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HomeMy WebLinkAboutDorrance 07-01-29 IN THE MATTER OF AN ARBITRATION. BETWEEN: Thunder Bay Regional Health Sciences Centre, "the Hospital" and Ontario Public Service Employees Union, "the Union" AND IN THE MATTER OF THE INDIVIDUAL GRIEVANCE OF JIM DORRANCE AWARD ARBITRATOR: Paul Haefling APPEARANCES: For the Hospital - Roderick W. Johansen, counsel, and others For the Union - Jim Gilbert, Grievance Officer, and Jim Dorrance, grievor. Hearings in this matter took place in Thunder Bay on June 30; November 7-8; and December 8, 2006. AWARD 1. Introduction This hearing is concerned with the individual grievance filed by the Union on behalf of Mr. Jim Dorrance ("the grievor") on January 19, 2006. The grievance alleges, "I was wrongly displaced from my position" and, by way of settlement, the grievor is requesting that he "return to courthouse". The position in question is officially entitled "Mental Health Court Support Worker". Mr. Dorrance, who was originally hired in March of 2000, holds the degree of Bachelor of Social Work. He filled the position of Mental Health Court Support Worker from August-September of 2005 until January of 2006. That position is part of the Hospital's Forensic Unit within the Forensic Outpatient Service, which is multi disciplinary in its staffing. The position is located and filled "off site" from the Hospital campus in an office at the Ontario Provincial Courthouse in Thunder Bay. Documentation filed at the hearing describes the position "responsibility" as being "to provide court support, initiate Mental Health Diversions, and provide consultation to the Courts". Mr. Dorrance left his previous job to take over the position of Court Support Worker when the previous incumbent, Ms. Karen Pulsifer, took on the role of "Temporary Full-Time Acting program Manager in Forensics," an assignment which was initially expected to last about a month during the time the Hospital was searching for a permanent Manager of the Forensic Unit. In fact that process took more time than had been anticipated, since the search lasted into December of 2005. There is no dispute about the fact that the grievance here is properly before me for decision. Both Mr. Dorrance, the grievor, and Ms. Pulsifer in different capacities had previously been on the staff of Lakehead Psychiatric Hospital prior to their being integrated with the -2- Forensic Unit in 2005 into the Thunder Bay Regional Health Sciences Centre. The parties' representatives on both sides acknowledged and stipulated that staff at Lakehead Psychiatric Hospital had been represented by the Ontario Public Service Employees Union ("O.P.S.E.U.") as bargaining agent, although Ms. Pulsifer apparently became a member of the Ontario Nurses' Association ("O.N.A.") upon the merger into Thunder Bay Regional Health Sciences Centre (herein "the Hospital"). The position of Court Support Worker had been filled previously by other O.P.S.E.U. members in various classifications. 2. The Union's evidence In his testimony at the hearing, Mr. Dorrance stated that he was approached by the Program Director of the Forensic Unit, Dr. Robert Sheppard, who apparently told him he could take up the position of Mental Health Court Support Worker when Ms. Pulsifer left based upon his having previously applied for the position. Mr. Dorrance said that, based on that verbal offer, he accepted the position. Several days later, he was again approached by Dr. Sheppard and was told that the position had to be "posted" within the Unit. He then testified from recollection that there had been a "posting" in the form of an e-mail notice inviting "letters of interest" from staff and went on to say that he replied with a letter again to indicate his interest in the position. (There was no document relating to the posting process available in evidence at the hearing.) Mr. Dorrance said that, to the best of his recollection, there was no indication to him at all at the time he was offered the position of Court Support Worker that it was to be filled on a temporary basis. He subsequently stated that he later was told and led to believe that the position was temporary when Ms. Pulsifer, after she became Acting Manager, said to him that, if she were not successful on the selection for the post of permanent Manager, she would "bump" him from the Court Support -3- Worker's job. He also testified that he had been informed by both the Director and the previous Manager verbally that he would be taking over as the Court Support Worker, which he did by moving to the office at the Courthouse in early September. That was followed by an orientation period of some three days during which he was with Ms. Pulsifer, who introduced him to staff, judges and lawyers as the new Mental Health Court Support Worker and as her replacement. Mr. Dorrance also testified that his previous office at the Hospital remained vacant for a time. He also was provided with business cards which identified him as the "Mental Health Court Support Worker, Forensic Mental Health Services" employed by the Hospital and that card also gave as his office address that of the Ontario Court of Justice. Mr. Dorrance testified, again from his recollection, about how the Court Support Worker's position had been filled in the past. He recalled, for example, that, when he first applied on a previous posting for that position, he was unsuccessful at that point, and the person then selected was an Occupational Therapist by background, who later was followed by Ms. Pulsifer, who was then a Registered Nurse at the Lakehead Psychiatric Hospital represented by OPSEU. The position, as Mr. Dorrance testified and described it, is such that, when the Crown or defence counsel wished to recommend a diversion program for a person with a mental illness or addiction, that is, someone who is charged with an offence, he would be called upon in that kind of situation. The grievor also said that he was in fact commended on the number of diversions and the success he had met with in the diversion program. He testified as well that he understood that his previous office at the Hospital remained vacant while he was in the job of Court Support Worker, but he also made reference to the fact that, just prior to the 2005 Thanksgiving holiday, he had been told by -4- Ms. Pulsifer to vacate that office by removing any remaining personal items he had left there when he moved to the Courthouse office. During this time, Ms. Pulsifer apparently had applied to become the permanent Manager of Forensics but, as events unfolded, another candidate was chosen, which, Mr. Dorrance said had "shocked" him because Ms. Pulsifer had served so ably in the role of Acting Manager. In early December of 2005, Ms. Pulsifer sent an e-mail message to all forensic staff members to indicate that she would be returning to the "RN position" she had left, in which she also referred to "the Mental Health Court Support position at the Ontario Court of Justice". She also wrote that that had been the understanding when she accepted the Acting Manager's position. Nevertheless, approximately one month later, Minutes from a staff meeting chaired by Ms. Pulsifer on January 5, 2006, recorded