospital recognizes the Union as the sole and exclusive bargaining
agent of all Para -medical employees of the Royal Ottawa Health Care
Group/Services de Sante Royal Ottawa in the city of Ottawa, save and
except supervisors, coordinators, professional practice leaders, managers
and persons employed in the Information Services Department and
persons above whom any trade union held bargaining rights as of October
24, 1995. Effective July 24, 2009, the terms "Paramedical employees"
also includes Child and Youth Counsellors.
Although Article 2.01 excludes professional practice leaders from the bargaining unit,
the parties advised that they have agreed to include these employees in the unit.
The evidence indicates that the Royal Ottawa Health Care Group
manages the Royal Ottawa Mental Health Centre and the Brockville Mental Health
Centre, Steve Duffy, the Director of Patient Care Services, Forensic Inpatient and
Integration with the Employer, testified that the two Centres are recognized as distinct
facilities by the Ministry of Health and Long Term Care. He testified, as well, that each
Centre has a forensic treatment unit with inpatient beds and also provides outpatient
services. In addition, the Brockville Mental Health Centre has a secure treatment unit
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with inpatient beds only. These units make up the Integrated Forensic Program ("IFP").
Mr. Duffy testified that prior to late 2014, there was a Director of Patient Care Services
and a Clinical Director for each Centre and there is now a Director of Patient Care
Services and a Clinical Director for inpatients and a Director of Patient Care Services
and a Clinical Director for outpatients_
In 2014, the Ministry of Health and Long Term Care announced that it
would provide funding to enhance forensic mental health programs by adding an APG
position. Mr. Duffy testified that the Ministry recognized the need for an individual with
expertise in forensic mental health to assist with the transfer of knowledge in this area.
He also testified that the role of an APC includes assisting teams by providing
leadership with respect to forensic mental health issues that are evidence based,
developing and standardizing procedures and identifying forensic mental health
concerns. The APC is also responsible for assisting and leading teams in researching
forensic mental health issues, developing and delivering education related to such
issues and assisting with recruitment.
Mr. Duffy testified that the APC position at the Brockville Mental Health
Centre was filled in late 2014 or early 2015 by Ken Laprade, who has a Master's degree
in Psychology and this position is excluded from the bargaining unit. Mr. Duffy
acknowledged that employees at the Brockville Mental Health Centre are members of a
different bargaining unit than employees at the Royal Ottawa Mental Health Centre and
they are covered by a separate collective agreement. Accordingly, employees cannot
transfer between the two Centres and retain their seniority.
Mr. Duffy was involved in preparing the posting for the APC position at the
Royal Ottawa Mental Health Centre and this posting provides as follows:
The Royal Ottawa Health Care Group
Notice of non --union position vacant
Applicants who are not in the bargaining unit will only be considered after bargaining
unit applicants
Date Posted: April 29, 2014
Position: Regular Full-time Advance Practice Clinician
Program: Forensic Treatment Unit - Ottawa
Location: Royal Ottawa Mental Health Centre
Reporting to the Director of Patient Care Services, this position is responsible and
accountable for improving clinical outcomes for selected patient populations through
advanced practice, program planning & delivery, consultation, research, education,
efficient resource utilization and effective leadership.
