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HomeMy WebLinkAboutGravelle 17-03-15In the Matter of an Arbitration Between The Children's Aid Society of Ottawa (Hereinafter referred to as "the Society") And Ontario Public Service Employees Union - Local 454 (Hereinafter referred to as "the Union") Regarding: Grievance of Theresa Gravelle Sole Arbitrator: Felicity D. Briggs For the Society: Carole Piette, Counsel For the Union: Jessica Greenwood, Counsel Ms. Theresa Gravelle is a Child Protection Worker I with the Society. By all accounts she has been a talented, conscientious and valued employee since her hire in 1990. She filed a grievance that stated: Contrary to policies of fair treatment for equal pay and classification i am being discriminated against in violation of Articles 5.01(b) and Articles 12.01 through 12.05, including also 12.07 and 12.08. I have been unjustly disciplined and the Employer has caused me harm contrary to policies and procedures..... By way of remedy Ms. Gravelle sought to be made whole and to be reclassified from a Child Protection Worker I (CPWI) to a Child Protection Worker II (CPWII). In early March of 2014, the grievor and her Supervisor, Ms. Marie Petruska, had discussions about a possible reclassification of the grievor. It is this ongoing conversation and the fact that the grievor remained in the CPWI position that brought about the filing of the grievance. It was the Union's contention that the grievor was offered a promotion to the position of CPWII and then the Society withdrew its offer and that retraction constitutes a violation of the Collective Agreement and discipline without just cause. In the alternative it was suggested that changes to the complexity of her position caused by internal policy and external legislative changes warrant a reclassification on the basis of equal pay for equal work. The parties agreed to an expedited process for the litigation of the dispute. The evidence in chief of all witnesses was given by way of a will -say statement. These statements were exchanged in advance of the hearing date. Additionally witnesses had an opportunity to add viva voce evidence in chief. Both parties retained the usual rights to cross- examine and re-examine the witnesses. 1 The relevant portions of the Collective Agreement are as follows. 5.01 The Union recognizes and acknowledges that the management of the Society's operations and direction of the employees are fixed exclusively in the Society and, without restricting the generality of the foregoing, the Union acknowledges that it is the exclusive function of the Society to: (a) maintain order and efficiency; (b) hire, promote, demote, classify, transfer, lay off and suspend employees, and to discipline or discharge any employee provided that a claim by an employee who has acquired seniority that he has been discharged or otherwise disciplined without just cause may be the subject of a grievance and dealt with as hereinafter provided; (c) make, enforce, and alter from time to time, reasonable rules and regulations to be observed by the employees, provided that they are not inconsistent with the Agreement; and (d) determine the nature and kind of business conducted by the Society, the kinds and locations of operations, .equipment and materials to be used, the control of materials and parts, the methods and techniques of work, the number of employees to be employed, the extension, limitations, curtailment or cessation of operations or any part thereof. 5.02 To determine and exercise all other functions and prerogatives which shall remain solely with the Society except as specifically limited by the express provisions of this Agreement. The rights reserved to management herein are subject to the other provisions of this Agreement, and shall be exercised in a manner that is fair, reasonable and consistent with the terms of the Agreement. 5.03 Without limiting the generality of the foregoing provisions, it is expressly understood and agreed that breach of any of the r Society's rules, or of any of the provisions of this Agreement, shall be deemed to be sufficient cause for discipline up to and including dismissal of an employee, provided that nothing herein shall prevent an employee going through the grievance procedure. 12.02 Classification CIassifications of staff are based on the job descriptions of the Society. The Society undertakes to ensure that all job descriptions are accurate and up to date. At the time of implementation of this Agreement, the parties acknowledge that the job classifications specified in Schedule "A" and Schedule "B" are based on a formal system of job evaluation undertaken by the Society. 12.03 At the time of hiring, each new employee shall receive a letter stating her starting salary according to Schedules "D" and "E" and classification according to the Schedules "A" and "B" and a statement including a general description of the job for which she has been hired. Such description is not to be misconstrued as a job description and is not grievable. Failure to provide such a letter is grievable. Letter of Understanding #b - Job Security i) Should job qualifications be changed by the employers, bargaining unit members will be deemed qualified for their current positions, and those qualifications for which an employee has been deemed qualified will be transferable to any other position within the bargaining unit which requires those qualifications. ii) Should job qualifications be changed as a result of legislation or government directives, MCYS shall work with the employers and the unions to develop a plan to mitigate any negative impact for staff. 3 Ms. Gravelle began her employment as a casual Child and Youth Worker in a group home setting. In the summer of 1998 she obtained a temporary full-time position as a Non -Residential Child and Youth Counselor. In 1999 she became a permanent full-time Semi - Independent Living Worker. In October of 2006 she was notified that her position had been re-classified to Child Protection Worker I "following a formal evaluation of the Job Evaluation Committee on October 26, 2006". At the same time she received a salary adjustment and a revised job description. The educational requirement for a CPWI, according to the job description, is a "B.S.W., M.S.W. or Equivalent". At the time of the 2006 reclassification Cand as of the hearing date) the grievor did not possess either a S.S.W. or an M.S.W. She was of the view that the Society had determined that her education - which was a community college diploma Correctional Worker Program - and experience was equivalent to a B.S.W. The grievor works on the Adolescent Protection Team ("APT") and all of her colleagues are classified as CPWII. According to the grievor, CPWII workers are considered to be "A", "B" or "C" role workers. There is currently one A worker who performs intake work while the B Workers carry family files and C workers deal with children in care. The grievor is generally assigned youth aged eighteen to twenty-one although she has handled youth as young as sixteen when requested to do so. She testified - there was no dispute in this regard - her coworkers view her as a resource because of her extensive knowledge and experience in working with this age group. Indeed, her team members direct most of the intake inquiries from members of the public to her. In 2006, one of the grievor's coworkers, Ms. Danielle Belisle was reclassified to a CPWII position. This is notable because Ms. Belisle did not hold a university degree. According to her will -say statement - which ultimately became agreed facts - she understood that she was 4 "deemed to have the educational prerequisites for this position by way of my experience working for the Society as I did not possess a BSW, MSW or other university degree". Her caseload was similar to that of her colleagues who held Social Work degrees and she was able to perform the full scope of duties of a CPWII with satisfactory performance reviews. In the spring of 2013 the Ontario Ministry of Child and Youth Services ("MCYS") implemented a new policy initiative entitled "The Continued Care and Support for Youth ("CCSY"). This new initiative altered the framework within which youth retained support from the Society. It is not necessary to explain the differences with this policy change. It is sufficient to say that it made the task of holding youth accountable more difficult by eliminating tools that was utilized in the past to encourage the taking of personal responsibility. Practically speaking it has brought about high-risk youth remaining longer in the care of the Society. According to the grievor's will -say statement this policy change caused a dramatic shift in the make-up of her work assignment. Now much of her caseload consists of high-risk youth with significant issues and/or impediments to reaching their established goals. Much time and effort is needed to assist this youth. Co -incident with these changes was the Society's adopting the "One Worker - One Child" policy whereby children remain with the worker to whom they are assigned through their entire time in the care of the Society. The facts that led to the filing of this grievance were set out in clear detail in the grievor's will -say statement. She said, in part: • I was informed by my supervisor, Ms. Marie Petruska that on or around March 7, 2014, Service Director Kelly Raymond had approached Ms. Petruska about the reclassification of my position into a CPWII position with "C" role duties, similar to that of my colleague, Ms. Belisle. 