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HomeMy WebLinkAbout1993-2289.Lyons.99-11-10 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARW GRIEVANCE COMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G IZ8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 2289/93 OPSEU # 94B 160 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Emplovees Uruon (Lvons) Grievor - and - The Crown III RIght of Ontano (Mirusm of Health) Emplover BEFORE Ken Petrvshen Vice ChaIr FOR THE Nelson Roland GRIEVOR Bamster & SolIcItor FOR THE MelIssa Nixon EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING June 1 2, 1999 September 20 23 1999 2 DECISION Mr Randy Lyons IS employed as a RegIstered Nurse ("RN") at the BrockvIlle PsychIatnc HospItal ("BPH") In addItIOn to therapeutIc dutIes, a substantIal portIOn of hIS responsIbIlItIes mvolves the secure custody of patIents m a locked portIOn of a medIUm secure umt wIthm the BPH. Mr Lyons filed a gnevance dated December 3 1993 ("the dIscnmmatIOn gnevance"), the substance of whIch reads as follows I gneve that I have not been treated m a fair and eqUItable manner m that I have been dIscnmmated agamst by not receIvmg the forensIc allowance that others workmg along sIde me have Mr Lyons filed another gnevance m December 1994 ("the health and safety gnevance") The substance of that gnevance provIdes as follows I gneve that the employer IS faIlmg to provIde me wIth a safe & healthy workplace, contrary to ArtIcle 18 of the collectIve agreement by wIthholdmg from RN's the forensIc allowance currently paid to PNA's workmg on thIS umt, thereby promotmg an atmosphere of anger & resentment. Further the employer contmues to apply undue stress upon me m refusmg to deal wIth the Issue of equal pay for equal secunty dutIes contrary to the pnncIples of pay eqUIty As hIS gnevances dIsclose, the focus of Mr Lyons' concern IS that PsychIatnc Nursmg AssIstants ("PNAs") receIve a forensIc allowance whIle RNs do not. ThIS allowance IS receIved by the PNAs m recogmtIOn of the custodIal responsIbIlItIes assocIated wIth the therapeutIc care of forensIc patIents wIthm medIUm secure umts of psychIatnc hospItals The forensIc allowance IS provIded for m a sectIOn of the CollectIve Agreement covenng the InstItutIOnal and Health Care Bargammg Umt entItled "General Notes and Allowances" The provIsIOn for the forensIc allowance, whIch works out to $1 68 on an hourly basIs, IS as follows 3 An allowance of $3 500 per annum In addItIOn to each lIsted rate In the salary range shall be paid to an employee who occupIes a posItIOn classIfied In the PsychIatnc NursIng AssIstant class senes, who together wIth hIS or her therapeutIc dutIes, IS also assIgned for a substantIal portIOn of hIS or her responsIblItIes to ensure the secure custody of patIents assIgned to the locked portIOn of a medIUm secure umt wIthIn one of the psychIatnc facIlItIes operated by the Mimstry of Health, A medIUm secure umt IS one In whIch greater secunty measures are reqUIred than In other umts of the hospItal and In whIch the maJonty of the patIents are detaIned under a LIeutenant Governor's Warrant whIch reqUIres safe custody and medIUm secunty or under a Warrant of Remand, As a RN provIdIng care to forensIc patIents, Mr Lyons claims that he has at least the same and arguably greater custodial responsIbIlItIes than the PNAs, yet he does not receIve a forensIc allowance It IS not only Mr Lyons who feels aggneved by thIS sItuatIOn, Other RNs at BPH, RNs at other psychIatnc hospItals In the ProVInce and employees In other classIficatIOns employed at psychIatnc hospItals who perform dutIes In relatIOn to forensIc patIents have filed gnevances whIch make claims sImIlar to those made by Mr Lyons I was advIsed that there may be as many as 500 such gnevances The partIes agreed to first proceed to a heanng wIth the two gnevances filed by Mr Lyons SInce the Umon takes the