Duties:
Accountability #1: Consultation
• Provides consultation to staff, managers, co-ordinators, physicians and other
team members regarding clinical and professional practice issues
• Acts as a liaison and consultant to other health care facilitiestinstitutions
regarding patient care and health services
• Applies relevant research and a broad range of theories to clinical practice using
critical thinking and decision making; utilizes re sea rchlevidence-based
information to recommend interventions
• Facilitates a collaborative, interdisciplinary team practice model
• Participates in the co-ordination of complex care and discharge planning
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Monitors, evaluates and documents outcomes of decisions and interventions;
revises the interdisciplinary plan of care in collaboration with the patient/family
and the health care team
Accountability #2: Leadership/Administration
• Acts as a mentor to colleagues and others to improve and support practice
• Provides leadership in development, implementation and evaluation of quality
management programs/initiatives
• Participates in and supports colleagues in continuous quality improvement
initiatives evaluating the effectiveness of interventions/services on patient
outcomes
• Participates and provides leadership on intra- and inter -disciplinary committees
related to development of policies, procedures, protocols, guidelines, standards,
education or research
• Anticipates emergent and future issues/changes and provides leadership and
vision in short- and long-term planning; contributes to strategic planning at all
levels
• Provides leadership in program development, implementation and evaluation
• Employee recruitment, selection, retention, professional development and
performance appraisal
• Hires and supervises clinical and support staff as appropriate
• Manages budgets and resources as appropriate
•
Shares expertise and provides consultation beyond the boundaries of the
institution into regional, provincial, national and international communities in
areas of specialization
• Demonstrates an understanding of legislative and sociolpolitical issues that
influence decision making and develops strategies to influence health outcomes
and health policies; provides leadership in shaping public policy in health care
• Collaborates with academic institutions through shared projects and/or through
joint appointments
• Contributes to the broader context of knowledge through scientific presentation
and publication
Accountability #3: Clinical Practice
• Provides advice & counsel regarding specialized, comprehensive care/services,
emphasizing health promotion, disease prevention and collaborative
management strategies to positively affect health outcomes
• Identifies opportunities to develop medical directives, participates in their
development, implementation and evaluation, and directly implements aspects of
care based on medical directives
• Demonstrates advanced knowledge and synthesis of advance practice within a
clinical speciality
• Performs advanced health assessment and clinical decision-making within a
clinical speciality
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Assesses complex practice issues, and develops, implements and evaluates
innovative approaches and programs addressing these issue [sic]
Provides counselling and education applying advanced knowledge and synthesis
of therapeutic counselling modalities
Works collaboratively with clinical staff to assess, plan, implement and evaluate
clinical interventions
Accountability #4: Research
• Enhances the scientific base of practice by utilizing and supporting research in
other disciplines
• Evaluates multidisciplinary research and assess its impact on patient care and
services
• Interprets, communicates and disseminates research findings to support patient
care and recommends policy changes based on research
• Conducts or develops collaborative research projects as a principal investigator
or co -investigator to monitor and improve services and patient outcomes
• Publishes in clinical and scientific journals and presents at scientific conferences
• Participates on research committees
Accountability #5: Education
• Acts as a role model and clinical expert in the clinical specialty
• Supports colleagues in professional development and career planning
• Participates in institutional and community educational programs for consumers
and health professionals
• Participates in undergraduate and graduate discipline, and health education
through preceptorship/supervision, consultation, and/or joint appointment at the
university level
• Plans, implements and evaluates needs -based continuing education for staff and
clinical partners to promote duality patient care for specific populations
Other:
Work in a manner that is in compliance with staff and patient/client safety
practices, policies and procedures of The Royal
• Ensure a work environment that is conducive to The Royal's Respectful
Workplace policy.
Qualifications:
•
Master's degree in Nursing or other regulated health care discipline is
mandatory.
• Minimum of 3 years' recent and related experience in mental health is
mandatory.
• Expert level practice skill; advanced practice experience preferred.
• Previous research, evaluation, leadership and adult education/program
development experience.
n
• Knowledge of computers including MS Office (ie. Word, Powerpoint, Excel).
Knowledge of statistics and ability to analyze fiscal and patient care data.
• Excellent organizational, interpersonal, problem solving and decision making
skills.
• Research, teaching and consulting skills.
• Excellent oral and written communication skills.
• Advanced knowledge of the consultation process as they relate to individuals,
groups and/or systems.
• Ability to learn and apply hospital policy and procedures, related legislation,
collective agreements, Canadian Hospital Accreditation Standards, Professional
Discipline Standards of Ontario.
• Proven ability in working effectively with all members of health care team.
• Ability to determine feasibility of potential research, educational or clinical
initiatives.
English level A- in oral expression, oral comprehension, reading and writing is
mandatory. Bilingual (French/English) level A- is considered an asset
Date Required: ASAP
All applicants must provide a recent resume that clearly indicates they meet the
required qualifications.
Please apply by email at recruit thero al.ca quoting the above competition
number in your subject line on or before May 5, 2014
Applicants will be advised of their status in this competition by referring to the
Successful Candidate listing which is posted on OREO and the Human
Resources bulletin board.
The vacancy in the APC position was filled by Steve Michel on May 19,
2415. Mr. Michel has an Honours B.A. in Psychology, an Honours B.A. in Criminology
and a Master of Science degree in Forensic Mental Health. He reports to Mr. Duffy and
to Jean Garrow, Director Patient Care Services, Forensic Outpatient and Transition.
