HomeMy WebLinkAboutUnion/Group 19-03-31IN THE MATTER OF AN ARBITRATION
UNDER THE LABOUR RELATION ACT
B E T W E E N
CHATHAM-KENT CHILDREN’S SERVICES
(“the Employer or CKCS”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION LOCAL 148
(“the Union”)
Grievances filed on behalf of the Union and the Individual Grievors:
Angela Elley, Stephanie Klingbile, Chris LeClair, Alana Levesque, Kimberly Mugridge
Liz Perry, Melinda Pilbeam, Ryan Pretty, Karrie Spotton
(referred collectively as “the Grievors”)
SOLE ARBITRATOR: Colin Johnston
APPEARANCES:
For the Employer: Gillian Howe, Counsel
For the Union: Tim Hannigan, Counsel
Hearings held in Chatham on December 11, 2017
January 18, 19, March 2, 3, 7, April 4, 16, May 3, June 25, August 3, 4, 16
October 2, 3, 25, November 6, 9, December 12 and 20, 2018
AWARD
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I was appointed by the Minister of Labour to hear a number of grievances filed on behalf of the
Union and nine individual Grievors.
The Grievors were laid off from their respective positions with the Chatham Kent Children’s’
Service (“CKCS” or “the Employer”) in October 2017. The Grievors positions were eliminated
and replaced by two new classifications, the Child and Family Wellbeing Worker (“CFW”) and
the Volunteer and Drive Coordinator (“V&DC”).
The grievances challenge the Employer’s refusal to permit the Grievors to transfer into these
new classifications. The Employer denied the transfers on the basis that the Grievors’ lacked
the experience and academic qualifications to perform the new roles. The Union challenges
that assertion.
Background
The Grievors received notice of layoff on August 14, 2017 taking effect on October 27, 2017.
The Union does not dispute that the Employer provided the proper notice for the layoffs.
Seven of the nine Grievors worked on the Child and Family Wellbeing Team which consisted of
staff in three different classifications Supervised Access Worker (“SAW”), Supportive Foster
Care Worker (“SFCW ”) and Protection Support Worker (“PSW”). These three classifications
were eliminated and replaced with the new role of Child and Family Wellbeing Worker.
The role of the SAW position was to supervise court ordered access visits to ensure a safe and
meaningful visit. The SAW s also supervised sibling meetings. The role of the SFCW position
was to support children in foster care, to provide respite time for the foster parents, accompany
children to various appointments, and work with children to develop various social and life skills.
The job of the PSW position was to work with parents to provide education and help them
improve their parenting skills to assist them in transitioning out of protection services.
At the time of the layoffs, there were three Grievors in the position of SAW, Kim Mugridge, Liz
Perry, Karrie Spotton; and four Grievors in the position of SFCW, Stephanie Klingbile, Alana
Levesque, Mindy Pilbeam and Chris LeClair. Among those laid off only Ms. Pilbeam was able
to successfully bump into another position. The other six Grievors were permanently laid off.
A total of 14 full-time CFW positions were created following the layoffs in October 2017. The
Grievors applied for these positions but were denied the jobs on the basis that they lacked the
minimum academic qualification. The qualification set for the new position was a three year
Child and Youth Worker (“CYW”) college level diploma. There was no dispute that the Grievors
vying for the CFW positions did not have a CYW diploma. Most had two year diplomas in Early
Child Education (“ECE”), Developmental Services’ Worker (“DSW ”) or Law & Security
Administration (L&SA). One of the Grievors had a Bachelor’s degree in Family and Social
Relations.
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The Employer did, however, permit other staff without a CYW diploma to transfer into the CFW
positions. These were staff in the PSW classification who the Employer deemed qualified for
the position based on their work experience.
The other two Grievors worked in the volunteer program. Angela Elley held the position of
volunteer coordinator (“VC”) and Ryan Pretty was in the role of volunteer drive coordinator
(“VDC”). Both of their positions were eliminated and merged into a single job, volunteer & drive
coordinator. Ms. Elley was able to successfully transfer into that position, whereas Mr. Pretty
was permanently laid off.
With the exception of Ms. Elley, the Grievors all seek the right to transfer into the new positions.
The Grievors
All nine Grievors testified in this case and provided lengthy will say statements that were
entered into evidence by mutual agreement. What follows is a fairly detailed account of the
Grievors’ evidence. The reason for providing this level of detail is important to the outcome of
this case, as it rests largely on whether the Grievors had the necessary skill and ability to move
into the new positions.
Kim Mugridge
Ms. Mugridge began her employment with CKCS in September 2004 as a foster parent trainer.
In 2004, she moved to the position of residential group home worker, a job she held until 2009
when the group home closed. In 2009, she transferred into the role of foster care and adoption
family recruitment and remained in that position until 2013 when the position was eliminated. In
April 2014, she moved into the position of SAW where she remained until her layoff in October
2017.
As to her academic qualifications, Ms. Mugridge holds a diploma in Law and Security from St.
Clair College. She began taking courses towards a Bachelor of Social Work in 2011 which she
continues to work on.
Prior to her employment at CKCS, she worked as a legal secretary from 1993 to 1994. She
also owned and operated a daycare facility from 1994 to 2010 which cared for children between
the ages of 6 months to 5 years. She explained that her clients at the daycare included children
with special needs, as well as, children in the care of child protection services.
Between 2014 and 2017, the Grievor worked in the position of SAW. She described how during
that period the position of SAW had evolved from a punitive approach toward a more family-
centered model. Under the old model, the supervised access visits were mostly done on-site.
With the move toward a family-centered approach, access visits began to take place in a variety
of settings including, the parent’s biological home, Ontario Early Education Centers, or out in the
community (e.g. public library).
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The Grievor described how her job duties evolved over time. At first her role was simply to
observe and document the visits as per the mandate of the court order. This began to change
and her role became more interventionist. She spent a lot of time role-modeling for the parents,
educating them on proper parenting skills.
She described how many of her clients came with severe mental and physical challenges. She
provided an example of a father with a brain injury. He had difficulty holding and feeding his
baby. The Grievor spent a lot of time during the home visits teaching him these skills, as well as
helping him with other tasks such as laundry, cleaning his home, using a food bank and
navigating the bus schedule.
As part of her duties as a SAW, she was required to prepare affidavits for the purpose of court
proceedings. Not all of the SAWs had the opportunity to do this, but the Grievor testified that
she had experience performing this task. In at least one case she appeared as a witness in
court on behalf of the agency.
The Grievor explained that the SAWs worked in collaboration with the child protection worker
(“CSW”). If a child exhibited behaviors that were of concern to the Grievor, she would consult
with the CSW to discuss the matter.
As a SAW, she participated in collaborative conferences with the family and other staff including
the PSW, CSW and a supervisor. As the name suggested, the meetings were meant to be a
collaborative effort to identify specific goals to work on with the families. The group would
discuss the family’s strengths and any concerns that had arisen. As a SAW, the Grievor would
be asked to provide input as to her observations during the access visits.
The Grievor spoke about doing her own research to provide resources to families who needed
information on different topics. For example, she provided written material on breast feeding to
one client who was having difficulty in that area. She provided information on the Canada Food
Guide to another client to help them with healthy meal choices.
In terms of providing resources to families, the Grievor explained that this was done on her own
initiative. She would often consult with the PSW or CSW before sharing information and would
ask them to recommend resources to share with the families. The material she offered was
found on the internet or obtained from outside organizations such as the OYEC and the Public
Health Unit.
The Grievor described that one of the roles of the SAW s was to mentor students from the CYW
program. The students would shadow with the SAW as part of their job placement. The Union
highlighted this fact because it was the graduates of this program who went into the CFW
positions following the layoffs.
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The Union pointed to the Grievor’s performance evaluations in the SAW role to demonstrate the
true nature of the work she performed. The evaluations made specific reference to the fact that
the Grievor was involved in modeling positive parenting approaches for families, and that she
attended and participated in collaborative planning conferences. In one evaluation, her
supervisor commented on the “excellent job” she was doing highlighting family’s strengths and
providing recommendations to build on those strengths.
In another appraisal, her supervisor commented on how the Grievor exercised good judgement
in knowing how to best support families based on their needs. The supervisor went on to state
that the Grievor maintained knowledge of relevant research, resources and social trends to
support her work. The Union highlighted this evidence to demonstrate that the work the Grievor
performed was not simply to observe and document access visits; rather her job was to help
educate the families she worked with and to role model positive parenting skills.
The Grievor testified at length about her involvement in the Mother Goose program. This is a
ten week program that many of the Grievors were involved with as facilitators. The program is
meant to enhance child-parent attachment through songs and games in a group setting. The
Grievor facilitated Mother Goose groups from 2015 to 2017.
There was also much evidence regarding the Signs of Safety approach that was being
introduced into child protection services. The Employer submitted that the CFWs were required
to use the Signs of Safety model in their work and that the Grievors lack this experience.
Ms. Mugridge disputed this assertion, describing how the Signs of Safety model began to be
incorporated into her access visits. Her supervisor, Ms. Udzbinac provided training on the new
model and discussed how staff could incorporate components of the program into the
supervised access visits.
Another issue that was raised was the level of documentation. The Employer submitted the
Grievors’ documentation was fairly basic. The SAW s were only responsible for completing
contact logs. The logs summarized what occurred during the access visits. The SAW s were
not responsible for completing closing summaries. The Grievor did not dispute that in her role
as a SAW she did not complete closing summaries. However, in her role as a group home
worker, Ms. Mugridge was responsible for preparing closing summaries as part of her job
duties.
The Employer submitted that the SAW s were not responsible for developing plans of care. Ms.
Mugridge again did not dispute this claim, but stated that as a group home worker she was
responsible for developing and maintaining individual plans of care for each child in the home.
This was done in consultation with a child protection worker.
The Grievor explained that as a group home worker, she had a lot of experience working with
children with separation anxiety and attachment disorders. This included two children for whom
she eventually adopted through the agency. Both suffer from attachment disorder.
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The Grievor described the children and youth in the group home setting as being very
challenging; most could not live in a regular foster home setting due to behavioral issues. There
were up to ten youth living in the group home where she worked, their ages ranged from 12 to
18 years. These were kids who frequently had anger issues or drug and alcohol problems.
Some had been suspended from school. Others were in trouble with the law.
Her job was to be a parent role model in the home. She taught children life skills, social skills
and anger management strategies. The older youth were taught financial literacy, how to cook,
how to find an apartment, how to manage a budget, among other life skills.
At the group home, the staff was required to complete daily logs for each child. They worked
with the CSW to develop and implement plans of care for the children. The plans included
goals to work on with the child or youth.
I heard much evidence about the concept of SMART goals. SMART is an acronym referring to
specific, measurable, achievable, relevant and time-based goals. The Employer asserted that
the worked performed by the CFW s involved the implementation of SMART goals; something
the Grievors had no experience with. Ms. Mugridge explained that the goals she worked on
may not have been identified as SMART goals per se but they incorporated many of the
components of what may be described as SMART goals. She cited as example the work she
did . The goals she worked on with this client were well-
defined and time specific.
The Grievor listed the in-house training opportunities she attended during her time at CKCS
which included training in:
Signs of Safety
Parent-Child Mother Goose program
Incredible Years
Parent Resources Information Development and Education (PRIDE)
OACAS Advanced Facilitation
OACAS Compassion Fatigue and Vicarious Trauma
OACAS Kin Family Connections
Mennonite Cultural Sensitivity
Aboriginal training
Case Note training
One of the training opportunities that the Grievor completed, the PRIDE program was used to
train staff who worked with parents interested in fostering children through the agency. The
program ran for nine weeks and covered topics on attachment issues, strengthening family
relations, and the dynamics of foster, biological and kin placements.
The Grievor discussed the importance of the cultural training she received. She completed a
course on Mennonite culture which focused on family relations and religious practices. The
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Mennonite community has a large presence in the Chatham-Kent area. They tend to have large
families and present unique challenges when they are clients of the agency.
The Grievor also received training on Aboriginal communities which focused on the role of
native culture, traditions and philosophies on parenting. The course also discussed the
importance of the Band Council in the interaction with child welfare services. This was
significant for the work she performed as there is a large indigenous population in the Chatham-
Kent region.
In sum, the Grievor submitted that her thirteen years working in the field of child protection and
experience outside the workplace provided her with the necessary skill and ability to transition
into the CFW position.
Stephanie Klingbile
Ms. Klingbile began her career with CKCS in June 2003 as a treatment home support worker, a
position she held until 2010. During this period, the Grievor also held the position of
developmental support worker from 2007 to 2008; and worked briefly as a SAW in June 2007.
From September 2010 until her layoff in 2017, the Grievor worked in the position of SFCW.
Prior to her employment with CKCS, she worked as an early childhood educator at the
Southwest Regional Centre daycare program from 1992 to 2003. Ms. Klingbile obtained her
Early Childhood Education diploma from Lambton College. Since completing her college
diploma, she has taken a number of university courses in psychology, social welfare, biology,
and philosophy.
The Grievor’s work experience included an eight month contract working as a developmental
support worker (“DSW”) from October 2007 to May 2008. The role of the DSW was to provide
one-on-one services to high needs children in a daycare or school setting to ensure their safety
and helping them to integrate into the classroom. Many of these children had severe
disabilities. The DSW would interact with the parents before and after school.
The Grievor participated in a number of training opportunities through CKCS including courses
in:
Prevention and Management of Aggressive Behavior
Obsessive Compulsive Disorder
CPRI Training Facilitating Groups
OEYC training
Case Note training
Trauma and Difficult Behavior
Best Practice Sexual Offender Cases
Emotional Regulation
Supporting Youth Who Age out of Care
Attachment and Techniques to Promote Attachment
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Collaborative and Pro-active Solution Techniques
Using Applied Behavior Analysis in the Home
Mother Goose
Signs of Safety training
Ms. Klingbile conceded that some of the sessions listed above were webinars which were one
to three hours in length; however, other programs involved multiple day training. For example,
the CPRI training was made up of five – three hour sessions involving training on behavioral
modification strategies to assist children with ADHD. The ADHD Collaborative Conference was
held over an entire weekend and the Trauma training consisted of seven sessions dealing with
childhood trauma.
The Facilitating Groups training consisted of four sessions in developing skills to facilitate both
small and large groups. The Clinical Application Attachment Theory program was an all-day
conference where participants learned the principles of attachment theory. The Aboriginal
training was an all-day session with a presentation from the members of the local aboriginal
community. The Advanced Signs of Safety training was a three day program where the group
worked on a case file, from start to finish and applied the principles of Signs of Safety.
Like many of the other Grievors, Ms. Klingbile was a certified Mother Goose teacher which
required that she facilitate at least thirty mother goose classes. The training to become certified
for this program was completed over two weekends.
With respect to her work in the SFCW role, the Grievor testified that she would participate in
monthly meeting connects with a psychologist from Sick Kids Hospital in Toronto. These were
team meetings to discuss children in the foster program. The group would discuss behavioral
issues regarding their foster care clients, including, anger management issues, sexual red flags,
mental health concerns, and attachment issues. Her role in these meetings was to provide input
and insight into any issues or concerns involving her clients so her team could identify goals for
individual youth.
The Grievor spoke about her role as treatment home support worker from 2003 to 2013. She
did not dispute the Employer’s claim that her job was to co-parent with the foster parent in
charge of the home. She would go into the homes of foster families and assist with the
parenting. This often involved children with high needs who could not live in a normal foster
home environment.
As a SFCW, she assisted children in the home with completing chores and doing homework.
She also assisted the family with meal preparation. Outside of the home, she provided
transportation to the child to and from school, extra-curricular activities, medical appointments
and other activities outside the home. She explained that her job was not simply to taxi children
around to appointments. She worked with them to develop life skills, communication skills,
problem-solving, anger management strategies, understanding of proper boundaries, and other
developmental issues.
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She rejected the Employer’s claim that her role in this position lacked specific goals. She
described how she would work with children on anger management issues, maintaining proper
boundaries, and proper hygiene. All of these were specific goals. She collaborated with the
CSW and community partners including, teachers, doctors, counsellors among others
professionals to assist in the child’s needs.
The Grievor discussed her use of evidence-based strategies to achieve goals with her clients.
She spoke of a client who had difficulty walking from her foster home to school. They
developed strategies to avoid distractions and used walkie-talkies for safety purposes. They
utilized a program called Brain-Wise to develop critical thinking skills, emotional regulation and
sexual boundaries. They put together a sixteen week plan with a goal to have the child walk to
school on their own without any assistance. The Grievor acknowledged that it was the CSW
who developed the plan but it was her responsibility to implement it. This meant breaking the
plan down into smaller more achievable targets.
The Grievor asserted that the goals she worked on with her foster clients, like the one described
above, were indeed SMART goals. The goals were specific, realistic and meant to be attainable
within a certain time frame. The achievement of the goals may not have been formerly
measured but any improvements or accomplishments with a child were assessed and
documented.