5 • It is my understanding that Ms. Raymond was worried I would hear about new Ministry workers employed in the community who were performing similar duties to my own. The news of these Ministry workers and the existing concerns about the origin of new workload for myself Ied my Supervisor and Service Director to take action with regards to reclassification so that I would not worry that my tenure with the Society was in jeopardy. • I was off on vacation during the week of March 10, 2014. • Upon my return to work on March 17, 2014, 1 was approached by Ms. Petruska. She informed me that discussion had taken place over the previous week regarding the reclassification of my position and the decision had been made to reclassify me to a CPWII "C" Role Worker. Involved in these discussions were Ms. Petruska, Ms. Raymond and Human Resources Advisor Ms. Pat Steward. Barb MacKinnon may also have been involved in these conversations. • As a result of the decision to reclassify me, Ms. Petruska provided me with a list of training to be completed. It is my understanding at this point in time that my role had been reclassified, and that I would receive a letter similar to that sent to me on October 27, 2006. • Ms. Petruska wanted to share the news of my reclassification on March 19, 2014 at a regularly scheduled team meeting. I asked that she wait to share the news until the letter was received so that I was fully apprised of the details of the reclassification. • On April 1, 2014 1 was blind -copied on an email exchange between Kelly Raymond, Pat Steward CHR) and Amy Robertson CHR) which inquired as to what was required regarding my job reclassification and indicated Ms. Steward would be responding to Ms. Raymond's inquiry. • ....... As a result of the discussion to re-classify my role I was enrolled in the training courses required for the CPWII role identified by Ms. Petruska on March 17, 2014. My placement in C. this training required approval by Raina Swansburg and/or Christian Hackbush. • I began the advanced training suggested by Ms. Petruska for my new role as a CPWII during the week of May 20, 2014. I had not received a letter speaking to the reclassification of my role by this time, but made arrangements for a colleague to monitor my mailbox should the letter come in. While attending the training I disclosed to the supervisors administering the training the reason for my attendance, which was the reclassification of my role. • On May 23, 2014, I was back in the office and spoke with my supervisor Ms. Petruska regarding the missing letter. She advised me to speak with Human Resources on Monday as the decision to reclassify me had been made, and the only issue outstanding was the letter confirming this reclassification. • On May 26, 2014 I was advised by Service Director Kelly Raymond that my position would not be reclassified. • I was very surprised at this statement from Ms. Raymond as I had been lead to believe for a period of some two months that my position had already been reclassified. I had shared that information with a limited number of colleagues, like the training leaders from the week before and was extremely embarrassed to discover that I would be remaining in the CPWI classification for reasons unknown to me. The grievor also set out her view of the changes that have taken place in her work that flow from recent Ministerial changes. She stated, in part; • In May 2013 the Ministry of Children and Youth Services implemented a new policy regime entitled Continued Care and Support for Youth (CCYS). This regime replaced the former program entitled Extended Care and Maintenance (ECM). • The new policy regime changed the framework within which youth retained support from the Society. Under the ECM policy, youth had to comply with certain requirements in order to maintain their file with the Society which also entitled them to continue financial support. When a youth dropped out of school, co-habitated with a partner for over 1 year, did not meet with the Society on a monthly basis or did not live in an approved living situation, among other things, we had the ability to cease financial support to close the youth's file. • Under the CCSY all youth are able to maintain their status with the Society, including the receipt of financial benefits, even if they are not attending school or are choosing to live in unapproved locations. As well, youth from other CAS are allowed to request to have their files transferred to Ottawa when they move as our agency pays more than their home agency. Sometimes these youth are in Ottawa not working or attending school. As Child Protection Workers, we are encouraged to hold youth accountable but have lost a number of tools used to encourage accountability. • The policy changes also mean that high-risk youth who would have been removed from care now remain within the system. • What 1 have experienced as a result of this policy change is a dramatic shift in the make-up of my caseload. A brief snapshot over the period just prior to the change in policy as well as the period following implementation of the CCSY policy is as follows: Mav 2013.(F,.,CM) 28 files, 27 were in school (high school, college or university), one would have been considered high risk youth March 2014 CCSY 34 files, 19 not in school May 201,4CCCSY) 30 files, 14 not in school March 2015CCCSY) 24 files, 17 not in school May 2015, (CCSD 23 files, 17 not in school September 15 2015 CCYS N. 29 files, 23 not in school 5 youth with babies, either in their care or the Society's 3 high-risk youth 3 involved with the law b with mental health diagnosis 8 former Crown Wards from another agency - some of these files can have two issues Cmom with mental illness) • As you can see, the result of this policy change has meant that a large portion of my caseload consists of high-risk youth with significant issues/impediments with regards to meeting the goals we set together. These youth require more time and effort in order to assist them. Most of our youth are communicating via text which has resulted in extended working hours as texts are received after hours and on weekends. • In addition to the impacts of this new policy regime on my workload, the change also coincided with the Society's decision to adopt the One Worker One Child policy whereby children remained with the worker assigned as they move through the system. • Prior to One Worker One Child policy and under the ECM policy, my colleagues on the Adolescent Protection Team would transfer files to me at age 18 as of practice. • My workload was also generated by new clients coming into the system from a variety of sources. Where the youth were 18 or close to that age, the Society often determined it made sense to assign the file to my workload instead of assigning it to a colleague of mine for a short period of time and then reassigning the case to me. As a result I have had youth on my caseload as young as 16. • 1 and others on my team including my supervisor were concerned about what the Ministry changes would mean for my workload. My colleagues would be retaining files that normally would have transferred to me at or around the age of 18. 6C • At the time CCSY was introduced, youth who left the system but not yet reached to age of 21 could apply to have their file reopened. This has been a temporary source of new workload for me, and even then these files have not always been assigned to me, some have been returned to my colleagues on the APT or other teams within the agency because of their history with the youth. • As of September 1, 2015 i had 29 files. It is my understanding from my colleagues in the CPW11 role that they carry a caseload of 12-18 files. • As a result of the One Worker, One Child policy change, where the Society's goal is to have youth remain with one caseworker for as long as possible, the majority of my colleagues are now handling CCSY files when they have little to no previous experience in doing so. My colleagues are contacting me as a resource on a number of programs applicable to this age group (ODSP, OSAP, DSO, etc.) approximately twice a week. • Additionally, because of my years of experience with this age group, youth frequently contact me directly for assistance with the completion of their OSAP applications even when they are not assigned to my caseload (sometimes they are no longer clients with the Society). • In addition, the Society transfers files to my workload to reduce the number of files my colleagues in the CPW11 classification have, or in circumstances where the youth are challenging for my less experienced colleagues. • For examples, I was recently re -assigned two files from CPW11 classed workers who were experiencing issues with their caseloads including a high risk CCSY client. It is my understanding that the Society assigned these files to me due to my knowledge and experience. • One of these youth is homeless, qualifies for ODSP, and has a child in our care due to his inability as a parent. The client is now 10 involved with high profile criminal matters. This transfer reduced my colleague's case load to 16 while increasing mine to 29. • The second client reassigned to another CPW11 colleague has unstable mental health conditions and is experiencing delusional thinking fixated on the former worker. The client has also displayed stalking/harassment behavior toward the worker and her family members. Due to these safety and security concerns I am to meet this client only at the Society. Although somewhat lengthy it is useful to set out the grievor's job description in total. It states: Title: Youth Service Worker General The Youth Service Worker is responsible for youth receiving Extended Care and Maintenance services and reports to the Supervisor in the Child and Youth in Care Services. The Youth Service Worker provides service to youth who have ECM status or former ECM youth. The Youth Service Worker also provides assistance and consultation to Crown Wards assigned to a Child Services Worker within the content of The Child and Family Services Act, other related legislation, and the Policy and Procedures of the Children's Aid Society of Ottawa and the Ministry of Community and Social Services. Such service focuses on assisting youth to develop the resiliency, maturity, capabilities, skills and support network required for a successful passage to independence and transition from care or into the Adult Services. The Youth Service Worker is expected to work irregular hours as required by client service needs. These may include evenings which are scheduled by the supervisor. Out of town travel may also be required. Education & Experience BSW, MSW or Equivalent 11 Two years related experience working directly with youth including casework. Possession of a valid driver's license. Functional and Operational Responsibilities Assess and evaluate eligibility for youth requesting to return on ECM through interviews with the youth and/or their former Social Worker, or Ontario Works employee. -Follow applicable procedures for the opening of child in care files, including use of IFR. As case manager maintain case records within youth files and case notes in accordance with Society guidelines and in accordance with the Child and Family Services Act. Complete Recording, Plans of Service on Counseling Files, Looking after Children Plans of Care (once implemented), Social Histories and reports as required by the MCSS. Develop and monitor follow through of goals set out in ECM and Quarterly recordings. Organize and advocate and attend case conference and otherwise maintain responsibility to ensure adequate service to youth. Coordinate service provision of Society and community programs for youth. Act as case liaison with community professionals and Society resources for youth. Maintain open communication with foster parents and group home staff for the best interest of the youth. Provide life skills training and education to youth in areas of nutrition, living accommodation, budgeting, school, career planning, home management, employment, physical and mental health, sexuality, relationships, recreation, employment, hygiene, decision making, problem solving, self esteem. Identify the strengths and needs of youth that will facilitate them in obtaining necessary skills to successfully transition to independence. Assist as a liaison between youth and family when reestablishing contact as required. Provide outreach and crisis management services to youth as required. 