the fact that the new Manager of Forensics would start in her new role on January 9, 2006, and also stated: "Karen Pulsifer returns to her previous position in the Forensic Outpatient Functional Centre and will occupy Office #28". A further item from the same set of Minutes recorded the following information about the status of the grievor: 5.5 Mental Health Court Support Worker: Jim Dorrance remains in the Forensic Outpatient Functional Centre and is assigned to work as the Mental Health Court Support Worker. His Social Work position went to the courthouse with him and he is not back filled because that would increase compliment (sic.). In his testimony at the hearing, Mr. Dorrance said he believed that item confirmed the understanding prior to filing this grievance that he would not be "bumped," as the e-mail said, but would remain in the position of Court Support Worker. When asked on cross-examination to elaborate on the events between September of 2005 and January of 2006, Mr. Dorrance testified that, sometime in October of 2005, he -5- had a conversation with Ms. Pulsifer, who was then the Acting Manager, who told him "the job is yours," which meant to him that he was confirmed as having been transferred to the position of Court Support Worker permanently. He went on to say that, in that same conversation, Ms. Pulsifer had also said to him that she would not be returning to that position and that the position was one that was better suited for someone with a background in social work. He then testified again about his having been given short notice and told in October to remove all of his remaining personal possessions from his previous office at the Hospital in the Forensic Unit. He also testified that he had learned in December of 2005 that Ms. Pulsifer and the Director of Forensics, Dr. Sheppard, had been collaborating and discussing creating a new "research" position in the Unit, which the former would occupy. He then referred again to the information recorded in the Minutes of the staff meeting held on January 5,2006, which, he said again, he took as further confirming that he had been permanently transferred into the position of Court Support Worker. He also testified that, based on that belief, he had sent a memo to the head Crown Attorney for the judicial district indicating that he had been permanently assigned, who, he said, in reply had expressed surprise at learning that his position had not been "stable". But, shortly thereafter everything changed with his being told by the new Manager in January of 2006 to report for work back at the Hospital Forensic Unit the very next day. While testifying, Mr. Dorrance also stated on cross-examination that he was shocked after he saw the e-mail Ms. Pulsifer had sent to staff in early December in which she made reference to her returning to the Court Support Worker position. He added that he spoke to Ms. Pulsifer at the time and also spoke to the Director, Dr. Sheppard, who, he said, told him "not to worry" at that point and that consideration was being given to creating a new research position which could be filled -6- by Ms. Pulsifer. 3. The Hospital's evidence The Hospital's first witness, Ms. Rose Lazinski, testified about assuming her role as the newly appointed Manager of the Forensic Unit in January of 2006 and about the grievor's removal from the position of Court Support Worker. She testified that, while she could not remember with certainty whether she had discussed the situation with her superior, who is the Hospital's Vice-President of Patient Care Services, it was her own decision to reassign the grievor and that she had also assigned Ms. Pulsifer to return to the Court Support Worker's position. She gave as the reason for that that the position had been occupied by Ms. Pulsifer prior to her period of service as the Acting Manager of the Forensic Unit. She also said she met with Mr. Dorrance, who had made her aware that he was "not happy" at being required to return to his previous position at the Hospital. However, she could not recall any explanation he gave as the reason for his being discontented over the transfer. She was asked on cross-examination about the existence of any evidence the Hospital may have had to show that Mr. Dorrance had been temporarily assigned to the Court Support Worker's position. Ms. Lazinski responded that that was considered to be "an assignment," in reference to the position at the Courthouse, and that no one in Forensics had ever been assigned on a permanent basis to that position, including Ms. Pulsifer. When asked on cross-examination how she determined Ms. Pulsifer had a superior claim to the position of Court Support Worker, she suggested that was because Ms. Pulsifer had worked previously in that role from January of 2005 before taking on the job of Acting Manager in September of that year. She said that she assumed and that it was generally understood that, after serving in an acting position, the person involved -7- would go back to his or her previous role. The Hospital's second witness, Ms. Mary Perkovic, had served until August of 2005 as the Manager of Forensic Mental Health Services, prior to the period when Ms. Pulsifer began as the Acting Manager commencing on September 9,2005, after Ms. Perkovic left her post. She testified briefly about the "multi-disciplinary" nature of the Forensic Unit and also about the role and function of the Outpatient Court Support Worker position. In the course of that testimony she indicated that there was no one "discipline" that could be attached to the position of Court Support Worker as it was described in the (McKellar) Hospital position outline document to which she referred at the hearing. She, too, described the position of Court Support Worker as being "an assignment" and went on to say that that role had in the past been filled by persons from the nursing staff, an Occupational Therapist, and, latterly, by Mr. Dorrance who is classified as a Social Worker. Ms. Perkovic described the selection process typically followed in filling that position as one in which a memo is sent to the staff indicating the role and nature of the work and then staff would be invited to submit a "letter of interest" for the position, indicating how they would anticipate serving in the role by virtue of their education and experience. She also suggested there were no interviews conducted, and there was no formal "posting" that was done in the sense of a notice posted on the wall. She indicated that Ms. Pulsifer had transferred to the position of Court Support Worker in January of 2005 just prior to the staff transfer from Lakehead Psychiatric Hospital to Thunder Bay Regional Health Sciences Centre. She indicated that took place and that she did so when the person who previously served in the Court Support Worker's role had decided to leave the position. She went on to say that the Director of the Forensic Unit and the Vice-President of Patient Services had both agreed that someone -8- should be appointed temporarily to replace her when she left the post of Manager of Forensics, and Ms. Pulsifer did so, starting in September of 2005. In filling the Court Support Worker's position, Ms. Perkovic