In her role as SFCW , the Grievor was involved in facilitating a number of groups for children
between the ages of 3 and 8 years including, the Little Peoples’ Group, Boys’ Group and Girls’
Group. For older children, there were group sessions on financial literacy and the summer
camp program.
The Grievor described one of the groups, the Boys’ Group which was for boys between the
ages of 8 to 13 years. The participants were selected often because of their extreme behavioral
activities. The program was highly structured with set goals to build social skills, boost self -
esteem, understand boundary issues, and to learn how to develop friendships. As a facilitator
of this program, the Grievor used evidence-based strategies to work on these goals with the
children.
She described another group, the Girls’ Group which was an older demographic ages 13 to 17
years. As a group they worked on a number of goals including body image, self -esteem,
sexuality, coping skills, dealing with peer pressure, and learning how to live independently.
These were all specific goals. As the facilitator, it was her job to implement the strategies to
educate and teach these skills to the participants of the program.
Many of youth that she worked with were in crisis, children who expressed suicidal thoughts,
and youth who would run away from home. She explained that it not unusual for her to get the
police involved with clients who threatened suicide or went missing from the foster home.
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As to plans of care, the Grievor acknowledged that the plans were developed by the CSW but
this was done with the input of the SFCWs who had the most contact with the child and was in
the best position to judge their strengths and the issues that needed to be addressed. There
were regular meetings to discuss and update plans of care based on the input provided by the
SFCWs.
The Grievor disputed the Employer’s claim that SFCW s only had contact with foster families.
As a SFCW , she had contact with both biological and kin family relations when she
accompanied foster children to meet with their parents or other relatives. She estimated that
she had approximately ten files assigned to her that involved contact with biological or kin
relations.
She explained that when a foster child reached a certain age, they would “age out” of CKCS
services. They would transition from the foster home to live on their own. It was the job of the
SFCWs to work with these youth to develop independent living skills. This required education
and skills training on financial literacy, finding employment, managing a budget, shopping, doing
laundry, cooking, and other life skills. Some of the youth were already living on their own while
in the agencies care. The SFCW s would assist youth finding apartments and support them if
they were facing eviction.
The Grievor testified about her involvement in the Ontario Child Benefit Equivalent program
which mandates funds to children between the ages of 15 and 18 who are in the care of the
agency. The children receive monthly funds to assist with post-secondary education and
personal living costs. The role of the SFCW was to assist the youth with money management,
budgeting and completing the documentation necessary to receive the funding. There were
specific benchmarks that the youth were required to meet in order to receive the funding. The
SFCWs role was to assist the youth in meeting these benchmarks in order to keep the funding.
The Grievor highlighted this work because the work involved meeting very specific goals as
mandated by the program.
As to documentation, the Grievor testified that as a SFCW she completed daily contact logs for
each child in her care. There were also 90 day reports that were completed by the SFCWs
which discussed the specific goals, the progress made on those goals, and the intervention
strategies used to achieve those goals. The SFCWs were also required to complete a closing
report for each file outlining the work done with the client and the success of that work.
She challenged the Employer’s assertion that she did not implement evidence-based strategies
for her foster clients. She described working one-on-one with youth to teach life skills such as
preparing meals, housekeeping, doing laundry or finishing school work. These were all specific
goals with measurable outcomes. The Grievor’s job was not simply to teach these skills but to
provide positive role modeling so the child could learn proper communication skills, problem-
solving skills, anger management, and other social skills.
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The Union highlighted one of the Grievor’s performance appraisals that praised her excellent
assessment skills and noted that her case notes were thorough and comprehensive.
As a SFCW , the Grievor provided one-on-one tutoring to children and youth that were in her
care. Many of these children struggled in school and had learning disabilities. It was her job to
engage the services of outside agencies to assist her clients and would collaborate with those
services.
The SFCW s were also involved in facilitating sibling visits. The Grievor described her work with
one indigenous family whose children were living in different foster homes. Her role was to
supervise visits among the siblings to maintain their relationship with one another and not lose
their culture.
The Grievor challenged the Employer’s assertion that she had no experience working with
children at risk of separation. One of the roles of SFCWs was to provide child care during
apprehensions by the agency. This was a regular occurrence and would often be prompted by
incidents of neglect or violence in the home. The role of the SFCW was to provide emotional
support to the child during this very difficult period. The Grievor explained that because they
performed this function, it was important that the SFCW s understood the concepts of
attachment theory, as many of these children suffered anxiety being separated from their family
and being afraid of losing contact with their parents.
The Grievor disputed the assertion that her job did not involve initiating intervention strategies.
Her clients were constantly in crisis or in need of intervention. She was often in contact with
outside services to support her clients, this included interaction with the Public Health Unit,
Social Services, Probation Officers and suicide prevention services. She would consult
regularly with the CSW s and do research on her own to determine the best strategy forward
with her clients.
As a final point, Grievor raised issue with the claim that she lacked the academic qualifications
for the CFW position. She explained that as part of the ECE diploma she took courses on
family dynamics, educational methodologies, developmental psychology, abnormal psychology,
child and youth exceptionalities, and the application of therapeutic behaviors. These were all
topics covered in the CYW program.
In short, Ms. Klingbile submitted that the sum of her experience, education and training,
qualified her to transition into the CFW role.
Elizabeth Perry
Ms. Perry has been employed with CKCS since 2003. She began her career with the agency
as a residential group home worker, a position she held until 2010. From there, she moved into
the position of SAW and continued in that role until 2014. From 2014 to 2016, she worked in
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the role of SFCW. She then returned to the SAW role in March 2016 and remained in that
position until her layoff in October 2017.
The Grievor received her diploma as a Development Service Worker in 2006 from St. Clair
College. Prior to working at CKCS, she was employed with Community Living from 2001 to
2004.
She also held a second job from 2004 to 2010, as casual staff working with residents in a
treatment program for young offenders. In that role, she was required to complete daily
behavioral logs, incident reports and medication logs for the young residents. She also
administered medication and arranged transportation for youth to various medical and school
appointments.
Like the other Grievors, Ms. Perry availed herself of the numerous training opportunities
provided through CKCS, taking courses in:
Signs of Safety
Aboriginal Sensitivity
Motivational Interviewing Stages of Change & Harm Reduction
Collaborative and Proactive Solutions
Attachment Disorder
Prevention and Management of Aggressive Behavior (“PMAB”)
High Risk Behavior seminar
In her role as residential group home worker, Ms. Perry completed daily behavior logs, incident
reports, and plans of care. She also assisted residents in accessing community services
including medical, financial and housing services.
The Grievor described her first stint in the SAW role, when the program was still operating under
the risk assessment model and her work was limited to observing and documenting the access
visits. The Grievor described one particular assignment where she was asked to work one-on-
one with a parent who was blind. As she had experience working with visually impaired clients
at Community Living, she was assigned to this client for approximately six months. The Grievor
eventually drafted a 65 page affidavit for the courts regarding this client.
The Grievor described having to deal with extremely volatile situations during access visits and
it was not unusual for parents to be abusive to her, other staff or their children. Both children
and parents could become violent or threat violence during a visit. If a parent was under the
influence of drugs or alcohol the visit was ended. At times, the police were called in to provide
assistance. The role of the SAW was to diffuse the situation which was an intervention strategy
taught through the PMAB course.
She provided multiple examples of situations where she had to intervene and de-escalate a
violent situation. She described disarming a child who threatened other staff and then
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threatened to harm himself. She described another example of interacting with a client who was
attempting to avoid police arrest. She met with the client and negotiated his surrender. In
another case, she travelled to Windsor to intervene with a youth who had left the custody of the
agency and began living on the street. These were all challenging situations but were part of her
job as a SFCW.
In her role as SFCW, the Grievor assisted youth in accessing community services. Like the
other Grievors in that role, it was her job to help older youth aging out of the program find
suitable housing, prepare resumes, perform job searches and accompany them to various
appointments. Her role included providing emotional support to youth who experienced
separation anxiety once they went out to live on their own.
As to documentation, the Grievor described her role as a SFCW to prepare case notes, contact
logs, monthly reports, quarterly reports and closing summaries for each client. A copy of one
such report was put into evidence by the Employer and reviewed with the Grievor. Its content
was mainly factual in nature, documenting her interactions with the client. The Employer
highlighted the fact that the report was devoid of any analysis or assessment of the client’s
progress. The Employer submitted that this was indicative of the Grievor’s job in that it did not
involve any assessment skills.
The Grievor challenged the assertion that she had no involvement in developing goals for the
clients. She described her involvement during various team meetings where client goals were
discussed and plans of care were developed. The Grievor did not dispute that it was the CSW
who was responsible for putting together the plan of care, but they did not come up with these
strategies on their own. It was a joint effort. As a group, the staff would brainstorm on what
strategies would work best for each client.
The Grievor described her role as a SFCW to implement the goals identified by the CSW for her
clients. It was not unusual for her to work with the CSW to fine tune the goals based on the
needs of the child or changes in their circumstances. The goals were continuously being
modified based on the input being provided by the SFCWs.
During this time she co-facilitated groups with other SFCWs including the Life Skills, Financial
Literacy, Independent Living and Little People groups.
The Grievor further challenged the Employer’s submission that her role as a SFCW was
essentiality to provide respite time for the foster parents. She explained that her time spent with
foster children was meaningful and meant to develop social skills, life skills, coping mechanisms
among other skills.
She described her return to the SAW role in 2016 and how the job had evolved since her
previous time in the position. The visits were much more interactive in nature and took place
outside of the agency’s office, out in the community, or in the home of the biological parents.
The role of the SAW was to assist families learn effective communication skills and problem
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solving techniques. She would model appropriate child management techniques, life skills,
parenting skills and emotional regulation during the access visits.
The SAWs were expected to work collaboratively with the CSW and PSW staff to discuss the
goals established for their clients. She attended collaborative case conferences with families,
foster parents and other staff to review their progress.
As a result of the changes to the SAW role, Ms. Perry and another Grievor, Ms. Spotton
approached their supervisor in 2016 and requested that the job description for the SAW position
be updated to include these new job duties. They felt that the duties listed on the job
description were antiquated and did not reflect the enhanced role of the SAW under the family-
centered model. The Grievors wanted the job description to reflect the fact that the SAWs were
involved in parent education and implementing intervention strategies for their clients. Their
supervisor, Ms. Udzbinac denied their request claiming that these duties were beyond the
expectations of the position. The Grievor and her colleagues ultimately brought their concerns
to the Joint Job Evaluation Committee for consideration. The committee, however, was not
functioning at the time.
The Grievor reiterated that in her role as a group home worker she was responsible for
developing plans of care. She also developed plans of care during her time working with young
offenders in the residential home and when she worked at Community Living.
She challenged the Employer’s assertion that she was not responsible for crisis intervention.
She again cited as examples her work with clients who threatened suicide, where in trouble with
the law, or had ran away from the foster home.
Ms. Perry disagreed with the Employer’s claim that as a SAW she had no experience providing
education to parents. She explained that during the access visits there were lots of teachable
moments with parents who were struggling with parental skills. The goal for every client was
the safe return of the child to the biological home. The achieve this, the SAW s worked with the
parents to improve their parenting skills. The work of the SAW s supported this overall strategy.
In the end, Ms. Perry asserted that her work experience provided her with the necessary skills
to transfer into the CFW role.
Alana Levesque
Ms. Levesque started with CKCS in 2003 working as a parent-model group home worker. She
remained in that position until 2011 when she moved into the SFCW role, a job she held until
her layoff in October 2017.
Prior to her employment with CKCS, the Grievor worked in the child care field as a personal
support worker and a daycare worker. The Grievor obtained her Early Childhood Education
diploma from St. Clair College. She stated that many of the courses that she completed in that
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program were relevant to work she performed at CKCS including courses in development
psychology and sociology of the family.
The Grievor went on to complete a Bachelor of Arts degree in Family and Social Relations in
2002 from the University of Windsor. She explained that she completed her degree in effort to
further her career in child and youth services. She asserted that many of the courses that she
completed towards her BA were relevant to her work at CKCS, including courses in behavioral
psychology, family development, developmental psychology and child psychopathology.
In addition to her two academic degrees, Ms. Levesque completed a number of courses offered
through CKCS including programs in:
Prevention and Management of Aggressive Behavior (annual certification)
Collaborative Problem Solving
Working with Adolescents (certificate program)
Applied Behavior Analysis Based Services
Clinical Application of Attachment Theory
Child Sexual Abuse
Non Violent Crisis Intervention
Suicide Alertness
LGBTQ – Supporting Clients with their Identity
Signs of Safety – Advanced Training
She explained that the courses listed above were not all, one to three hour in length. Some
were full day courses. Others were multiple day courses including the Advanced Signs of
Safety Advanced training which involved six days of training and which qualified her to train
other staff on Signs of Safety.
The Grievor testified about her time working in the group home. The home was run by a foster
parent and housed children between the ages of 3 and 18 years. The role of the group home
worker was to assist the foster parent with the day to day care of the children in the home. Many
of the children had challenging behavioral issues which were too difficult to manage in a normal
foster home setting.
In her role as group home worker, she was responsible for developing and implementing
individual plans of care. During this time she taught social skills, anger-management, problem-
solving, life skills and was a parent model to the residents.
As to her time in the SFCW role, she challenged the assertion that the job mainly involved
providing respite time for foster parents. She explained that goals were set for each foster child.
The SFCWs worked hand in hand with the CSWs to develop these goals. Because the SFCWs
spent the most time with the child their input was invaluable. Their time with the foster child
was used to role model positive behavior, to teach problem-solving skills, develop social and life
skills, address anger issues, suicidal thoughts, bullying, and separation anxiety.
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She recalled that students from CYW program at St. Clair College would shadow with her in role
as SFCW. She was not the student’s direct mentor but they were assigned to shadow with her
one-on-one as part of their placement.
In her role as SFCW, the Grievor facilitated a number of children’s groups including, the People
Group, Lego Group, Girls’ Group, Financial Literacy, Summer Program, Life Skills, among
others. She challenged the Employer’s assertion that these groups lacked any real structure.
She explained that all of these groups had specific goals associated with their programs. The
goals included building social skills, learning how to cooperate in a group setting, and learning
how to make friends. Groups like the financial literacy program focused on teaching specific
skills such as banking and managing a budget.
She submitted that she had experience implementing SMART goals. The goals were set out in
the plans of care developed by the CSW. It was her job to implement those goals through her
one-on-one work with the foster child and report the progress of that work to the CSW . She
acknowledged that these goals may not have been identified as SMART goals, but were
SMART goals nonetheless, because they were meant to be specific and attainable in set period
of time.
The Grievor professed some knowledge of developmental markers for children. She described
working with one mother who had questions about her child’s development level. The Grievor
had some familiarity with the Nipissing District Developmental Screen and shared this resource
with the mother.
The Employer raised the issue that following the layoff, Ms. Levesque applied for a number of
jobs including a job as a developmental support worker but was unsuccessful in obtaining that
position. The Employer asserted that the Grievor did not interview well for the job. This, in the
Employer’s opinion was evidence that she was not qualified to perform the work of the CFW. I
have a number of concerns with this evidence, foremost is that I do not know the questions that
were asked of her during the interview or how her answers were assessed. These accusations
are essentially hearsay.
In the end, the issue in this case will rest on whether the Grievor had the skills and qualifications
to move into the CFW role. The fact that she may have interviewed poorly for anoth er position
is not determinative of that issue.
Melinda Pilbeam
Ms. Pilbeam has been employed with CKCS since June 2003. She began her employment with
the agency in the position of a treatment home support worker. She worked in that position until
2010. From 2009 to 2010, she worked one day a week as a SAW to complete her full-time
hours. In September 2010, she moved to the position of SFCW which is the job she held until
her layoff in October 2017.
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Ms. Pilbeam was the only Grievor (with the exception of Ms. Elley) who was able to successfully
bump into another position (developmental support worker) following her layoff in October 2017.
Prior to her employment with CKCS, she worked as an early childhood educator in a daycare
program from 1993 to 1997. She also has experience working as a treatment support worker
with Community Living from 2000 to 2004.
As to her educational background, the Grievor graduated with an ECE diploma in 1993. The
Union entered into evidence a copy of her college transcripts which listed the courses she
completed as part of the ECE program. The courses include classes in Child Development,
Interpersonal Development, Child Abuse, Exceptionalities in Children, Child and the Family, and
Social Psychology of Multiculturalism. Since 2015, she has continued to take additional courses
through St. Clair College which have focused mainly on business and computer applications.