As to the exclusion of the APC from the bargaining unit, Mr. Duffy testified
that as the role was new, he did not know which discipline would have the necessary
expertise in forensic mental health. He also testified that in the Champlain Local Health
Integration Network, the majority of APC positions are excluded from the bargaining
F]
unit. Mr. Duffy testified, as well, that including the APC position in the bargaining unit
would impact its role and prevent an expansion of the role to its full capacity. In this
regard, Mr. Duffy testified that as the role evolves, it will be important for the APC to
bring a forensic mental health perspective to the area of recruitment or if corrective
action is required.
Mr. Duffy also testified that, in his view, the role of the APG would be
similar to that of a professional practice co-ordinator who exercises management
functions. He agreed that the latter position is excluded from the bargaining unit under
the recognition clause of the collective agreement between the Employer and the
Ontario Nurses' Association. Mr. Duffy also agreed that there is a difference between
professional practice co-ordinators and professional practice leaders and that
incumbents in the latter position are included in the OPSEU bargaining unit. Mr. Duffy
acknowledged that professional practice leaders provide leadership to particular
disciplines and respond to practice issues. He also agreed that they are involved in
hiring to the extent that they screen applications to exclude candidates who do not have
the necessary qualifications. They also participate in interviews and express an opinion
on candidates.
In terms of expanding the role of the APC, Mr. Duffy noted that the APC
position at the Brockville Mental Health Centre was filled first and he testified that Mr.
Laprade has participated in interviews and scored candidates during the selection
process. Mr. Laprade has also been involved in coaching and mentoring staff who
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have experienced performance problems. As the APC position in Brockville was filled
first, Mr_ Duffy testified that he would expect a similar evolution in the APG position at
the Royal Ottawa Mental Health Centre. He also testified that in the future, he
anticipated that the ARC would focus on risk management and would supervise the
review board co-ordinator, the program evaluator and the risk nurse. Mr. Duffy noted
that the program evaluator and risk nurse positions were added in the last couple of
years as a result of enhanced funding from the Ministry. As indicated previously, Mr.
Duffy also referred to the APC bringing a forensic mental health perspective to
recruitment and testified that the ARC would be consulted on risk issues in the event of
an investigation or review. In addition, the APC would be responsible for evaluation
and reporting to the forensic team lead for the Ministry of Health and Long Term Care.
Mr. Duffy testified that at this point, it would be premature to say whether the APC
would have budgetary responsibilities in the future.
Mr_ Duffy acknowledged that the APC at the Royal Ottawa Mental Health
Centre does not currently carry out all of the management functions listed on the job
posting. He testified, however, that it is anticipated that the APC will carry out those
functions in the future. In this regard, Mr. Duffy explained that the IFP underwent a
transition beginning in 2014, which involved changes in the management structure and
the last management position was not finalized until early 2016. Mr. Duffy testified that
with these changes, it became possible to expand the role of the APC and that if the
position were included in the bargaining unit, the Employer would not be able to
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implement management tasks as it would limit the involvement of the incumbent in
discipline and recruitment.
As to other leadership responsibilities, Mr. Duffy testified that Mr. Laprade
and Mr. Michel develop and lead educational sessions dealing with forensic mental
health issues. Mr. Duffy also noted that in October, 2016, the two were appointed as
Co -Leads of the IFP Learning, Development & Education Committee. The evidence
indicates that prior to that time, a physician served as Director of the Committee. Mr.
Duffy testified that the Committee considers the educational needs of all clinicians
within the program. Among other matters, it considers the latest trends, evidence -
based practices and conducts surveys to assess educational needs. The Committee is
then involved in developing and delivering educational programs.
Mr. buffy testified that Mr. Laprade and Mr. Michel also worked together
on an integrated procedures manual. Mr. Duffy testified, as well, that the APC plays a
leadership and teaching role in developing evidence based practices and implements
those practices with an inter -professional team, which includes physicians, nurses, the
Manager of Patient Care Services, Forensic Inpatient & Integration, psychologists and
behavioural therapists.
Mr. Michel testified that it is the role of the APC to enhance the capacity of
the forensic mental health program to provide services_ In this respect, he testified that
the role involves program planning, research and providing education to staff. He is
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also involved in identifying new services and finding more effective ways to meet the
needs of patients and staff. Mr. Michel testified that in carrying out his duties, he
provides leadership and guidance and works collaboratively with all staff. He does not
manage a clinical caseload, nor do any employees report to him.
In the course of his evidence, Mr. Michel identified an accountability report
that he prepared for the Ministry of Heafih and Long Terms Care describing his
activities during his first year in the APC position. In reviewing these activities, Mr.
Michel testified that at the outset, he had to familiarize himself with the program and the
needs of patients and staff. He also testified that as Mr. Laprade had worked as an
APC for a longer period of time, he sought his advice and Mr. Laprade acted as a
mentor.