posItIOn that Mr Lyons and the PNAs at BPH essentIally perform IdentIcal custodIal dutIes, It belIeved that Mr Lyons' gnevances would have the greatest chance of success The outcome ofMr Lyons' gnevances wIll undoubtedly have a consIderable Impact on the resolutIOn of the other outstandIng gnevances The matenal facts were not In dIspute Mr Lyons testIfied In support of hIS gnevances and the Employer dId not call eVIdence To apprecIate why PNAs receIve a 4 forensIc allowance and why RNs do not, It IS necessary to bnefly reVIew certam events gomg back to 1985 In 1985 a number ofPNAs employed at BPH filed classIficatIOn gnevances A panel of the GSB heard twenty-five mdIvIdual gnevances m whIch It was claimed that the PNAs who were permanently assIgned to Ward K, as the medIUm secure ward was then known, were Improperly classIfied, In what IS commonly referred to as the Mallette decIsIOn (dated December 22, 1989), the GSB charactenzed the Issues before It as follows The questIOn for US, sImply put, IS whether the addItIOnal demands placed on the nursmg staff by the secunty systems and procedures m place on ward K, cause theIr Jobs to be mappropnate1y lumped together m a smgle classIficatIOn WIth the nursmg staff on other wards The secondary questIOn, assummg the ImtIal questIOn IS answered m the affirmatIve, IS whether the P N,A. 2's on ward K can fit themselves wIthm the Job classIficatIOn of Attendant 2, Oak RIdge, or whether a completely new classIficatIOn must be created, After revIewmg the eVIdence, the GSB concluded that secunty dutIes occupIed a sIgmficant percentage of a PNA' s tIme and responsIbIlIty and that the PNA Job specIficatIOn and class standard dId not reflect thIS aspect of theIr dutIes WhIle concludmg that the Job was wrongly classIfied, the GSB went on to determme that It would be mappropnate to classIfy the PNAs on Ward K as Attendant 2, Oak RIdge The GSB gave the partIes a penod of tIme to establIsh a new classIficatIOn whIch properly recogmzed the role played by PNAs on Ward K, a role whIch compnsed almost equal secunty and therapeutIc components 5 The partIes executed a Memorandum of Settlement dated June 18 1991 whIch provIded the basIs for the payment of a salary allowance to PNAs who work on forensIc umts The partIes were unable to agree on an appropnate rate for the salary allowance ThIS Issue was resolved at arbItratIOn by a panel chaired by Mr G Charney Mr Charney noted In the award that the matter was referred to the board of arbItratIOn In accordance wIth ArtIcle 5 8 1 whIch provIdes for the arbItratIOn of a classIficatIOn rate "when a new classIficatIOn IS to be created or an eXIstIng classIficatIOn IS to be revIsed " as well as pursuant to the order of the GSB In Mallette After consIdenng the posItIOn of the partIes, the board of arbItratIOn awarded compensatIOn In the amount of $3 500 per annum to the PNAs workIng on medIUm secure wards The Board noted that It was "gUIded by the fact that custodIal dutIes pay a larger sum than therapeutIc dutIes, pnmanly In our VIew because such dutIes are dangerous, not because they are more valuable" As noted earlIer thIS forensIc allowance was ultImately Incorporated Into the CollectIve Agreement. Employees In other classIficatIOns who had some connectIOn to patIents on forensIc wards In psychIatnc hospItals also filed classIficatIOn gnevances It appears that Mr Lyons was one of them, although he was not prepared to concede that any earlIer gnevance he had filed could be charactenzed as a classIficatIOn gnevance Although no eVIdence was called to dIsclose what happened to those gnevances, It appears that they were affected by the statutory and collectIve agreement changes whIch occurred In 1993 The PNA classIficatIOn gnevances were dealt wIth In a context where The Crown Emplovees CollectIve BargaInIng Act ("the Act") and the CollectIve Agreement provIded 6 for the filIng of