HomeMy WebLinkAbout1993-1561.Lechocki.94-08-30
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ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
1111 GRIEVANCE COMMISSION DE
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SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G IZ8 TELEPHONE/TELEPHONE 1416) 326-1388
180 RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G IZ8 FACSIMILE ITELECOPIE (416) ~26-1396
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1561/93
IN THE MATTER OF AN ARBITRATION
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Under
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THE CROWN EMPLOYEES COLLECTIVE BARGAINiNG ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN t
CUPE (Lechocki)
Grievor
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The Crown in Right of Ontario
(Workers' compensation Board)
Employer
BEFORE: L. Mikus vice-Chairperson
E. Seymour Member
M Milich Member
FOR THE R Carnovale \
GRIEVOR National Representative
Canadian Union of Public Employees
FOR THE P Pasieka
Counsel .~
EMPLOYER
Filion Wakely & Thorup
Barristers & Solicitors
HEARING April 19, 1994
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This grievance concerns a claim by the grievor, Ms. Olga Lechocki, that she has been
improperly denied differential pay from the period from January 18th to April 8th, 1993,
while she was classified by the Workers' Compensation Board (hereinafter referred to as
'WCBn) as a Vocational Rehabilitation Caseworker trainee. She asks that she be paid
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retroactively the differential pay between her salary as a Telephone Inquiry Clerk and that
of a Vocational Rehabilitation Caseworker (hereinafter referred to as "VRC'" in
accordance with the Collective Agreement.
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The parties elected to proceed by way of the following agreed statement of fact:
Aareed Statement Of Fact \
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1 The grlevor commenced working at the Workers' Compensation Board on or about October 14.
1986.
2. At all relevant times, the grlevor was classified as a Telephone Enquiry Clerk (005) out of the
Thunder Bay Regional Office.
3. At the end of 1992 the Workers' Compensation Board invited employees in Thunder Bay to apply
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to train to be able to act as temporary replacements for Vocational RehabDitation Caseworkers who
were absent due to vacation or shott taun absences during 1993.
4. The grlevor was one of two employees who were chosen to attend training for the purposes of
being capable of performing these back-ups.
8. On or about January 13, 1993 the grlevor was offered an opportunity to attend Initial Caseworker
Training.
6. The grlevor accepted the offer and commenced tIainlng on or about Januaxy 18, 1993.
7 The training program consisted of sJx weeks of lectures and sJx weeks of practicum.
8. Durlng practicum, the participants were assigned new vocational rehabililation refenaJs and
maintained a case load of 10 to 20 claims. All work was monitored by the trainer, Evle Roopshand
and the Technk::a1 Advisor, George Elvish.
9. There were seven participants in the training program conducted in Thunder Bay from January 18.
1993 to April 8, 1993. Two of the particlpants, one of whom was the grtevor, were trained for
purposes of back-up or replacement. Four of the participants were traInhlg for regular posttrons
of Vocational Rehabllitation Caseworker.
10. Employees class1fted as Vocational RehabWtation Caseworkers ideally have case loads of 48 to 50 I
flIes, but at particularly busy times may have case loads of up to 90 to 98 flIes. ----."
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) 11 From January 18, 1993 to April 8, 1993 the grlevor was paid at the rate appllcable to her
c~ation of Telephone Enquiry Clerk.
12. Evaluations ofthecapabDitles of the participants in the program were conducted by the trainer once
in the middle of the training program and after the completion of the program.
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13. From April 13, 1993 to April 30, 1993, the griever was assigned a case load of 10 to 20 claims
working on the West Team in Thunder Bay The grievor during tlrls thne also assisted other
caseworkers with activations and clerical work. Work during tlrls period of thne was monitored by
the Technical Advisor.
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14. Conunencing April 14, 1993 the grievor was paid differential in accordance with ArtiCle 19.01(1).
15. The grlevor received pay on a weekly basis. Pay cheques disclose the rate at which she was paid
during the training period.