During his first year as an APC, Mr. Michel worked with Mr. Laprade to
prepare a procedures manual. In doing so, they spoke with staff and Mr. Michel
testified that while in some cases, procedures had been documented, in other cases, it
was necessary to prepare documentation. Mr. Michel also testified that he was
responsible for procedures at the Ottawa site and that he worked with Mr. Laprade to
prepare a manual that would apply to both sites. Mr. Michel testified that the manual is
now in draft form, that it is being reviewed and that feedback will be provided.
As an APC, Mr. Michel also led a working group of staff to introduce
evidence based practices. In this regard, he testified that once issues and possible
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solutions were identified, it was necessary to implement those solutions. In doing so,
consideration was given to the resources available, including the skills of staff and any
training that might be required. It was also necessary to determine whether the
solations proposed were compatible with existing services and Mr_ Michel testified that
he worked with the Manager of Outpatients and with members of an interdisciplinary
team. Mr. Michel also worked with staff to implement the solutions identified and in one
case where a program had to be adapted to meet the needs of forensic clients, he
worked with the Correctional Service of Canada regarding the training that was
required.
Mr. Michel also collaborated with Robbie Koneckie, the Program
Evaluator, and with a member of the administrative staff to develop a program planning
guide. Mr. Michel testified that they began with outpatient services and are now looking
at other areas. The guide will highlight the objectives of the Program, the outcomes
that the group expects to achieve and the ways in which inputs will result in the
outcomes expected. Mr. Michel also testified that the guide is intended for all groups
working in forensics and will serve as a foundation for program evaluation. The
evidence indicates that Mr. Koneckie is a member of the OPSEU bargaining unit.
Mr. Michel was also involved in a drug screening project and, in this
regard, he testified that some members of staff had concerns about existing procedures
and that he was involved in clarifying the problems and identifying solutions. In the
course of this project, he contacted individuals working in other programs to discuss the
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procedures that they followed. He also worked with an outpatient nurse and a member
of the administrative staff to implement new procedures,
In addition, Mr. Michel and Mr. Koneckie worked together to conduct a
needs assessment for the Chrysalis Day Hospital, which included recommendations to
enhance existing services. In the course of his evidence, Mr. Michel identified the
report that he and Mr. Koneckie prepared and testified that staff at Chrysalis will decide
which recommendations they want to adopt and he will assist in the implementation
process.
Mr. Michel also testified that when he began working as an APC, he
expressed an interest in identifying best practices and since that time, he has been
approached by a number of staff to assist in this area. The staff members who have
approached Mr. Michel include the Manager of Inpatient Services, a psychologist and a
social worker. At the request of Mr. Duffy and a physician, Mr. Michel also worked with
an outpatient nurse and an outpatient social worker to contribute to a proposal to
provide services to certain female offenders.
As well, Mr. Michel was involved in supervising a student, volunteer and
testified that in doing so, he worked with the student in analyzing data. Mr. Michel also
delivered a guest lecture to law students at Carleton University on the forensic mental
health system. Moreover, as noted previously, in the fall of 2016, Mr. Michel and Mr.
ON
Laprade were appointed as Co -Leads of the IFP teaming, Development & Education
Committee.
rnplernent eyater"a amei that he 4 eurrently.werking Ari a project'deallmg with�tranaitiam, . .
which includes discharge planning.
Under Accountability #2: Leadership/Administration, the parties agreed
that Mr. Michel has carried out all of the duties with the exception of the following:
• Employee recruitment, selection, retention, professional development and
performance appraisal
• Hires and supervises clinical and support staff as appropriate
• Manages budgets and resources as appropriate
Mr. Michel testified that he has not had the opportunity to hire or supervise clinical or
support staff and although he was aware of the possibility of supervising support staff in
the future, he was not certain when that might occur. In any event, Mr. Michel
acknowledged that he does not supervise staff, that he has not hired or terminated the
employment of any employees, nor has he been involved in the imposition of discipline.
He has also not conducted performance appraisals, drafted job postings, participated in
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the grievance procedure or had any involvement in dealing with workplace disputes,
Mr. Michel has also not dealt with employees who were ill or required accommodation.
Moreover, although Mr. Michel has not had any responsibility for managing budgets, he
testified that he hoped that funding would be provided for the IFP Learning,
Development & Education Committee, of which he and Mr. Laprade are Co -Leads.