suggested that Mr. Dorrance was approached as one of two staff members who previously had expressed interest in that assignment. She then said she completed the paperwork ("Notice of Transferring Staff') to effect the transfer of Mr. Dorrance from his previous position as a Social Worker ("Forensic Mental Health- Sexual Behaviours Program") to that of "Forensic Mental Health-Mental Health Court Support". On the transfer form, she indicated "09/06/2005" as the effective transfer date and also wrote that "This Staff member is being transferred from the Forensic Unit (outpatient sexual behaviours service) to the mental Health Court Support Service at the Provincial Courthouse," adding, "therefore, his computer account will need to be transferred to the courthouse computer". One significant portion of the transfer form entitled "Temporary Position End Date (mm/dd/yyyy):" has an entry that shows as "N/A". Ms. Perkovic suggested she did not have the answer for that entry and could have put in "N/A" as meaning "no answer" as her response at the time (as opposed to "not applicable"). Ms. Perkovic also testified that the grievor, Mr. Dorrance, was "essentially reassigned to replace" Ms. Pulsifer. Ms. Perkovic was asked on cross-examination about the administration of the collective agreement in her role as the previous Manager of Forensics, in particular the job- posting requirement (Article 13). She suggested that the position of Court Support Worker had not been posted when Ms. Pulsifer went to the position as Acting Manager of the Forensic Unit because, she said, there was no vacancy created. She went on to say that Mr. Dorrance was simply reassigned and that she considered the situation to be one that -9- allowed an opportunity to reassign another employee. She also agreed on cross- examination that there was "an urgent need for coverage," and that that required the Hospital to assign someone to cover the position of Court Support Worker. She also said she thought it was an appropriate exercise of a management prerogative to reassign Mr. Dorrance and to base that on the "letter of interest" arrangement that had applied in previous circumstances. But she also suggested that arrangement did not apply in 2005 when Ms. Pulsifer became the Court Support Worker to replace an RPN who had left the position and later when Mr. Dorrance was assigned to follow Ms. Pulsifer in the position of Court Support Worker. She could not recall if the position in earlier times had been considered as being "temporary" but Ms. Perkovic suggested it definitely was not to be considered a permanent position. She also agreed on cross-examination that, apart from people voluntarily leaving the Court Support Worker's position, there had been occasions when persons had been removed because of a lack of competence for the job. She agreed on cross-examination that no document had been found which conveyed information about the nature of the appointment of Mr. Dorrance as the Court Support Worker that was analogous to the documentation having to do with Ms. Pulsifer's temporary appointment as the Acting Manager of the Forensic Unit. The Hospital's final witness, Ms. Karen Pulsifer, testified about her appointment as the Acting Manager and about her previous appointment as the Court Support Worker. In regard to the former, she indicated that there was a memo circulated by Ms. Perkovic inviting letters of interest in the case of the Acting Manager's position and said that she also received a telephone call from the Director, Dr. Sheppard, in which she was invited to apply for the position, which she said she did after having considered the matter. In a letter dated -10- August 29, 2005, from the Senior Vice-President, Patient Care Services, Ms. Pulsifer was informed that, on being appointed as the "Temporary Full-time Acting Manager of Forensics," her status as a member serving outside of the ONA bargaining unit was such that she would "retain but not accumulate seniority" for the anticipated period of her "absence from the union". The letter referred to the assignment as covering the period effective from September 12, 2005, to October 24, 2005. When asked about her understanding regarding the "temporary" nature of the Acting Manager's appointment, Ms. Pulsifer testified that she understood she would be in that position until the appointment of a permanent manager was made, after which, she said, it was expected that she would return to the position of Court Support Worker, consistent with what she later wrote in the e-mail she sent to the staff in early December of 2005. She also testified that that was the understanding that she had with Ms. Perkovic at the time. During her time as Acting Manager, Ms. Pulsifer stated that she had limited contact with Mr. Dorrance, other than at meetings or by telephone or through his reports to her, following the two- to three-days' orientation with him in early September. She testified in her direct examination that she never met Mr. Dorrance at the Courthouse at any point because there was no reason to do so and because she was also busy with her own work at the Hospital. She also explained that there was a research committee set up in November of 2005 but said there was no talk of creating a research position for her after the Acting Manager's assignment, because there was no new funding for that kind of role. She also explained that there had been several other new positions created while she was the Acting Manager, for which the Hospital had received additional funding. When asked to comment about the grievor's testimony that he had a conversation with her in October of 2005 in which she was said to -11- have told him that the Court Support Worker's position "was his," or that he understood he had been permanently assigned there, Ms. Pulsifer stated that she would have no authority to tell him that because a permanent position at the Courthouse would need to be funded and the appropriate hiring and selection process would have to apply. She also said the position had always been filled by Forensic Outpatient staff through temporary transfers on "an assignment" basis but never on a permanent basis. She denied having told Mr. Dorrance that she did not intend to return to the position of Court Support Worker. In regard to her having instructed the grievor in October of 2005 to clear out his office at the Hospital, Ms. Pulsifer testified that was because the Hospital's space and systems staff were seeking to allocate unused space in the Forensic Unit, although she also indicated that the available space was needed for students and other users. She also said she had no recollection of having had a 'phone conversation with Mr. Dorrance in early December, following her e-mail to Forensics staff, in which he accused her of having lied to him and berated her for having misled him. During the examination in chief, when questioned about section 5.5 of the Minutes of the January 5, 2006, staff meeting, Ms. Pulsifer testified that she intended simply to record the situation as it stood then in noting that Mr. Dorrance "remains in the Forensics Outpatient functional Centre" and that he was "assigned to work as the mental health Court Support