HomeMy WebLinkAboutUnion/Weicker 20-01-05IN THE MATTER OF AN ARBITRATION
BETWEEN
WAYPOINT CENTRE FOR MENTAL HEALTH CARE
(the “Hospital”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, Local 329
(the “Union”)
Policy Grievance and Grievance of Miranda Weicker
(#2017-0329-0029)
SOLE ARBITRATOR: John Stout
APPEARANCES:
For the Hospital:
Andrew N. Zabrovsky – Hicks Morley Hamilton Stewart Storie LLP
Stephen Whittington – Director, Talent Management and Organizational
Development
Jonathan Kytayko – Manager, Human Resources
For the Union:
Emily Home – Paliare Roland
Pete Sheehan – President OPSEU Local 329
Miranda Weicker – Grievor
HEARINGS HELD IN BARRIE, ONTARIO ON JANUARY 25, FEBRUARY 5 AND JULY
8, 2019 and WRITTEN SUBMISSIONS FILED ON OCTOBER 29 AND NOVEMBER
11, 2019
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AWARD
Introduction
[1] This matter concerns the individual grievance of Miranda Weicker (also
referred to as the “Grievor”) dated October 31, 2017 and a policy grievance filed by
the Ontario Public Service Employees’ Union (the “Union”) dated November 21, 2017.
[2] Both grievances concern the appropriate wage rate for the new Student
Placement and Learning Compliance Coordinator position, which has been placed in
the new classification of Education Coordinator at the Waypoint Centre for Mental
Health Care (the “Hospital”).1
[3] The Union alleges that the Hospital violated articles 6.01(d), (f) and 21.02 of the
Collective Agreement when they created the classification of Education Coordinator
and established a wage rate for the new classification that is lower than the Education
Consultant classification. The Union seeks to have the wage rate of the Education
Coordinator adjusted to be equal or closer to the Education Consultant position. The
Union also seeks compensation for the Grievor of the adjusted wage rate retroactive
to July 31, 2017.
[4] The Hospital takes the position that the grievance has no merit. The Hospital
asserts that they have the sole discretion to determine the content of any job
classification. The Hospital submits that they established an “appropriate” rate of pay
for the new Education Coordinator position and the grievance ought to be dismissed
[5] There is no dispute that I have jurisdiction to determine the appropriate rate of
pay for the new classification of Education Coordinator. The applicable provisions of
the Collective Agreement provide as follows:
6.01 The Union recognizes that the management of the operations and
the direction of the employees are fixed exclusively with the Hospital and
1 The new position is also referred to as Student Placement Coordinator in some of the
documents.
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shall remain solely with the Hospital and without restricting the generality
of the foregoing it is the exclusive function of the Hospital to:
…
(d) determine all work schedules, the kind and location of equipment
to be used, methods to be used, the location and number of employees
required from time to time, the services to be performed, the standards of
performance of all employees, work assignments, the hours of work and
all other rights and responsibilities of management not specifically
modified elsewhere in this agreement;
…
(f) notwithstanding the above, the Hospital shall not exercise these rights
in an arbitrary, discriminatory or bad faith manner.
21.02 New Classifications
When a new classification in the bargaining unit is established by
the Hospital or the Hospital makes a substantial change in the job
content of an existing classification which in reality causes such
classification to become a new classification, the Hospital shall
advise the Union of such new or changed classification and the rate
of pay established. If requested, the Hospital agrees to meet with the
Union to permit it to make representations with respect to the
appropriate rate of pay providing any such meeting shall not delay
the implementation of the new classification. Where the Union
challenges the rate established by the Hospital and the matter is not
resolved following any meeting with the Union, a grievance may be
filed at Step No. 2 of the Grievance Procedure within seven (7)
calendar days following any meeting. If the matter is not resolved in
the Grievance Procedure, it may be referred to Arbitration in
accordance with Article 15, it being understood that any Arbitrator
shall be limited to establishing an appropriate rate.
Any change in the rate established by the Hospital either through
meetings with the Union of by an Arbitrator shall be made
retroactive to the time at which the new or changed classification
was first filed.