12 Assist and advocate for youth in relocation process, including searching and facilitating the acquiring of accommodations and furnishings. Inspect prospective accommodations to ensure they meet appropriate safety and health standards for youth prior to approving a youth's move and monitor on an on-going basis in accordance with the Child and Family Services Act, MCSS and Society guidelines. Attend and support youth who are involved in Youth court or other criminal court hearings as required. With the consent of youth, provide verbal information regarding the youth to the court as requested which could assist the planning for the youth within the community. Assist and support young parents on ECM in their parenting efforts and in accessing community supports. When and if an Intake Worker or Family Service Worker is involved, report any concerns immediately to the above mentioned for follow-up. Process forms and requests to ensure accurate financial compensation to youth, landlords, and other service related payment needs. Assist youth in obtaining and complete all Iegal needed documents for receiving an inheritance, orphans benefits and ODSP allowance. Ensuring MCSS guidelines are being followed with respect to the financial obligations with youth. Act as case manager for TAY's who are awaiting transfer to Service Coordination or other Adult Services in accordance with legal, Provincial and Society requirements. Consult with Trustees when applicable. Take part in OPR Plans of Care and/or behavior programs for TAY youth, and assure that youth within group care are receiving appropriate care. Assist youth with decision making for transitioning to the adult system by providing a variety of supports, ie pre -placement visits, vocational programs, applying for ODSP etc. With youth's consent, research both family and child's file to gather all relevant information to prepare and follow-up with the request for the Victim Compensation Board for youth in care or 13 former youth in care, be the support and attend the VCB hearing with youth. Be a reference for youth seeking employment. Assist youth in applying for passport or Canadian citizenship. Support bursaries form whether it is for the Foundation or in the community. Attend meeting with community partner (ie. Hospital social workers, psychiatrist, doctors) and youth to assist with recommendations for housing, group care, boarding homes, hospital and mental health services. Enhance Child and Youth in Care Services and Society Practices through participation in unit and departmental meetings. Provide input on policy development and represent the Unit on various Society committees and task forces. Liaise and represent the Society when requested with Landlords, School personnel, Probation Officers and Other Court Related Personnel, Employers, OPR Operators or any community agencies who provide supports and services to youth. Assist in the orientation and direction of student and volunteers as assigned. Perform other related duties as required from time to time. Relationsh ip Responsibilities Ensure the supervisor is informed of issues Or concerns which may have important implications for the youth. Establish and maintain good professional working relationships with staff, clients, community groups and agencies, service providers and internal placement resources. Maintain a professional attitude and approach in all matters pertaining to the work of the Society, In cross-examination the grievor acknowledged that she did not submit a revised job description to the job evaluation committee when she thought she was being reclassified but explained that she did not because it was not her youth service worker job that was changing but 14 her classification. Ms. Gravelle did not recall any discussion with Ms. Petruska or the Union about the possibility of sending a revised job description to Human Resources. The grievor agreed in cross-examination that she has not been assigned many files of youth younger than eighteen. All of the youth were crown wards. She thought there have been five seventeen year olds and two sixteen -year-old youth that were so assigned. She conceded that most of the seventeen year olds were only a month or two shy of their eighteenth birthday. She said that according to her job description none of these children should have been assigned to her but agreed that the assignment was done in the best interest of the youth. There were questions put to the grievor regarding her view that her workload has increased in the recent past. In this regard she stated that one of the reasons for the increase was the matter of communication with her assigned youth via texting. She conceded that the Society does not expect her to answer the texts outside of her working hours. However, the youth that she works with do not have foster parents or others and so there are times when they need a response from her irrespective of the time of day. It is, she explained, the nature of the work. It was put to the grievor that she was wrong when she said that Ms. Petruska wanted to tell fellow team members of a reclassification. It was suggested that Ms. Petruska's evidence would be that she wanted to explain to the team that Ms. Gravelle would be away from the workplace because of the courses she was taking. The grievor did not agree with this statement recalling that it was the change in her role to that of a C Role that Ms. Petruska wanted to raise. When asked if that is what Ms. Petruska said or what the grievor believed Ms. Gravelle said "that is what I believe - it is my understanding of what she was going to say and I asked her to say nothing because I wanted the letter first". 15 Ms. Gravelle had indicated in her will -say statement that on the understanding that she was going to be earning more money she bought a property. In cross-examination she clarified that she bought the property - a swamp was how she described the two -acre lot - from a cousin. She signed the deal to purchase in June of 2014 - after learning that she would not be reclassified - and has since put a trailer on the property. The grievor was given a performance appraisal in the spring of 2014. Ms. Petruska signed it on April 4, 2014 and the last paragraph of the Summary of Achievements/Results says: This supervisor will be discussing Terri's future responsibilities with the Service Director. The issue is that as other workers are holding onto their own CCSY files, and they are CPW2 positions, the request will be made to have Terri reclassified as a CPW2 and allow her to be either a true C worker on the APT team (dealing with children in care) or a B/C worker as the others. (Dealing with families and children. Terri is prepared to take whatever training required to facilitate this change. When it was put to the grievor in cross-examination that there was no mention that her job had changed she said that she was not alarmed because in her mind it was "a done deal". She was of this view despite the fact that there is reference to a request being made as opposed to a decision having already occurred. She thought this because she had been called into Ms. Petruska's office when she returned from vacation and told that her role was going to change to a C worker and that she had to complete mandatory CORE training and that they were waiting for a letter from Human Resources. Ms. Marie Petruska filed a will -say statement. It stated, in part: • Ms. Petruska will testify to her supervision with Ms. Raymond on March 12, 2014. Due to the formal announcement by the MCYS regarding Community Youth in 16 Transition workers, the grievor's position would possibly become redundant. Ms. Raymond was concerned as to how the grievor would take the news. Ms. Raymond advised that there would be discussions with senior management regarding the reclassification of the grievor's position. Ms. Raymond asked Ms. Petruska whether she thought that the grievor could be reclassified as an A worker. After some discussion, Ms. Petruska agreed that the Grievor could be a C worker and assist the APT team with having the child in care part of a file. Ms. Petruska agreed that she could mentor the grievor and provide her with guidance. Ms. Raymond asked Ms. Petruska to run the idea by the grievor to see if she would be interested in becoming a C worker. Ms. Petruska understood that Ms. Raymond would send an email to Human Resources to initiate the process. • Ms. Petruska will state that on March 17, 2014 she sent an email to Ms. Raymond to inquire whether Ms. Raymond had contacted Human Resources regarding the proposed classification change and in order to begin the process. • Ms. Petruska will testify that on that same day she met with the grievor and proposed the idea of becoming a C worker. She provided the grievor with examples of how she could be utilized and how she would be of.assistance not only to her current unit, but to other APT teams as well. • Ms. Petruska will testify that the grievor was somewhat unsure as to how it would look but was very enthusiastic. Ms. Petruska advised that she would require training in the New Worker training. The grievor agreed. • Ms. Petruska will state that on April 1, 2014 during her supervision with Ms. Raymond, Ms. Raymond sent an email to Ms. Patricia Steward, Director of Human Resources wondering about the grievor's reclassification and what would be required. That email stated: 17 I am in supervision with Marie and we were wondering about Terri Gravelle's job classification. Could you let me know what is required so that I can get back to Marie. • At the same meeting Ms. Petruska informed Ms. Raymond that the grievor was enrolled in several New Worker training programs in preparation for the reclassification. • Ms. Petruska will state that as her supervisor, Ms. Petruska conducted the grievor's performance appraisals. In the grievor's appraisal dated April 4, 2014, Ms. Petruska noted that as youths in the Continued Care and Support for Youth (CCYSs) age out and with workers keeping their own files, the request would be made to have the grievor reclassified as a CPWII and allow the grievor to be either a C worker on the APT team (dealing with child care) or a B/C worker (dealing with families and children). • Ms. Petruska will state that during the week of May 26, 2014, while on leave, Ms. Raymond left her a voicemail message. Ms. Raymond informed that the grievor's reclassification had not been approved. Ms. Raymond also informed Ms. Petruska that it was the CASO's position that the grievor would have to upgrade her education and that the