claSSIficatIOn gnevances and where the GSB had JunsdIctIOn to hear those gnevances and provIde relIef where appropnate In 1993 the partIes agreed that they would take no steps to further any classIficatIOn gnevances under the Act or under the CollectIve Agreement after August 1 1993 They also agreed that any classIficatIOn gnevances filed before August 1 1993 were wIthdrawn as of that date If a decIsIOn of the GSB had not been rendered by August 1 1993 The Employer agreed to allocate the lump sum of $20 000 000 00 ("the $20 mIllIon fund") for the purpose of compensatIng employees whose classIficatIOn gnevances had been wIthdrawn, Although he opposed the way the partIes addressed the classIficatIOn Issue, Mr Lyons agreed that he was paid momes out of the $20 mIllIon fund, The Act was also amended In 1993 SectIOn 51 of the amended statute provIdes that "An order of the Gnevance Settlement Board shall not reqUIre the creatIOn of a new classIficatIOn of employees or the alteratIOn of an eXIstIng classIficatIOn" Mr Lyons testIfied In consIderable detaIl about the nature of the work performed by RNs on medIUm secure wards at BPH, the extent to whIch RNs and PNAs perform sImIlar custodial dutIes and the Impact on hIm and other RNs as a result of the fact that one component of the nurSIng team, PNAs, receIve the forensIc allowance whIle another component of the team, RNs, do not. Pnor to the heanng, counsel for the Umon provIded counsel OpposIte WIth a summary of the facts upon whIch It Intended to rely at the heanng, The folloWIng summary reflects the matenal aspects of Mr Lyons' testImony BrockvIlle PsychIatnc HospItal (BrockvIlle) IS a psychIatnc facIlIty admInIstered by the Mimstry of Health, 7 Brockvllle contams two medIUm secunty wards "Oxford II and Oxford III" Oxford I IS a mImmum-secunty ward, Oxford I, II and III are referred to as "forensIc wards" Oxford II and III are "double locked" due to secunty concerns ansmg out of the dangerous nature of the "clIents" housed therem. These "clIents" are those who have been charged wIth and/or convIcted of cnmmal offences The reasons why the clIents are present are vaned, They may be there for any number of reasons, mcludmg: i) assessment orders (from Courts) ri) JudIcIal orders to resIde, e g, pendmg Court dates, ni) DISposItIOn orders (formerly L-G W) whIch may be a) pendmg fitness to plead, or b) NCR (not cnmmally responsIble) due to "msamty" thIS usually mvolves the confictIOn for vIOlent cnmes, IV) the "clIent" may have become unmanageable m a CorrectIOnal FacIlIty due to mental Illness, v) Also "nUIsance mdIvIduals" are housed m the forensIc umt who are not mamtamable m the less secure wards of the hospItal (due to theIr vIOlent behavIOur) All of these persons many tImes are prone to vIOlence The "clIents" who are housed at Brockvllle mclude murderers, rapIsts, paedophlles, aggravated as saulters, sexual as saulters, arsomsts and other types of offenders most of whIch mvolve offences agamst the person, The dIagnosIs mcludes a vanety of personalIty dIsorders, mood dIsorders, pSYChOtIC dIsorders and sexual dIsorders, often mcludmg more than one dIagnosIs Therefore, some "clIents" are put there because they lack "mtent" because of msamty (for the vIOlent cnmes they commItted) ThIS ObvIOusly reqUIres a sIgmficantly hIgher level of secunty m Oxford II & III than the rest of Brockvllle Oxford II and III are the only wards that receIve JudICIal remands There has been a murder of a "clIent" commItted by a "clIent" who was housed m the MedIUm Secunty at the Oxford II Ward or ItS predecessor (Ward K) In addItIOn, there was a hostage takmg on Oxford III wherem a female nurse was taken hostage by a male patIent, and the "clIent" Jammed hIS finger m the eye socket of a RN 8 There was also murder commItted In the communIty by a "clIent" who had been dIscharged from the MedIUm Secunty facIlIty of Oxford II, ThIngs