Worker". She went on to say that she did not think it would be appropriate for her to have assigned herself or to make any staff changes before the new Manager took her place. She also testified, in explaining section 5.5 of the Minutes, that, when Mr. Dorrance went to the Courthouse position, his position at the Hospital had not been "back filled" and, she added, that meant there was no position at the Hospital for him to re-occupy. -12- When asked on cross-examination about the clarity and meaning of those Minutes, Ms. Pulsifer said that there were regular weekly staff meeting and that anyone familiar with the operation of the Unit would have been able to follow what had been written. She also suggested that, in conjunction with her e-mail to staff a month or so earlier, the January meeting Minutes would be understood by staff. In regard to the notation that she would be occupying an office in the Forensic Unit, a reference in section 5.4 of the Minutes from the January 5,2006, staff meeting, Ms. Pulsifer agreed that anyone reading that would not take that as any indication that she would again be filling the position of Court Support Worker. She also added that there had always been an intention that she could return to the position of Court Support Worker and said that she had communicated her intention to Mr. Dorrance. She acknowledged on cross-examination that there were no other minutes and no other records to indicate that she would be returning to that position or that Mr. Dorrance would be returning to a job back at the Hospital. However, she said it was common knowledge and generally accepted that a person leaving a position could revert or return to it. She disagreed when it was suggested that there had been no urgency underlying her request to the grievor in October of 2005 to empty his previous office at the Hospital, since it had remained empty subsequently. When asked about the previous position she held at the Hospital between June of 2004 and prior to January of 2005 when she first assumed the role of Court Support Worker, Ms. Pulsifer said she first became an RN in the Inpatient section of the Forensic Unit through exercising her seniority rights, and she then referred to that as her "home position". She also made reference while testifying to the fact that she had been transferred to the Outpatient side and the position of Court Support Worker while still employed with Lakehead Psychiatric Hospital prior to the merger or amalgamation. In -13- regard to her being invited by the Director to consider taking on the position of Acting Manager, Ms. Pulsifer suggested that, at the time, he was simply asking her to consider taking on that role, rather than actually offering her the post because such an offer would first have to follow through the appropriate lines of authority at the Hospital and be documented. She also agreed that, as the acting Manager, she had the authority to assign someone to the Court Support Worker's position, but she denied that Mr. Dorrance had ever received any confirmation from her that he was permanently assigned to that position. She also explained that, when someone was assigned to the position from the Forensic Unit's staff complement there would be no budgetary increase by implication because that did not alter or add to the Unit's staffing. She then explained that, in Mr. Dorrance's circumstances, his Social Work position simply went with him to the Courthouse. In the course of cross-examination, Ms. Pulsifer was shown copies of the Minutes of several meetings of the Local Criminal Justice Coordinating Committee ("LCJCC"), later re-named the "Local Justice Committee" ("LJC"), consisting of judges, Crown and defence lawyers and other staff members, in which there are notations made that appear to indicate she had attended several monthly meetings held at the Courthouse between September and December of 2005, although no regular meeting of that Committee apparently were held in the month of October. Ms. Pulsifer agreed that those records indicate that she had been present for the meetings, but she also said she had no recollection of the meetings or of having had any conversations with Mr. Dorrance at the Courthouse during that period. 4. Union Argument The Union's argument from the evidence is that the grievor was in fact twice offered the position of Court Support Worker by Dr. Sheppard, the Director of the Forensic Unit, -14- which offer had been revoked the first time in order that a posting could take place. It is suggested that the grievor's statement that he understood the position was temporary was based solely on his having been told by Ms. Pulsifer, rightly or not, that she would bump him and return to the position of Court Support Worker if she did not succeed in being appointed as the permanent Manager of the Unit. As Mr. Gilbert argues, the Hospital here has furnished no documentary or other evidence that the appointment of Mr. Dorrance to the position of Court Support Worker in September of 2005 was anything but a permanent one. In contrast, the evidence from the Union side suggests that there was never originally any intention that his appointment would be considered temporary. In particular, the Union referred to the testimony of Ms. Perkovic, who had completed the Hospital transfer notice form, which made no reference at all to his being transferred temporarily to the Court Support Worker's position and, instead, showed "N/A" as the entry made in the form. Also, in that regard, reference was made, inter alia, to the fact that the employer printed business cards, and Mr. Dorrance was introduced by Ms. Pulsifer, during the orientation period, as the new Court Support Worker, not as the "Acting" Court Support Worker, and as her replacement. Mr. Gilbert also points to the fact that the grievor was ordered by the Acting Manager, in early October, to empty his previous office at the Hospital, and then, still later, was told by her that the position was his, which happened during a conversation Ms. Pulsifer said she could not recollect. The Union also points to the fact that none of the documentation pertaining to the appointment of Ms. Pulsifer as the Acting Manager of Forensics makes reference to the possibility of her being able to revert to the Court Support Worker's position, and, Mr. Gilbert argues, the e-mail notice Ms. Pulsifer sent to staff in the Forensic Unit in early December should be taken purely as a self-serving document. -15- The Union points out that that information was subsequently contradicted by the notation in the Minutes from the January 5, 2006, staff meeting, which refers to Mr. Dorrance as the incumbent Court Support Worker, and clearly indicates that as being his status within the Forensic Unit's staff complement. Those same Minutes refer to Ms. Pulsifer's status as that of an RN in the Forensic Outpatient Functional Centre with an office located at the Hospital, and, Mr. Gilbert suggests, the evidence of Ms. Pulsifer that the Minutes were intended to indicate something other than what the plain wording suggests, should receive no credit in view of her inability to recall other significant details. In particular, reference was made to the fact she had