Ms. Pilbeam had also taken a number of in-house training courses through CKCS including
courses in:
Identity-Based Data Collection
Parent-Child Mother Goose Program (Levels I and II)
Attachment Training
Training Violence Threat Risk
Helping Youth In-Care Succeed in School
Applications of Attachment Theory
OnLAC Training – How to contribute to the Plan of Care
Keeping Foster Parents Supported and Trained
Trauma and Difficult Behavior
Facilitating Groups
Attention Deficit Hyperactivity Disorder
Advanced Courses in Disruptive Behavior Disorder
Behavioral Training Certificate
Advanced Applied Behavior Analysis
Obsessive Compulsive Disorder in Children and Youth
Introduction to Behavioral Strategies
In total Ms. Pilbeam had taken over fifty training opportunities through the agency. Some of
these programs were one to three hours in length, whereas others were one or two day
courses. For example, the Incredible Years workshop was a 3 day program which focused on
parent-child bonding and attachment theory. The Facilitating Groups program was a 3 day
program which focused on the dynamics of running a group session. All of these programs
were, according to the Grievor, relevant to the work she performed at the agency and were also
relevant to the work performed by the CFW position.
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The Grievor refuted the Employer claim that as a SFCW she had no experience working with
biological parents. She explained that one of the roles of the SFCW s was to take foster children
to meet with their biological parents for weekend visits.
As a treatment home support worker, the Grievor had interactions with the biological parents of
the children living in the group home. In that role, she was responsible for taking children to
school, medical, counselling and other appointments. She also taught life skills such as
cooking, shopping and personal care.
As a SFCW, the Grievor worked one-on-one with foster children, teaching social skills, life skills
and financial literacy. She was also responsible for bringing children to appointments,
accompanying youth on various school trips, sporting events and music lessons. As a SFCW
she also assisted in the foster home. Some of the foster parents she worked with had limited
experience fostering children and looked to her to role model proper parenting skills.
The Union also put into evidence a number of performance appraisals the Grievor received over
the course of her career. According to the Union, the appraisals described the true nature of the
work she performed. In a 2010 performance appraisal, the Grievor’s supervisor stated that she
demonstrated “a strong knowledge of child development and an understanding of the adverse
impact of child maltreatment and neglect on children and youth”. The appraisal states that she
has used her knowledge and skills to implement intervention strategies to assist in stabilizing
children through difficult transitions.
As to setting specific goals for clients, the Grievor conceded that it was the job of the CSW to
set the goals. The role of the SFCW was to implement those goals. This often meant breaking
down the goals set by the CSW into smaller achievable goals. She gave an example of working
with an autistic child who was non-verbal. The plan was to use a picture board as a
communication tool. The goal was to improve communication skills; but due to the child’s
severe limitations, the goal had to be broken down into smaller, more achievable tasks. As the
SFCW assigned to this child, it was her responsibility to breakdown the goals into something
that was achievable. She worked in concert with the CSW to implement this plan.
Like the others, the Grievor refuted the Employer’s claim that the groups that she facilitated had
no specific goals. She provided the Independent Living Group as an example of a goal driven
program which was meant to assist youth who would eventually “age out” of the CKCS services.
The youth who participated in this group were mandated to learn specific life skills such as
paying bills, cooking meals, buying groceries and doing laundry. The financial literacy group
mandated that the participants in the program learn how to manage money, find a job, and open
a bank account. These were all specific goals tied to those groups.
In response to one of the job duties listed on the CFW job description, the Grievor noted that
she had experience testifying in Court on behalf of another agency she had worked. However,
she did not have experience drafting an affidavit.
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Given her experience, Ms. Pilbeam submitted that she had the skill and ability necessary to
flourish in the CFW role.
Karrie Spotton
Ms. Spotton’s employment with CKCS began in December 2002. She was hired into the
position of SAW, a job that she held on and off from December 2002 to October 2006, from April
2008 to September 2008, and then again from November 2012 until her layoff in October 2017.
Prior to joining CKCS, the Grievor was employed as a youth worker from 2001 and 2003. As to
her educational background, the Grievor graduated with a two year diploma in Law and Security
in 2002. She has also taken courses at the University of Windsor in Sociology.
While working at CKCS, the Grievor held a second job with the Chatham-Kent Women’s Centre
as a family court support worker/ residential counsellor. Her duties consisted of developing
safety plans, needs assessments, attendance at court, meeting with lawyers, police, assisting
clients to navigate the legal system, educating clients on what services were available to them,
and referring clients to outside services. As a residential counsellor, she also provided crisis
support, facilitated weekly house meetings, developed activities for residential children, assisted
with transportation to school, and cooked meals.
As to experience facilitating meeting, the Grievor described her experience leading discussion
groups on various topics such as violence, self-esteem and well-being during her time working
that the W omen’s Centre.
She also completed a number of training opportunities through CKCS including training in Signs
of Safety, and Violence Threat Response Assessment.
Like the other Grievors, Ms. Spotton described the evolution of the role of SAW. When she first
worked in the position from 2002 to 2006 the SAW s had minimum interactions with the families.
Their primary role was to observe and document the supervised access visits. She explained
that even during this period, SAW staff provided some limited education and role modelling to
the parents to assist them through the access visits.
When she returned to the SAW position in 2012 there were ongoing discussions regarding the
expansion of the role of that position. Staff felt that the time spent supervising access visits
could be used more constructively to role model and teach parenting skills. It was at this time
that the position began to evolve and access visits became more meaningful with regard to the
interactions with the families.
The SAWs began attending case conference meetings with the family and other staff to provide
their input. SAW staff became more proactive in scheduling visits wi th families. Families were
not randomly assigned to whichever SAW was available that day. An effort was made to assign
the same SAW to the same families to ensure more consistency in the services being provided.
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During her employment with CKCS, she held a number of contract positions as a protection
support worker from October 2006 to April 2008 and again from February 2009 to July 2010.
According to the Grievor, these were short term contracts that were renewed seven times over a
three year period. Ms. Spotton was the only Grievor to hold the position of PSW.
This evidence is particularly relevant because staff in the PSW classification were permitted to
transfer into the CFW position. The Employer explained that her experience in that position was
not considered relevant for the purpose of the CFW job because she had been out of that role
for nearly eight years at the time of layoff.
During her tenure in the PSW role, she was responsible for providing one-on-one support to
families in the area of general parenting and child development. Much like the CFW role today
she was responsible for establishing plans of care and in doing so, utilized resources currently
used by the CFWs including 1,2,3,4 Parenting program and the Nippissing District Development
Screen.
From September 2008 to November 2012, the Grievor worked on a contract basis in the
position of Family Service Worker – Indigenous Team. The Grievor explained that she worked
a series of contracts in this position which extended multiple times. The job involved developing
service plans for indigenous families in need of child protection services. She was also
responsible for investigating child protection concerns.
Her work in Family Services was akin to a case manager position. She completed plans of
care, sent referrals to community partners, facilitated meetings with families and service
providers, and was responsible for opening and closing files. She was also involved in the
apprehension of children. Ms. Spotton also worked on a six month contract as a special
protection support worker which was a temporary position created by CKCS to assist the family
service workers with referrals.
The Union put into evidence copies of the Grievors’ performance appraisals during this period.
The appraisals are instructive because they demonstrate how she performed in the roles of
PSW and FSW. In a 2007 appraisal, her supervisor documented how the Grievor was at first
overwhelmed with the role of PSW, but after some collaboration with her colleagues, she was
able to learn the “ins and outs” of the job. Her supervisor went on to state that the Grievor was
able to successfully implement service plans using evidence-based tools such as “Nobody’s
Perfect” and “Safety, Growth and Learning”.
The appraisal goes on to state that the Grievor was able to quickly learn the requirements of the
PSW job and was able to management a full case load while meeting the needs of her clients.
Her documentation was evaluated as being both factual and informative.
The same appraisal goes on to state that “Karrie was able to learn the ins and outs of the PSW
role within a very short period of time. While she was provided with the tools she has had to
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demonstrate her ability to interpret and teach at a level conducive with learning abilities of her
clients. Karrie has lived up to the challenge by performing her role in a professional and
proficient manner.”
In 2009 performance appraisal, the Ms. Spotton was evaluated on her performance in both the
FSW and PSW roles. Her supervisor evaluated her job performance as meeting all of the key
competencies of the job and in some cases exceeding those expectations. The only area
where she fell short was with respect to maintaining her knowledge of research, res ources and
social trends in her area of work. Under the Supervisor’s comments there is an
acknowledgement that Ms. Spotton had worked in both the FSW and PSW role on a contract
basis with little background in those positions.
The appraisal went on to state that, “This position [FSW] required Karrie to learn quickly and
provide work requirements that Karrie did not have the opportunity to so [sic] in the past. Karrie
took on the challenge and sought supports from the supervisor as well as her team mates to
provide a clear plan for case management….I believe that if Karrie would be able to maintain a
position as a Family Service Worker if she had the opportunity to do so.”
The appraisal continued with the comment, “Feedback from other supervisors regarding their
interaction and work with Karrie was [sic] been cited as very positive. Karrie has been observed
to be strong in her knowledge of child protection, able to cite other resources for support to the
family. Other supervisors also cited that they felt confidence when Karrie took on a file as her
assessment skills provide a clear picture of the family dynamics and situation.”
What is interesting to note is that under the heading supervisor’s recommendations for future
training and development, her supervisor at that time, encouraged her to move into a permanent
role as a PSW role. She also encouraged her to pursue further education, not in the form of a
CYW diploma but rather a Bachelor of Arts degree. This is in contrast to comments made by a
later supervisor who recommended that she complete a CYW diploma.
Not all of Ms. Spotton’s appraisals were glowing. In a third performance appraisal covering the
period December 2009 to December 2011 when she was working in contract position as a
family service worker, her manager was more critical and raised concerns regarding her ability
to balance work load assignments. The appraisal stated, “Karrie will need to ensure that she is
continually reassessing the risk factors and safety of the children in each of her homes. She will
benefit from using critical decision-making strategies to better identify those safety risks, and
ways to mitigate those risks, when protecting children. Karrie is encouraged to further educate
herself and research the most challenging issues that she has grappled with, for ex ample,
alcoholism, and mental health, to continue to learn and grow in her understanding of the risks
associated with people who are faced with these afflictions, and to focus on how those factors
present risk to children.”
The supervisor who completed this performance appraisal recommended that the Grievor
complete a CYW diploma if she wished to return to the position following the expiry of her
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contract. Despite this comment, the performance appraisal was still very positive. There was
no indication that the Grievor had failed in her abilities to perform in either the PSW or FSW
roles.
The Grievor did not dispute that her supervisor made the comment but challenged the veracity
of the claim. She was never disciplined for performance issues and felt that the supervisor’s
criticism had more to do with a personality clash and a dispute over her management of
different files unrelated to any performance issues.
In the end, it is important to note that the Grievor held the positions of PSW and FSW on and off
for over four years and that her contract was renewed on a continual basis. Some of these
contracts were in fact, extended by Bonnie Wightman who testified on behalf of the Employer in
this case. The manager who suggested that she complete a CYW diploma was not called to
testify. The Grievor never received any discipline for performance issues. I can only surmise
that the Grievor was capable of performing the role of both the PSW and FSW positions in light
of the frequency she was reappointed into those roles.
It is important to keep in mind that at the time Ms. Spotton went into the contract positions as a
FSW and PSW, her only experience with CKCS was working as a SAW. Her educational
background was in Law and Security.
I have reviewed this aspect of the evidence in detail because I think it significant to the
determination of this case. The fact Ms. Spotton was able to succeed in that job as well as, in
the FSW position, despite not having a CYW diploma is, in my view, predictive of whether the
Grievors have the ability to transition into the CFW role or not.
Chris LeClair
Mr. LeClair’s evidence was cut short on the first day due to a health issue. The Grievor was
asked to provide medical information to support his early departure which he did. On the next
day of hearing, the Grievor returned to testify but wanted it noted that he was testifying under
duress.
Mr. LeClair has worked for CKCS since 2003. He began his career with the agency as a
residential youth worker a position he held until 2014. While in that role he held the assignment
of shift lead from 2006 to 2007 which meant that he was in charge of the home and responsible
for all of its residents. In 2014, the group home closed and the Grievor transferred into the role
of SFCW where he remained until his layoff in October 2017.
Prior to his employment with CKCS, the Grievor worked in a casual position as a youth worker
at Dover Youth Services, an open custody center for young offenders which operated much like
group home. He also worked as an assistant probation officer
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While employed with the CKCS, the Grievor held a second job as a correctional officer at the
Sarnia Jail from 2015 to 2017. In that position, he was responsible for the care, custody and
control of inmates in a maximum security correctional institution.
The Grievor holds a two year diploma in Law and Security. As part of this program, the Grievor
completed a number of courses which he submits were relevant to the work he performed at the
agency. This included courses in, psychology, aboriginal cultural awareness, crisis
management, and cultural and spiritual awareness. The Grievor also completed an eight week
residency at the Ontario Police College which included courses on aboriginal issues, law
enforcement, conflict resolution, and managing aggressive behaviors.
While employed at CKCS the Grievor completed a number of training programs including:
PMAB Instructor
Applied Suicide Intervention Skills training
Crisis Prevention Intervention
Advanced Signs of Safety training
In regard to the advanced training in Signs of Safety the Grievor was certified to instruct other
staff on the program.
The Grievor asserted that his experience at CKCS was equivalent to a three year CYW diploma.
He submitted documentation from the Ontario College of Trades to support his position. He
stated that he presented this information to St. Clair College, but was told that he would need
his employer, CKCS to sign off that he had the equivalent experience, something it refused to
do.
When it was put to him in cross-examination that the CYW program required 900 hours of in-
class education or the equivalent of 6,240 apprentice hours; he was not aware of the
requirements of the program.
In the end, I did not find this evidence particularly helpful. There was no evidence to suggest
that any of the Grievors would have been be able to obtain a CYW by relying on his or her work
experience alone. The Grievors could have obtained a CYW diploma through an accelerated
one year program because they already had two year degrees in related fields. Needless to
say, none of the Grievors with the exception of Ms. Elley had the academic equivalency of a
CYW diploma.
In his role as a residential youth worker, the Grievor was responsible for the supervision and
wellbeing of the youth in the group home. He described many of the children in the group home
as having challenging behavioral issues which meant that he was often required to manage
aggressive behaviors. The youth in the home ranged in age from 12 to 17 years. One of his
job duties in the group home was to develop plans of care for each resident.
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At the group home, the Grievor was responsible for training staff and foster parents on
strategies to manage aggressive behaviors. Many of the youth in the group home arrived with
anger issues. It was fairly common for staff to intervene in situations involving violence or
aggressive behavior as this was a daily occurrence.
Mr. LeClair had a great deal of experience and training in the area of anger management.
During his time working at the group home, he regularly ran an anger management program for
the residents of the home.
The Grievor described working with very challenging clients. He explained that t he goals set
for his clients were constantly being readjusted given the changing circumstances of the child.
He provided an example of one youth who he worked with as a SFCW, who was struggling in
school. The Grievor worked closely with this youth to keep his grades up with the goal for him
to graduate from high school. Unfortunately, the youth was arrested for a violent incident and
his goals had to be reassessed. The Grievor explained that this was not uncommon. Many of
his clients were in trouble with the law, would get arrested and go to jail. The goals for that
youth would then have to be reevaluated and new goals established. It was Mr. LeClair job as
SFCW to continuously reassess the situation and work with the CSW to readjust plans of care.
Because the Grievor had a correctional work background and experience managing aggressive
behavior, he was often assigned the more challenging youth. He had a number of clients who
went in and out of the criminal justice system. He described a number of instances where he
had to meet clients in jail, go to meetings with probation officers, or attend court dates. He
explained that his background as a correctional officer was well-suited to helping his clients in
this area.
The Grievor challenged the Employer’s contention that he had no experience implementing
SMART goals. As a SFCW, it was his responsibility to implement the goals set by the CSW for
each foster child. The goals were specific and time limited.
Like the other Grievors, Mr. LeClair had CYW students shadow with him while he was in the role
as SFCW. The students participated in the Summer Program run by the agency. He would
often include the placement students in his one-on-one meetings with clients who were
particularly challenging, so the students would gain valuable experience.
It was suggested to Mr. LeClair in cross-examination that he had little experience working with
biological families. He disputed this claim explaining that youth in the group home often had
contact with their biological parents. The staff in the home worked with youth to reestablish their
relationship with their biological parents. The ideal goal for children in the group home was to
reintegrate them into the biological home. This meant working with the child to improve
interpersonal relations. He would meet with the parents to discuss issues with their children and
make them involved in the process.
25
Like the others, the Grievor refuted the Employer’s assertion that the groups he facilitated as a
SFCW, were not goal specific and lacked structure. He cited the financial literacy program, as
an example where the youth, who completed this program, had to demonstrate that they met
certain criteria before they could get government funding. The goal was to ensure that the
youth met the criteria for the program.
In terms of parent education, he explained that in his role as SFCW he was constantly working
with foster parents to discuss issues and concerns that arose with the foster children. He would
work with both the foster parents and the children to address these issues. Many of the foster
children had anger issues and exhibited aggressive behaviors. He would educate the foster
parents on how to manage the anger issues and deescalate aggressive behaviors.
