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.
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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
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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.
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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
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"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.
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• 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
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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
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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.
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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
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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
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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".
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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
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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:
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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
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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
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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
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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.
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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;
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• 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
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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
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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
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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
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