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HomeMy WebLinkAbout1994-1075NEUBERT95_10_13 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-1396 GSB # 1075/94 OPSEU # 94F191 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Neubert) Grievor - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFORE N Backhouse Vice-Chairperson FOR THE R Murdock GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE M Nixon EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING June 2, 1995 August 9, 10, 1995 September 8, 1995 - Page 2 - THE ISSUE The Gnevor alleged that the Employer was In VIOlatIOn of the Health and Safety proVISIOns In the CollectIve Agreement and that the Employer had carned out ItS management responsIbIlIties unreasonably or In bad faith PRELIMINARY ISSUES At the commencement of the heanng, the Employer sought an Order for an Independent medIcal assessment of the Gnevor I reserved on that motion until after the completIOn of the Gnevor's eVIdence I then ruled that the Gnevor had not made out a pnma faCIe case with respect to the Health and Safety Issue and that, accordIngly, no Independent medIcal assessment was reqUIred As a result of that rulIng, the Employer objected to my JUrISdIctIOn to hear the balance of the gnevance on the grounds that there was no longer any speCIfic proVISIOn of the Collective Agreement whIch was alleged to have been breached I reserved on that MotIOn pendIng hearIng the balance of the eVIdence THE FACTS The Gnevor IS claSSIfied as a SCIentist 4 and IS a Consultant In IOnIZIng RadIatIOn In the RadIatIOn ProtectIOn ServIce HIS Job IS to provIde adVIce and gUIdance on the safe use of x-ray eqUIpment for hospItals, government agenCIes, Industry, vetennanan and educatIOnal IllS tI tu tIOns Part of hIS Job reqUIres hIm to Inspect x-ray faCIlIties and to reVIew and approve plans for x-ray InstallatIOns He also acts as a PrOVInCIal Offence Officer - Page 3 - There are three Consultants IncludIng the Gnevor who are responsIble for the provInce The Gnevor looks after the Eastern RegIOn The Gnevor reports to Dr Robert McFadden agaInst whom he has a number of complaInts whIch can be summanzed under the folloWIng headIngs ObstructIOn of Gnevor In CarrYIng out Duties. The Gnevor alleges that Dr McFadden has faIled to properly set polIcy WIth respect to the correct mterpretatIOn of the regulatIOn governIng the InstallatIOn of vetennanan x-ray eqUipment The Gnevor says that thIS has undermIned hIm and left hIm In the dIfficult pOSItIOn In the field of haVIng to apply the regulatIOn InconsIstently SectIOn l6 1 of Ontano Reg 861/90 states as follows "l6 1 In addition to any other requirement of this Regulation, the following requirements apply to every x-ray machine used for the diagnostic examination of animals 1 Where practicable, radiographic procedures shall be performed in a room designed for the purpose of performing x-ray examinations of animals " There IS a profeSSIOnal dIfference of OpInIOn as to whether a separate room for vetennanan x-ray eqUIpment IS a reasonable safety reqUIrement WhIle studIes have shown that the exposure to radiatIOn from vetennanan x-ray eqUIpment not In a separate room IS well below the allowable levels, any exposure to radIatIOn poses some rIsk Dr McFadden was of the VIew that a separate room reqUirement should be Imposed The Gnevor was not. There was a real problem WIth the legal - Page 4 - enforcement of orders issued under the regulatiOn because of Its vague wordIng At the begInmng of 1992, the Gnevor pressed Dr McFadden In wn tIng to set gUidelInes for the InstallatiOn of vetennanan x-ray eqUipment and, In particular, as to whether a separate room should be reqUired The Gnevor testified there was no response from Dr McFadden On March 28, 1994, the Gnevor attended at the Mornmgside Ammal ClImc for a routme mspectiOn and found that the dental x-ray eqUipment had been mstalled WIthout gomg through the approval process The Gnevor issued an Order reqUinng the chmc to go through the approval process The clImc submitted the proper applicatiOn three days later On Apnl l3, 1994, Dr McFadden issued a policy mterpretmg S l6 I of the RegulatiOn as reqUinng a separate room for vetennanan dental x-ray machmes Based on thiS policy, the Gnevor rejected the climc's applicatiOn and made an appomtment to go back to the chmc On hiS return to the chmc on Apnl 18, 1994, the Gnevor tagged out the machmery, thereby preventmg it from