16. The grievor first applied for differential pay on May 19, 1993.
17 The grievor filed her grievance with respect to this matter on. May 31, 1993.
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The parties advised the Board that. in paragraph 8 and 13. where there are references to
the caseloads. they are not in agreement as to the number of claims assigned to the
grievor during the relevant period of time. With that exception. the facts as set out in the '!
agreed statement of fact accurately represent the circumstances of the case. I
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By way of background. the WCB in the Thunder Bay Regional Office decided in 1993 that
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it wanted to provide back-up support for the Vocational Rehabilitation Caseworkers
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(hereinafter referred to as VRC's) to cover absences due to vacations and short term
absences of thirty days or less. Staff were invited to send their requests and resumes to
the Human Relations Specialist. Six people applied for consideration. Those candidates
were tested in the categorie~ oflanguage skills. reading comprehension. decision making.
form checking and reasoning skills. As a result of that testing. the grievor and Ms.
Suzanne Guerin were selected to enter the training program. Thegrievor was advised on-
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January 13, 1993, that, effective January 18, 1993, she would begin a training program that
would provide her with the policies, roles, goals and activities of a caseworker. The
program was also to include five weeks of on-the-job practicum. The memo went on to
advise the grievor, that following the training period, she would be temporarily assigned
for vacation relief and/or short-term absences.
As it states in the Agreed Statement of Facts, the grievor did begin her training on January
18, 1993, and completed the program on April 8, 1993. She continued to work for a two-
week period as a temporary replacement and, during that two-week period, was paid the
appropriate differential rate of the VRC. On May 26, 1993, Ms. Lechocki discussed with
her immediate supervisor a claim for differential pay from the rate of Telephone Inquiry
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Clerk to VRe for the period of time she was in the training program. She was advised by
a memo that same day that the payment of the differential was dependant on performance
of the IIcore functions and essential duties of the positionll The WCB took the position
that, since she was functioning in a training environment, the differential pay requirement
under the Collective Agreement did not apply'.
The relative provision of the Collective Agreement reads as follows.
ArtJcle 19 TEMPORARY ASSIGNMENTS
19.01 (1) Where an employee is assigned ~emporarily to perform the duties
of a position in a cleRSiflcation with a higher salary maximum, they
shall, after working three (3) consecutive days. be paid a rate in
) accordance with the promotion rules outlined in Schedule I A"
Should the tempoIaIy assignment exceed three (3) consecutive
days, then the employee shall be paid the higher rate for all work
in the higher cla~atlon from the date of the assJgnment.
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Paid leave of absence of up to ten (l0) days taken during a
temporary assigninent will beat the higher rate. Pakl leave of
absence of more than ten (l0) days for reasons other than -
approved vacation or Union leave will be paid at the rate
applicable to the classUlcaUon from which the employee was
assigned.
The WCB took the position that the grievor must establish that she was performing the
core duties of the position in quantity as well as level of responsibility The twelve week
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training period involved several hours of classroom training and constant monitoring by
a trainer. In the circumstances of this case, the WCB argued, Article 19.01 does not apply
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Vocational Rehabilitation Caseworkers work with injured workers to attempt to re-establish
an earnings profile. They work with the injured worker, and the employer where possible,
to design and complete a vocational rehabilitation plan that would ensure progression to
that goal, that is the re-establislunent of aneamings profile. They work with the client to
identify a vocational objective that is suitable, available and suStainable. A VRC is
expected to handle a caseload of up to 74 claims, to demonstrate effective communication
'and counselling skills, to conduct effective interviews, to record accurate and pertinent
infonnation for vocational rehabilitation planning and statistical gathering, as well as
identify and effectively apply vocational rehabilitation policies, services, evaluations and
programs.