Finally, under the heading of Accountability #4: Research on the job
posting, Mr. Michel testified that he has not published papers in clinical or scientific
journals or made presentations at conferences. He testified, however, that he was
approached by a social worker and that he could have a paper published in the next
year or year and a half. Since he began working as an APC, Mr. Michel has also not
participated on research committees although he testified that he might do so in the
future.
As to the job functions that he has not performed, Mr. Michel testified that
he could carry out those functions and that it could be a matter of time or opportunity.
He also testified that he had some discussion with Mr. Duffy and Ms. Garrow about
taking on the functions on the job pasting that he has not performed. Mr. Michel
testified, as well, when he began work as an APC, he spent considerable time learning
about the program and listening to staff so that he could see which aspects of the
program were effective and which aspects were not. He also testified that he could
implement some tasks at the outset, such as identifying best practices, but that more
time was required to identify emerging issues.
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As to similarities between his position and the position of professional
Practice leader, Mr. Michel testified that incumbents in the latter position provide
guidance to particular disciplines. In contrast, Mr. Michel provides guidance with regard
to policies and procedures to deliver services that cross all disciplines. Mr. Michel also
testified that as he continues in his role, he will be involved in program planning and the
possible expansion of services with a view to enhancing the vision of the program and
that he would ensure that this vision was shared with all staff.
Based on the evidence, it was the submission of Ms. Pilon, on behalf of
the Employer, that as the APC position at the Royal Ottawa Mental Health Centre
evolves, its scope will be expanded to encompass all of the duties set out on the job
posting. Ms. Pilon contended that these duties include managerial functions, involving
the supervision of employees, recruitment and investigations. it was submitted that the
performance of these functions justifies the exclusion of the APC from the bargaining
unit, Ms. Pilon further submitted that including the position in the unit would effectively
amend the job description as it appears on the job posting and preclude the legitimate
exercise of management rights.
It was the submission of Mr. Garzouzi, on behalf of the Union, that at the
time of the hearing, Mr. Michel had occupied the APC position for some 18 months and
during that time, he did not perform any managerial functions which would warrant his
exclusion from the bargaining unit. In this regard, Mr. Garzouzi noted that Mr. Michel
was not involved in recruitment, hiring, supervision of staff or other duties affecting the
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terms and conditions of employment of other employees. At best, it was contended that
Mr. Michel could potentially perform some of these functions in the future. Mr. Garzouzi
submitted, however, that it is significant that he has not done so and that the
professional supervision and guidance provided by Mr. Michel do not involve the
exercise of management functions.
Qecision
The issue to be decided is whether the APG at the Royal Ottawa Mental
Health Centre has been improperly excluded from the bargaining unit on the basis that
the position is managerial. In addressing this issue, as noted at the outset, in Article
2.01 of the collective agreement, the Hospital recognizes the Union as the exclusive
bargaining agent for all paramedical employees of the Royal Ottawa Health Care
Group, save and except supervisors, co-ordinators and managers, among others.
The nature of a managerial exclusion has been considered in a number of
decisions to which I was referred. In Ottawa General Hospital v. Ontario Nurses'
Association [1984) O.L.R.B. Rep 1199, the Board considered section 1(3){b} of the
Labour Relations Act, which provided at that time, that subject to section 90, for
purposes of the Act, no person shall be deemed to be an employee who, in the opinion
of the Board, exercises managerial functions or is employed in a confidential capacity in
matters relating to labour relations. With respect to this section, the Board commented
as follows:
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The purpose of section 1(3)(b) is to ensure that persons who are within the
bargaining unit do not find themselves faced with a conflict of interest as
between their responsibilities and obligations as managerial personnel, and their
responsibilities as trade union members or members of the bargaining unit.
Collective bargaining, by its very nature, requires an arm's length relationship
between the "two sides" whose interests and objectives are often divergent.
Section 1(3)(b) ensures that neither the trade union, nor the employer and its
management team, need be concerned that its members will have "divided
loyalties"
in that case, which concerned nurse clinicians, the Board considered the
exercise of professional responsibilities and the exercise of management functions. in
this regard, the Board noted that the context must be carefully considered and that the
focus should be on the powers exercised by the disputed individual which have "a
significant, direct, and provable impact (positive or negative) upon the terms and
conditions of employment of the alleged subordinate employees". That type of function,
the Board found, gives rise to the conflict of interest with which section 1(3)b of the
Labour Relations Act is concerned. In considering the exercise of professional
responsibilities, the Board commented as follows:
94 Of course, these themes are not new to the health care industry. Nurses
were one of the first professional groups to organize and engage extensively in
collective bargaining; and it is not surprising therefore, that many of these issues
were first canvassed in cases involving nurses or other health care professionals.