[6] Hearings were held on January 25, February 5 and July 8, 2019. The parties
provided me with an Agreed Statement of Facts and a number of documents were
admitted into evidence on consent. I also heard oral evidence from Ms. Weicker, her
manager Steve Whittington (Director, Talent and Organizational Development) and
Terry McMahon (Vice President of Human Resources and Organizational
4
Development). The parties filed additional material and written submissions on
October 29, 2019 and November 11, 2019.
Background Facts
[7] The Agreed Statement of Facts is set out below:
STATEMENT OF FACTS
1. The Hospital and the Union are parties to a collective agreement with a term
of April 1, 2017 to March 31, 2022.
2. The Hospital is a psychiatric hospital and forensic mental health facility
located in Penetanguishene, Ontario. The Hospital maintains 301 beds and
provides both acute and long term psychiatric inpatient and outpatient
services. In addition, the Hospital is the only high security forensic mental
health facility in the province.
3. The Union represents approximately 1100 employees at the Hospital. The
Union’s members include Registered Nurses, Registered Practical Nurses,
therapists, as well as administrative and facilities staff.
4. The Union has filed a Policy Grievance and an individual grievance on behalf
of Miranda Weicker which have been consolidated as grievance #2017-0329-
0029. The individual grievance was filed on October 31, 2017, and the Policy
Grievance was filed on November 21, 2017.
5. The Policy Grievance alleges that the Hospital violated Articles 6.01(d), (f),
and 21.02 of the Collective Agreement (and any other relevant articles) when
establishing the wage grid for the Student Placement Coordinator position.
The wage rate that was established for this position is substantially lower
than the Education Consultant role, which the Union asserts is a comparable
position under the Collective Agreement.
6. The individual grievance of Miranda Weicker likewise alleges that the
Hospital violated Article 21.02 when it placed Ms. Weicker in the newly
created Student Placement Coordinator position at a wage rate which was
substantially lower than the Education Consultant role that she had been
filling on a contract basis, which she alleges was the same role.
7. The Grievances seek to have the wage rate for the Student Placement
Coordinator role adjusted to be equal or close to that of the Education
Consultant position. The Union seeks to have Ms. Weicker compensated at
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this adjusted rate of pay retroactive to July 31, 2017 in accordance with
Article 21.02 of the Collective Agreement.
8. Ms. Weicker commenced her employment with the Hospital on or about June
21, 2004. From February, 2011 until November 23, 2015, Ms. Weicker’s
home position was the role of “Department Assistant” in the Hospital’s
Organizational Development department. This position was classified as
Admin Assistant 2 on the Collective Agreement wage grid.
9. Ms. Weicker also performed the role of an Education Consultant on a
temporary basis from January 2013 - April 2014.
10. On or about November 23, 2015, Ms. Weicker accepted a temporary full-time
contract to fill a vacant Organizational Development and Educational
Coordinator position within her department. This position was classified as
an Educational Consultant position under the Collective Agreement wage
grid, and had previously been filled by a long-service employee who had
retired.
11. In or about early-2016, Ms. Weicker was informed that her Department
Assistant position was being eliminated. Ms. Weicker was provided with the
required notice that her position was being eliminated under the Collective
Agreement.
12. In or about early-2017, the Hospital informed Ms. Weicker that it would be
creating a new position in the Organizational Development department, and
that her temporary full-time contract would end once that new position was
filled.
13. Prior to posting the new position, Steve Whittington, Director, Talent and
Organization Development, spoke with Ms. Weicker on a number of
occasions to discuss the work she was performing in her temporary
placement. Mr. Whittington encouraged Ms. Weicker to apply for the
position once it was posted, and informed her that the employer would
determine the appropriate wage classification for the new position under the
Collective Agreement.
14. On or about June 21, 2017, the Hospital posted for a new Student Placement
and Learning Compliance Coordinator position. This position was classified
as an Education Coordinator position under the Collective Agreement.
15. The Education Coordinator classification was a newly created classification
under the Collective Agreement.
16. Under Article 21.02 of the Collective Agreement, the Hospital is required to
advise the Union when creating a new classification within the bargaining
unit. Where requested, the Hospital is obligated to meet with the Union to
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receive any representations with respect to the appropriate rate of pay for
the new classification.