The training COUIBe was stiuctured to include six weeks of classroom and six weeks of
practicum training. It was designed to accommodate ten participants at a maximum. The
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training specialist in this case was Evie Roopchand. She has been employed by the WeB
for five years and, during 1992 and 1993. was the Vocational Rehabilitation Training
Specialist. It was her responsibility to supervise staff training foi the newly hired
employees. She was responsible for the training program in Thunder Bay from the period
of January to April of 1993. The program outline was distributed to the participant on the
first day of training. For the first ten days of the program. all tr~g took place in a
classroom setting and was intE;!nded to teach the participants about the Work8rB'
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Compensation Act as.o. 1990. c~ W-ll, the computer. the progress of a claim, re-
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;employment. job preparation, the preparatign of vocational rehabilitation plans and
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counselling techniques and interviewing. On the tenth day of the program, 20 files were
assigned to each participant. Days 14 through to 19 were scheduled as practicum days
and, on days 21 to 25, a practicum week was scheduled during which 20 new claims were
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to be assigned Weeks number 7 through to 11 were assigned as practicum weeks as
well and, during each of those weeks, additional files were to be assigned to the
participants until they had reached a total of 74 active files., Week number 12 was
identified as developmental week and dealt with subject matters such as difficult
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behaviour, chronic pain. case conferencing and commupity resource projects. On day 5
there was a final test on the application of the program and in week 16 and 17 the
evaluations were completed. files were reviewed with the trainee and individual meetings
Were held with the trainees to review the program.
Ms. Roopchand's evidence was that to a large extent the ac~ program confonned to
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the topics and times set out in the outline. Ms. Roopchand attended at the training
sessions for all of the classroom periods, but was not there when the cases were aCtl1ally
assigned to the participants. Her only instructions to the person assigning the .files was
th~t the trainees should not be given complex files involving issues not yet' covered in the
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training. It was her evidence that the training pro,gram the grievor completed ~
identical to the one utilised for a newly hired VRC and, as far as she Was aware, if an
employee were transferred or hired into the positioI1 ofVRC, (s)he would be paid the rate
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of a VRC during the training period. It was her evidence that, notwithstanding the fact that
the training program anticipated the assigment to each participant of 74 files, that was not
the case in the Thunc:ter Bay office. She assumed the reduced numbers of files was
attributable to the fact that there were not enough files to fill the quota. As far as she was
aware, no trainee was given 74 files during that training program.
Ms. Roopchand also testified that when a new caseworker was hired into a VRe position,
he or she would not be expected to perfoim the core functions of the job initially, but
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would be expected to function at a fuU level after the training period. Ms. Roopchand
testified that there are various levels of delegation within the job description of a VRC and
that, at the level of a trainee, a VRC would not have the authority to sign off on an
approved program without a second signature. Neither would (s)he be authorized to
submit anything to the file without approval. That level of supervision and close
monitoring would continue for at least three months. It was her evidence that, between
6 and 12 months after the training program, a VRe would get th~ first level of delegation
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which would allow him/her to submit infonnationto the file without approval.
Ms. Luba Mosley was the Manager of the West End Team in the Thunder Bay office
during the relevant time. Her job responsibilities included supervision of claims and
adjudication staff as well as responsibility for a work base in Dryden which included three
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caseworkers. She was not involved in the training program, nor was she involved in the
assignment of cases to the trainees, except to the extent that she discussed the level of
complexity of the files with the various manage.rs.
She prepared a summary of vocational rehabilitation caseload sizes and closures for
January through April of 1993. Her documents show that there were six trainees during
that period of time: S. Stesco, 0 Lechocki, S. Hogan, T Tikka, L. Kauval and W
Hukezalle. The caseload for these trainees over the relative period of t:inie was as follows:
Feb. '92 Mar. 31 Apr 30
S. Stesco 6 18 28
O. Lechocki 5 12 2
S. Hogan 6 12 15
T Tikka 9 22 0
L. Kauval 7 20 28
W Huke~alle 7 20 .- 31
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In cross-examination, Ms. Mosley was asked about the specific caseloads of the
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permanent VRC'c. For example, she was asked why S. Lake had been assigned 91 files
for the week of February 28th whereas D. Moore had only been assigned 32 files. She
explained that D. Moore was new and, as a result, was just beg!nning to build files in the
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Dryden office. She agreed, however, that both VRCs would be receiving the same rate
of pay It was also pointed out to her that L. De Gagne had responsibility for only 56 cases
and she replied that, although L. De Gagne had been employed as a VRC for four years
and had, at times, been assigned as many as 89 files, at that time the caseload was down
to 56 files. She acknowledged, however, that all of the VRCs received the same rate of
pay, irrespective of the number of files they were assigned -
Mr Hukezalle, who was a newly hired VRC, participated in the training program at the
same time as the griever. Four of the trainees were transferred from the Ministry of Health
and Ms. Mosley was unaware of their rate of pay because they were paid through that
Ministry Also Ms. Mosley's evidence that Ms. Lechocki was not assigned the 74 files
outlined in the training program because there were not enough files to allow for it.