no recollection whatsoever of having attended meetings at the Courthouse in the period while she was Acting Manager. Also, in regard to the characterization of the grievor's position as the Court Support Worker, Mr. Gilbert suggests that, had the intention of management in fact been from the outset to return Mr. Dorrance to the Hospital and have Ms. Pulsifer return to the Court Support Worker's position, he would not have been ordered to vacate his old office. Likewise, it is argued, he would have been left with a position to return to at the Hospital, but that was not the case according to Ms. Pulsifer's testimony to the effect that the grievor's position as part of the Forensic Unit's complement had gone with him to the Courthouse. Those elements of the evidence, Mr. Gilbert argues, show that the grievor was never intended as having been temporarily transferred. It is the Union's position that, when he was reassigned and his position within the Forensic Unit's complement went to the Courthouse, that was an admission that he had been permanently transferred as a Social Work staff member and not reassigned as a temporary replacement. Where there is any conflict in the evidence, Mr. Gilbert argues, the testimony of the -16- grievor is to be preferred because Mr. Dorrance gave evidence in a straightforward and credible manner as a witness, rather than as an advocate for his position, in contrast to employer witnesses. The Union in that regard points to the fact that he spoke against his interest when he testified to his having believed that his transfer to the Courthouse position could have been temporary, based on an earlier conversation with Ms. Pulsifer, in which she told him about the possibility of her bumping back into the position of Court Support Worker. Although it was open to the Hospital to have called the Director of the Forensic Unit, Mr. Gilbert argues that there should be an adverse inference taken from the fact that Dr. Sheppard was not called as a witness, and, in this case, the inference would be that his evidence would not have contradicted the grievor's. The Union also points out that the new manager, Ms. Lazinski, who apparently made the decision to remove Mr. Dorrance from the position of Court Support Worker in January of 2006, was not able to indicate clearly what led her to believe that Ms. Pulsifer had a superior right to the position of Court Support Worker, and, Mr. Gilbert suggests, more significantly, she was unable to specify, in regard to the collective agreement, the basis upon which she determined it was O.K. for her to return Ms. Pulsifer to that position. She also could not recall for certain whether or not she had discussed the situation with Ms. Marshall, the Senior Vice-President for Patient Care Services. Further, Mr. Gilbert argues, the fact that Mr. Dorrance was ordered to return to the Hospital, but without any specific work being assigned him, and his having been told by Ms. Lazinski to vacate the Courthouse position immediately, is evidence that there was never some prior intention or plan for his return to the Hospital. The Union in argument concedes that the Hospital has authority to remove an employee from a position "for cause" or for some valid business purpose but, in the case -17- here, Mr. Gilbert submits, neither of those situations has arisen. Furthermore, it is argued, the Court Support Worker's position that is historically a job done by OPSEU members is bargaining unit work that the Hospital cannot simply assign unilaterally to a person not from this bargaining unit. While the Hospital's opening position was that its ability to assign work is an unfettered right, the Union submits that there are restrictions, such as the posting provisions. Particularly in this case, since the work at the Courthouse was necessary and being continued, it is reasonable to conclude that there was a vacancy, and that Mr. Dorrance was selected to fill the vacant position. Even if the employer suggests that it merely granted rights given to Ms. Pulsifer under the nursing collective agreement, Mr. Gilbert submits that is an irrelevant consideration here because my jurisdiction as arbitrator is strictly limited to deciding the dispute here as one that has arisen under the OPSEU collective agreement. Based on the foregoing, the Union is asking that the grievor, Mr. Dorrance, be reinstated into the position of Court Support Worker, with compensation for any mileage and parking costs that have arisen following his return to the Hospital site. 5. Hospital Argument The Hospital's position in argument is based on the premise that no employee has a right to any particular job and, therefore, that the Hospital as an employer has the ultimate authority and complete latitude in making work assignments pursuant to the wording in the management's rights provisions of this collective agreement. The Union's argument that any employee has a superior right or can claim to hold a permanent position is, Mr. Johansen submits, a "wrong-footed one" because no such concepts appear in the language of this collective agreement. The wage grid, for example, does not identify or link particular jobs and classifications, and there is no reference made to the position of Court Support Worker -18- which, as counsel argues, belies the claim made by the Union in this case that that is a position within the OPSEU bargaining unit. Also, counsel points out, the evidence here is that the position of Court Support Worker in the past had been filled by Occupational therapists, RPNs and RNs, and Social Work staff, subject only to a skill and ability requirement. From that, counsel argues, no union has a specific right or claim to that job function. To support the Hospital's position in argument counsel referred specifically to the case of Re Gates Canada Inc. and United Rubber Workers, Local?33 (1989),6 L.A.C. (4th) 435 (Hunter), and, in particular, to the passage in which the arbitrator wrote as follows: It is well accepted that absent specific restrictions in the collective agreement or a statutory prohibition, an employer, provided he acts in good faith, has the right to make assignments of work functions to, within or across job classifications. Leaving aside questions such as seniority and the right to payment of appropriate wages, no employee has the right to a particular job function: see Brown and Beatty, Canadian Labour Arbitration, 2nd ed. (1984), para. 5:2000, pp. 224-7. Here, Mr. Gilbert argues, the Management's Rights clause, found in Article 3.01 of the Local agreement, specifically states that "the management. . . and direction of the working force are fixed exclusively with the Employer and shall remain solely with the Employer" and that "it is the exclusive function of the Employer to . . . transfer, [and] assign duties" for employees, subject only to the words, "except as specifically limited by an expressed provision of this agreement". In this case, it is suggested, the position of Court Support Worker is one of many jobs in the Forensic Unit, the work of which the Hospital can choose to have performed as it sees fit, since no employee has the right to claim the Court Support Worker's position or indeed any particular