Often the person in question was a "head nurse", "charge nurse" or other person
"in charge" of a hospital ward, and responsible for supervising the activities of the
various R.N.'s, R.N.A,'s, health care aides, orderlies, kitchen staff, and so on,
who made up the "health care team". These "head nurse" cases usually arose in
a hospital setting and the significant feature of these cases is the extent to which
the Board focused on the special role of professional employees, and declined to
equate supervisory or co-ordinating duties inherent in that role with managerial
functions. Thus, in Essex Health Association, supra, the Board wrote,
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Professional or semi-professional employees such as head nurses and
nurses have a different relationship with management in matters failing
within their professional competence and the performance of their
professional duties than employees engaged in production in other
industries. While the criteria applied to determine whether professional or
semi-professional persons exercise managerial functions are basically the
same as with persons concerned with production, in applying such criteria
a distinction must be made between functions which are of a managerial
nature and functions which are inherent in the exercise of such persons`
professional or technical skills. While nurses may give certain directions
to others, e.g. orderlies, in the exercise of their professional skills, these
directions are not dissimilar to the directions given by a journeyman to an
apprentice in other crafts. Again, the reporting functions exercised by
head nurses in this case may be likened to the reports one may expect
from a journeyman concerning the progress of the apprentice. The head
nurses report but they do not initiate independent action with respect to
the employment status of others who must follow the assignments given
by the head nurse. It is also interesting to note that the assistant head
nurses, whom the parties have agreed are included in the bargaining unit,
perform substantially the same functions as the head nurse on the shifts
not worked by the head nurse.
Registered nurses necessarily perform duties requiring specialized knowledge,
skill and judgment, in assessing health needs, and in the planning, implementing,
and evaluation of nursing case - evaluation which can be extended to both the
suitability of the prescribed medical regimen and the adequacy of the "delivery
system" established to meet the patient's needs. In this context, professional
assessments and decisions may be taken, or professional opinions acted upon,
quite apart from any "managerial" authority of the kind with which section 1(3)(b)
is concerned.
The Board then reviewed a number of earlier decisions and continued as
follows:
46 All of these cases involved individuals who, in varying degrees were
Performing supervisory, co-ordinating admonitory or "quality control" functions
which historically or in other contexts might have been associated with
managerial status. Such functions included co-ordinating the work of others,
ensuring that the work was done properly in a technical sense, checking and
correcting it where necessary, reporting or making note of errors or deviations
from the prescribed medical regimen, scheduling, arranging for a "fill in" if a
member of the team is absent, allowing an orderly or aide to go home a few
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hours early, giving an opinion on the proficiency, work habits, competence or
compatibility of new or lesser skilled employees when asked to do so by a
member of management, delegating or rearranging work assignments, calling in
plumbers of maintenance persons to handle mechanical break -downs on "off -
shifts", attempting to ensure compliance with the institutional "rules" laid down by
management and admonishing or reporting an employee who did not comply,
consulting with management on the running of the enterprise, and, even, on
occasion, requiring an employee unfit to work to go home for the balance of the
shift then reporting the incident to the director of nursing for disposition. Each
case, of course, turns on its own facts but their general thrust is the same:
supervisory, co-ordinating, training, testing, reporting, consulting and minor
admonitory functions were not, in the opinion of the Board, (and in the context of
this industry) considered to be "managerial functions". They did not signify the
kind of effective control or authority over the employee and his employment
relationship which justified exclusion pursuant to section 1(3)(b)....
A similar approach was taken in a number of awards in which Arbitrators
considered whether certain employees had been properly excluded from the bargaining
unit under the recognition clause of the collective agreement. In each of these awards,
a distinction was drawn between professional supervision and managerial supervision.
The Arbitrators found that it was only the latter type of supervision affecting terms and
conditions of employment that justified exclusion from the bargaining unit: see Re St.
Joseph's Hospital (Elliot Lake) and Ontario Nurses' Association (2003), 121 L.A. C. (4th)
201 (Harris), Brant County Health Unit and Ontario Nurses' Association (2004), 80
C.L.A.S. 124 (Goodfellow), Re Southlake Regional Hospital and Ontario Nurses'
Association (2008), 168 L.A.C.(4th) 409 (Raymond) and Humber River Regional
Hospital and Ontario Nurses'Association (2014), 121 C_L.A.S. 148 (Waddingham).