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The griever's evidence was that she completed all aspects of the training program as
outlined, including the assigned responsibility for between 20 - 25 files. As well, she
testified she was asked to assist with the Dryden caseload- due to the fact that she had a
I reduced 'workload.
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During cross-examination, the grievor was asked specifically whether she could have
) performed the typical duties of the job description of a Vocational Rehabilitation
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Caseworker during her training period. For example, she was referred, to the job
description of the VRe and was asked whether she could have assisted workers to
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achieve employability by assessing vocational skills, collecting vocational and earnings
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data and obtaining job descriptions where required, acted as a service co-ordinator and
participated in case conferences as required She acknowledged that ~he could not. ~he
was asked whether, during her training period, she could have negotiated with the
employer and worker to discover comparable or suitable employment. She responded
that she could not. She was asked. whether she .could have ensured the continuation of
the vocational rehabilitation plan by monitoring and adjusting time frames and objectives,
providing basic social and vocational rehabilitatioIlcounselling, providing basic guidance
and monitoring job search activities. Her response was that she could not. She was
asked whether she could have assisted in presenting job readiness programs to injured
workers in receipt of VR services within the local area. Her response was that she could
not. She was asked whether she could have participated in the local employment
campaign, as required. She responded that ~he could not. She was then asked whether,
by the end of the twelve-week training period., she would have been able to perform all
of those duties. ,Her answer was yes, that she would have been capable()f perfonningall
of the duties set out in the job description by the end of the training program.
The griever acknowledged, in cross-examination, Ulat, during the weeks of practicum,
counselling and advice was available to her through Ms. Roopchand and/or other
caseworkers and that the expectation was that she would request assistance from those
people as necessary
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.ARGUMEN'r
Article 19.01, asserted Mr. Carnevale for the Union, is clear in its tenna. It states that
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when an employee is assigned temporarily to perform the duties of a position in a
classification with a higher salary maximum, (s)he should be paid a rate in accordance
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with the promotion rules outlined in Schedule "A" Schedule "A" states that the
classification of vocatio~a1 rehabilitation caseworker is (071) The salary rate for that
classification is higher than the rate the grievor was receiving as a Telephone Inquiry
clerk For that reason she was entitled to be paid the rate of the higher paid classification ,
for the period of time that she peIfonned the duties of that classification.
The Union contended there was no dispute on the facts. On January 18, 1993, the grieVer
was assigned to a training program as a Vocational Rehabilitation Caseworker -She
applied for and was selected from a list of candidates and there can be no question. but
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that she was assigned to those duties. H~r evidence was that she performed all of the
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duties assigned to her and that the ~uties she performed 1JI.1til April 18, 1993, the day that
she. completed her training course and those she performed for the following two weeks
when she temporarily replaced an absent caseworker were no ~erent. She was paid
the salary rate of a VRC during that two week replacement.
The training program outlines the duties the trainees were expected to perform and the
grievor's and Ms. Roopchand's evidence was that the trainees did, in fact, complete all
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of the job functions as outlined in that training schedule. Ms~ Roopchand's evidence was
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that the same training schedule is used to train newly hired pennanent caseworkers and
that, while a newly hired employee is undergoing training, (s)he is paid the rate of pay
specified in the Collective Agreement for that classification. One of the participants of the
training program at the time, Mr. Hukezalle was, in fact, a pennanent employee who
underwent the same training program as the griever and was paid at the caseworker rate
during that training. The grievor's evidence was that while, at the beginning of the
program she would not have been capable of perfonning the majority of the functions of
the job, by the end of the program she could, and did, in fact, discharge those
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responsibilities.
The Union pointed out that there is no training rate in the Collective Agreement. The
salary schedule simply sets out the classification and the rate for that classification. Once
the griever was moved into the position of Vocational Rehabilitation Caseworker, she was
entitled to be paid the rate of that classification for all time spent in the classification, that
is from Januazy 18 to April 18, 1993.