CASO was prepared to give her time off during the day to attend class. • Upon her return to the office on June 2, 2014 Ms. Petruska will state that she listened to the voicemail from Ms. Raymond. Ms. Petruska will also state that she received an email from the grievor expressing concern over the reclassification request being denied. On that same day, Ms. Petruska met with the grievor and advised her to seek advice about her recourses. In her short viva voce evidence in chief Ms. Petruska said that she did not advise the grievor that she would be reclassified. She explained that what she shared was the discussion that she had with her own service IR director regarding how her job description could be changed. She also told her that they had discussed various roles but she had been comfortable with the grievor becoming a C worker doing work similar to what she was currently doing such as meeting with youth, carrying a caseload and doing the front line work. She then asked Ms. Gravelle if she would be interested in becoming a C worker. She specifically denied that she had told the grievor that she wanted to share the news of her reclassification with the entire APT team. She said that she wanted to explain her upcoming absence due to training and nothing more. However, the grievor asked her not to make that announcement and for that reason it was not mentioned at the APT meeting. In cross-examination Ms. Petruska was quick to say that she had an excellent relationship with the grievor. She described her as a hard worker for whom she had much respect. She also agreed that Ms. Gravelle acts as a resource with a particular knowledge regarding special needs services. It was posed to Ms. Petruska that the grievor's knowledge was greater than what one could learn at school. Ms. Petruska made clear that the value of a formal education couldn't be underestimated. The etiologies and theories learned is background knowledge that guides everyday work. She agreed that the grievor's caseload is higher in number than many of her coworkers but explained this is because there are very few standards involved in cases involving youth over the age of eighteen. Ms. Petruska agreed in cross-examination that she "absolutely" supported the concept of the grievor being reclassified. She explained that it was something that the grievor had wanted for years and had been quite vocal about it. Indeed, it was for this reason that she was happy to be part of the discussion when approached by her Service Director to open this area of possibility. Further, she agreed that the grievor has worked well in the face of changing complexities in the workplace. 19 Ms. Petruska conceded in her cross-examination that the grievor's job description has not changed since May of 2006 despite certain program and process changes. She also stated that when she became involved in the discussion regarding possible reclassification on March 12, 2014, neither she nor Ms. Raymond looked at the job description. That discussion was "to initiate a process and nothing could be done until I spoke to Terri to see if she was interested in having her job change". In that discussion she indicated to the grievor that she was still unsure what her becoming a C worker "would look like" but she suggested the New Worker training would be a good idea and Ms. Gravelle agreed. On March 17, 2014 Ms. Petruska wrote to Ms. Raymond saying, "before I talk to Terri about the transition workers, I just want to enquire as to whether you sent the email re her classification change. That will help to demonstrate a commitment to this change for her". She testified that she just wanted to double check with Ms. Raymond that they were "moving forward". Ms. Petruska said that she was only the conduit between the grievor and her own Service Director. She said that at one point she had been told that there was a letter for the grievor to sign in the HR department and she assumed that it was regarding confirmation of a reclassification. When she returned from her vacation and learned that the grievor would not be reclassified she was "flabbergasted" and expressed her dissatisfaction and disappointment to Ms. Raymond. She was told that the proper procedure had not been followed and the request was denied. Ms. Kelly Raymond testified for the Society. In her will -say statement she explained some of the recent changes as the result of Ministerial announcements. The will say also stated, in part: • Ms. Raymond will testify regarding A, B and C roles. She will state that a CPWII may be called upon to perform A, B or C 20 roles depending on the CASO's operational requirements. CPWIIs all function in the A,B,C roles depending on operational needs. The A role is comprised of investigation intake (up to age of 16). These are seven-day assignments wherein concerns are investigated. If concerns are resolved, the matter is closed. However, if the concern is persistent, the file is transferred to a B worker. The B worker is an ongoing worker who works with families where issues have been identified. The investigation is of a longer term. A B worker would have a number of families in her caseload. Finally, a C worker deals with children in care. She is responsible for managing a child's file and deals with foster parents and families. • Ms. Raymond will state that the only recent change to the CPWII position is that a CPWII now keeps clients up to the age of 21, pursuant to the CASO mandate whose primary goal is to minimize disruptions a child would experience throughout their placement history. Ms. Raymond will also testify to the fact that there has been no change to the YSW (CPWI) position. • Ms. Raymond will state that the grievor was reclassified as a CPWI on October 23, 2006. She was grandfathered in her position as she did not meet the legislative educational requirements. This was done in order to avoid the grievor being laid off. • Ms. Raymond will state that in 2014 the grievor requested to be reclassified as a CPWII. • Ms. Raymond will testify to the type of work assigned to the grievor over the past few years. She will state that going back at least two years, the types of files assigned to the grievor have not changed. The grievor has only been assigned CPWI files. No CPWII files have been assigned to the grievor. 21 • Ms. Raymond will state that she discussed with Ms. Petruska the impact of the MCYS's announcement regarding Community Youth in Transition workers on the grievor's position. Ms. Raymond will state that she and Ms. Petruska discussed the possibility of reclassifying the grievor. • Ms. Raymond will state that she and Barbara MacKinnon, Executive Director of CASO, discussed the future of the grievor's position and options to mitigate the risks for the grievor's position. • Ms. Raymond will state that on April 1, 2014, she met with Ms. Petruska during her supervision. Ms. Raymond sent an email to Ms. Steward and Ms. Robertson regarding the grievor's job classification. She inquired as to what was required in order to reclassify the grievor so that she could inform Ms. Petruska. • Ms. Raymond will state that Ms. Robertson advised her that according to the CASO's Policy on Job Evaluation a reclassification required a job evaluation. Since there was no substantive change to the grievor's role, the process would not be initiated. • Ms. Raymond will state that during the week of May 26th, 2014 she informed Ms. Petruska by voicemail that the grievor would not be reclassified. Ms. Raymond assured the grievor she was a good worker and that the CASO's inability to reclassify her was not a reflection of her work and had nothing to do with her competencies. Ms. Raymond further explained that the grievor's job description was essentially the same. As a result, the CASO was not able to justify the reclassification. Ms. Raymond offered and encouraged the grievor to pursue her education and take advantage of the CASO's support. • Ms. Raymond will state that on June 3, 2014 she met with Ms. Petruska during her supervision. During this meeting, Ms. Raymond clarified to Ms. Petruska that the CASO had 22 determined upon further review that it could not grant the grievor's request for job reclassification request because her position essentially had not be changed. Ms. Petruska appeared very upset and expressed she felt caught in the middle because Ms. Raymond had led her to believe that the reclassification was a "done deal" and the review had been a formality. Ms. Petruska indicated to Ms. Raymond that she was very supportive of the grievor and she would protect her. Ms. Raymond explained to Ms. Petruska that the job description had not changed but that the CPWII positions had changed slightly in that they were now keeping their youth to the age of 21.. Ms. Raymond will testify that in light of the misunderstanding, she formally apologized in writing to the grievor. That apology stated, in part: During our meeting I took full responsibility for misunderstanding the process which is in place for job evaluation. Unfortunately, the communication between me and your Supervisor lead you to believe that re-classification of your current position as Youth Services Worker to Child Protection Worker was a possibility. I am truly sorry for the impact this has had on you and assure you that the decision not to re-classify your position is solely based on the collective agreement requirements namely on the job evaluation process which is in place for job evaluation. In cross-examination Ms. Raymond was quick to agree that the grievor "goes above and beyond" for the youth she supports; that she has "always been there"; and that she assists her colleagues to ensure that the client needs are taken care of. She testified regarding particularly difficult files that Ms. Gravelle has handled and agreed that in a recent presentation to staff she directed certain staff inquiries to the grievor. 