In cross-examination, the Employer questioned Mr. LeClair as to why he ranked the CFW
position as his third option for bumping at the time of layoff. It was suggested that he did this
because he knew that he was not qualified for the job. The Grievor explained that he ranked
the position third because he had little faith in management in that department. These were the
same people who thought he was unqualified for the position. Why would he want to work
under their supervision? The jobs he ranked above the CFW position reported to a different
manager.
In the end, I do not think the Grievor’s ranking of positions at the time of layoff has any bearing
on the outcome in this case. The issues in this case rest largely on the evidence regarding the
Grievor’s skills and abilities and not his personal preferences for a job.
Ryan Pretty
Mr. Pretty’s circumstances are somewhat different from the other Grievors. He worked in the
position of volunteer drive coordinator at the time of layoff. His evidence focused on two issues.
The first issue was whether the Employer had the right to eliminate the VC and VDC jobs if
there was sufficient work to continue both positions. That issue has been addressed in a
separate award. The second issue was whether the Grievor was entitled to transfer into the
new V&DC position as the senior candidate to Ms. Elley. It is this second issue that is
addressed in this award.
Mr. Pretty began his career with CKCS in January 2002 as a group home worker. In January
2014, he transferred to the position of receptionist following the closure of the group home. The
Grievor eventually moved into the role of volunteer drive coordinator in September 2014, as a
resolution to a grievance.
In terms his academic background, the Grievor testified that he was one course short of
completing a two year diploma in Law and Security. He explained that he did not complete his
education because he found work at the Department of National Defense as a naval
communicator. He spent four years in the Navy and later joined the Naval Reserves.
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The Grievor completed a Volunteer Management program in 2014 through Sir Sandford
Fleming College. This was done in accordance with the settlement that placed him in the VDC
role. The certificate program included courses in volunteer recruitment, management and the
evaluation of volunteers.
In his role as VDC, the Grievor was responsible for assigning work to volunteer drivers. There
were 40-50 volunteer drivers volunteering for the organization at any one time. The volunteer
driver’s role was to drive children and youth to school, work, medical appointments, extra-
curricular activities, out of town appointments, or supervised access visits.
The Grievor described his work day as being very hectic. He was constantly answering calls
and emails to fill request for drivers. There were a lot of sick calls that needed to be reassigned.
It was a very demanding role. It was not unusual for him to receive a call from a school or
police asking whether volunteer driver had permission to pick up a child at school.
Part of his job was to recruit drivers and orient them to the role. He also played a part in
completing annual performance evaluations for each driver.
The Grievor challenged the Employer’s claim that he was unqualified for the V&DC position. He
stated that he had less than two weeks of on the job training when he went into the VDC
position and yet had no problem meeting the demands of that job. He eventually obtained his
Volunteer Management Certificate but maintained that he was able to do the job without the
additional education.
Mr. Pretty acknowledged that he did not have any experience working in the Volunteer
Coordinator role which was performed by Ms. Elley; but felt that the two positions were similar
enough that he had the transferrable skills to perform the duties of both positions.
The Grievor described other volunteer experience he had outside of CKCS. He was active in a
local hockey league and had experience recruiting volunteers to help run the league.
In the end, Mr. Pretty submitted that he had nearly fifteen years of experience working in the
child protection field, three of which were dedicated to volunteer services. His skill set was
adaptable and allowed him to transition easily into the VDC job. There was no reason why he
could not do the same in the V&DC role. The academic qualification set for the position, a three
year college diploma was simply being used as an excuse to keep him out of the job.
Angela Elley
Unlike the other Grievors, Ms. Elley was able to successful bump into the job that replaced her
position. Her grievance focused on the claim that there was sufficient work to employ two
individuals in the volunteer program. As stated previously, that issue is covered in a separate
award.
27
As to her background, Ms. Elley has been employed with CKCS since 2002. She began her
career working in a group home before moving into the VC position which she held at the time
of the layoff. In October 2017, her job was merged into the new V&DC role. She applied for the
new position and was the successful candidate.
The Grievor is a graduate of St. Clair College. She is the only one of the Grievors who has a
CYW diploma. She has a second diploma as a Developmental Service Worker. In 2017, she
obtained a Volunteer Management Certificate.
As the VC, Ms. Elley provided coverage for Mr. Pretty when he was off work or on vacation.
The same was not true when she was off work. Mr. Pretty did not provide coverage for the VC
position.
The Employer’s Evidence
There were three witnesses who testified on behalf of the Employer, Haley Udzbinac, Bonnie
Wightman and Claudette Wyles.
Ms. Udzbinac is the supervisor for the Child and Family Well-Being Team and was responsible
for managing the Grievors’ work before their layoff. Her evidence focused on the Grievors’ work
experience in the SAW and SFCW roles and how it differed with the expectations of the new
CFW position. It was her view that the Grievors were not qualified to perform the new job
because they had neither the work experience, nor the knowledge base to perform the duties of
the new position. Ms. Udzbinac was hired into the supervisor position in 2015 so her knowledge
of the Grievors’ prior work experience was somewhat limited.
She was involved in hiring staff for the new position but went off on maternity leave before the
new position was rolled out. She could not speak to the actual work performed by the CFW s.
Her evidence focused on the expectations for the new position and not on the day to day
functioning of the job.
Ms. Wightman is a senior Director with CKCS and is responsible for managing supervisors on
the Child and Family Wellbeing Team. She was the primary author of the job description for the
new CFW position and played a major role in the creation of the position. Like Ms. Udzbinac
her evidence focused on the difference in the job duties of the CFW position as compared to the
roles held by the Grievors.
Ms. Wyles is a relatively new supervisor on the Child and Family Well-being Team. She went
into her position just prior to Ms. Udzbinac going off on maternity leave. As the current
supervisor for the CFWs, her testimony focused on the actual day to day work performed by the
CFWs.
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Evolution of the CFW Position
Ms. Wightman and Udzbinac explained the rationale for the creation of the CFW position. It
was meant to streamline the approach to working with families. The agency wanted one worker
to engage with the family. The goal was to get families through supervised care in a more
streamlined manner, to build on their strengths and to reduce the probability of future
apprehension.
The field of child welfare was continuously evolving and the agency was looking to improve
services to its client base. This was a move away from a risk assessment model that was
punitive in its approach, toward a more family-centered model which focused on the families’
strengths. There was a lot of discussion regarding the Signs of Safety model which again
focused on how to build on the families’ strengths and to address the problems that had brought
families into the agency’s care.
The creation of the CFW position was part of a move toward a strength-based approach to
working with families. The goal was to reunite the family and reduce the amount of time
children were in the agency’s care.
The creation of the CFW position was first floated in 2015 but according to the Employer, never
got off the ground. The idea was reintroduced sometime in late 2016 and was discussed at the
senior management level. The Employer began to investigate how other child welfare agencies
were modernizing their services. The CFW role was part of this modernization. The Employer
surveyed the academic qualifications set by other agencies for similar positions. Some
agencies set the CYW diploma as a required qualification. Others listed an ECE diploma as a
minimum qualification with the CYW as a preferred qualification. The Employer explained that a
decision was made early that the CYW diploma was the most suitable academic program for the
new position. This was based on review of the course content of the CYW program.
In early 2017, Ms. Udzbinac requested staff on her Team to submit their academic credentials
so she could compare the course work in those programs to the courses offered in the CYW
program. Ultimately, it was decided that the curricula for these other programs did not provide
the same theoretical foundation as the CYW program.
An early draft of the job description for the CFW classification was developed by Ms. Wightman
in April 2017. The first draft referenced the CYW diploma as a preferred qualification and that
candidates with an ECE diploma would be considered. Ms. Wightman explained that this
language came from a job description from another agency. A copy of the earlier draft was
circulated among staff when the layoffs were announced. The Employer stated that this was
done in error and was immediately corrected. It was never the intention of senior management
to adopt anything other than the CYW as the minimum qualification for the new position.
The final draft of the job description describes the CFW role as, “providing support and coaching
to children, youth and families according to an approved plan of service and task list to ensure
29
child safety and positive outcomes”. It went on to list the main duties and responsibilities of the
position as including,
Provides short term, specific goal focused support, mentoring and coaching to families
(biological, foster and kin)
Identifies SMART goals along with the family and Child Protection Worker
Implements intervention strategies identified with the family by use of appropriate
professional skills and techniques including child management, healthy parenting skills,
life skills, coping mechanisms, social skills, anger management skills, household
management skills, communication skills, co-parenting strategies
Reports child protection concerns to supervisor
Completes and submits closing summaries
Develops, implements and facilitates group training to youth and caregivers on topics
such as parenting, life skills, financial literacy, independence, anger management,
bullying, social skills and school readiness
Facilitates positive and meaningful family interactions
Provides support to youth at risk of separation from their caregiver
Role of the Supervised Access Worker
The Employer emphasized that the central role of the SAW was to observe and document the
supervised access visit. The goals for the access visit were always the same, to have a safe
and meaningful visit. If issues arose during the course of an access visit , the SAW might
intervene to correct the behavior but this was done on an ad hoc basis. The role of the SAW
was not to teach parenting skills or provide role modeling for parental behaviors. It was not the
job of the SAW to implement learning plans or work on meeting specific goals with a family.
That was the job of the PSW.
According to the Employer, the SAWs did not have the knowledge base or skill set to educate
parents. To gain such knowledge, the Grievors would need to have completed the courses
offered through the CYW program such as family dynamics and behavior modification.
Ms. Udzbinac acknowledged that supervised access visits had evolved over time. She was in
fact one of the main advocates for this change. There was no dispute that the visits became
more interactive and more meaningful. The SAWs were no longer just observing and
documenting the visit but were interacting with the family. Visits were taking place outside of
the agency’s office, in the family home, or out in the community.
But these changes did not fundamentally change the nature of the work performed by the
SAW s. Their main function remained the same, to observe the visit. It was not their job to
educate the parents. They did not work with parents on developing specific skills. That was
never the expectation of the job. If SAWs were doing that, it was beyond the scope of their job
duties. She explained that this was why she opposed the efforts of Ms. Spotton and Ms. Perry
30
to amend the job description for the SAW. What they were advocating was beyond the
expectations of the job.
She acknowledged that the SAWs participated in collaborative conferences with the families;
but their role in these meetings was to simply provide input on what they observed during the
access visits. They were not involved in establishing plans of care or identifying the educational
needs of the family. That was the role of the PSW.
She reviewed some of the contact logs completed by the SAWs. She pointed out that the
section in the contact logs marked “Feedback” were generally left blank. She explained that this
was normal because it was not the job of the SAW to do any assessment or provide any
feedback to the family. In cross-examination, it was pointed out that some of the SAW s did
complete this section. She did not deny this fact but stated that it was not an expectation for
them to do so.
Ms. Udzbinac was responsible for completing performance appraisals for the Grievors. She
reviewed the performance appraisal completed for Ms. Mugridge. In the appraisal, she praised
the Grievor for the feedback she provided to families and for identifying family strengths in her
feedback notes. She explained that this was not something the Grievor was expected to do, as
she was not qualified to provide assessments. She provided no explanation, however, as to
why she did not instruct the Grievor to stop providing feedback to families if she was not
qualified to do so.
She did not dispute the Union’s evidence that the Grievors’ role-modelled positive parenting
skills to parents in supervised access visits, but this was done on an ad hoc basis. SAWs were
not responsible for implementing specific learning plans for parents. They were not responsible
for setting goals for the family.
In another example, Ms. Udzbinac completed a performance appraisal for the Grievor, Liz
Perry. In that appraisal, she referenced a behavioral management program that Ms. Perry had
implemented during her time as a SAW. She conceded that Ms. Perry had utilized this program
but explained that it was not her job to do so. I again note that there is no evidence to suggest
that she instructed Ms. Perry to discontinue these efforts.
She went on to explain that it was not the job of the SAW to identify gaps in a client’s parenting
skills. She cited the example provided by Ms. Mugridge about working with a parent to improve
the cleanliness of the home as it had become an obstacle to holding access visits in that
location. Ms. Udzbinac clarified that the Grievor should not have engaged with the family in that
way. If there were issues that arose during the course of a supervised visit, the SAWs job was
to report these issues to the PSW , who would follow up with the parent and identify the need for
further education. It was not the role of the SAW to do that work.
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The Employer explained that although the CFWs were involved in supervised access visits it
was only a small part of their job duties. When they did perform this task, the CFWs role was
much different from that of the SAW. Time spent in supervised access visits was used to
educate parents and role model positive parenting skills. The CFW s would meet with the family
in advance of a supervised access visit to discuss the goals they would focus on for that visit.
An example of such a goal would be to improve the parent’s ability to address a child’s
impulsive behavior. The CFW would use the time to work on building these skills. The CFW
would apply the Signs of Safety approach to map out the families strengths and identifying
issues they needed to work on.
The Employer went on to focus on the documentation completed by the SAWs. These were the
contact logs that recorded their observations during each of the access visits. In reviewing the
documentation, the Employer emphasized the fact that the logs, provided little by way of
analysis or assessment of the families’ progress. This was not meant as a criticism but simply
highlighted the fact that the SAWs did not provide any analysis or assessment of their clients;
nor did they provide any recommendations to families.
As part of her testimony, Ms. Wyles reviewed the contact log completed by the CFWs. There
was no question that their logs were more detailed then those completed by both the SAWs. A
typical log completed by a CFW would list the resources shared with the family, describe what
education was provided, discuss developmental milestones, and document the intervention
strategies used.
The CFWs contact logs identified the specific goals that were being worked on with families.
The goals included such things as improving safety in the home (e.g. installing fire alarms),
implementing positive disciplinary techniques for children, and toilet training.
Ms. Wyles reviewed some of the closing reports completed by the CFWs. The closing reports
were a summary of what was documented in the contact logs. The report would generally list
the resources and materials shared with the family, what interventions were carried out, and
what, if any, referrals were made to community services (e.g. addiction services, food bank).
The CFWs would document the intervention strategies used with the family and their success or
failure. The summary report ended with recommendations for the future.
In the end, the Employer submitted that the work of the CFW s was qualitatively different from
that of the SAW s. The CFWs work required much more analytical skills, something the SAWs
simply lacked in their skill set and work experience.
Role of the Supportive Foster Care Worker
The Employer went on to contrast the duties of the CFW s with that of the SFCW s. According to
the Employer, the central role of the SFCW was to provide respite time for foster parents. The
SFCWs did not work on implementing any specific goals for the foster children. Their time
spent with foster children was meaningful but it was not their job to educate the child or the
32
foster parents. This was the role of the CSW. The SFCWs did not participate in collaborative
conferences
Ms. Udzbinac acknowledged that the SFCW s provided training to youth on life skills including
help with banking, shopping for groceries, doing laundry, cooking, or finding an apartment. But
this was skills training not education in the manner provided by the CFWs.
In cross-examination, she agreed that the SFCWs did play a role in implementing plans of care
for foster children which included SMART goals. But the plans were developed by the CSW not
the SFCW. The job of the SFCW was to help implement the plans of care; not to identify or
develop goals on their own. She acknowledged that the SFCWs provided valuable input to the
CSW s based on their observations and interactions with the foster child. This information could
be used to adjust plans of care. But it was the responsibility of the CSW s to make these
changes not the SFCW s.
The Union questioned Ms. Udzbinac about documents which were developed to advertise the
services of the Supportive Foster Care Services Team. The Employer took issue with this
evidence as these were not official CKCS documents. The first document described the role of
the Supportive Foster Care Team. It explained that the Team used a variety of “clinical,
evidence-based practices” to deliver individualized services for youth in foster care. The
document described the group programs offered by the Team including, The Boys’ Group, Little
People’s Group, Girls’ Group, OCBe Financial Literacy training, Parent-Child Mother Goose,
P.A. Day Group and Summer Day Camp. It stated that the staff (SFCWs) running the groups
drew on their knowledge of “child development theory” to assist in enhancing the child’s
experience in the group setting.
The Union put a second document which again described the role of the Supportive Foster Care
Team. The document references SFCWs relying on “clinical, evidence-based practices to
deliver one-on-one and group services to foster youth”. Ms. Udzbinac was familiar with the
documents and explained that the descriptions offered in that material were inaccurate and
overstated the role of the SFCWs. In her opinion, the Grievors had little or no experience
working with evidence-based programs.
In the end, I do not find these documents helpful in deciding the issues before me. The
Grievors’ testimony is more accurate as to the work they actually performed. What the
documents demonstrate perhaps is how easy it is to “puff up” the duties of a job by using terms
such as “evidence-based practices”. The same critique could be applied to the job of the CFW.
The Employer contrasted the CFWs role working with foster children. The CFW s do not provide
respite relief for foster parents. The CFW s do not chaperon children to appointments or extra-
curricular activities. That work had been shifted to other staff in the organization, volunteers, or
left to the foster family to make their own arrangements.