Ms. Pasieka, for the WCB, took the position that the griever was not ~signed the duties
of a Vocational Rehabilitation Caseworker between January 8 and April 18, 1993. She was
assign~d to learn those duties. Most of that time was spent in 'a classroom setting and
during that time the griever' acknowledged that she could not perfonn most of the duties
set out in the job description.
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The WCB attempted to devise an innovative approach to the long standing problem of
qualified replacement workers. It was understood that people who completed the training
program would be available for temporary replacement There was no promise of a
permanent job,or even a temporary job, simply an offer of future assignments should the
occasion arise. The implication in that promise ~ that, if they were assigned to cover
for absences, they would be paid according to the Collective Agreement. The fact is that,
during the period of time that the griever was a trainee, she was not performing the core
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functions of tl1e Vocational Rehabilitation Caseworker. The job duties set out in the job
description are an amplification of the core functions that the grievor herself
acknowledged she was nc;>t capable ofperfonning. That should be the end of this inquiry
If she could not and did not perform the core functions of the position, she is not entitled
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to the differential pay
A review of the training program, ~serted Ms. Pasieka, confinns the position of the WCB.
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It was not until the third week of the training program that the grievor was assigned any
files. When she was assigned those files, they were fewer in number than those assigned
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to any other cas~worker arid she was closely supervised. The files assigned to the
tfainees were vetted so that they would not have to deal with complex ,issues, nor would
they be expected to deal with issues that they had not yet been covered in the training
program.
Even when they were in their practieum weeks, argued Ms. Pasieka, the number of files
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'\ assigned to the trainees was much less than those assigned to the regular caseworkers.
During that time they were superyised closely and were not accountable for errors. Their
level of designated authority was very low Their work was constantly reviewed by the
trainer and other caseworkers. On the facts before it, the Board must find that the griever
did not perform the functions of the job of a VRC and, therefore, is not entitled to be paid
at the rate for that classification.
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In support of its position, Ms. Pasieka referred the Board to the case of Zwicker et al and
the MJrdstry of Health (March 4, 1981), unreported (professor P G. Barton) In that case
five employees grieved the failure of the employer to pay the proper rate of pay of
Attendant I from July 1977 to June 1978. All five grievors had responded to a posting
advertising a position of Registered Nursing Assistant trainees that stated that the salary
rate was to be $4.88 per hour It further stated that the applicants would be required to
enrol in Georgian College full time in the RNA Program and that tuition costs and
\ salaries would be paid by the Penetanguishene Mental Health Centre while they were
attending the course. The posting also stated that the graduates would be employed at
the Oak Ridge or Regional Division at the hourly rate specified. The five grievers signed
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the Memorandum of Understanding that stated that they would be employed at the
Penetanguishene Mental Health Centre as Psychiatric Nursing Assistants. They agreed
in writing to spend ten months taking the RNA course at Georgian College and agreed
to continue in the employ of, the Government of Ontario for at least one year after
graduation.
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According to the Board of Arbitration. what in fact happened was the employees worked
in the Oak Ridge Centre during the summer of 1977 on normal shift rotation. It found that
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more of that time was spent keeping an eye on prisoners than on instruction and training.
The Board determined that they performed most of the same duties as other Attendants.
In the fall of 1977 they began full-time attendance at Georgian College. which involved
taking instructions on a full-time basis at Penetang. During the Christmas break they
continued with their duties at Oak Ridge and between January and April of 1978 they
returned to classes. Following that period. they attended a Psychiatric Nursing Course
taught in Penetang. They became aware that the trainees in the group that enrolled the
year after them were being paid, at the rate of an Attendant I rather than as a Nursing
Assistant L The explanation by the employer was that the Georgian College course had
been extended to two years. but on a two-day a week basis rather than full time. The
second trainee group. according to the employer. spent 60% or more of its time acting as
Attendants on the wards. The grievers felt that they were entitled to extra pay for the time
they spent on the wards during their training year and filed the grievances. The Board
found that the grievors were not entitled to the higher rate for the time spent in classes
because the risks inherent in working with patients was not incurred at the time. The
Board did decide. however. that they should be paid for Ithe time they were actually
" working on the wards. The Board noted that. although the grievance was not advanced
as a classification grievance per set the grievers' classifications for the period prior to their
becoming Attendant n. was properly Nursing Attendant I. On that basis they were on a
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temporary assignment to a higher classification and were entitled to be paid the higher
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rate.