23 She was not however, prepared to concede that a BSW or MSW is an unnecessary qualification. She said that this education provides "deepening and further skill set". Ms. Raymond was directed to the grievor's job description and particular attention was drawn to areas of change resulting in more complexity in the work of Ms. Gravelle. Ms. Raymond was of the view that the "youth have always presented challenges". She did agree that there have been certain changes as the result of program and policy changes. She testified that although the grievor's job description has not changed since 2006 it is presently with the Human Resources Department to consider a review. She admitted that she was probably reminded that the grievor's job description needed to be looked at and that it was her responsibility to ensure that the grievor's job description is accurate and up to date. She conceded that she "dropped the ball" in terms of keeping the job description current. However, she said that just because there have been policy changes does not mean that there have been changes in the work done by the grievor. Ms. Raymond stated that the job description was out of date, not inaccurate. Ms. Raymond explained that in the event that there is a substantial change to a job description a committee is struck to go through a list of five criteria to determine whether there has been an actual change. In this case the fact that there was no substantial change to the grievor's job description was made after a review of how the grievor's work would change as the result of the Community Youth In Transition Worker position coming into place. The potential impact in the future was considered and it was determined that her role had not changed and therefore the matter was not pursued. Again she stated that although the job description was not up to date she reviewed it and she determined that the grievor's work had not changed. The substantial change was with the CPW11 workers and their care of youth past the age of 18 as the result of Provincial policy changes. The grievor did not -- 24 at the time of this assessment and to the present - exercise any protection roles. Ms. Raymond testified in cross-examination that in her discussions with Ms. Petruska they considered whether the grievor could perform the functions of the CPW11. She said it was Petruska's view that it would be difficult for Ms. Gravelle to perform the A role and even B role functions would be a challenge although she might have been called upon to perform those roles from time to time. They discussed what it would be like on a go forward basis understanding that the grievor does "an exceptional job with the youth". Ms. Raymond denied any knowledge of a letter confirming a reclassification for the grievor. Indeed, her ongoing contact with the Human Resources department was to enquire as to the status of this matter. When she learned that the grievor thought she had been promised a reclassification and it was rescinded she took it upon herself to write a letter of apology to her. Ms. Raymond also recalled her supervision meeting with Ms. Petruska following the notification to the grievor that she would not be reclassified. They discussed Ms. Petruska's disappointment and feeling of being caught in the middle. They also discussed the job evaluation process and what would be required to show substantive changes. Additionally they discussed the educational component and the supports that the CASO was prepared to offer was that of assisting the grievor to pursue further education. She testified that Ms. Petruska was quite upset at this meeting and may not have heard what supports were being offered. Ms. Raymond confirmed that there had been a CPW11 who retired and had not held a BSW or MSW. Further she explained that the legislation states that the educational requirements for positions are to be determined by Executive Directors. This is done by the local ED but discussed at the Provincial level. 25 It was put to Ms. Raymond that the educational requirements are the same for the CPW11 position and for the grievor's current position. When asked to reconcile this matter Ms. Raymond stated that it was her understanding that at the time Ms. Gravelle was reclassified in 2006 it was with the knowledge that she did not possess the educational requirement but due to issues that were taking place with her previous position she was to be grandfathered into that position. Ms. Raymond agreed that the grievor was deemed equivalent at the time but that this was after the matter went through a formal job evaluation process. In that process it was taken into account that she did not have the educational requirements but was deemed equivalent. Ms. Amy Robertson is the Acting Director of Human Resources for the Society. In her will -say statement it was noted that the Society's job evaluation system is to ensure that all positions are fairly compensated based on a comprehensive job evaluation system which evaluates and classifies jobs taking into account the requirements of the position. The skill and ability of an incumbent is not taken into consideration during this process. The job evaluation process begins when a job description is sent by the Departmental Director with a written request to have a newly approved or revised job description evaluated. This process can also begin with a request made by an incumbent or a supervisor to their Departmental Director. Ms. Robertson's will -say stated, in part: The human resources representative then conducts a preliminary review to determine whether the changes to an existing job are significant and therefore warrant a formal re-evaluation. Where a re-evaluation is merited, the newly approved job description is submitted to the Job Evaluation Committee. In conducting the evaluation, committee members taken into consideration the following: • Terms of reference of the Job Evaluation Committee; • Job Comparison Plan; and, 26 e Job Comparison System Factors. When a re-evaluation is not merited, the Human Resources advises the Departmental Director of its decision and rational. Ms. Robertson will state that on April 1, 2014 Ms. Robertson received an email from Ms. Raymond regarding the grievor's job classification and what was required so that she could inform Ms. Petruska. Ms. Robertson replied that she would ask Ms. Steward to contact Ms. Raymond upon Ms. Steward's return from vacation. Ms. Robertson will state that Ms. Steward did not come back to work and is on an extended sick leave. She therefore advised Ms. Raymond that in order for a reclassification to occur a job evaluation exercise had to be conducted. Since there were no significant changes to the grievor's job, the job could not be re- evaluated. Ms. Robertson highlighted the fact that a CPW11 required a SSW or MSW or BA equivalent, which the grievor did not possess. Ms. Robertson will state that HR never expressed to the grievor that her position would be reclassified. Ms. Robertson will state that in March 2006 in a meeting with Valerie Flynn from Human Resources the grievor raised that issue of academic equivalencies. Ms. Flynn reconfirmed that the base line education for a child protection worker is a university degree and that would not be changing. Equivalencies were established through a careful and thoughtful process by a committee. Ms. Robertson will testify to the Guideline to Academic Alternatives which were revised and approved on March 26, 2006. Ms. Robertson will confirm that the baseline academic requirement for a CPW is a BSW/MSW or an equivalent academic alternative which requires a university degree. 27 Ms. Robertson will testify to the fact that on October 27, 2006 the grievor was reclassified to a CPWL The grievor was grandfathered as she would have been laid off. In cross-examination Ms. Robertson disagreed that there had been an agreement that some employees have been deemed to have equivalent educational qualifications. Rather, it was decided to grandfather the employees so that they could remain and not be laid off. The people were not grandfathered into new positions but into positions that they already held and at which they were known to be adept. Ms. Robertson was asked about the process of revising job descriptions. She testified that cyclical reviews were held and changes are made where there have been substantial changes. It was her recall that these reviews - which are without union involvement - are done about every four years. The Human Resources first ask the directors to review the various job descriptions and advise if there have been changes since the last review. In the event changes have occurred between the regular reviews, those discussions would begin between the Service Director, the Supervisor and the employee. The Departmental Director would then send the information to Ms. Robertson who considers all of the information including a comparison of the old and the new job description. If substantial change had taken place she would ask the job evaluation committee to review the matter. In the actual job evaluation committee review the Union is involved. Ms. Robertson's role is to advise the Departmental Director as to what can and cannot be done with someone's role. In the instant case she advised that the Society could not reclassify the grievor without the matter going through the job evaluation committee. She also advised that based on what she had learned through various discussions there was no reason to take this matter to the job evaluation committee because there had been no change in the grievor's job. She arrived at that view after conversations held with the Supervisor and Service Director regarding functions, caseload and job requirements. Ms. Robertson was shown a 2006 job description for the grievor's position that was an exhibit in this matter. She said that she thought there was a more current job description given that there had been a cyclical review performed in the last year. She said that when there are no changes there is only a date change made to the job description. Her recall was that the review was undertaken after the filing of this grievance but that no changes were made to the content of the job description. However, she conceded that the job description that she reviewed and discussed with the supervisor and departmental director was the 2006 job description. She noted that the discussion that took place between the grievor and her supervisor and Service Director in was not an exercise of revising a job description. Rather it was to determine if the job had changed. Ms. Robertson was asked in cross-examination who made the ultimate decision as to whether to proceed to the job evaluation committee with Ms. Gravelle's reclassification. She explained that no decision was made because there was never a request made to do so. The request that she received was whether the grievor could be reclassified and when she learned that there had been no change to the grievor's job she informed Ms. Raymond that it could not be done. Therefore there was no request for and no reason to send the matter to the job evaluation committee. Ms. Robertson was asked about Ms. Belisle. She testified that she knew of her and understood that when she was reclassified to a CPW11 the educational requirements were not "as they are today'. She did not think that she was reclassified because at the time of the educational consideration she already held the position of CPW11. She was simply deemed to be qualified to hold her then existing position. 