17. On June 27, 2017, Jeffrey Miller, Human Resources Consultant, provided a
letter to Pete Sheehan, Union President, which provided the Union with
notice of the new classification and provided a copy of the proposed job
description for the new position. The notice included information regarding
the proposed wage rate for the position.
18. At the time that the Union was provided with notice of the creation of the
new classification, the Union did not request a meeting to discuss the
proposed wage rate for the position and did not object to the proposed wage
rate at that time.
19. On July 31, 2017, Ms. Weicker was awarded the new Student Placement and
Learning Compliance Coordinator position, and commenced working in that
position effective immediately. Ms. Weicker has continued in this role
uninterrupted until the date of these proceedings.
20. On October 30, 2017, Mr. Whittington met with Ms. Weicker regarding her
classification as a Student Placement and Learning Compliance Coordinator
and the associated wage rate. Mr. Whittington and Ms. Weicker agreed that
this meeting would be considered the stage one complaint of any grievance
Ms. Weicker filed on the issue.
[8] As indicated earlier, I also heard from three witnesses at the hearing.
[9] Ms. Weicker elaborated upon the work she performed as a temporary full-time
Education Consultant. The temporary full-time Education Consultant position was
previously filled by a bargaining unit member, Doug Waugh who retired in November
2015.
[10] The evidence indicates that Mr. Waugh was a Registered Nurse (RN) who in
2004 held the position of Security Educator, which was classified as a Nurse 1
Educator. In June 2012, Mr. Waugh’s position was reorganized, and a number of
security and safety related training responsibilities were taken away from Mr. Waugh
and re-assigned to others. Mr. Waugh’s job title was changed from Security Educator
to Education Consultant/Student Placement Coordinator. His classification was also
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changed from Nurse 1 Educator to Education Consultant. In July 2015, Mr. Waugh’s
title was changed again to Organizational Development and Education Coordinator.
[11] The evidence relating to Mr. Waugh’s role indicates that it evolved over time.
Initially the role was focused on training and developing crisis prevention and
intervention techniques related to the Security Program. The changes to his role in
2012 removed most of these duties and the role became more focused on developing
and implementing training and developmental activities, facilitation and
coordination of the student placement program. Despite these changes, the position
remained classified as an Education Consultant.
[12] Ms. Weicker confirmed that she did not perform many of the duties listed in Mr.
Waugh’s 2004 job description. In particular, Ms. Weicker never provided security and
safety related training.
[13] Ms. Weicker assumed the Organizational Development and Education
Coordinator role after Mr. Waugh’s retirement. According to Ms. Weicker the work
that she currently performs as a Student Placement and Learning Compliance
Coordinator (classified as an “Education Coordinator”) is the same as the work she
performed on a temporary basis as an Education Consultant.
[14] Ms. Weicker’s last day in the temporary Education Consultant position was July
30, 2017. On the next day, she assumed her current position in the new Education
Coordinator classification.
[15] Ms. Weicker indicated that in her current role she is responsible for
coordinating the Hospital’s student program, which takes up approximately 40% of
her time. Ms. Weicker advised that she also coordinated and delivered training. Ms.
Weicker acknowledged that she does not provide safety training herself. Instead, Ms.
Weicker schedules safety training and informs employees when they are required to
attend the safety training provided by the Hospital’s safety trainers.
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[16] Ms. Weicker also indicated that the work she performs as an Education
Coordinator is similar and comparable to the work performed by an Education
Consultant named Kelly Taylor. Ms. Weicker advised that her student orientation
duties are similar to the staff orientation duties of Ms. Taylor. During her evidence,
Ms. Weicker acknowledged that she does not perform intermediate facilitation skills
for the various purposes stated in Ms. Taylor’s job description.
[17] In terms of education, Ms. Weicker acknowledged that she does not have a
bachelor’s degree, which is a requirement for the Educational Consultant
classification. However, Ms. Weicker pointed out that Ms. Taylor also does not possess
a bachelor’s degree. Ms. Weicker also acknowledged that unlike Ms. Taylor, she was
not trained and certified in the ADKAR program.