have become more dIfficult In recent years In that BrockvIlle cannot automatIcally return dIfficult patIents to Oakndge as per the now defunct "yo-yo" clause In the past thIS was possible, now senously dangerous "clIents" who properly should be at Oakndge may remaIn at BrockvIlle IndefinItely In addItIOn, employees have to enter dorms at nIght for secunty rounds (houses 2 - 4 "clIents") Also "1/2 walls" no longer eXIst In the lIvIng quarters and dorms now have "pnvacy" curtaIns, whIch makes observatIOn of the "clIents" more dIfficult and nsky As was mentIOned earlIer "cIvIl" patIents requmng a greater degree of secunty due to extreme antI-socIal or aggressIve behavIOr exhIbIted by them are also housed there RNs who are employed In Oxford II and III are also responsIble for escortIng clIents Into the communIty whIch complIcates secunty concerns There are no head nurses on Oxford II, only two Nurse Managers between 3 floors There IS now a Team Leader posItIOn, whIch IS not a paid posItIOn despIte Increased responsIbIlIty as to dutIes and Increased stress The nurse managers do not maIntaIn a full tIme presence on the floors LIST OF DUTIES - RNs supervise RP,N s and Instruct them on secunty dutIes, - RN s equally perform all secunty and custodIal dutIes as the R,P Ns do We refer you to the Malette decIsIOn and adopt what IS contaIned thereIn, IncludIng but not restncted to pps 18-19 of that decIsIOn, As In Malette, secunty dutIes occupy a sIgnIficant percentage of the R,Ns tIme and responsIbIlIty qUIte sImIlar to that of the RP,N s There IS a hIgh stress level Involved workIng on Oxford II and III wards Due to the forensIc nature of the wards, there IS an equal measure of "secunty" and "therapy" that must be practIsed, as opposed to other wards where there IS an emphasIs on therapy There are also sIgnIficant custodIal elements, partIcularly when escortIng "clIents" Into the communIty The pnontIes In the forensIc wards are i) safe custody 9 Ii) safety of publIc and ni) clIents safety It IS also sIgmficant that RN s can replace RP,N s (NOT VIce versa) and therefore perform the ~ dutIes as RP,N s They do not receIve the same forensIc allowance pay Contrasted to the foregoIng, general part- tIme RP,N s called In wIll receIve forensIc pay although not performIng full dutIes, due to Inexpenence wIth the specIal skIlls reqUIred In the medIUm secure envIronment of forensIcs Stress IS created by uneqUItable treatment between RP N sand RN s ThIS creates a sense of "enmIty" between classes based on unfairly dIfferentIal pay and treatment. The Employer's unfair refusal to recogmse RN s' contributIOn In forensIc wards causes demoralIsatIOn and a sense of decreased value to the employer FInally employees, pnmanly RN s, In forensIc wards are subject to InordInate and unjustIfied complaInts agaInst them by "clIents" to theIr professIOnal behavIOur and are subject to InordInate mentless lawsUIts Excluded from the foregoIng summary are the specIfic references from the Mallette award concermng the dutIes performed by PNAs In relatIOn to penmeter and Internal secunty and the sImIlar dutIes performed by RNs In my VIew It IS unnecessary for present purposes to detaIl these dutIes It IS clear from the oral eVIdence and the matenal before me that, at all matenal tImes, RNs perform at least the same and to some extent greater custodIal dutIes than the PNAs It IS also clear that the posItIOn specIficatIOn for the RN does not reflect the fact that secunty dutIes occupy a sIgmficant percentage of the RNs' tIme and responsIbIlIty Mr Lyons' testImony demonstrates that he feels very strongly about thIS Issue Although RNs are paid more than PNAs, PNAs are paid the forensIc allowance for performIng certaIn dutIes and RNs, who perform the same dutIes, are not. Mr Lyons testIfied that comments are often made by PNAs about thIS dIscrepancy and that the 10 dIfferent treatment has