job in the Forensic Unit. To support the Hospital position, in further argument Mr. Johansen also cites the following cases: Re Sudbury Mine, Mill & Smelter Workers, Local 598 & Falconbridge Nickel -19- Mines Ltd. (1959),10 L.A.C. 189 (Little), a case in which an employee grieved his removal from a job which also involved the removal of his classification; Re United Automobile Workers, Local 641, and Sperry Gyroscope Ottawa Ltd. (1965), 15 L.A.C. 398 (Reville), in which employee job duties were given to employees in a lower classification; Re United Steelworkers and Algoma Steel Corp. (1968), 19 L.A.C. 236 (Weiler), where an employee was transferred ("regressed") to a lower-rated job when the departmental workload had declined; Re Windsor Public Utilities Commission and International Brotherhood of Electrical Workers, Local911 (1974), 7 L.A.C. (2d) 380 (Adams), a case in which job functions within classifications and some classifications had been altered or eliminated; Re International Nickel Co. of Canada Ltd. and United Steelworkers, Local 6500 (1975),8 L.A.C. (2d) 34 (Brandt), a case in which employees were reassigned to other shift duties within the classification of electrician; Re Camp Hill Medical Centre and Nova Scotia Nurses' Union (1996), 53 L.A.C. (4th) 314 (Slone), a case involving reassignment of nursing staff to a different location within their classification; Pinehurst Woodworking Co. v. Allied and IWA- Canada, [1998] O.L.A.A. No. 238 (Picher), where there was a dispute about work assignment within classification; u.F.C. W., Local 175 v. Cuddy Food Products Ltd. [2003] L.V.1. 3404-10 (MacDowell), another case in which the arbitrator discussed the issue of assigning work within or among job classifications; St. Joseph's Hospital v. Service Employees Union, Local 210 (1997),35 OR. (3d) 91, [1997] O.J. No. 3140 (Ont. C.A.), a case in which the Union unsuccessfully challenged the employer's decision not to post a vacancy and to reassign work within another bargaining unit; and Re Falconbridge Nickel Mines Ltd. and United Steelworkers of America (1972), 30 D.L.R. (3d) 412 (Ont. C.A.), a case in which the Court determined that a board of arbitration had usurped a management -20- function and exceeded its jurisdiction in finding a violation of the job-posting process under the collective agreement. Those cases, specifically and cumulatively, Mr. Johansen submits, indicate that it is an employer's exclusive management right to assign work, a right which can only be limited or impinged upon by clear language in the collective agreement. As to the Union's assertion that the grievor was not appointed temporarily but permanently to the position of Court Support Worker, Mr. Johansen suggests the evidence on that point from the grievor himself was that he knew that he was originally assigned temporarily to the position when he acknowledged having been told by Ms. Pulsifer that she would bump him to return to the previous position if she did not succeed in her application for the permanent position as Manager of the Forensic Unit. Also, it is suggested, the wording of article 3.01 is clear in that the Hospital has the right as it sees fit to appoint persons to that position, with the result that this arbitrator would have no jurisdiction to return Mr. Dorrance to the position, as the Union here requested. From that, counsel suggests, the concept of an employee being permanently assigned is itself at odds with the collective agreement, and the Union's suggestion that the collective agreement fetters management's right to assign persons to the Courthouse position has no support in this collective agreement. 6. Union Reply Argument In reply argument, the Union submits that the Hospital's reliance exclusively on the Management's Rights provision is weakened by the fact that there are collective-agreement limits in place, since, for example, the Hospital's right to promote is subject to the layoff provisions as well as the job-posting and seniority provisions of the collective agreement. Also, it is argued, the ability of management to transfer employees is limited by the general -21- requirement that an employer may not act arbitrarily or in bad faith in the administration of the collective agreement. Likewise, Mr. Gilbert argues, the right to transfer employees is also subject to the terms of article 13.07, which specifies that, in all promotions and transfers, there shall be a trial period of up to 60 days, during which the Hospital may remove the employee, after which the employer no longer has that right because the employee will then be deemed to be confirmed in the position to which he or she was transferred. If the argument made by counsel for the Hospital were to prevail, Mr. Gilbert suggests, that would leave it open to the employer to go through the job-selection process and, if the Hospital did not like the senior person promoted, it could the next day transfer another employee whom it may prefer to have in the job. In the case here, Mr. Dorrance was not removed for cause and the employer has not argued here that it had any valid business reason, such as incompetence, for his being removed from the position of Court Support Worker, these being the only two obvious circumstances in which it is recognized that an employer could unilaterally remove an employee. In regard to the cases cited by Hospital counsel, Mr. Gilbert suggests, while the Union recognizes that the employer has the right to make work assignments, those cases indicate that the exercise of those rights will be subject to any limits imposed by the collective agreement, as virtually all of the cases cited recognize. But, Mr. Gilbert submits, those cases are all distinguishable on their facts from this present case. This case, for example, does not involve any reduction in work that might have necessitated transferring and reassigning employees because the work of Court Support Worker continued and the employer required that job to be filled. Finally, Mr. Gilbert argues, the Court of Appeal's decision in Falconbridge has been overtaken in later cases, with the result that it is now recognized that arbitrators do have jurisdiction to review -22- management's decisions and make remedial orders except where a collective agreement provides specifically that particular decisions are to be made solely and exclusively within management's discretion and are not reviewable. Decision It goes without saying, and I appreciate receiving submissions made by the parties' representatives. What serves to differentiate and distinguish this case from the cases cited earlier are the unusual if not unique factual circumstances present here. The representatives of both parties have stipulated and stated clearly and unequivocally that the position of Court Support Worker is one that has historically been filled from among a number of classifications within the Forensic Unit's staff complement, all of whom have also been members of the OPSEU bargaining unit. All of them were previously members of the Forensic staff at Lakehead Psychiatric Hospital and some, like the grievor and Ms. Pulsifer, remained as staff members upon the merger of the Forensic Unit in 2005 into the Thunder Bay