bemg used He received a very hostile reactiOn from the vetennanan, Dr Gillick who questiOned hiS professiOnal Judgment and authority Dr GIllick told the Gnevor that Dr McFadden had provided assurance that the applIcatiOn would be approved WIthout the separate room reqUirement and was enraged that the Gnevor tagged out hiS machmery after thiS assurance By the time the Gnevor returned to the office, Dr Gillick had spoken to Dr McFadden Dr McFadden cntIcized the Gnevor for havmg put a tag on the eqUipment The Gnevor testified that when he questiOned Dr McFadden as to why he had not been mformed of Dr McFadden's pnor - Page 5 - conversatIOn wIth Dr GIllIck, Dr McFadden said that he dId not consIder It Important On Apnl 20 1994 Dr McFadden Issued a revIsed polIcy whIch provIded that a separate x-ray room was not a stnct reqUirement for eXIstIng vetennanan clIniCS but would contInue to be a reqUirement for new vetennanan clIniCS The Gnevor dIsagreed with the revIsed polIcy because of Its InCOnsIstent treatment of customers In March 1995, the Gnevor receIved an applIcatIOn from a vetennanan clInic undergOIng extensIve renovatIOns When the Gnevor could not get an answer from Dr McFadden as to whether he should reqUire a separate room, the Gnevor brought the matter to the attentIOn of John Tal-POW ChIef of the RadIatIOn ProtectIOn ServIce Mr Tal-POW gave eVIdence acknowledgIng the professIOnal dIfference of OpInIOn on thIS Issue He testIfied that he found both of the polIcIes Issued by Dr McFadden to be reasonable Mr Tal-POW told the Gnevor he could make hIS own decISIOns whIch remaInS the current SI tuatlOn RestnctIng Gnevor's Duties. StartIng In Apnl 1992, the Gnevor sent four memos to Dr McFadden requestIng a polIcy decIsIOn wIth respect to acceptable standards for lead aprons WhICh Ottawa CIVIC HospItal had requested UltImately the Gnevor's contact at Ottawa CIVIC HospItal wrote to John TaI- Pow complaInIng that, despIte hIS haVIng dIrectly called Dr McFadden several tImes, there had been no response The next day, on August 27, 1992, Dr McFadden wrote a memo to the Gnevor reqUlnng that he consult wIth Dr McFadden both verbally - Page 6 - and In wntIng before havIng any contact wIth the health Industry or government There was some conflIct In the eVIdence as to whether thIS memo was sent to the Gnevor alone or as well to the other consultants No other copIes of the memo could be found VOjIslav MIlosavljeVIC, one of the other consultants, testIfied that he receIved a dIrectiOn from Dr McFadden subsequent to the Gnevor's August 27, 1992, memo, not to have contact wIth the health Industry wIthout first consultmg wIth Dr McFadden The Gnevor testified that, m hIS VIew, the August 27, 1992, memo was m dIrect retaliatlOn for the complamt by Ottawa CiVIC Hospital agamst Dr McFadden and that the memo prevented hIm from domg hIS job Lack of CommUnICatlOn. The Gnevor sent several memos to Dr McFadden regardmg problems of lack of commUnICatiOn mc1udIng not bemg gIven up to date mformatlOn on a file on WhICh the Gnevor had Issued Orders and not bemg Informed about a questiOnnaIre WhIch was reqUIred to be returned to the Gnevor The Gnevor also complamed that Dr McFadden failed to mform hIm when the numbers of the regulatiOns he was enforcmg were changed Dr McFadden and Mr Tal-Pow tes tlfied that the entue MInIstry was affected by the change m the RegulatiOn numbers and not just the Gnevor The Gnevor felt these matters prevented hIm from carrYIng out hIS job effectIvely and eroded hIS credIbIlity as a consultant Badgenng. The Gnevor testified that Dr McFadden constantly badgered hIm with respect to constructiOn of a filter wheel Of five memos sent over - Page 7 - a five year penod regardIng the filter wheel, two memos were from Dr McFadden to the Gnevor regardIng progress of the wheel ExclusIOn and isolation The Gnevor testIfied that he has been systematically excluded from projects such as were set up between the RadIatIOn ProtectIOn ServIce and the CSA and the Ontano Vetennanan AssocIatIOn whIle the other Consultants have been Included Dr McFadden testified that there was no attempt to exclude the Gnevor from projects and that the above projects had naturally evolved wIth the particIpatIOn of other Consultants The Gnevor testified that when one of the other Consultants was away for a couple of months, an InSpectIOn WhICh would normally have been done by the absent Consultant was assIgned to the