33
Ms. Wyles explained that most of the referrals to her Team were for families and not for
individual youth. There were some one-on-one youth referrals but they were infrequent. This
meant that the CFW s spent little time one-on-one with individual youth. When this did happen it
could be a child in foster care, children living in the biological home, or with kin relations, or
older youth living independently.
Where the referral was for an individual youth, the CFW s follow the same mapping process to
identify their strengths and the specific goals to work on with the youth. Twelve sessions are
generally scheduled with the youth to work on meeting those goals. The CFW s select
evidence-based material to work with the youth and share these resources with them. The
CFW s follow the same process of completing contact logs after each session and summary
reports at the end of the twelve sessions.
Ms. Udzbinac used Ms. Klingbile’s example of working with a youth on hygiene issues. She
explained that this was an ad hoc intervention. The role of the CFW would be more goal-
specific. The CFW would plan a session to address hygiene issues with the child; they would
then follow up with further sessions to build on what was learned; and finally they would assess
the success of their intervention.
The CFW worked with a variety of families: biological, foster, adoptive and kin relations. This
was in contrast to the SAWs who worked exclusively with biological families and the SFCWs
who worked exclusively with foster families.
Ms. Wightman spoke about the importance of understanding the developmental milestones of
children and parents. The CFW s use programs such as the Nipissing Screening tool to assess
the developmental level of the clients he or she is working with. The CFWs would then develop
SMART goals based on the client’s developmental needs. The CFW s needed to understand
the different stages of child development. They needed to understand exceptionalities in
behaviors. As well, they needed an understanding in family dynamics. Without this knowledge,
the CFWs would not know what intervention strategies were best suited for each family.
She asserted that those who worked in the CFW position, required a solid foundation in
behavior modification, developmental theory and attachment theory, something the Grievors all
lacked. They needed to understand the dynamics of separation. They needed to understand
child development theory, to know where a child was in terms of their development, what they
could learn, how to teach them, and where they are lagging in comprehension and social skills.
The CFW s needed to understand family dynamics because they dealt with a variety of families
and kin relations. The Grievors simply did not have these skill sets.
As to the groups facilitated by the SFCWs, the Employer asserted that these groups (e.g. Boys’
Group, Girls’ Group, and Little People’s Group) followed the same routines, had no clear
objectives, and no time frames to achieve results. However, when the details of the individual
programs were presented to Ms. Udzbinac, she conceded that some of the groups were goal
34
specific and had time frames set for achieving those goals. The financial literacy program was
cited as one example.
According to the Employer, the CFW s would be expected to facilitate groups with much clearer
objectives. Group sessions would not simply be an opportunity to come together and socialize
but would have planned objectives with more meaningful interactions. Ms. Udzbinac provided
some examples of the groups that would be facilitated by the CFWs including the Friends for
Life and The Positive Parenting groups. These were in her opinion, much more structured
programs that relied on evidence-based strategies to teach skills.
Ms. Wyles also testified about the group sessions that were facilitated by the CFWs. Some of
the groups run by the CFW s included, the Baby Group, Toddler Group, School Age Group,
Summer Program, and the Financial Literacy program. Ms. Wyles described these groups as
offering meaningful time for the children to work on skills like team-building. There were specific
goals attached to the group work.
It is important to note that many of the groups that were run by the Grievors were no longer
offered through CKCS because the agency lost the space where the group activities were held.
This is completely unrelated to the creation of the CFW positions. The CFWs, however, were
still responsible for facilitating groups that were run by the Grievors including Mother Goose,
financial literacy and the summer camp programs. Some of the CFWs were in fact sent for
training on the Mother Goose program.
Role of the Protection Support Worker
According to the Employer, the job of the PSW was most similar to the CFW role. The PSW
worked with children of all ages and a variety of families including biological, foster, adoptive
and kin relations.
The main focus of the PSW job was to assist parents in improving their parenting skills.
Parental education was at the core of the work they performed. The PSW s mostly worked with
biological parents but they also had some experience working with parents fostering children
with difficult behavioral issues. Their job was to review the family history, identify the family’s
strengths and shortcomings and then develop and implement strategies to address gaps in their
parenting skills.
The PSWs were involved in implementing evidence-based strategies for the families they
worked with. The PSW had experience using developmental screening tools to assess the
developmental levels of their clients and tailor the programs based on their developmental
needs.
The PSW s put together a binder of material to share with families that would address the issues
they were working on. This could include material on budgeting, meal plans, or a list of
community resources for the family (e.g. food bank).
35
The Employer reviewed in detail, the contact logs and closing reports completed by the PSW s.
It was submitted that the level of analysis and assessment in these reports was similar to what
was expected from the CFWs. In their logs, the PSWs documented the intervention strategies
utilized for the family, the education provided, and the resources shared with the parents which
mirrors the work now performed by the CFW s.
In the end, the Employer submitted that there was sufficient commonality in the positions that
the PSWs were permitted to transfer into the new CFW role. Most of the PSWs who transferred
into the CFW role already had a CYW diploma and for those who did not, their work experience
provided them with equivalent qualifications.
At first, the Employer maintained that all of the PSWs who transferred into the CFW role had
several years of experience working in the PSW position. For most that was true. The
evidence, however, established that at least one PSW , Ms. Donais had only worked three years
in the position before transferring into the CFW job. Prior to that she had, like the Grievors,
worked in the group homes. Ms. Donais did not have CYW diploma.
Role of the Child and Family Wellbeing Worker
Ms. Wyles provided evidence regarding the day to day job duties of the CFW s. The work of the
CFW s began once a family or individual child was referred to the Child and Family Wellbeing
Team. The referrals were made by a protection worker. Once the referral was made, a meeting
was scheduled to complete a collaborative mapping process. This meeting was attended by the
protection worker, the CFW and herself as a supervisor.
The purpose of the meeting was to discuss the strengths of the family and what needed to
happen next. The group would utilize the Signs of Safety model in their meetings to map out
the families’ strengths and to decide what goals needed to be worked on.
The mapping exercise was done on a dry erase board. Under the headings, “W orries”,
“Strengths” and “Next Steps” staff would map out a strategy for each family. The group
brainstormed to develop specific goals for each family and decided which strategies were best
suited to achieve those goals. The role of the CFW in this meeting was to help identify
concerns with the family and recommend appropriate intervention strategies.
A second meeting would then be scheduled with the family and the same group of staff. The
group would go through the same mapping exercise with the family and develop SMART goals
for the family to work on. The family would then sign a service agreement which outlined the
goals set for the family. Ms. Wyles reviewed a sample of service agreements which were all
very similar in format using a standard template.
The CFW s typically schedule twelve sessions with the family to work on and complete the goals
identified through the mapping process. Broad goals would be broken down into more specific
36
goals. Each session would focus on a specific goal to complete. The first session was the
mapping meeting with the family. The next eleven sessions could take place in a variety of
settings, including the family home, at the agency’s office, or out in the community. A
supervised access visit would count as one of the sessions. Rather than just observing the
family through the access visit, the CFW would work with them on specific goals.
It was the role of the CFW to determine which intervention strategies were best suited to the
family’s needs. The CFW would select evidence-based programs such as The Parent Coach,
Communicating Effectively with Children, Parenting Tips, Active Parenting Guide, The First Five
Years, and Circle of Security. Material from the program was shared with the family. Ms.
Wyles explained that the material for all of these programs used plain language and were
devoid of jargon, so the concepts could be easily explained to the families.
Ms. Udzbinac provided an example of a SMART goal involving a child with severe behavioral
issues. The goal was to have the child eat in a restaurant with their family. The timeframe set
for achieving this goal was three months. The CFW s work with the child to meet specific goals
such as table manners and proper behavior in public. They may practice this skill in a private
place. The next step would be to go to a less formal location like McDonalds to practice those
skills. The final step would be to go to formal restaurant for a meal. The CFWs then assess
the success of the plan once it was completed. According to the Employer, the Grievors did not
have experience implementing these types of detailed goals in such a structured manner.
Grievors’ Experience in the Group Homes
Ms. Wightman spoke to the Grievors experience working in the group homes. She
acknowledged that some of the Grievors were involved in developing plans of care but this work
was done with the assistance of the CSW. The group home worker was not involved in setting
goals or implementing intervention strategies for their residents.
Not all of the group home jobs were the same. The role of the parent model group home worker
was to assist the parent who ran the group home with children who had challenging behaviors
or severe medical conditions. It was the parent that ran the group home not the worker. The
worker acted in a subordinate role to the foster family running the home. The worker was not
involved in developing plans of care for the children.
As to the treatment foster care support worker, the purpose of that position was to assist foster
parents with children who had challenging behavioral or medical issues. This was a co -
parenting responsibility. This position had no role in providing parental education or setting
goals for children.
The Grievors who worked at the group homes on the night shift had little interaction with the
children because they were asleep. Their role was to ensure the safety of the Home, do
laundry, cook breakfast, and get children ready for school in the morning.
37
In the end, the Employer maintained that the Grievors’ experience in the group home settings
was not relevant to the job of the CFW s.
Training Opportunities Completed by the Grievors
Ms. Udzbinac clarified that training programs completed by the Grievors were for the most part,
webinars that were one or two hours in length. They were short introductions to topics; for
example, the Signs of Safety training that was provided to most staff was very basic and meant
as an introduction to the topic. She conceded that the advanced training on Signs of Safety
completed by Mr. LeClair, Ms. Spotton and Ms. Levesque was a much more comprehensive
program involving six days of training.
What I find difficult to understand is why the Grievors were offered advanced training in this area
at all, given the Employer’s assertion that their jobs involved little by way of goal setting or
implementing intervention strategies. The same can be said for much of the Grievors’ other
training opportunities which included classes in attachment theory, family dynamics, among
other topics. Why would the Grievors be invited to participate in this type of training if it was not
relevant to the work they performed? This was never explained in the Employer’s evidence.
According to the Employer’s witnesses the training opportunities completed by the Grievors
were in no comparison to the courses offered through the CYW program. The curriculum for the
program consisted of 32 courses with 45 hours of class time for each course. The topics
covered in the CYW program included courses in,
Psychology of Adjustment
Education Techniques and Methodology
Therapeutic Principles to Child Behavior
Developmental Psychology
Treatment Techniques
Evidence-Based Interventions
Family Dynamics
Family Therapy
Theories of Deviant Behavior and Intervention Strategies
Therapeutic Models of Counseling, Motivational Interviewing, Short-term Solution
Counselling
Family Based Interventions
Individual Growth and the Use of Group Process
The students in the program were also required to complete a practicum where they spent time
shadowing staff at different agencies to gain practical experience and put their theoretical
knowledge to work. Ms. Udzbinac acknowledged that the students in the CYW program
shadowed with the SAW and SFCW staff, as part of their placement program. She explained,
however, that the Grievors were not their mentors. As the Team Supervisor, she was assigned
38
as the students’ mentor. It was also noted that the students shadowed with other staff in the
organization and not just with the Grievors.
The Employer submitted that although the Grievors had the opportunity to participate in
numerous training programs, this training alone was not a substitute for a CYW diploma. The
training taken with the Employer did not provide them with the theoretical foundation offered
through the college program.
Orientation for CFW Staff
Ms. Wyles spoke about the training opportunities offered to staff hired into the CFW position. All
of the CFWs received training on Signs of Safety. Ms. Wyles conceded that she herself had no
formal training on Signs of Safety and was not entirely familiar with the details of the program.
Two of the new CFWs were sent for Mother Goose training. Eight CFWs were sent for training
on the Circle of Security, an evidence-based parenting program.
The CFWs were also provided the opportunity to do some job shadowing. Because the CFW
was a new position, the Employer had newly hired staff shadow with the PSWs. Some of the
new CFWs had no experience in the mapping process associated with Signs of Safety. They
were invited to sit in on a mapping session to learn the process. Orientation was provided to the
new hires on how to complete contact logs and summary reports. The Employer submitted that
graduates of the CYW program would have taken courses on documentation.
In her testimony, Ms. W yles admitted that she was not familiar with some of the evidence-based
programs used by the CFWs such as the First Five Years and The Parent Coach programs.
She was introduced to these programs by one of the CFWs who had experience working at
another child welfare agency. She conceded that like her, not all of the CFWs were familiar with
these programs.
It was not unusual for the CFWs to learn about these programs from their co-workers. One of
the CFW s had previously worked with the program The Parent Coach. She had shared the
resource with her colleagues at a Team meeting. Ms. Wyles clarified that the material for many
of the programs could be obtained on-line and it was up to the CFW s to educate themselves on
the program.
Some programs required specialized training; for example, the Triple P program used to
educate children with ADHD, required completion of a training package to become certified to
use the program. Three of the CFWs were sent for training on Triple P program so they could
obtain their certification.
Hiring from Outside the Organization
The Union raised an issue with the fact that the Employer hired a new graduate of the CYW
program, into the CFW position who had no experience in the field of child protection other than
39
her field practicum. The individual, Ms. Horvath, completed her CYW diploma through an
accelerated program in August 2017. She was hired into the CFW role in November of that
year.
Ms. W ightman acknowledged that like the other CFWs, Ms. Horvath would need to learn on the
job and was provided some additional training. She felt that the foundational knowledge Ms.
Horvath gained in the CYW program helped her in this process. She could not answer whether
Ms. Horvath had experience working with different types of families such as foster, biological or
kin relations; but noted that her education would have included courses in family dynamics.
Ms. Wightman was also not certain whether Ms. Horvath had experience with SMART goals but
felt that at the very least she would be able articulate what a SMART goal was, as she would
have learned this concept in the CYW program.
Volunteer and Drive Coordinator Position
As stated the previously, there is no dispute that the volunteer and drive coordinator position is
an amalgamation of the former volunteer coordinator and volunteer drive coordinator jobs.
According to the Employer, the role of the VC was to recruit, interview, screen, provide
orientation, supervise and evaluate volunteers with the organization. This could include
volunteer babysitters, tutors, drivers and knitters. The position was responsible for developing
orientation and updating training manuals and material. The VC also completed performance
evaluations on all of the volunteers. The VC would also attend various community events to
recruit volunteers.
The role of the VDC was to match volunteer drivers with requests for drives. The VDC
maintained a roster of drivers. The job of the VDC was to orient the drivers, train them, and
assist the VC with completing performance reviews.
It was ultimately determined that the educational qualification for the new V&DC position would
be a three year college degree in Social Services, Human Services or a related discipline with a
preference for training in Volunteer Management or completion of a Volunteer Management
certificate. The Employer chose a three year diploma to match the qualification that was
already set for the VC position. The job description for the VC position lists a three year
diploma or degree in a related field as the minimum qualification.
Ms. W ightman testified that the when the Employer began discussing the creation of the new
V&DC position there was some discussion about raising the academic qualification to a 3 year
university degree. The Employer backed off this proposal, in part out of concern that it may be
challenged by the Union. The Employer did an informal survey of similar positions at seven
different child welfare agencies across southwestern Ontario. Some of the agencies required a
university degree for the volunteer position whereas others required only a college diploma.
40
The Employer decided on a three year college diploma as the minimum qualification, adopting
the qualification set out in the job description for the VC role.
The Employer explained that Ms. Elley was selected for the new position because she had a
three year diploma, a Volunteer Management certificate, and had experience working as the VC
and providing coverage for the VDC role. Mr. Pretty had a Volunteer Management certificate
but no college diploma. He had never worked in the role of VC or provided coverage for that
position. He was not selected for the position because he lacked both the academic
qualification and the relevant job experience.
Collective Agreement Language
The relevant language of the collective agreement is set out in the following articles:
Article 6.01 The Union recognizes and acknowledges that the management of the
Employer’s operations and direction of the Employees are fixed in the Employer and,
without restricting the generality of the foregoing; the Union acknowledges that it is the
exclusive function of the Employer to:
(b) hire, promote, demote, classify, transfer, layoff, and suspend Employees…
(d) determine the nature and kind of business conducted by the Employer…the
methods and techniques of work; the content of the job…the number of
Employees to be employed…and to determine and exercise all other functions
and prerogatives which shall remain solely with the Employer except as
specifically limited by the express provisions of this Agreement.
Article 6.02 The Employer agrees that it will exercise these rights in a fair and consistent
manner, in accordance with the terms and conditions of this Agreement.
Article 12.04 Applicants from within the bargaining unit shall be given first consideration
for the position. Where there are no qualified applicants from within the bargaining unit,
the Employer will consider applications from persons employed outside of the bargaining
unit as well as persons outside the employ of the Employer…
13.01 The parties are committed to the principle of avoiding layoffs where at all
possible. Should the funding body take action that may result in fiscal deficit, which
could give rise to layoffs, the parties will meet as soon as the Employer is aware to have
meaningful and thorough discussion regarding possible solutions to avoid layoffs.
Layoffs will only be used as a last resort. In this regard, the Employer will disclose to the
Union the financial situation, including budgetary and operational plans pertinent to the
area(s) affected.