Regional Health Sciences Centre. For example, as was pointed out in evidence, Ms. Pulsifer started as the Forensic Unit's Court Support Worker in January of 2005 prior to the merger and while still affiliated with Lakehead Psychiatric Hospital. She was at the time a member of the OPSEU bargaining unit but, following the merger, she then became a member of the O.N.A. bargaining unit. This case is also distinctive by virtue of what is lacking in the evidence. For example, there is no evidence to indicate that the parties ever negotiated or paid any attention to the question of which bargaining unit should represent the Court Support Worker. Simply put, there was no evidence before me concerning any collective-bargaining negotiations or other discussions that may have taken place on that matter when the merger took place. When Ms. Pulsifer left the Court Support Worker's -23- position and took over as Acting Manager of the Forensic Unit, the documentary evidence indicates that she then was considered as being outside of the O.N.A. bargaining unit by virtue of the fact that she occupied a managerial position. When Mr. Dorrance was transferred and moved to the position of Court Support Worker, he apparently came to that job as a result of a selection process that may have been less formal than the posting process in the collective agreement seems to require, but the evidence, again not in dispute, was that the position was being offered to other members of the Forensic Unit. While there was some questioning about the propriety of the selection process, Hospital witnesses indicated that at least one other candidate was considered, and the grievor, too, testified that he had gone through a two-part process, which ultimately led to his being selected for the position. He also described discussions he had at the time with the Director, Dr. Sheppard, and later. None of that evidence was contradicted. As the evidence stands in the case now before me, I find and conclude, despite there having been some doubt raised about the process, that Mr. Dorrance was the accepted and chosen candidate for the job and that he was properly and legitimately installed in the position of Court Support Worker in early September of 2005. It is also my conclusion from the evidence that, when he took over that position, he was selected for the purpose of filling a vacancy that arose when Ms. Pulsifer left the position to take on the role of Acting Manager in the Forensic Unit. Where there are conflicts in the evidence as between the grievor and others, I am compelled to accept the testimony of Mr. Dorrance, whose ability to recall events was impressive, and his evidence and testimony of the circumstances and events that are significant for this decision is, upon due and careful consideration, more consistent with the preponderance of the probabilities in the circumstances of this case. Other Hospital -24- witnesses also conceded the fact that there is no supporting documentation or other objective evidence available pertaining to the grievor's selection and appointment to fill the Court Support Worker's position. The key issue brought by the parties in this case is that concerning the tenure or status of Mr. Dorrance in the Court Support Worker's position. If it were the case that the grievor was "temporary" in the position of Court Support Worker, one would expect that there would be some clear evidence that his tenure was time limited, but there is no such evidence. There is, in fact, not a shred of evidence to support the contention from the Hospital side that Mr. Dorrance came to occupy that position as the temporary incumbent. Rather, as the evidence on both sides indicates that position is one the hospital requires to be filled on a continuing and, hence, permanent basis. In other words, the position itself is a permanent one, even if the incumbents do come and go. The only contentious evidence on that score came from Ms. Pulsifer and the grievor, both of whom indicated that there was an early conversation in which the former had apparently told the latter that she intended to "bump back" to the Court Support Worker's position if she did not succeed in the selection process for the position as permanent Manager of the Unit. That, of course, begs the question of her right, if any, to do so. That evidence was countered subsequently by the grievor's testimony that, in a later conversation, after having submitted her application for the permanent post, Ms. Pulsifer indicated to him that the job of Court Support Worker was his and that she did not intend to return to the latter position. While testifying, Ms. Pulsifer was able to deny but unable to recall that conversation as having taken place, as Mr. Dorrance recalled, in the parking lot outside the Courthouse. Indeed, she could not recall any meetings with the grievor at the Courthouse, following his orientation, but documentary -25- evidence showed that she had attended several meetings there while Mr. Dorrance served as the Court Support Worker. Other circumstantial evidence supports a conclusion that Mr. Dorrance was formally and permanently, as opposed to "temporarily" reassigned, including, most significantly, his having been ordered by Ms. Pulsifer in early October to remove any remaining personal effects from his former office at the Hospital. There is also Ms. Pulsifer's frank acknowledgement that the grievor's position within the Hospital's Forensics staff complement had gone, when he did, to the Courthouse, which as the Union suggested, can only be taken to mean that there was no other position held open for him to re-occupy and to which he was expected to return at the Hospital. There was in this case no doubt or any question about the ability or competence of the grievor to fill the position of Court Support Worker, as indeed there was no doubt concerning the skill or ability of Ms. Pulsifer in that role or in her role as Acting Manager in the Forensic Unit. Indeed, in the course of testifying, the grievor acknowledged his respect for the capable work she did as Acting Manager, and Ms. Pulsifer in turn acknowledged that the grievor had done a good job in the role of Court Support Worker. My conclusion from the facts here is that the grievor, Mr. Dorrance, in addition to his having been properly selected to fill the position of Court Support Worker, was properly placed and fulfilling that role as the intended successor to Ms. Pulsifer. With no objective supporting evidence, I cannot conclude, as the Hospital suggests, that the grievor was transferred and assigned to do that job temporarily, which in its very nature appears to contradict such an assertion, since that is a post the Hospital must permanently fill, as opposed to filling it temporarily. Indeed, the selection of Mr. Dorrance to fill the role of Court Support Worker seems to follow and appears to be consistent with the previous history and practice of having that position -26- filled from among Forensic staff who are members of the OPSEU bargaining unit, and who then were assigned to the position until either they chose to leave or were removed for performance reasons. Counsel for the Hospital, quite correctly, argued as a fundamental