29 Ms. Robertson was asked about another retired employee who now works on a casual basis but she was not familiar with the facts. Finally Ms. Robertson was asked about the grandfathering of the grievor's educational equivalency. She agreed that although the requirements for a CPW1 position and a CPW11 position are the same, that is BSW or MSW, the grievor would be considered qualified in the event she applied for another CPW1 position but not a CPW11 position. It was explained that the grandfathering exercise was not a consideration of whether the grievor's education was equivalent to a BSW or an MSW. Rather it was about keeping her in her then current role which had been reclassified to a higher level - one requiring a social work degree. The grandfathering was done to allow the grievor to maintain her position without meeting newly imposed educational requirements. The grievor was grandfathered into the CPW1 position, not a CPW11 position. Ms. Mary MacKinnon has been the Executive Director of the Society since 2003. Her will -say was entered as agreed fact and stated: • Ms. MacKinnon will testify that she had discussions with Patricia Steward and Kelly Raymond regarding the impact of the Ministry of Children and Youth Service's announcement regarding Community Youth in Transition workers on the future of the grievor's position and the options available to mitigate any risks to her position. Ms. Steward identified to Ms. MacKinnon that job reclassification was unlikely as there had not been any substantive change in the job but that she would review Ms. Gravelle's employment history and report back. • Ms. MacKinnon will testify that this communication never should have reached the employee level as it was only risk planning. • Ms. MacKinnon will state that the. introduction of the Ministry's Community Youth in Transition workers did not lessen the need for the grievor's position. 30 UNION SUBMISSIONS Ms. Greenwood, for the Union, described the instant dispute as a determination as to whether the Employer failed to engage in the revision and review of the grievor's job description as the first step in the job evaluation process. Integral to this is the determination of whether the Society arbitrarily decided that her role had not changed, a decision made as the result of failing to use any objective standard of review and by reliance on the grievor's lack of formal educational credentials. It was noted that the grievance itself alleges discipline without just cause. By way of remedy it was contended that the Board should order the reclassification of the grievor to the CPW11 role with the C role duties. The Union urged, in the alternative that changes to the grievor's position caused by internal policy and external legislative changes warrant an increase in her compensation commensurate with her CPII workers. The Union suggested that various legislative changes that have taken place in the last few years have had a major impact on the work of the Society in general and the grievor specifically. These changes, no doubt, brought about the discussion of a possible reclassification for the grievor in the very first instance. As was apparent from the evidence heard during the course of this hearing, the Society violated the Collective Agreement and its own policies in arriving at its decision. The first error was made by the failure to keep the grievor's job description current as set out in Article 10 of the Collective Agreement and various policies. Next, a mistake was made when the Society confused whether her job had a substantial change with the assessment of her educational requirements. Finally, it acted arbitrarily when it determined how and whether to apply the equivalency granted to the grievor in 2006 by the job evaluation committee. 31 Accordingly to the Union there was no dispute in the evidence that the grievor is a long term and highly valued employee who has earned and maintained the respect of her coworkers and supervisors. She has a larger than usual client load. She is the only CPWI worker and yet she has been assigned youth younger than eighteen when convenient to the Society. She has both the skill and ability to handle complex files and is looked upon by her coworkers as a resource. Her performance appraisals have been exemplary even in the face of changes to her role and changes in how her work is done. Others in the past have been reclassified to the CPWII role without a Bachelor of Social Work. The grievor's own supervisor was of the view that she would be able to perform in the CPWII role and was disappointed when the reclassification did not occur because the process was not followed and because of the grievor's lack of a BSW. The Union noted that the candor of Ms. Petruska was refreshing. She felt that the CPW11 role was consistent with the role that the grievor is currently performing. She was of the view that the grievor was able to perform the CPW11 role. She was surprised when the reclassification did not go through and recalled that it failed because the proper process was not followed and because Ms. Gravelle does not have a BSW. The Union also contended that Ms. Raymond was forthright in her evidence. She too recognized the high level of the grievor's skill and contribution in the workplace. She conceded that a formal education was not the only method for people to obtain knowledge that would allow them to be an asset to the Society. She frankly acknowledged that - notwithstanding the assertion in her will -say statement - the entire idea of a reclassification began with herself and Ms. Petruska and not with the grievor. Further, she agreed in her cross-examination that her will -say was in error when it stated that legislation governs the educational requirement of child protection roles. It was the Executive Directors that made that decision. Finally, she conceded that she failed 32 in complying with the Society's own policies and the Collective Agreement regarding the maintenance of the grievor's job description. The Union submitted that it is worth noting that Ms. Raymond acknowledged the irony of the fact that the CPWII worker position has the same educational requirement as that of the grievor's current position but her reclassification was denied because she did not possess the educational requirements of a CPWII. Ms. Greenwood reviewed Ms. Robertson's evidence and suggested that it was important to recall that she had extensive experience in job review and yet could not explain why the grievor's job description had not been reviewed for almost nine years notwithstanding intervening legislative changes. Ms. Robertson appeared confused about the role of educations requirements their application to existing positions. She said in her will say that the grievor could not have been reclassified due to her lack of educational qualification and yet she acknowledged in her cross-examination that the job evaluation process was meant to assess the work being performed within a role and not the person who was performing the role. Clearly the Society did not consider that the reclassification process does not require an employee to fit perfectly into an existing role but rather an examination of the work performed within a role. Ms. Robertson conceded that it is the Society that has imposed the educational requirement, not the legislature and there have been instances in the past when this requirement has been overlooked. She would not, or could not, say why the grievor was being held to this stringent standard. The Union noted that the documents revealed that the grievor was subject to a job evaluation process in 2006 and was deemed to possess the qualifications needed to perform the CPWI role. That education requirement is identical to that needed for the CPWII role. Accordingly it is difficult to understand why the Society is taking the position that the grievor is unqualified for a CPWII role and yet would allow her to 33 apply for other CPWI roles. This evidence illustrates that the Society is of the view that it can rely upon - or ignore at will - the 2006 grandfathering of the grievor's educational equivalency. This arbitrary exercise of its rights is a violation of the Collective Agreement. There is no clear evidence, according to Ms. Greenwood, as to exactly who and how the determination was made that there are no substantial changes to the grievor's position that would allow for a reclassification. Both Ms. Raymond and Ms. Petruska testified about changes to the nature of the job of the entire adolescent protection team as the result of societal and legislative changes. There was much evidence regarding the changes in the make up of the client base since legislative changes in 2013. We do not know how - or if - these changes - including technological changes - were analyzed in arriving at the decision that there has been no substantial change in the grievor's work. However, we do know from various Society witnesses that the grievor's educational qualifications were factored into its determination. The Union suggested that the Employer cannot rely on the contention that this matter is not properly a reclassification grievance because the appropriate steps were not followed because it was members of the managerial staff who failed to comply with Collective Agreement obligations to maintain the currency of the grievor's job description. It is troubling to the Union that the Employer ignored its contractual obligations and then attempts to rely on its own inaction to deny this grievance. An order that the Employer reclassify the grievor's position to a CPW11 role with C role duties is appropriate in these circumstances, it was urged. The Union relied upon Re Ontario Hydro and CUPS, Local 1000 (1983), 11 L.A.C. (3d) 404 (Shime); Re Westcoast Energy Inc. and Energy & Chemical Workers' Union, Local 862 (1994), 128 L.A.C. (4111) 88 (Coleman); Re The Crown in Right Of Ontario (Ministry of Community Safety and Correctional Services) & OPSEU 2010 CanLii 6438 (ON GSB) 34 (Herlich); Re The Professional Institute of the Public Service of Canada and UNIFOR, Local 30.1.1 (unreported) July 23, 2014 (Keller); and St Joseph's General Hospital, Elliot Lake and ONA (2010), 204 L.A.C. (4th) 428 (Marcotte). In closing the Union submitted that had the Society followed its own policies and kept the grievor's job description up to date and congruent with various legislative and societal changes there would have been an objective assessment undertaken which would have revealed substantial changes warranting a reclassification. Had an updated job description been finalized the Society could have assigned the appropriate educational requirements - taking the 2006 grandfathering process into account - and then Ms. Gravelle would have been reclassified. SOCIETY SUBMISSIONS Ms. Piette, for the Society, stated that there has been no violation of the Collective Agreement or Society policy. This is not a case about reclassification. Rather, it is about the fact that this benevolent employer was concerned about the impact on the grievor of a new government initiative inquired into the possibility of creating a new role for the grievor. Unfortunately, that