41
Article 13.04 An Employee who has been given notice under 13.03 shall be given a list
of any/all current or upcoming vacancies. The employee shall have the right to select
and to be placed in the chosen vacancy providing the employee has the entry level skill,
ability and qualifications and to satisfactorily perform the duties of the position. Where
there is more than 1 vacancy, employees shall make their selection by seniority, highest
to lowest. The Employee shall be entitled to up to three (3) months of reorientation in
order to meet the performance requirements of the vacant position.
Article 23.03(c) Should job qualifications be changed by the Employer, bargaining unit
members will be deemed qualified for their current positions. The Employer will consider
the Employee’s experience with regard to any position which requires those
qualifications.
Position of the Union
The Union submitted that the decision to deny the Grievors the opportunity to bump into the new
positions was based solely on their lacking the academic qualifications. In the case of the
CFW s job, it was the Grievors lack of CYW diplomas. In the case of the V&DC position, it was
Mr. Pretty’s lack of a three year college diploma. In both circumstances, the Employer failed to
take into consideration the Grievors overall skills, experience and qualifications to determine
whether they could truly perform the work or not.
To that end, the Union underlined the fact that there was no effort on the part of the Employer to
interview the Grievors or even review their resumes to see what skills and qualifications they
held. Instead, the Employer simply relied on their academic qualifications or lack thereof to
disqualify the Grievors from the positions.
The Union submitted that the CYW diploma was not, in fact a requirement for the CFW position,
as there were at least three staff members who moved into the role who did not have the
qualification.
The Employer’s claim that the Grievors lacked the requisite work experience was, in the Union’s
view disingenuous, as there were others hired into the position with little or no experience in the
child protection field. It was inconceivable that the Employer would hire someone off the street
with no experience and at the same time layoff the Grievors who had thirteen or more years of
experience in the field.
As to Mr. Pretty, he was just one course short of completing a two year college diploma in Law
and Security. He also completed a college level certificate in Voluntary Management. There
was no evidence to suggest he was unable to perform his job in the VDC role. Again, the
Employer chose to ignore Mr. Pretty’s years of experience and instead selected the candidate
with the lesser seniority.
42
The dispute in this case, according to the Union, comes down to an issue of seniority rights.
The Grievors were more senior then the individuals who filled the CFW and V&DC positions. In
the former case, many of the CFWs were hired from outside of the organization.
For the Union, there were two questions that need to be answered in the case. The first was
whether the newly created positions, CFW and V&DC were the same job or substantially similar
to the Grievors positions. If that was the case then Article 23.03(c) of the collective agreement
provided that the Grievors were deemed qualified for the new positions.
If the new jobs were not the same or substantially similar then the second issue was whether
the Grievors meet the entry level skills, abilities and qualif ications for the new positions as set
out in Article 13.04. If they did then they should have been permitted to transfer into those
positions.
The Union pointed to Article 13.01 as key to my determination in this case, as that provision
sets out the overall commitment of the Employer to avoid layoffs. This was a core commitment
of the parties to avoid layoffs only as a last resort.
Article 13.04 goes on to provide that if layoffs do occur and new positions remain vacant then
the individuals affected by the layoff have the right to bump into those positions so long as they
have the entry level skills, abilities and qualifications to move into the positions. This, according
to the Union, was not ordinary bumping language.
Standard bumping language normally requires that a laid off employee must demonstrate that
they have the present skills and ability to perform the job they wish to bump into. The language
of the collective agreement in this case only requires that they have “entry level” skills, ability
and qualifications. This is a much lower standard.
Article 13.04 entitles laid off employees up to three months reorientation in order to meet the
performance requirements of the vacant job. For the Union, the term “reorientation” meant
something more than just a familiarization period and was more akin to a period of training to
assist the individual meet the performance requirements of the job. On that point, the Union
asserted that the Grievors should enjoy the same rights offered to those newly hired into the
position including those hired from outside the organization.
According to the Union, the CFW role was simply an amalgamation of the SAW, SFCW and
PSW roles. The job description for those positions listed a two year diploma as the minimum
academic qualification, the CYW diploma was listed as a preferred qualification, not a
requirement. The Union queried why the academic qualifications were raised for the new
position.
The Union highlighted the fact that three of the staff members who were permitted to bump into
the CFW role did not have CYW diplomas; one held a ECE diploma; another a DSW diploma;
and a third held a Bachelor’s degree in Behavioral Science.
43
In reviewing the evidence, the Union noted that it was not uncommon for the Grievors to move
in and out of different positions within the organization. In making these transitions, the
Grievors required little by way of training or reorientation. For example, many of the Grievors
began their careers at CKCS working in various g roup homes. When those homes closed, the
Grievors transitioned into new roles with relative ease. The Grievors were able to make these
transitions seamlessly because their skills were broad, versatile and adaptable.
The Union challenged the Employer’s efforts to minimize the work performed by the Grievors in
their previous roles. For the Union, the Employer’s characterization of the SAW role as being
simply observational was factually wrong. The evidence showed that this job evolved over time.
The SAW s worked with the families to improve their parenting skills. They provided role
modeling for parents. They worked on specific skills with the parents and addressed difficult
behavioral issues with children.
The SAW s were involved in the collaborative planning conferences. Their input was valuable in
assessing the progress of the families. The SAW s provided their own recommendations as
what strategies and interventions were best suited for the families. The SAWs were well-
positioned to provide these recommendations given their day to day involvement with the
families.
In its evidence, the Employer touted Signs of Safety, as the new model the organization was
moving toward. The Grievors all had training in Signs of Safety. Three Grievors had advanced
level training in Signs of Safety and were qualified to train other staff in this area.
According to the Union, the Employer downplayed the group activities facilitated by the
Grievors. For example, many of them were trained to facilitate the Mother Goose program. The
evidence revealed that the CFW s were facilitating many of the same groups the Grievors had
facilitated and were sent for training on programs such as Mother Goose.
The Union highlighted the work experience of Ms. Spotton. Despite only having a two year
diploma in Law and Security, the Employer allowed her to work in both the PSW and FSW roles.
She completed multiple short term contracts in both positions. In total she worked more than
three years in the PSW role. The Union questioned why the Employer did not give any
consideration to her prior experience, given the fact that other PSWs were permitted to bump
into the position without the CYW designation.
In regard to the SFCW role, the Union again challenged the Employer’s attempts to minimize
the responsibilities of that position. The Employer claimed that the role of the SFCW was to
provide respite time to the foster families and take foster children to various appointments.
The Grievors who worked in that position each testified that they provided one-on-one role
modeling and education to both foster children and foster parents. A lot of these clients had
anger and behavioral issues. The SFCW s worked with both the child and the family to address
44
these issues. As many of their youth clients were transitioning into independent living, the
SFCWs role was to educate them on social and life skills.
The Employer minimized the group work that the SFCW s performed. The Union refuted the
claim that these groups lacked specific goals. The goals of the all of the groups were to help
children and youth build important social and life skills, and improve their self-esteem. Some
had very specific goals such as financial independence program which taught budgeting,
banking and other financial skills.
As to educational qualifications, the Union made a special note of the Grievor Alana Levesque
whose academic qualifications arguably exceeded those for the CFW job. Ms. Levesque had a
Bachelor’s degree in Family and Social Relations. The Employer gave no consideration to
these credentials.
The Union highlighted the fact that all of the Grievors took advantage of the training
opportunities provided through the agency. Many had listed dozens of training programs that
they attended. Some of the training opportunities were multiple day programs. The training
touched on topics that were relevant to the CFW job including courses on, attachment theory,
family dynamics, exceptionalism in child behavior, and group facilitation.
The Union pointed to Ms. Pilbeam as an example of someone who listed six pages of training
opportunities she had taken during her time with the Employer. The Employer gave no
consideration to this training.
The Union asserted that the position of V&DC was simply an amalgamation of the VC and VDC
roles. The new position was, in the Union’s opinion, substantially similar to the VDC role which
Mr. Pretty performed. As to the V&DC position, the Union reminded me that Mr. Pretty was the
more senior candidate to Ms. Elley. As per Article 23.03, Mr. Pretty should have been deemed
qualified for the new role. In the alternative, the Union asserted that he had “entry level” skills
and ability to move into the new position. He had performed the VDC role for a number of years
despite not having the academic qualifications for the job. What this suggested was that the
academic qualification itself was unnecessary.
The Union relied on the following case law in support of its submissions: Chatham-Kent
Children’s Services and OPSEU Local 148, 2014 CarswellOnt 16948 (Sheehan), Sunbeam
Home and London & District Service Workers’, Local 220, 1983 CarswellOnt 2476 (Rayner), Re
Toronto Public Library and C.U.P.E. Local 1996, 1989 CarswellOnt 3842 (Burkett), Metropolitan
General Hospital v. O.N.A., Local 44, 1990 CarswellOnt 4260 (Roberts), Seneca College and
OPSEU, Local 563 (Job Competition for Academic Support) Re, 2014 CarswellOnt 13629
(Keller), C.F.A.W., Local 175 v. Great Atlantic & Pacific Co. of Canada Ltd., 1976 CarswellOnt
1385 (Brandt), Sudbury General Hospital of Immaculate Heart of Mary v. C.U.P.E., Local 1023,
1990 CarswellOnt 4217 (Craven), Chinook’s Edge Regional Division No. 5 v. A.T.A., Local 17,
1996 CarswellBC 1176 (Currie), Teakles v. Southeast Regional Health Authority, 2005
CarswellNB 793 (Bruce), Pepsi-Cola Canada Beverages (West) Ltd. v. U.F.C.W., Local 330W,
45
1194 CarswellMan 657 (Chapman), Re St. Catharines General Hospital and S.E.I.U., Local 204,
1975 CarswellOnt 1367 (Adams), Re Universal Engineering & Tool Works v. C.A.W., Local 27,
1990 CarswellOnt 4221 (Palmer), Boliden Westmin Resources Ltd. v. CAW-Canada, Local
3019, 1998 CarswellBC 3133 (Blasina).
Position of the Employer
The Employer began its submission by clarifying that its motive for introducing the CFW position
was to improve and enhance services to the community it served. These changes were part of
an evolution away from a risk assessment model to a more strength-based, family-focused
model. The role of the new CFW position was to work closely with the family to educate them
and to implement intervention strategies that would help them succeed in transitioning out of
protective services.
The creation of the CFW position was not part of some effort to save money or a response to
some legislative change. It was meant as a good faith effort to improve the services provided to
the community.
The Employer reminded me that the population it serves was vulnerable. The need for qualified
individuals to serve this community was in its opinion, paramount. It would be a disservice to
allow unqualified staff to step into these positions.
The Employer had every right to set the qualifications for the CFW and VDC positions, so long
as those qualifications were reasonable and relevant to the positions.
As to the academic qualification selected for the CFW position, the Employer maintained that it
did not pull the CYW credential out of a hat. The Employer looked to what other agencies had
established as the qualification for similar positions. Out of consideration for the Grievors, an
effort was made to review their academic qualifications and compare their programs with the
courses offered through the CYW program. The Employer considered whether the courses
offered in these other diploma programs (ECE, DSW, Law and Security) provided the
foundational knowledge required to perform the CFW position. Ultimately, it was decided that
these other programs did not provide the foundation needed to move into the new role.
The Employer maintained that a qualification was a qualification, it was not variable. The only
issue to decide in this case was whether the qualification was reasonable or not, based on the
requirements of the job. If the qualification was reasonable, then the inquiry ended the re. The
Union cannot demand that the qualifications be changed to suit the interests of the Grievors.
The fact that PSW s were allowed to transfer into the CFW role did not undermine the
reasonableness of the CYW qualification. In the Employer’s opinion, the staff in the PSW role
had, through their work experience, developed the necessary skills and knowledge base to
perform the new job. The Grievors work experience did not offer them the same skills or
knowledge base required to perform the work.
46
As to the V&DC position, the Employer submitted that the decision to combine the VC and VDC
jobs into a single position was a cost saving measure. The qualification set for the new position,
a three year college diploma was no different than the minimum qualifications already
established for the VC role. If the Union had concerns with that qualification then they should
have challenged it earlier. For the Employer, there was nothing improper in it maintaining the
same qualification for the new V&DC job.
The Employer asserted that Ms. Elley was correctly placed in the new job because she met the
educational qualification and had experience working in the VC position and providing coverage
for the VDC job. Mr. Pretty was not selected for the position because he lacked the academic
qualification and had no experience working in the VC role.
It reminded me that Mr. Pretty stepped into the role of VDC as the result of a without prejudice
and precedent settlement. The fact that he performed his previous role without the requisite
academic qualifications could not be considered in this case given the without prejudice nature
of the settlement.
Mr. Pretty had no experience interviewing, screening volunteers or orienting volunteers outside
of drivers. He had no experience performing evaluations, addressing performance issues or
drafting manuals. These duties were all performed by Ms. Elley in the VC role.
The Employer refuted the Union submission that it subverted the Grievors’ seniority rights. It
reminded me that the application of seniority was not absolute; an employee’s seniority was
only significant to rights that were specifically spelled out in the collective agreement. The
Grievors were all given the right to bump into other positions. The Grievors were unable to
bump because they lacked the seniority to do so. Despite having thirteen or more years of
seniority, the Grievors were in fact, junior to most of the other staff in the bargaining unit.
The fact that the Employer hired new staff, outside of the bargaining unit, into the CFW role was
neither relevant, nor a violation of the collective agreement. Article 12.04 of the agreement
specifically provided that the Employer could look outside the bargaining unit where there were
no qualified candidates for the position.
The Employer was under no obligation to the interview candidates who did not meet the
qualifications of the position. The language of Article 12.04 supported this argument. The fact
that the Employer did not interview the Grievors’ or review their resumes was not a violation of
the agreement.
As to Article 13.01, it submitted that this article only applied to circumstances where there has
been a loss of funding. This provision had no application to the facts in this case because the
decision to layoff the Grievor resulted from a reorganization of the work and was not due to
budget cuts.
47
In regards to Article 13.04, the Employer asserted that the use of the language “entry level
skills, abilities and qualifications” did not supplant the general arbitral principle that an employee
bumping into a position must have the present skills and ability to perform the work of the
position, at the time of layoff. The evidence in this case had demonstrated that the Grievors
simply did not have the skills, experience or qualifications to bump into the new role without the
need for a significant amount of training and education.
The Employer explained that the reference to “three months reorientation” in Article 13.04 was
meant as an orientation period to familiarize staff with the job duties of the position. It was not
meant as training or trial period for those going into the position. It was not meant as a period of
time to make otherwise unqualified candidates, qualified for the position.
It refuted the Union’s claim that the CFW role was simply an amalgamation of the SAW, SFCW
and PSW roles; and that the CFW position was identical or substantially similar to those
positions. In terms of its job duties, it was most similar to the PSW role but with enhanced skills.
The CFW s did participate in supervised access visits but the work was very different from that
which was carried out by the SAWs. The CFWs role in the supervised access visit was to
provide parental education and work on skill building.
There was little resemblance between the CFW and SFCW positions. The CFWs did not take
children to appointments, extra-curricular activities, or to provide respite care to the foster
family. The CFW s did some limited work with foster children but the focus was on education
and building skills.
Similarly, the Employer rebutted the Union’s stance that the VD&C position was identical to or
substantially similar to the VC and VDC roles. The new position was in fact, simply an
amalgamation of the two previous jobs.
The Union’s argument that the new positions were “substantially similar” to the Grievors’
positions was irrelevant because the language of Article 23.03 did not speak to substantially
similar positions. It spoke to the same position. The Grievors’ positions no longer existed which
meant that Article 23.03 had no application.
The Employer acknowledged that the role of the SAW had evolved over time. But it had not
evolved to the point that SAWs were providing parent education or applying evidence-based
intervention strategies. A review of the contact logs completed by the SAWs, demonstrated that
the SAWs were not performing these tasks. Where interventions were done they were ad hoc
in nature. There was no strategy to apply evidence-based interventions. The SAW s provided
little feedback to the families, provided little by way of resources, and did not measure the
success of their interventions.
The CFW job was purposely classified at a wage rate higher than that set for the SAW and
SFCW classifications because of the enhanced nature of the position and the skills and
48
qualification required for the job. The Employer based the salary in part on what other agencies
were paying for similar positions.
As to the job duties of the SFCW, the Employer emphasized that the job focused on working
with youth in foster care on a one-on-one basis. The role of the SFCW was to provide respite
time for the foster family, to chaperon foster youth to various activities and appointments. A
review of the contact logs completed by the SFCW s demonstrated that the work they performed
did not involve any SMART goals. The SFCW s may have provided advice to the foster youth
on life skills such as financial literacy but it was not their job to set those goals.
The group work facilitated by the SFCW s was open-ended, there was very little planning for the
groups. They lacked learning objectives. Ms. Udzbinac testified that after receiving input from
the Grievors in the SFCW role, it was clear to her that they did not have the knowledge or skills
required to facilitate group activities which utilized evidence-based strategies.