Turing then to the circumstances of this case, Mr. Michel testified that it is
the role of the APC to enhance the capacity of the forensic mental health program to
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provide services. In this respect, he testified that his role involves program planning
research and providing education to staff. He also testified that he is involved in
identifying new services that could be provided and finding more effective ways to meet
the needs of patients and staff.
In terms of leadership responsibilities, the job posting for the APC
position, which was filled by Mr. Michel, lists a number of duties under the heading of
"Leadership/Administration". Among other matters, the posting refers to the incumbent
acting as a mentor to colleagues and others to improve and support practice. The
posting also refers to the incumbent providing leadership in the development,
implementation and evaluation of quality management programsfinitiatives. As well, the
posting refers to the incumbent's role in continuous quality improvement initiatives
evaluating the effectiveness of interventions/services on patient outcomes. The posting
also refers to the incumbent participating and providing leadership on intra -disciplinary
and inter -disciplinary committees related to the development of policies, procedures,
protocols, guidelines, standards, education or research. In addition, the incumbent is
required to anticipate emergent and future issues/changes and provide leadership and
vision in short-term and long-term planning. The posting refers, as well, to the
incumbent contributing to strategic planning on all levels and providing leadership in
program development, implementation and evaluation.
In fact, the parties agreed that Mr. Michel carries out all of the duties that
appear under the heading of LeadershiplAdministration on the job posting except that
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he has not been involved in employee recruitment, selection, retention, professional
development or performance appraisals. He has also not been involved in hiring or
supervising clinical or support staff, nor has he managed budgets or resources.
In respect of the duties that are performed, Mr. Michel described his
involvement in the preparation of a procedures manual with Mr. Laprade. Mr. Michel
also led a working group of staff to introduce evidence based practices and was
involved in the implementation of such practices. As well, Mr. Michel was involved in a
drug screening project in which he identified and implemented new procedures to
address certain concerns that had been raised regarding existing procedures. Mr.
Michel also worked with Mr. Koneckie, who is a member of the OPSEU bargaining unit,
to prepare a program planning guide and to conduct a needs assessment for the
Chrysalis Day Hospital. In addition, Mr. Michel has been involved in identifying best
practices at the request of other staff members and worked with a student in analyzing
data. He also worked with two staff members to contribute to a proposal regarding
services to be provided to certain female offenders. In the fall of 2016, Mr. Michel and
Mr. Laprade were appointed as Co -Leads of the IFP Learning, Development and
Education Committee.
The evidence indicates that in carrying out the duties referred to, Mr.
Michel has provided professional leadership, guidance and, in some cases, direction to
staff. However, I find that the duties described do not involve the exercise of
managerial functions. For example, in the case of the needs assessment for the
22
Chrysalis Day Hospital, which included recommendations to enhance services, Mr.
Michel worked on the assessment with a member of the bargaining unit. Moreover, Mr.
Michel testified that staff at the Hospital will decide which recommendations they want
to adopt and he will assist with the implementation process. Mr. Michel has also
provided professional guidance to staff in implementing new procedures and best
practices but again, I find that in doing so, he is acting in his professional capacity and
there is no evidence that in performing the duties described he affects the terms and
conditions of employment of other employees. In the result, I find that the duties that
appear under the heading of Leadership/Administration on this job posting that are
carried out by Mr. Michel do not give rise to the type of conflict of interest which would
warrant his exclusion from the bargaining unit.
As noted previously, the job posting for the ARC position also refers to
employee recruitment, selection, retention, professional development and performance
appraisals. As well, the posting refers to the hiring and supervision of clinical and
support staff and managing budgets and resources as appropriate. Admittedly, these
types of functions could affect employees' terms and conditions of employment.
However, by the time of the hearing, Mr. Michel had worked in the APC position for a
period of approximately a year and a half and during this time, has not performed any of
these functions. Although Mr. Michel testified that he had not had the opportunity to
hire or supervise staff, Mr. Duffy's evidence indicates that these functions have not
been assigned to Mr. Michel.
23
Although Mr_ Duffy testified that it would be premature to say whether Mr.
Michel will have any budgetary responsibility in the future, he testified that the role of
the APG will be expanded to encompass all of the remaining duties set out on the job
posting. In this regard, Mr. Duffy tested that in the future, the APC will focus on risk
management and will supervise the review board co-ordinator, the program evaluator
and the risk nurse. He also referred to the APC bringing a forensic mental health
perspective to recruitment and testified that the APC would be consulted on risk issues
in the event of an investigation or review.