principle that arbitrators generally accept and recognize that an employer has discretion in the assignment of work. But, as well, the cases cited show that recognition of that principle by arbitrators may sometimes be constrained or qualified by other negotiated terms of the collective agreement that may impinge upon and restrict management's scope in the exercise of such discretion. In addition to the provisions alluded to earlier, this collective agreement contains several other important and relevant provisions which serve to reveal the parties' intention in earlier sets of negotiations. The terms next referred to have to do with the scope of the employer's ability to assign work to excluded persons or persons from outside of the bargaining unit. For example, in the OPSEU "Central" collective agreement, the section entitled Article 22-Contracting Out specifies: 22.01 The Hospital shall not contract out work currently performed by members of this bargaining unit if, as a result of such contracting out, a layoff of any bargaining unit employee occurs. This clause will not apply in circumstances when the Hospital no longer provides particular services as a result of the rationalization or sharing of services between Hospitals in a particular geographic district, or as a result of the withdrawal of the Hospital's license to perform such services. That provision has limited application in the circumstances of this case other than to illustrate the fact that the parties have previously negotiated on the subject in the past and that the parties have adopted language aimed at preserving and protecting bargaining unit work, or what is referred to there as "work currently performed by members of this bargaining unit". The more relevant provision here appears in Article 23-Work of the -27- Bargaining Unit, which specifies as follows: (The following clause will appear in all collective agreements replacing any provision related to work of the Bargaining Unit that existed in the Hospital's expiring collective agreement:) 23.01 Supervisors or Managers excluded from the bargaining unit shall not perform duties normally performed by members of the bargaining unit which shall directly cause or result in the layoff, loss of seniority or service or reduction in benefits to members in the bargaining unit. (Emphasis added.) It goes without saying that in most cases an arbitrator is, as Article 8.12 in this collective agreement states, prevented from deciding issues not within the scope of the collective agreement or from altering or adding to any of the terms of the collective agreement. On the other hand, an arbitrator is sometimes called upon in a particular case to have regard to and to apply specific, relevant terms of the collective agreement that have been negotiated by the parties. It is abundantly clear in the case here that the parties have previously considered and negotiated on the matter of the work of the bargaining unit, which is a matter well within the scope and nature of the issues now before me. To put the matter succinctly, Article 23.01 in my view is sufficiently broad in its scope as to encompass the factual circumstances that have occupied the attention of the parties in this case. Beyond the factual conclusions reached earlier, the basic facts in evidence on the remaining issues are not disputed. Mr. Dorrance was removed from his position as the Court Support Worker by the new Manager and Ms. Pulsifer was reinstated or permitted to re-occupy that position. Was that decision appropriate and was the Hospital free to exercise its management discretion so as to effect those transfers? I think not. At the time, Ms. Pulsifer was leaving the position she had occupied and that was a management position outside of her own bargaining unit. Under this collective agreement, frankly I am at a loss -28- to understand on what basis the Hospital's decision was made. The words emphasized above in Article 23.01 are clear and unequivocal. The Hospital is simply not permitted to assign "duties normally performed by members of the bargaining unit" to such excluded persons if there is resulting detriment as specified in Article 23.01. The evidence pertaining to the history and practice of selecting the Court Support Worker from among staff in the Forensic Unit was unequivocal in that all of the persons previously selected were at the time members of the OPSEU bargaining unit. That evidence supports a conclusion that the job of Court Support Worker is and has historically been considered as work "normally performed by members of the bargaining unit". The decision to effect the removal of Mr. Dorrance and his replacement by Ms. Pulsifer in January of 2006 means that the latter, who was a manager as well as a member of another bargaining unit, was somehow considered eligible to "bump" and thus to preempt the grievor's appointment and selection after he was legitimately chosen and assigned to the position of Court Support Worker. The evidence also showed that, for a brief period in January of 2006, when Mr. Dorrance went back to the Hospital, he was there in the Forensic Unit but without having been assigned any work. That, of course, left him somewhere just short of being actually laid off. If the latter moves were to be considered as an appropriate exercise of management's discretion in regard to assigning work, the Hospital's decision needs to find support within the terms of the collective agreement. In my view, faced with the very strong language in Article 23.01 constraining management's discretion, it appears that the proscription negotiated there went unheeded. However, the unilateral decision leading to the removal of Mr. Dorrance from the position of Court Support Worker and the installation of Ms. Pulsifer in that post, I find, was improper. One can only conclude that that decision offends the clear language of Article -29- 23.01. That is so because, if the position previously filled by OPSEU members and latterly by the grievor came to be filled bya manager, who is now also from a different bargaining unit, that would lead inevitably to a consequent "reduction in benefits to members in the bargaining unit," under Article 23.01, because the loss of that position and the loss of the opportunity it affords to members of the OPSEU bargaining unit to occupy that post, as historically has been the case, would inevitably be the result. As arbitrator, I have jurisdiction and authority to interpret and apply the terms of this collective agreement and to order a remedy. It goes without saying that I do not have jurisdiction to apply any terms of the O.N.A. collective agreement in Ms. Pulsifer's behalf, however. It is my decision, and I so find and conclude here, that the decision made concerning the grievor's removal from the position of Court Support Worker caused a breach of the negotiated terms of Article 23.01. Hence, that decision must be reversed. It is also my order, therefore, that Mr. Dorrance shall be returned immediately to the position of Court Support Worker and be paid appropriate compensation. I shall remain seized pending implementation of the terms of this Award. Dated at Elora the 29'h day of January, 2001 \ 'Lc 41~L, PAUL HAEFLlNG