London based Consultant rather than to the Gnevor Dr McFadden testified that he Intended to evenly dIvIde up the absent Consultant's work but that no further work came In to assIgn to the Gnevor The Gnevor made a further complaInt agaInst Dr McFadden In July 1995, WhICh he subsequently acknowledged was In error, aIle gIng that Dr McFadden was contInuIng to assIgn work from hIS area to another Consultant The Gnevor had wrongly assumed that two calls Dr McFadden had responded to had been referred to another Consultant DIscnmmatIOn. The Gnevor alleged that Dr McFadden was dIscnmmatmg agaInst hIm by sInglIng hIm out to enter hIS work schedule In the shared filIng cabInet Dr McFadden testified that all three Consultants had been requested to complete thIS task with the Gnevor beIng the only one to - Page 8 - comply, notwIthstandIng wntten and verbal remInders to the other Consultants REMEDY SOUGHT BY THE GRIEVOR. The Gnevor requests as a remedy that he be allowed to report dIrectly to John Tal-Pow Mr Tal-Pow testified that there were three problems wIth the Gnevor reportIng dIrectly to hIm 1 Mr Tal-Pow already has l6 people reportIng to hIm and could not handle any addItIonal responSIbIlItIes 2 To change the reportIng structure would undermIne Dr McFadden as a supervIsor 3 ChangIng the reportIng structure would result In an InCOnsIstent reportIng arrangement CONCLUSION. The Employer has submItted that I lack JUrISdIctIOn on the ground that the Gnevor has not alleged a breach of a specIfic proVISIOn of the Collective Agreement In the alternatIve, the Employer alleges that the gnevance should be dIsmIssed on the ground that the Umon has faIled to establIsh that the Employer acted In bad faith or dlscnmInated agaInst the Gnevor The Umon submIts that all that IS necessary for It to establIsh IS that the Employer acted unreasonably I Intend to deal wIth thIS gnevance on ItS ments on the baSIS of the eVIdence before me I am not persuaded on the eVIdence that the Gnevor was badgered, dIscnmInated agaInst, excluded, Isolated, or that the Employer acted eIther In bad faIth or breached any duty owned to the - Page 9 - Gnevor wIth one exceptIOn relatIng to the August 27, 1992 memo whIch I shall deal wIth below WhIle It IS understandable that the Gnevor felt undermIned In the performance of hIS dutIes wIth respect to the IncIdent InvolVIng the MormngsIde Ammal ClImc, there was no eVIdence to suggest that Dr McFadden was motIvated by bad faIth or IntentIOnally set out to undermIne the Gnevor ThIS was a situatIOn where there was a legItimate dIfference of professIOnal OpInIOn regardIng the safety reqUirements of a separate x-ray room There was delay In polIcy beIng set and then the polIcy was reversed, creatIng dIfficultIes In the field for the Gnevor However, thIS sItuatIOn was no dIfferent from problems whIch anse on a regular basIs In any work enVIronment and whIch, however frustratIng, must be tolerated The other IncIdents relIed upon by the Gnevor In support of hIS allegatIOns ( other than the August 27, 1992 memo) do not constitute a vIOlatIOn of the Collective Agreement nor do they support a findIng of bad faIth or unreasonableness The memo of August 27th, 1992, sent to the Gnevor by Dr McFadden, was a dIfferent sItuatIOn It was clearly sent as a result of the complaInt made to Mr Tal-Pow by Ottawa CIVIC HospItal agaInst Dr McFadden I accept that the Gnevor was sIngled out by Dr McFadden and that It was only the Gnevor who was restncted from contact both wIth the health care Industry and government As It was an Integral part of the Gnevor's Job to provIde advIce and gUIdance to the health Industry and government, thIS created an unfaIr restnctIOn on hIS abIlIty to perform hIS dutIes I find that the memo was personally motivated agaInst the Gnevor - Page 10 - If Dr McFadden felt that the Gnevor had somehow mIsconducted hImself In regard to that IncIdent, then the proper way to deal wIth it was by ImpOSIng dISCIplIne whIch the Gnevor would then have been entitled to grIeve AccordIngly, thIS gnevance succeeds with respect to that allegatIOn The Employer is dIrected to wIthdraw the memo of August 27th, 1992, agaInst the Gnevor AssumIng that I had the authonty to dIrect the Employer to replace Dr McFadden as the Gnevor's supervIsor, I would not have done so for the practIcal concerns set forth by Mr Tal-Pow DATED at Toronto this 13th day of October, 1995. /lc~7 Nancy L Backhouse Vice-Chairperson