exercise did not bring about a change for the grievor but that result is not a violation of the Collective Agreement. Further, the job evaluation process begins with the submission of a new job description and in this case there was no new job description because there was very little change to the grievor's role as a CPW1. The change that has occurred is the Society wide change to "one child - one worker". While this change has brought about a difference in the assignment of work, it is a change that is not unique to the grievor. It was conceded by the Society that there was an exploration of the possibility of creating a new job for the grievor as a C role worker or 35 somehow reclassifying her as a CPW11 but no promise of a reclassification was ever made. The grievor was told that by her supervisor that guidance would be sought from Human Resources as to what was needed to reclassify but that was the extent of the promise. No more than that. The Society stated that although not argued - in order for the Union to rely on promissory estoppel there must be detrimental reliance and there is none in this case. The grievor continues to work as a youth services worker. While she may have taken new courses for a new position she continued to take those courses after she learned that she would not be reclassified. Similarly, she may have bought a new property thinking her earnings would be higher, she learned that her wage would not increase prior to the actual purchase and she chose to proceed. The Society took issue with the Union's view that the grievor has been assigned many clients younger than 18. The evidence revealed that she was occasionally assigned youth who were transitioning to extended care agreements and were not much younger than her usual client, Ms. Piette reviewed the evidence regarding the grievor's reclassification in 2006 to a CPW1 despite the classification requirement of BSW. She was grandfathered in order to avoid her being laid off or having to bump into another position. The establishment of various educational requirements is well within management's right to determine and it was not suggested by the Union that this requirement was unreasonable. Indeed, the evidence before this Board of Ms. Petruska and Ms. Raymond was uncontradicted that this level of formal education is essential to fulfill the CPW11 role. The Society urged that the nature of the work of a CPW11 is vastly different from that of a Youth Service Worker. It was reviewed that an A worker role involves the investigative intake of children up to 16 and 36 assignments are for seven days. The file is then transferred to a B worker who works with families and children under age 16 where issues have been identified. The C role deals with children in care and is responsible for managing the file and working with families and foster parents. The CPW11 may be called upon to perform the in a B or C Role. The grievor has not worked in these roles and Ms. Petruska testified that the grievor would not be able to work in the A or B role and all the CPW11s may be called upon to fulfill all of these roles based on operational requirements. The Society noted that Union relied upon recent legislative directives and suggested they have caused substantial changes to the grievor's job duties. It was urged by the Society that the evidence does not substantiate that contention. The main change is that now CPW11 workers now carry youth over 18 years of age and that there are now Community Youth in Transition workers throughout the Province. It was initially thought that this outside initiative would significantly reduce the grievor's workload but that concern that has not come to fruition. Her workload remains undiminished. However, it was in light of this concern that Ms. Raymond met with Ms. McKinnon to discuss whether the grievor could be somehow reclassified. It was not because there had been substantial changes to her position. Ms. Piette reminded the Board that Ms. Raymond raised with Ms. Petruska whether the grievor could work within a CPW11 role with limited C role duties and notwithstanding her view, the idea was then taken to Human Resources where it was made clear that in order to reclassify an employee there had to be a substantive change to their job description and such a role has an BSW educational requirement. It was conceded that the Society could have created a CPW11 C role position. However, if it elected to do so such a position would have had to be posted and awarded in accordance with the terms and provisions of Article 24 of the Collective Agreement. It could not have simply given 37 the position to the grievor. Such action would have violated the Collective Agreement. It was conceded by the Society that there might have been some misunderstanding about the ability to reclassify the grievor at the time. Ms. Raymond acknowledged this and apologized to the grievor at the time. If Ms. Gravelle was unhappy about the decision at the time the appropriate action for her to take was to ask the Employer to revise her job description as is set out in the job evaluation process. Neither the grievor nor her Supervisor made such a request. This grievance should fail on that basis alone. The Society suggested that any changes in the grievor's job description are of an evolutionary type. They are not significant. There is more use of social media and there are fewer disincentives in the event that youth are failing to comply. However, those are not substantive changes. Indeed, the biggest change is that CPW11 workers are now keeping their assigned youth beyond age 18 and that is not a change to the grievor's duties. Article 5 of the Collective Agreement is clear that the Society has the exclusive right to classify employees. Accordingly, it would be beyond this Board's jurisdiction to order the employer to create a new CPW11- C role position. Such a position does not presently exist and there was no evidence that substantiates a need for such a position. This Board cannot simply order that the grievor is now a CPW11 without having utilizing the job evaluation tool. The Society also noted that Article 12 contemplates classification matters and requires that job descriptions be up to date. However, in this instance there has been no change to the manner in which the grievor performs her work and no change to her client base. There have been a few changes as the result of legislation but the grievor's job is fundamentally unchanged. The job description does not have to be We updated each time there is the smallest of changes having no impact on the nature of the work. Indeed, if the grievor or her Supervisor were of the view that her job description needed to be changed they could have and should have brought such a request forward. They did not and that is because the job had not changed. The Society also relied upon the Salary provisions of the Collective Agreement. This section sets out all levels and job titles within those levels. It was noted that the CPW11 position is a classification which is not further broken down in A, B and C roles. That is because CPW11s are expected to carry out the full range of duties as operationally required. Further, Letter of Understand #6 is of no assistance to a consideration of this dispute. It was added after the most recent round of collective bargaining and therefore to suggest that it applies to the grandfathering of the grievor's position in 2006 is an unreasonable interpretation. There is nothing found within that letter that suggests it had retroactive application. The Society relied upon Re St Lawrence Lodge & CUPE Local 2107 2010 CanLII 47158 (ONLA) (Luborsky); Re Agropur Division Natrel and Milk and Bread Drivers, Dairy Employees, Caterers and Allred Employees, Local 647 2013 CanLII 57442 (ONLA) (Surdykowski); and Re The Crown in Right of Ontario (Ministry of Labour) and OPSEU (Sutherland) 2008 CanLII 70535 (ONGSB) (Dissanyake). DECISION Although not strenuously argued in the final submissions, there was an allegation that the failure to reclassify the grievor was unjust discipline. Simply put, there is no evidence to substantiate such a finding. Indeed, virtually every Society witness spoke of.the grievor as a highly valued and talented employee who frequently went `above and beyond'. There was no evidence of counseling or discussions of any kind with the grievor about performance related deficiencies. She did not receive any 39 verbal warnings or letters of warning and there was never an indication that her job performance was wanting or needed improvement. Finally, in this regard, I saw no document that was in the grievor's file that remotely resembled discipline. It is trite but true that every case will be determined on the basis of the evidence proffered and the provisions of the Collective Agreement. After a consideration of the oral and documentary evidence and the Collective Agreement, I am led to the inevitable conclusion that this grievance must fail. The grievor seemed genuinely convinced that she had been promised a reclassification. Although I understand why she held that belief, the evidence does not substantiate that any promise of reclassification was offered. I accept that both the grievor and her immediate Supervisor were exceedingly hopeful and perhaps blindly confident that a reclassification would go through. This might have been — at least in part - as the result of neither Ms. Gravelle nor Ms. Petruska understanding the Society's reclassification process. However, I think that both understood that final word had not yet been given and was to come from Human Resources. Indeed, I note that the grievor would not allow even an informal announcement be made to her coworkers until she saw the offer in a letter from Human Resources. I suspect that reluctance was due to the tentativeness of the discussions up to that point. Further, I note that her performance appraisal - which was written weeks following the discussion the grievor testified she believed Ms. Petruska told her the reclassification was "a done deal" - spoke of "future possibilities" and the fact that a reclassification would be requested. The grievor signed this document. It is difficult to believe that phrasing would have been utilized if both Ms. Petruska and Ms. Gravelle were of the view a reclassification had already been approved and offered to the grievor. 