As to the Grievors’ prior experience working in the group home settings, the Employer explained
that this work was very different from the work performed by the CFWs. The role of treatment
home support worker was to work with high needs children and provide additional support to the
foster family in the care of the child. The position of developmental support worker was to assist
high needs children in a school setting. The position of parent model group home worker was to
assist the foster parent in the home with co-parenting duties. This was very different from the
duties of the CFWs.
The Employer acknowledged that the Grievors attended numerous training opportunities
throughout their careers at CKCS. It clarified, however, that most of these training programs
were webinars that were one or two hours in length. They were no replacement for the vigor of
a three year Child and Youth Worker diploma.
Many of the Grievors had experience outside of CKCS either working for or running their own
daycares. The Employer submitted that this experience was again not relevant to the job of
CFW s. The focus of that position was not to provide child care service but rather to work with
families and provide strategies to educate parents.
As to Ms. Spotton transitioning in and out of the PSW role, the Employer reminded me that she
worked in these positions over eight years prior to the layoff. There was no way of knowing
whether the work she performed was the same as the work performed by the PSW s at the time
of layoff. The Employer pointed to the performance evaluation she received while in the FSW
role. In that evaluation, the supervisor recommended that Ms. Spotton complete the CYW
program before returning to the FSW position.
If I were to accept that Ms. Spotton’s experience in the PSW and FSW roles were relevant to
the outcome of this case, then the Employer reminded me that she was the only Grievor to
transition in and out of these roles. The experiences of the other Grievors’ were more limited.
49
The fact that Ms. Levesque had a Bachelor’s Degree in Family and Social Relations was also
not relevant. The CYW diploma was best suited to the work performed by the CFW role.
Simply having a University degree did qualify her for the position.
The Employer raised issue with the fact that two of the Grievors (Ms. Klingbile and Ms. Pilbeam)
refused to teach the Mother Goose program to parents in supervised access. The CFW s were
required to work with all types of families. The Grievors could not pick and choose what type of
clients they worked with. The Employer queried whether the two Grievors were right for the
new position given their refusal to work with certain clients.
As to Mr. LeClair, the Employer thought it was telling that he listed the CFW job as his third
option when it came time for a layoff ; and in fact, listed the receptionist position ahead of the
CFW role. If he believed that the CFW job was the same job he performed then why not list it
as his first preference.
The Employer raised the fact that during the course of settlement discussions, the Grievors
were offered an opportunity to write a test to demonstrate their qualifications. If they scored
above a certain mark the Employer would have placed them into the CFW job. The Grievors
and the Union refused the offer. The Employer submitted that this was evidence that the
Grievors’ knew that they lacked the necessary education to pass the test.
Finally, the Employer submitted that I must show deference to the Employer’s judgment in
setting the qualifications for the positions. There was no evidence the Employer acted in bad
faith or applied the qualifications in unfair or improper purpose. The Grievors simply did not
have the skills and qualifications to move into the new jobs and for that reason the grievances
should be dismissed.
The Employer relied on the following arbitral awards in support of its position: St. Joseph’s at
Fleming Long Term Care Facility v. Canadian Union of Public Employees Local 2280 (Goodwin
Grievances), [2017] O.L.A.A. No. 107, Skidegate Band Council v. Hospital Employees’ Union
(Gladstone-Davies Grievance), [2002] B.C.C.A.A.A. No. 390, Halifax Regional Water
Commission and C.U.P.E. Loc. 227 (Creelman) (Re), [1999] N.S.L.A.A. No. 24, North Bay
Regional Health Centre v. Ontario Nurses’ Assn. (Sutherland Grievance). [2012] O.L.A.A. No.
334, Bruce Power LP and Society of Energy Professionals (Roberts), Re, 2012 CarswellOnt
13876, Seaspan International Ltd. v. Canadian Merchant Service Guild (Scott Grievance),
[2010] C.L.A.D. No. 18, Re Reynolds Aluminum Co. of Canada Ltd. and International Molders
and Allied Workers Union, Local 28, [1980] O.L.A.A. No. 58, Ontario Nurses’ Assn. v. William
Osler Health System (Marques Grievance), [2015] O.L.A.A. No. 289, Ontario Public Service
Employees Union v. Ontario (Ministry of Health and Long-Term Care) (Sessions Grievance),
[2015] O.G.S.B.A. No. 160, Ross Memorial Hospital v. Canadian Union of Public Employees,
Local 1909 (Johnston Grievance), [2012] O.L.A.A. No. 486, Seneca College of Applied Arts and
Technology and O.P.S.E.U., Re, [1996] O.L.A.A. No. 65, Intertek Testing Services and I.L.W.U.,
Loc. 514 (Chau) (Re), [2002] C.L.A.D. No. 641, Canadian Union of Public Employees, Local 21
v. Regina (City) (Erickson Grievance), [2009] S.L.A.A. No. 17, Northern Telephone Ltd v.
50
Communications, Energy and Paperworkers’ Union of Canada (Samson Grievance), [2000]
C.L.A.D. No. 767, York University v. Canadian Union of Public Employees, Local 3903 (Wallis
Grievance), [2010] O.L.A.A. No. 470, Vancouver Island University v. Vancouver Island
University Faculty Assn. (Gugeler Grievance), [2014] B.C.C.A.A.A. No. 52, Saskatoon (City) v.
Canadian Union of Public Employees, Local 59, [2008] S.J. No. 31, Northerntel Limited
Partnership v. Unifor (Presse Grievance), [2015] C.L.A.D. No. 258, Kimberley (City) v. United
Steelworkers of America, Local 935 (Seifried Grievance), [2006] B.C.C.A.A.A. No. 60, Kingston
General Hospital v. Canadian Union of Public Employees, Local 1974 (Kemp Grievance), [2010]
O.L.A.A. No. 60, A&P Canada Co. v. CAW Local 414 (Prendi Grievance), [2009] O.L.A.A. No.
169, General Dynamics Canada v. Independent Union of Defense Contractors (Lynch
Grievance), [2006] O.L.A.A. No. 196, Re St. Catharines General Hospital and Service
Employees Union, Local 204, [1984] O.L.A.A. No. 32, Children’s Aid Society of Metropolitan
Toronto and C.U.P.E., Loc. 2316, Re, [1990] O.L.A.A. No. 112, Royal Alexandria Hospital and
A.H.E.U., Loc. 41, Re, [1990] A.G.A.A. No. 14, Abbotsford (City) and Canadian Union of Public
Employees, Local 774 (Bell Grievance), [1998] B.C.C.A.A.A. No. 512, Reynolds Aluminum Co.
Canada v. International Association of Machinists and Aerospace Workers, Local 28 (Hiring
Grievance), [1974] O.L.A.A. No. 7, Sunnybank Centre and Hospital Employees’ Union (Leveck
Grievance), [1996] B.C.C.A.A.A. No. 381, Surrey School District No. 35 v. Canadian Union of
Public Employees Local 728 (Chahal Grievances), [2002] B.C.C.A.A.A. No. 262.
Analysis
I begin with some comments on the evidence. Much of the evidence in this case focused on
whether the Grievors had experience performing the job duties set out in the job description for
the CFW role. The Grievors testified in great detail about the work they performed through the
course of their careers and how it related to the duties of the CFW position. Based on all of the
evidence, I accept that the Grievors had experience in the following duties listed in the CFW job
description;
Working on short term, specific goals with families
Implementing intervention strategies on issues of child management, healthy parenting
skills, and communications skills
Reporting child protection concerns to their supervisors
Facilitating group training
Facilitating positive and meaningful family interactions; and
Providing support to youth at risk of separation.
I heard much evidence about the use of SMART goals. The Employer submits that the Grievors
had no experience implementing SMART goals. The Union and the Grievors took the opposite
view. Again, the Grievors testified in great detail about the goals they worked on with specific
clients. On that point, I accept the evidence of the Grievors that although not identified as such,
the goals they implemented, had many of the characteristics of SMART goals including, clearly
defined objectives and time frames for achieving these goals. The goals were generally
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developed by the CSW or PSW and implemented by the Grievors. The Grievors did have input
into how these goals were established and reassessed.
I also heard evidence regarding students in the CYW program job shadowing with the Grievors
as part of their field placement. I appreciate that the Grievors were not the formal mentors to
these students. However, the undisputed evidence is that the students in the program did
spend time shadowing with the Grievors. This evidence is relevant because illustrates the value
of the skills and experience that the Grievors bring to the table. Neither the College nor CKCS
would have allowed students to shadow with the Grievors, if they did not think that it would be a
valuable placement experience.
The Grievors each have nearly fourteen years of work experience in the field of child protection
working in a variety of roles. Their experiences were not limited to working with one type of
family but included working with biological parents, foster families and kin relations. Some of
the clients they worked with were incredibly challenging including parents and children with
severe disabilities, addiction and mental health issues, as well as, anger and violence issues.
The Grievors also have experience working with a families from different cultural backgrounds
that reside in the Chatham-Kent area including aboriginal and Mennonite families. All of this
experience is relevant to the work of the CFW s.
There is no dispute that the Grievors did not have a CYW diploma. Nevertheless, the number of
the training opportunities the Grievors had taken over the years was impressive considering that
not all of these courses were mandatory. There was no question that the Grievors were
motivated to advance their skills and broaden their knowledge in the field. The fact that the
Grievors participated in such a broad range of training opportunities, including courses in family
dynamics, intervention strategies and attachment theory, suggests to me that the Employer has
significantly downplayed the skills they performed. It would be senseless for the Grievors to
take these courses if their jobs simply involved observing families in access visits or providing
respite care for foster families. The more sensible conclusion to draw from this evidence is that
the Grievors took courses on topics such as intervention strategies and attachment theory
because it was relevant to the work they performed.
I appreciate that many of the training opportunities taken by the Grievors were webinars that
may have only been one or two hours in length. But some of these opportunities were multiple
day programs. I do not believe that combined together these training opportunities are
equivalent to a CYW diploma. The significance of having a CYW diploma will, however, be
discussed further on this decision.
Settlement Offer
During the course of the hearing, the Employer made an offer to settle the grievances on the
basis that the Grievors write a test to demonstrate their knowledge and ability to work in the new
position. The Employer proposed that the test be written and administered by a third party
mutually agreeable to both sides. If the Grievors scored above a certain percentage they would
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be allowed to move into the new positions and if not their grievances were withdrawn or
otherwise settled.
The Employer relies on the Grievors rejection of the settlement offer as evidence that they knew
that did not have the educational background to pass the test. The Union objected to the
Employer introducing an offer of settlement into the arbitration process. I reluctantly allowed
the argument; but in the end I reject the submission for the reasons raised by the Union.
The offer made by the Employer in this case was contingent on the Grievors withdrawing or
settling their grievances. It was made at the outset of the arbitration process. This type of offer
clearly falls within the privilege of settlement discussions made during the course of grievance -
arbitration process. The fact that the Grievors’ rejected this offer cannot and should not be
considered as an admission, that they lacked the qualifications or ability to go into the CFW role.
Identical or Substantially Similar Positions
Turning to the merits of the case, I begin with the Union’s first position that the roles of the new
CFW and V&DC positions were identical or substantially similar to the Grievors’ former
positions. If this is true then, according to the Union, the Grievors were deemed qualified for the
new positions as per Article 23.03(c). The article provides,
Article 23.03(c) Should job qualifications be changed by the Employer, bargaining unit
members will be deemed qualified for their current positions. The Employer will consider
the Employee’s experience with regard to any position which requires those
qualifications.
The difficulty with this argument is that the term “current positions” in Article 23.03, refers to the
positions that the Grievors held at the time of layoff . These classifications no longer exist, so
unless I find the new CFW and V&DC roles to be effectively the same positions, as the jobs the
Grievors held, Article 23.03 has no application.
In regard to the work of the SAW s, the uncontested evidence of Ms. Wylie was that the task of
supervising access visits was just a small part of the work performed by the CFW s. There was
no question that supervised access visits are still an important part of the work performed by the
agency. However, that job is not performed exclusively by the CFWs but is now performed by
the CSW s, as well.
The Employer further submitted that the CFW s role in supervising access visit was qualitatively
different from the work performed by the SAW s. The CFW s utilize the visits to work on specific
goals with families which are preplanned. The SAWs did not work on specific goals, the goals
for the supervised access visits were always the same, to ensure a safe and meaningful visit.
I cannot say that I fully accept the Employer’s position that there was a substantial difference in
the actual work performed by the CFW s and the SAW s during an access visit. Most if not all
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access visits are court-ordered. The staff member attending the visit must observe and
document the family’s interactions during the visit and that function has not changed.
It may be true that the SAW s did not approach access visits with the same preplanned agenda
as the CFW s. However, given the evidence offered by the Grievors, there is little doubt that
they also worked with families on specific goals meant to improve their parenting skills. The
Grievors’ interventions may have been ad hoc in nature, addressing problem behaviors as they
arose, but these were not “one off” interventions. The Grievors frequently intervened with
families to correct behavior and in so doing provided both education and role modeling for the
families.
With that said, I accept the Employer’s evidence that the supervised access visit is only a small
aspect of the work performed by the CFW s. For that reason, I do not accept the Union’s
submission that the CFW position is identical or substantially similar to the job of the SAW s.
By the same token, there appears to be only a minor overlap between the job duties of the CFW
and the former SFCW position. The primary role of the SFCW was to work one-on-one with
foster children and their foster families. The CFWs perform some one-on-one work with foster
children but the work appears to be infrequent. According to Ms. Wylie testimony, there are few
individual referrals to the Team. As a result, the CFWs seldom work one-on-one with youth in
foster care as most of their work focuses on working with families.
Again, the Employer submits that the CFWs work was qualitatively different from that performed
by the SFCW s. The CFW s do not accompany foster children to appointments or extra-
curricular activities. The role of the CFW is to work on specific goals with the foster children,
much like the work they do with families.
The Employer has, in my view, downplayed the significance of the SFCWs work with foster
children. The Grievors evidence which I accept was that their time spent with foster youth
focused on building social skills, life skills, managing anger issues, addressing attachments
issues and improving marks in school. These are all specific goals. It may be true that their
interventions, like the SAWs, were more ad hoc in nature, but the interventions were frequent
enough that they were a regular part of the job. The SFCWs were also responsible for
implementing the plans of care which were preplanned in nature and involved implementing
SMART goals.
The Employer claimed that the group work performed by the CFW s was qualitatively different
from the work performed by the SFCWs. I do not fully accept this conclusion. When
questioned about the particulars of the different groups that the Grievors’ ran, Ms. Udzbinac
conceded that some of these programs were structured and designed to focus on specific goals.
What is telling is that some of the groups ran by the SFCW s are still running to this day and are
being facilitated by the CFW s including the Mother Goose program, financial literacy program
and summer camp. With that said, it does not appear that group facilitation is a large
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component of the work now performed by the CFW s. Most of their work is done one-on-one
with families.
Based on the foregoing, I do not think the evidence in this case bears out the conclusion that
the CFW position is similar to either the SAW or SFCW roles. The CFW is a distinct positon
which incorporates some of the job duties of the former SAW and SFCW positions; but too few
to conclude the positions are the same or substantially similar. For this reason, I must
conclude that Article 23.03 has no application to the facts in this case.
A similar analysis can be applied to the V&DC position. There was no dispute on the evidence
that the new position was simply an amalgamation of the two former positions. Therefore, many
of the duties of the new role were carried over from the VC and VDC roles. The fact that the
new job incorporates the duties of the two former positions does not make it the same position
as those it replaced. It is clearly a new position with much more responsibility. For that reason,
I can only conclude that Article 23.03 has no application.
Entry Level Skills, Ability and Qualifications
I next turn to the Union’s second position whether the Grievors had the entry level skills, abilities
and qualifications for the new positions. The Employer submits that the Grievors did not meet
the entry level qualification for the CFW job because they lacked the CYW diploma.
As a matter of arbitral principle, I accept the Employer’s submission that it is management’s
prerogative to set the qualifications for a position so long as the qualifications are not arbitrary or
made in bad faith. The qualifications must also be relevant to the requirements of the job.
The seminal case on point is the decision of Arbitrator Schiff in Reynolds Aluminum Co. Canada
supra. In that case, Arbitrator Schiff set out the principle that the arbitrators must show
deference to the qualifications set by an employer unless the qualifications bear no relevance to
the job in question or where the qualifications are adopted in bad faith. At paragraph 10 of the
award, he states,
In the ordinary exercise of management functions employers may determine in the first
instance what specific qualifications are necessary for a particular job and what relative
weight should be given to each of the chosen qualifications. After the employer has
made the determination, arbitrators should honour the managerial decisions except in
one or both of two circumstances: First, the employer in bad faith manipulated the
purported job qualifications in order to subvert the just claims of employees for job
advancement under the terms of the collective agreement... Secondly, whether or not
the employer had acted in good faith, the chosen qualifications bear no reasonable
relation to the work to be done.