DECISION
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There is no dispute about the facts of this case. The grievor did perform as a Vocational
Rehabilitation Caseworker trainee during the period JanuaIY 18 to April 18, 1993. During
that time her ,training involved a combination of classroom and practical teaching as well
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as a component of hands-on responsibility for files. The evidence was also clear that,
although it was expected that the trainees would receive as many files as the permanent
caseworkers, the fact that they did not is attributable not to their inability to handle a
larger number of files, but to the unavailability of the files themselves.
The WCB has taken the position that the grievor did not perform the core duties of the job
and therefore is not entitled to the pay of the higher rated classification. While I agree in
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general with the position of the employer that the grievor was incapable of performing
many of the'duties of the position, there are some inconsistencies with its position that are
troubling. For example, the evidence is uncontradicted that a new employee hired
permanently into the classification of the VRC would have received the same training
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program for the same iperiod of time and would have been paid at the rate of pay of a
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VRC during that training. As well,the number of files assigned to the various VRC's varied
from a low of 20 to a high of 91 It was not suggested that a caseworker's rate of pay was
dependent upon or affected by the number of files assigned to them or accumulated over
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time. The number of files a VRC is responsible for depends entirely on the workload in
ar particular area. Had ~ere been files avail~le, the grievor would have, during the last
weeks of her training, been responsible for 74 files. It would be difficult, in those
circumstances, to suggest that she was not fulfilling the core functions of the job.
Further, and more troubling, is that the fact that there is no salary classifiction in the
Collective Agreement for a Vocational Rehabilitation Caseworker Trainee. Presumably,
if a new classification were to be developed by the employer, it would be subject to
negotiation between the Union and the employer. It would appear that what the WCB has
done in ~ case is create a trainee position with varying rates of pay, depending on the
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previous classification of the participant The inequality is apparent when one notes that
the six trainees could be receiving six different rates of pay for doing the same work. That
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means- that if someone came to the trainee position from. a higher rated classification,
(s)he would be entitled to be paid his/her at his/her higher rated classification during the
training period. Creating a classification with such uncertain and varying salary rates is
inconsistent with the principles of the classification system and salary schedule in the
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Collective Agreement.
I accept Ms. Paseika's assertion that the employer was merely attempting to find an
innovative method of dealing with the long standing problem of relief during short term
absences. That plan, however, must conform to and be consistent with the terms of the
Coll~ctive Agreement. In this case, it is the view of this Board that the unilateral creation
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of the position 'traineell with an uncertain and variable salary rate is not consistent with
the terms of the Collective Agreement.
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If there is no trainee rate in the Collective Agreement, the issue then is what should the
griever have been paid during the time that she assumed the position of Vocational I
Rehabilitation Caseworker trainee. It is clear that during the training period she did not
perform the duties of a Telephone Inquiry Clerk and therefore should not have been paid
at that rate during the training period. She did, however, function as a Vocational
Rehabilitation Caseworker, albeit on a less inclusive basis. Nevertheless, the expectation r
was that at some point during that training program she wouldassUIne responsibility for
a full caseload. There is simply no rationale for paying a permanent employee in a
training program a higher salary than the griever in the same training program doing the
same work for the same period of time.
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It is therefore the view of this Board that the griever did, in fact, perform the functions as
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assigned to her as a Vocational Rehabilitation Caseworker during the training pepod and,
as such, she was entitled to the higher rate of pay for that period of time. The griever is
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to be paid at the rate of a VRC from the January 18 to April 8, 1993.
The Board will remain seised in the event the parties encounter difficulty in implementing
this award.
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Signed this 30thday of August, 1994, in Toronto.
Loretta Mikus, Vice-Chair
4/r!?--- I Dissent "Dissent to f 011 ow"
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E. Seymour, Union Member M. Milich, Employer Member
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