40 The evidence revealed that the grievor's immediate Supervisor and her Service Director were worried that as the result of the new Community Youth In Transition Worker position that was coming into play as the result of Provincial program changes, the grievor's position would become redundant. I accept that it was this concern that brought about a discussion that was intended to ensure that Ms. Gravelle - a valued employee who worked exceedingly well with youth - remained in the workplace. The discussion turned to the possibility of reclassification. The grievor was approached to determine her willingness to be reclassified because there certainly would have been no point in investigating the chance of reclassification if Ms. Gravelle was not interested. Not surprisingly, the grievor was very interested. The discussion then moved to the Human Resources department. As noted above, the grievor stated that she "believed" that on March 17, 2014 Ms. Petruska confirmed the reclassification was approved. However, I think it unlikely that she was told the decision had been made. On that very day Ms. Petruska wrote to Ms. Raymond inquiring as to whether Human Resources had yet been contacted and that such contact "would demonstrate a commitment to the change" to the grievor. It is apparent from this communication that the matter was as yet undecided. It is extremely unfortunate that it took as long as it did for the grievor and her immediate Supervisor to be advised that reclassification was not an option. There were a number of emails sent in early April of 2014 inquiring of Human Resources as to the status of the discussion. While the delay and confusion about this matter must have been - and perhaps continues to be - a frustration to the grievor, I cannot find that the Employer's failure to reclassify the grievor is a violation of the Collective Agreement. Much of the jurisprudence provided by the parties considers whether a new classification has been created as the result of a substantial change 41 in an existing classification. The Collective Agreements in many of those cases have an express provision that ensures if an individual is assigned new or revised duties so as to constitute a new classification a grievance can be filed and litigated. In Re St. Joseph's (supra), Arbitrator Marcotte had before him such a provision and he reviewed an award issued earlier between the same parties. In his own decision Arbitrator Marcotte cited Re St Joseph's General Hospital, Elliot Lake & DNA (November 26, 2008), unreported (Randall) wherein a review of matters to take into account in determining whether there has been a "substantial change" was undertaken. At page 14 Arbitrator Randall stated: Much of this case law addresses language similar or identical to article 19.08(a). The principles that can be gleaned are these: • Determination of "substantial change" is primarily one of fact; • It is generally accomplished by comparing a) an existing job description with the tasks now being performed; b) where there is no job description or the latter is out of date, the comparison is drawn with the tasks performed by the previous incumbent or earlier in the tenure of the current incumbent; or c) with other positions in the classification system; • The comparison involved consideration of core duties; the article does not apply to incidental or minor changes where said "core duties", which define the essential nature of the job, do not change; • Substantial change is more qualitative than quantitative; there needs to be a qualitative change in some of the various job factors, which include: skills, responsibility, effort and work conditions; • Doing similar work in a different manner, or with some change of emphasis, also does not invoke the article; 42 • A "realistic" approach is to be taken to job descriptions; they should be read liberally and broadly, because it is the job content, not the precise words of the job description, that are being compared; • There can be an accretion of new duties over a "reasonable" period of time which trigger the article, even if, standing on their own, they were not "substantial"; (reasonable to be read as not over the course of contract renewals); • Internal equity is an important consideration; the article contemplates a comparison of positions in order to determine both the value of the position under consideration and the plausibility of a new classification being inserted into the scheme. The Collective Agreement before this Board has no provision that mandates that when changes are made to an existing classification such that a new classification is created, certain steps will be taken. In the instant Collective Agreement Article 12.03 provides that classifications are based on job descriptions - which the Society undertakes to ensure are accurate and up to date. The Union suggested that the grievor's job description is inaccurate and out of date. While I understand why that argument was proffered, it does not stand up to scrutiny. I agree that the legislative references are out of date - but the evidence of the grievor's duties and responsibilities does not lead me to find that the particulars and underlying fundamentals of the job description are inaccurate. However, the fact that the job description before me was not up to date in every respect cannot lead to upholding this grievance. The Society argued that it has the right to classify in accordance with Article 5 - Management Rights - of the Collective Agreement. There can be no dispute that Article 5.01(b) expressly states that the employer has the exclusive right to classify. That right is subject to Article 5.02 which makes clear that the Society must exercise that right "in a manner that is fair, reasonable and consistent with the terms of the Agreement". The 43 Union would have me find that what happened to the grievor in this case was neither fair nor reasonable. Again, while I understand the grievor's frustration with the discussions and results therefrom, 1 cannot find a violation of this provision of the Collective Agreement. Members of the management team of the Society became concerned that the grievor's continued employment in her current position might be at risk as the result of changes in the community and they began to discuss options - the most obvious of which was reclassification. Once the Human Resources Department scrutinized that possibility, it was determined to be inappropriate. There was nothing unfair or unreasonable about that consideration or about the ultimate decision that was made by the Society. The exercise of the management's rights provision in this matter must also be consistent with Article 12 of the Collective Agreement. l cannot find that there has been any violation of that - or any other - provision of the Collective Agreement in this case that would lead me to uphold this grievance. As noted above, the grievor's job description was not up to date and therefore certain legislative references were not current. But that is not sufficient for this grievance to succeed. Even if the language in this Collective Agreement was similar to that considered in the jurisprudence provided by the Union, this grievance would not succeed because there has not been substantial changes made to the grievor's job. Certainly much of the grievor's will say statement attempted to lay a foundation of "substantial" changes in her job duties. However, a thorough review of all the evidence does not lead to such a finding. As set out in the decision of Re St Joseph's Hospital (supra), in order to find that a new classification has been created certain criteria must be met. It was noted by Arbitrator Randall that changes in job duties are to be qualitative not quantitative. The grievor placed much emphasis was the fact that she carries more files than she once did and more than many or all of her CPW11 colleagues. Further, her advice is sought regarding the care of youth and that the age of 44 some of those in her care are younger than 18. The Employer did not particularly dispute this evidence. It was noted that her files are not identical to those handled by CPW11s. In any event, responsibility for a larger number of files than her coworkers would not — in and of itself - be a substantial change in her job. It was also argued by the Union that there has been a major change in the grievor's position as the result of the method and ubiquity of how she communicates with youth who are assigned to her. I accept that the types of communication - including texting - have changed the method of doing the work but a change in how a task is performed is not necessarily a substantial change in the job. It is not in this case. I accept the grievor's evidence that she responds to some of her clients' texts at hours that are beyond her normal workday. Indeed, the Society did not dispute this evidence. However, this is evidence of how well she performs her job, not to changes made to her job. There was some attention drawn to whether the grievor has been grandfathered into her current position only (which requires a BSW) or if that red circling extends to other positions requiring a BSW for which the grievor might apply. This question does not need to be answered in the context of this grievance and for that reason I leave it to the parties to address in the future if necessary. The Society has a policy for job evaluation which "utilizes and maintains a comprehensive, gender neutral, and bias free job evaluation process to evaluate and classify new positions and to reclassify existing positions where duties and responsibilities have changed significantly." The job evaluation process begins with receipt of a request to consider a new or revised position. That request is to be accompanied by a revised or new job description. In the case of an existing position, the revised job description is then reviewed with an eye to substantial change in duties. If such change is discerned, then the formal job evaluation 45 process - which accordingly to the evidence is bipartisan - is undertaken. In this case, the process as set out was not undertaken because no revised job description was created or sent to the Human Resources Department. However, after initial email communications Ms. Robertson did have discussions with various members of management about the grievor's functions, caseload and job requirements. As a result of those conversations she determined that there was no substantial change in the duties performed by the grievor. She also found that Ms. Gravelle's duties were congruent with her job description. After hearing the evidence regarding the grievor's work and comparing those duties with her job description, I agree with the determination. While she now may be performing some of her tasks in a "different manner" and the number of files assigned to her may be greater - those variances would not lead to a finding that there has been substantial change. Virtually all witnesses who gave viva voce evidence on behalf of the Society took every opportunity to praise the grievor, her ability and commitment to the work. That level of appreciation is rare in an arbitration setting, in my experience. I certainly hope that the grievor took some consolation from those acknowledgements. For all those reasons, the grievance is denied. Felicity D. Briggs 46