In support of its position the Employer maintains that it did not pull the qualification of a CYW
diploma out of a hat. I accept the Employer’s evidence that careful consideration was made in
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selecting this diploma as the benchmark academic credential. The Employer reviewed the
courses offered through the CYW program and concluded that this diploma provided its
graduates with a theoretical foundation that was best suited to the CFW position. I do not
dispute that the courses offered through the CYW program were relevant to the work performed
by the CFW s.
In an effort to ensure fairness, the Employer reviewed the courses offered through the CYW and
compared them with the courses provided in other programs such as ECE, DSW, and Law and
Security to determine if the Grievors’ academic credentials provided the same theoretical footing
and concluded that it did not.
What is difficult to square in this case, however, is that the Employer chose to make the CYW
diploma a minimum qualification but then allowed staff without that designation to move into the
new position. The Employer maintained that the PSWs work experience was equivalent to a
CYW diploma. I cannot accept that proposition. In my view, there is no equivalency between
the practical experience gained in the PSW position and the theoretical knowledge learned
through the CYW program. These are mutually exclusive concepts.
I accept that the PSWs had practical work experience that was qualitatively different from the
Grievors. But there is no evidence that the PSWs gained the theoretical knowledge taught in a
classroom. The fact that their jobs involved analysis and the use of assessment skills does not
mean they have the same knowledge base as someone graduating from a CYW program.
The educational credentials of three of the PSWs who went into the new position were nearly
identical to the Grievors: one had an ECE diploma, another had a DSW diploma, and a third had
a Bachelor Degree. If the Grievors lacked the theoretical foundation to perform the CFW role
then so did these individuals. The only advantage the PSWs had over the Grievors was their
work experience.
I accept the Employer’s evidence that the work of the PSW was more aligned with that of the
CFW s. The evidence in this case establishes, in my opinion, that the PSWs had the skills and
abilities to transfer into the CFW position and perform most if not all of the duties of that
position. The fact that the PSWs were used to mentor the newly hired staff in the role is further
testament to that fact.
The Employer’s position in this case is that not only did the Grievors lack the academic
qualifications for the CFW job, they also lacked the relevant work experience. Among the many
awards put forward by the Employer, I think the one that best captures this point is the decision
of Arbitrator Foisey in Children’s Aid Society of Metropolitan Toronto supra. That case involved
a job posting for the position of social worker. The posting listed a Bachelor ’s of Social Work as
a minimum qualification for the position. The Grievor in that case did not have a B.S.W. but had
worked in the position of family support worker which she claimed was equivalent experience.
At paragraph 21 of the decision Arbitrator Foisy wrote,
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The evidence has convinced me that the job of social worker is very different from that of
the family support worker, in that it requires more in-depth knowledge which permits the
social worker to deal with a variety of situations. The B.S.W. educational requirement
enables the society to have social workers who are better equipped to deal with the
complexity of the their tasks and who, as testified by the branch service director
Margerete Leitenberger, will enable them as a team to speak the same language. The
family support worker position held by the grievor is much more limited in scope. Even
though some of the tasks of the family support worker may resemble those performed by
social workers, they are centered on child care, as opposed to the job of the social
worker for which the family support worker provides support.
It is important to keep in mind that the case before Arbitrator Foisy was a job posting case. The
matter before me is not a job competition. The Grievors are not competing for the CFW
positions. They need not prove that their skills, ability and qualifications are relatively equal to
the individuals who were selected into that role. This is also not a case involving bumping rights
where the Grievors are seeking to bump junior employees out of their positions. The issue in
this case is whether the Grievors have the “entry level” skills, ability and qualifications to transfer
into vacant CFW positions. The focus of this case rests on what is meant by the language
“entry level” skills, abilities and qualifications.
To understand what is meant by this language requires a review of the broader collective
agreement. I begin with Article 13.01 which, in my view, is crucial in understanding the parties’
intentions when dealing with situations involving layoff. The article provides,
13.01 The parties are committed to the principle of avoiding layoffs where at all
possible. Should the funding body take action that may result in fiscal deficit, which
could give rise to layoffs, the parties will meet as soon as the Employer is aware to h ave
meaningful and thorough discussion regarding possible solutions to avoid layoffs.
Layoffs will only be used as a last resort. In this regard, the Employer will disclose to the
Union the financial situation, including budgetary and operational plans pertinent to the
area(s) affected.
The Employer submits that the language in this provision only concerns circumstances where
the funding body has reduced funding to the agency. That is, the commitment to avoid layoffs
only applies to situations where the employer’s funding has declined.
The Employer submits that the first sentence in that article cannot be read out of the provision
and must be understood in the context of the remainder of the article which focuses on funding
deficits. Had the parties intended this principle to apply more broadly, they would have made
the first sentence in article 13.01 a stand-alone provision.
Respectfully, I cannot agree with this interpretation. In my view, the first sentence in Article
13.01 is clearly a commitment to the principle of avoiding layoffs without condition. The fact that
the remainder of the provision addresses funding issues simply reflects the reality that the
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issues of funding and layoffs go hand in hand. Even when faced with funding shortfalls, the
Employer will maintain its commitment to avoid layoffs. It makes little sense to me that the
Employer would commit to avoiding layoffs in times of a financial stress but would not do so in
ordinary times.
Having said that, I do not think this language goes so far as to establish an outright prohibition
on layoffs. It would be extraordinary, in the field of labour relations, for an employer to concede
the ability to layoff employees, even in the best fiscal climate. There would need to be much
clearer language in the agreement to achieve that result.
In my view, the language in Article 13.01 simply provides a commitment by the parties to avoid
layoffs, as only a last resort. It commits the Employer to turn its mind to whether it can achieve
its goals for reorganizing the workplace without the need for layoffs. If this can be done then the
Employer is obliged to follow that path.
On that point, it is important to keep in mind that the decision to implement the CFW role was
done solely on the initiative of CKCS. This was not a decision that was imposed by an outside
authority through some Ministerial order or by legislative amendment. The Employer voluntarily
embarked on this process.
I accept that the decision to implement the CFW role was made in good faith. The Employer’s
goal was to improve services to families in its care. This was part of a trend toward a more
family-centered approach to offering services. The creation of the CFW position was part of this
change. It appears, however, that other agencies made similar changes without imposing the
requirement of a CYW diploma.
That is not to say that the Employer is obliged to follow the path of other child welfare agencies.
The Employer has the right to reorganize the workplace as it sees fit. But it must do so within
the confines of the collective agreement.
This brings us to a consideration of the key language in the collective agreement which is
determinative of this dispute. This is set out in Article 13.04 which obliges the Employer to
consider whether the Grievors had the “entry level” skills, abilities and qualifications to transition
into the new positions. The article provides:
Article 13.04 An Employee who has been given notice under 13.03 shall be given a list
of any/all current or upcoming vacancies. The employee shall have the right to select
and to be placed in the chosen vacancy providing the employee has the entry level skill,
ability and qualifications and to satisfactorily perform the duties of the position. Where
there is more than one (1) vacancy, employees shall make their selection by seniority,
highest to lowest. The Employee shall be entitled to up to three (3) months of
reorientation in order to meet the performance requirements of the vacant position.
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Arbitrators have generally accepted the principle that an employee who seeks to bump into a
job must have the requisite skills and qualifications for that position. Absent language in the
collective agreement, employees are not entitled to be trained to be proficient for a job.
Similarly, an orientation period cannot be used to make an unqualified candidate, qualified for a
position. If the candidate is not immediately qualified to move into the position then he or she is
not entitled to bump.
These are well established principles in the arbitral case law but are based on standard
bumping language in a collective agreement. In the case of bumping rights, most collective
agreements provide an employee the right to bump into a job they are qualified to perform.
The language of the collective agreement before me is different. Article 13.04 provides that a
laid off employee has the right to be placed into current or upcoming vacancies provided they
have the “entry level skill, ability and qualifications to satisfactorily perform the duties of the
position”.
This is not standard bumping language. In my view, the words “entry level” signifies an intention
to impose a lower standard of entry in order to facilitate the movement of employees into vac ant
positions and thus avoid layoffs. The language in Article 13.04 must be read in conjunction with
Article 13.01 and the parties’ commitment to avoiding layoffs as a last resort.
In my view, Article 13.04 contemplates a softer landing for those who are affected by a layoff.
The Grievors need not demonstrate that they have the current ability to perform all of the duties
of the new job. They need only prove that they have the entry level skills and abilities to go into
the position. This language suggests a minimal level of skills and qualifications to move into the
role.
The provision goes on to state that an employee is entitled to up to three months of reorientation
to meet the performance requirements of the job. I agree with the Employer’s sub mission that
the word “reorientation” is generally not meant to be a training period. It is meant as time spent
to familiarize an employee with the duties of a job. It is not an opportunity for an employee to
learn the skills necessary to become qualified for the position. It is also not a trial period.
However, the use of the qualifying words “entry level” in Article 13.04 suggests that the word
“reorientation” has a broader meaning. The term “entry level” implies that the Grievors will be
given the same opportunities as someone newly hired into the position. It would seem odd that
newly hired employees would receive training and the chance to job shadow and the Grievors
would not be entitled to the same benefit.
I heard evidence that the new hires job shadowed with the PSWs who went into the positions.
They also received training in Signs of Safety, Mother Goose, and different evidence-based
programs. I see no reason why the Grievors would not be entitled to the same opportunities as
those hired into the new positions.
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According to Ms. Wylie’s evidence, not all of the CFWs were familiar with the evidence-based
programs used in their work. Those who had familiarity with these programs would share their
knowledge with other staff. What I took from Ms. Wylie’s evidence was that there was a lot of
informal education among staff and a lot of self-teaching on these programs. The programs
were accessible on-line or the material was available through the Employer. The programs
themselves were designed to use plain English. Again, I see no reason why the Grievors would
not be afforded the same opportunity to teach themselves or be mentored on these programs,
as those newly hired into the position.
The evidence clearly demonstrates that after the layoffs were announced, the Employer made
little effort to review the Grievors’ skills, abilities or other qualifications. The Grievors each
submitted resumes for consideration, some of their resumes ran many pages in length
documenting their work experience both in and outside of CKCS. Some of them took great care
in documenting how their experience related to the job duties of the new position. Some
included copies of their college transcripts and the course descriptions for the classes they
completed. Most listed the in-house training they received while working at CKCS.
Those in management who made the decision to hire staff into the CFW positions did not review
the Grievors resumes; nor did they give them the opportunity to interview for the positions. As I
understand it, a staff member in the human resources department reviewed the Grievors
resumes and once it was decided that they lacked the CYW diploma no further consideration
was given.
The Employer explained that a decision was made early that candidates who did not have a
CYW diploma would not be considered for the new position. The only exception to that
requirement would be for staff in the PSW position whose job was substantively similar to the
CFW role.
The Employer put forward a number of arbitral cases to support its position that it was under no
obligation to interview the Grievors. I accept the general principle set out in those cases that an
employer is not required to interview candidates who do not meet the minimum qualifications for
the job. But as discussed above, the CYW was truly not a minimum qualification for the job as
other staff were deemed qualified because of their work experience.
Article 13.04 requires that the Employer make a sincere effort to review the G rievors training
and work experience in and outside of the organization and turn its mind to whether the
Grievors had the “entry level” skills, abilities and qualifications. Its failure to fully consider the
Grievors full range of skills and abilities was, in my view, contrary to its obligations under Article
13.04.
I accept that the Grievors did not have the skills and abilities to perform all of the duties of the
new position. But the language of the collective agreement does not impose that requirem ent.
The issue in this case is whether the Grievors were capable of performing the duties of the new
job to the standard set out in Article 13.04. Do they have the entry level skills, abilities and
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qualifications to perform the job? For example, are the Grievors capable of providing analysis
and assessment of their clients’ progress? Are they capable of selecting and implementing the
appropriate evidence-based programs?
The answers to these questions are best answered by the evidence of Ms. Spotton. Through
her career, Ms. Spotton was able to successfully transition in and out of the PSW and FSW
roles and performed the work with accolades. I have set out in great detail the performance
evaluations that Ms. Spotton received during her time in those jobs and those evaluations speak
for themselves. They document her success in carrying out the duties of those jobs which
included, selecting evidence-based programs, implementing SMART goals, and providing
detailed assessments of her interactions with clients. These are exactly the skills the Employer
claims the Grievors lack. Ms. Spotton does not have a CYW. Her diploma is in Law and
Security and her work experience outside of the PSW and FSW roles is nearly identical to the
other Grievors.
If Ms. Spotton was capable of performing the role of the PSW position in the past, I see no
reason why she would not succeed in the CFW position today. Based on the same rational, I
see no reason why the other Grievors would not succeed in the role, as well.
In the end, I am satisfied that the Grievors had the entry level skills , ability and qualifications
needed to transition into the CFW role. For that reason, I find that the Employer violated Article
13.04 of the collective agreement when it refused to transfer the Grievors to the vacant CFW
positions.
V&DC Position
Turning my attention to Mr. Pretty’s grievance, the issue in that case is whether the Grievor has
the “entry level” skills, abilities and qualifications to transfer into the V&DC role. The Employer
submits that the Grievor lacks both the academic qualification and experience to perform the
role. The Union counters that the Grievor’s experience working in the VDC position qualifies
him for the position and that the academic qualification is not a valid job requirement. The
Union points to the fact that Mr. Pretty was able to perform the VDC job without the academic
qualifications listed for that position. It asks that he be given the same opportunity to prove
himself in the new V&DC role.
I do not dispute the Union’s claim that the Grievor was able to perform the VDC role without the
requisite academic credentials. That fact, however, does not restrict the Employer from setting
reasonable qualifications for the new position. It is important to keep in mind that Mr. Pretty
transferred into the VDC role as part of a resolution to a grievance. The settlement of that
grievance was made without prejudice. It would be improper for me to conclude that he met the
stated qualifications for his previous position, if he was brought into that position on the basis of
a without prejudice settlement.
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On the issue of qualifications, I reiterate that Employer has the right to establish the
qualifications for a position so long as those qualifications are reasonable and relevant to the
role in question. There is no evidence to suggest that the Employer set the qualification of a
three year diploma in an arbitrary or bad faith manner. The V&DC role is not an unskilled
position. There are aspects of the job which require analytical skills such as developing training
material and completing performance evaluations.
It was not unreasonable for the Employer to require an academic degree. The qualification
adopted for the new position is similar to the qualification set for the previous VC role, a three
year college diploma. The Union has never challenged the academic qualification set for the
VC position.
As I have stated, Article 13.01 requires the Employer to turn its mind to whether it can
reorganize the workplace without imposing layoffs. I do not think this language goes so far as
to require the Employer to lower the qualifications for a position, where those qualifications are
otherwise found to be reasonable.
This outcome may seem incongruous in the sense that the academic qualifications for the
V&DC position are ostensibly greater than the qualifications for the CFW job. The situation
involving Mr. Pretty, however, is different from the other Grievors.
With regards to the CFW positions, the Employer set the minimum qualification as a CYW
diploma, but subsequently permitted staff without that diploma to move into the role. Some of
the individuals who moved into the new position had the same academic qualifications as the
Grievors. Based on these facts, I can only conclude that the CYW diploma was truly not a
minimum qualification for the position and was, therefore, not a barrier to the Grievors moving
into that role.
The same is not true for the V&DC position. The qualification for the position is a three year
college diploma in Social Services, Human Services or a related discipline. The individual who
went into the position, Ms. Elley met that qualification. Mr. Pretty did not. The language of the
Article 13.04 speaks to entry level skills, ability and qualifications. I cannot read out the
reference to “qualifications” in the language.
For all of the reasons, I conclude that Mr. Pretty did not meet the entry level qualifications to
transfer into the V&DC role.
Disposition
The grievance filed on behalf of Mr. Pretty’s grievance seeking the right to transfer into the
V&DC position is hereby dismissed.
The grievances filed on behalf of Ms. Elley and Mr. Pretty which challenge the Employer’s right
to eliminate the VC and VDC role are addressed in a separate award.
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The grievances filed on behalf of the other Grievors, Kim Mugridge, Stephanie Klingbile,
Elizabeth Perry, Alana Levesque, Melinda Pilbeam, Karrie Spotton and Chris LeClair are
upheld. The Employer is directed to permit the Grievors to transfer into the CFW positions, as
soon as practicable. To that end, I understand that the Employer will need some time to give
notice to other staff affected by this decision. I will leave it to the parties to address the
transition process.
The Employer is ordered to compensate the Grievors for any lost wages or other benefits
resulting from the Employer’s failure to transfer them into the CFW positions. I will leave it to
the parties to reach a resolution on that matter. If it cannot be resolved the parties can return
the issue before me.
I shall remain seised to deal with any other issues regarding the implementation of this award.
Dated this day of March 31, 2019 in the Town of Lakeshore, Ontario.
____________________________
Colin Johnston, Arbitrator