detnmentally affected the relatIOnshIp between the two groups of employees Mr Lyons also testIfied that the Employer's faIlure to recogmze the full scope of the dutIes performed by RN s on medIUm secure wards creates a stressful envIronment for hImself and other RN s It IS not dIfficult to apprecIate why the payment of the forensIc allowance to PNAs and not to RNs has caused Mr Lyons to feel that he and other RNs are not beIng treated fairly However the Issue before the GSB IS whether the Employer has contravened the CollectIve Agreement as alleged and whether It would be appropnate to dIrect the Employer to pay the RNs a forensIc allowance to remedy that contraventIOn, Counsel for the Umon argued that neIther of the two gnevances filed by Mr Lyons IS a classIficatIOn gnevance Although notIng the dIfferent treatment resultIng from the payment of a forensIc allowance to PNAs but not to RNs, the emphasIs In counsel's submIssIOns was on the alleged breach of the health and safety provIsIOn In the CollectIve Agreement. Mr Roland noted that the partIes dId not create a new classIficatIOn or revIse the PNA classIficatIOn but, rather they agreed to the payment of a forensIc allowance Counsel argued that It IS clear from the Charney award that the forensIc allowance was beIng ordered because the PNAs perform theIr dutIes In a dangerous work envIronment. Counsel submItted that It was because of the health and safety nsks they encounter that the partIes agreed that PNAs should receIve addItIOnal compensatIOn, SInce the RN s work In the same envIronment and are sub] ect to the same health and safety nsks, counsel argued that RNs should also receIve a forensIc allowance Counsel also submItted that the dIfferent treatment has resulted In more stress on RNs, 11 contrary to the health and safety provIsIOn, Counsel argued that the only remedy for thIS sItuatIOn IS to dIrect that the Employer also pay RNs a forensIc allowance Counsel for the Employer argued that the two gnevances filed by Mr Lyons are m essence classIficatIOn gnevances Although they are m a dIfferent form, counsel argued that the essence of the claims made m these gnevances IS that Mr Lyons performs dutIes not recognIzed by hIS eXIstmg classIficatIOn, It was argued that smce the GSB no longer has JunsdIctIOn to deal wIth classIficatIOn gnevance, Mr Lyons' gnevances should be dIsmIssed on thIS basIs alone Ms Nixon also argued that the UnIon faIled to demonstrate that the Employer had contravened eIther the dIscnmmatIOn clause or the health and safety provIsIOn m the CollectIve Agreement. It was submItted that the UnIon dId not establIsh that the PNAs and the RNs were treated dIfferently on the basIs of a prohibIted ground, As well, counsel mamtamed that the UnIon faIled to demonstrate that the Employer had faIled to make reasonable provIsIOns for the health and safety ofMr Lyons and other RNs Counsel requested that Mr Lyons' gnevances be dIsmIssed, Dunng the course of the submIssIOns, reference was made to the followmg sectIOns of ArtIcles 3 and 9 of the CollectIve Agreement 3 1 There shall be no dIscnmmatIOn practIsed by reason of race, ancestry place of ongm, colour ethnIc ongm, cItIzenshIp creed, sex, sexual onentatIOn, age, mantal status, famIly status, or handIcap as defined m sectIOn 10(1) of the Ontano Human RIghts Code (ORRC) 12 9 1 The Employer shall contmue to make reasonable provIsIOns for the safety and health of ItS employees dunng the hours of theIr employment. It IS agreed that both the Employer and the UnIon shall co-operate to the fullest extent possIble m the preventIOn of accIdents and m the reasonable promotIOn of safety and health of all employees I agree wIth counsel for the UnIon's posItIOn that the gnevances filed by Mr Lyons m December 1993 and 1994 are not classIficatIOn gnevances I suspect Mr Lyons wIshes that the earlIer gnevances filed by RNs, whIch I assume were classIficatIOn