As to the reason that the functions referred to have not yet been
performed, it seems clear that when Mr. Michel began work as an APC, he had to
spend some time familiarizing himself with the program. Mr. Duffy also testified that the
IFP underwent a transition beginning in 2614 that involved changes in the management
structure and the changes were not finalized until early 2616. Although Mr. Duffy
testified that with those changes, it became possible to expand the role of the APG,
during the period prior to the hearing in December, 2016, the only change in Mr.
Michel's responsibilities related to his appointment as Co -Lead of the IFP Learning,
Development & Education Committee with Mr. Laprade. The evidence does not
indicate that this responsibility involves the exercise of management functions.
Mr. Duffy also testified that he expected that the APG position at the Royal
Ottawa Mental Health Centre would evolve in much the same way as the position
evolved at the Brockville Mental Health Centre. In this regard, Mr. Duffy noted that Mr.
24
Laprade was hired prior to Mr. Michel and Mr. Duffy testified that Mr. Laprade had
participated in interviews and scared candidates during the selection process for staff in
different disciplines. Mr. Duffy also testified that Mr. Laprade participated in
investigations where discipline was being considered. As well, Mr. Laprade was
involved in performance improvement and coaching where there was a disagreement
among clinicians. Mr. Laprade was also involved in co-ordinating the implementation of
the "treatment mall" and provided direction regarding the types of recreational services
that would be provided.
As noted previously, Mr. Duffy acknowledged that employees at the
Brockville Mental Health Centre are members of a different bargaining unit and covered
by a different collective agreement. Moreover, in my view, the propriety of the exclusion
of the APC position at the Royal Ottawa Mental Health Centre must be based on the
duties and responsibilities of that position and not on the duties performed by an APC
at another facility. In the circumstances, therefore, it is not appropriate for me to
comment on the nature of the duties performed by Mr. Laprade.
Although Mr. Duffy testified that it is the Employer's intention to expand
the role of the APG at the Royal Ottawa Mental Health Centre to encompass all of the
duties set out on the job posting with the possible exception of budgetary responsibility,
there was no indication as to when that might occur. As noted previously, by the time of
the hearing, Mr. Michel had occupied the APC position for a period of approximately 18
W
months. During this time, he did not exercise management functions which would
create a conflict of interest justifying his exclusion from the bargaining unit.
As to the duties that Mr. Duffy testified would be carried out in the future,
he referred to the APC supervising the review board co-ordinator, the program
evaluator and the risk nurse. However, as noted previously, a distinction has been
drawn between professional supervision and managerial supervision and there was no
clear indication of the type of supervision that would be involved. Mr. Duffy also
suggested that the APC would bring a forensic mental perspective to recruitment but,
again, it is not clear to what extent the APG would be involved in the decision-making
process. Similar concerns apply to Mr. Duffy's evidence that the APC would be
consulted on risk issues in the event of an investigation or review. Moreover, although
Mr. Duffy testified, at one point, that in the future, the APG would bring a forensic
mental health perspective to the management of employees and recruitment, at that
point, he suggested only that the APC might be involved in investigations. With regard
to recruitment, I also note that professional practice leaders, who are members of the
bargaining unit, have some involvement in that process.
Mr. Duffy's broad description of the duties and responsibilities that will be
carried out by the APC in the future highlights the difficulty in assessing duties which
are not actually performed and, in fact, at this juncture, have not been assigned. That
description requires some speculation on my part as to the exact nature Of those duties
and, in my view, that does not provide a proper basis for excluding the APC from the
26
bargaining unit. Although the Employer also submitted that if I were to allow the
grievance, I would be precluding it from exercising its management rights, the Employer
has not exercised those rights in a manner that would warrant the exclusion of the APC
on the basis that the position is managerial in nature.
In the result, for the reasons set out, the grievance is allowed. The parties
agreed that if I were to reach this conclusion, Mr. Michel would remain in the APC
position. In this regard, the evidence indicates that all psychologists at the Royal
Ottawa Mental Health Centre are included in the OPSEU bargaining unit and there was
no suggestion that Mr. Michel properly belongs in any other bargaining unit. In the
circumstances, damages in the form of lost union dues are also appropriate from the
time that Mr. Michel Began working in the APC position. I shall remain seized for
purposes of implementation or clarification of this award.
1�`
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DATED AT TORONTO, this i� day of January, 2017.
Sole Arbitrator