gnevances, would have proceeded m a sImIlar fashIOn to and achIeved the same results as the PNA classIficatIOn gnevances However the 1993 statutory and CollectIve Agreement changes made that route unavailable As counsel for the UnIon noted, the same fact sItuatIOn may gIve nse to more than one contraventIOn of the CollectIve Agreement. To address what he perceIves as an extremely unfair sItuatIOn, Mr Lyons filed hIS dIscnmmatIOn and health and safety gnevances, m effect allegmg contraventIOns of ArtIcles 3 and 9 respectIvely of the CollectIve Agreement. As noted earlIer the UnIon focused on the alleged contraventIOn of the health and safety provIsIOn, The UnIon dId not argue that the dIfferent treatment ofPNAs and RNs was based on a prohIbIted ground set out m ArtIcle 3 1 of the CollectIve Agreement or was contrary to the provIsIOns of the Human RIghts Code It lIkely dId not make such an argument because It recognIzed that such a submIssIOn could not possIbly succeed, It IS clear that the payment of the forensIc allowance to PNAs and not to RNs does not constItute dIscnmmatIOn wIthm the meanIng of ArtIcle 3 1 of the CollectIve Agreement. 13 One aspect of the Umon's submIssIOns relatmg to the health and safety provIsIOn IS that the PNAs were provIded wIth a forensIc allowance because they work m a dangerous settmg and smce Mr Lyons works m the same settmg, he should also be paid a sImIlar allowance Although there IS an mternallogIc to thIS posItIOn, It IS based on a false premIse The PNAs are paid a forensIc allowance m order to recogmze the tIme that they spend performmg custodial dutIes Apart from some of the language used by Mr Charney the focus of the GSB decIsIOn and the Charney award IS on the extent of the custodIal dutIes performed by PNAs Most tellIng m thIS regard IS the wordmg of the forensIc allowance provIsIOn m the CollectIve Agreement whIch Illustrates that the allowance IS paid because of the extent to whIch PNAs perform custodIal dutIes It does not follow therefore, that Mr Lyons IS entItled to a forensIc allowance because he, lIke the PNAs, work m a dangerous settmg, The PNAs and the RN s who work on the medIUm secure wards are exposed to health and safety nsks whIch PNAs and RNs who work on other wards at BPH do not expenence But thIS sItuatIOn, by Itself, does not lead to the conclusIOn that the Employer has faIled to make reasonable provIsIOns for the health and safety of those RNs, lIke Mr Lyons, who work on medIUm secure wards Other than the fact that PNAs receIve a forensIc allowance and RNs do not, the Umon dId not refer to any faIlure on the part of the Employer to provIde for the health and safety ofMr Lyons Although the fact that RNs do not receIve a forensIc allowance has had an Impact on the relatIOnshIp between the two groups that constItute the nursmg team and has resulted m added stress for RNs, the partIes dId not mtend the health and safety provIsIOn to be mterpreted so broadly so as 14 to address the effects of a pay dIscrepency In my VIew the Umon has been unable to demonstrate that the Employer has faIled "to make reasonable provIsIOns for the safety and health of ItS employees" I agree wIth counsel for the Employer that any resolutIOn of thIS sItuatIOn for RNs must be through an amendment to the CollectIve Agreement. SInce they are now unable to obtaIn relIef by way of classIficatIOn gnevances at the GSB Mr Lyons and other employees who feel they are entItled to addItIOnal pay because of the nature of theIr work wIth forensIc patIents must rely on the Umon to attempt to advance theIr concerns wIth the Employer LIke other employees who belIeve they deserve more payor addItIOnal benefits, they wIll have to rely on the bargaInIng process to achIeve theIr ObjectIve For the foregoIng reasons, Mr Lyons' gnevances are dIsmIssed, Dated at Toronto thIS 10th day of November 1999 " ""':l Ken Petryshen - Vice-Chair