[18] Mr. Whittington drafted the job description for the Student Placement and
Learning Compliance Coordinator position. Mr. Whittington advised that he based the
job description on input from various stakeholders, including Ms. Weicker.
[19] During his evidence, Mr. Whittington indicated that the main difference
between the duties of a “Consultant” and a “Coordinator” is the engagement of the
position with other employees. A Coordinator performs some training or instruction
to impart information in a “one-way interaction”. A Consultant, on the other hand,
was more of a “facilitator” who engages a group to find a collective answer or solution.
According to Mr. Whittington, the Education Coordinator role is not intended to
engage in facilitation work. Rather, the Education Coordinator is to focus on providing
instruction in the student program and use of the Hospital’s educational software.
[20] The evidence of Ms. Weicker was consistent with the evidence of Mr.
Whittington. However, Ms. Weicker seemed to believe that she was engaged in
facilitation when she delivered training. In my view, Ms. Weicker’s role does not
involve facilitation as characterized by Mr. Whittington. Ms. Weicker imparts
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information and provides orientation as opposed to facilitating group activities to
find a collective answer or solution.
[21] It was also noted by Mr. Whittington that Ms. Weicker was not expected to
create new training content or materials, which is a duty performed by Education
Consultants. Instead, Ms. Weicker, in her role as an Education Coordinator, was to
undertake tasks such as collating binders and putting together PowerPoint
presentations. In other words, Ms. Weicker is expected to deliver training and
orientation and that may involve creating a presentation of established training
content or material. However, it is not Ms. Weicker’s role to develop new training
content or materials.
[22] Mr. Whittington acknowledged that Ms. Weicker held a temporary position as
Educational Consultant and was paid as such for a period of time. However, Mr.
Whittington indicated that Ms. Weicker never performed the full expectation of the
position. According to Mr. Whittington, the core responsibilities of the job were
removed prior to Ms. Weicker taking on the temporary role. These core
responsibilities were transferred to persons other than Ms. Weicker.
[23] Mr. Whittington explained that Ms. Weicker’s Administrative Assistant role was
eliminated, and he rearranged tasks from her former role with tasks from the vacated
Education Consultant position that was held by Mr. Waugh to create the Education
Coordinator position. Mr. Whittington noted the tasks of tracking and maintaining
training records were duties formerly performed by the Administrative Assistant
position. Mr. Whittington saw the new role of Education Coordinator falling
somewhere between the Consultant role and the Administrative Assistant role.
[24] Mr. Whittington acknowledged that Ms. Weicker would provide back-up for Ms.
Taylor. However, Mr. Whittington indicated that the tasks involved with being a back-
up for Ms. Taylor did not involve facilitation sessions, development or creation of new
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training content. Instead, the tasks were those tasks that overlapped relating to
orientation of new employees and e-learning.
[25] Mr. McMahon provided evidence regarding his assessment and decision to set
the pay rate for the new Student Placement and Learning Compliance Coordinator
position. Mr. McMahon explained that in setting the pay rate for the new position that
was classified as an Education Coordinator, he engaged in a three part exercise. First,
he and Jeffrey Miller (Human Resources Consultant) utilized the existing joint pay
equity job evaluation tool to help establish internal equity. Second, Mr. McMahon
reviewed data from the Ontario Hospital Association’s (OHA) annual survey to assess
external market data for similarly situated positions at other hospitals. Third, Mr.
McMahon applied the Korn Ferry Hay method that was being utilized to assess
internal non-union positions.
[26] According to Mr. McMahon the joint pay equity job evaluation tool yielded a
score of 388 by his assessment and 363 by Mr. Miller. Mr. McMahon indicated that
this score placed the new classification in a range of 360 and 420, which placed the
job within what is referred to as “Pay Band 4” for purposes of pay equity. Mr.
McMahon then considered existing Collective Agreement classifications within that
range – Vocational Instructor, Health Records Technician, and Procurement Officer 2
for the purposes of his assessment. Mr. McMahon determined that the average wage
rate for the three positions was $31.73 per hour, which adjusted for the recent wage
increase equated to $32.20.
[27] In cross-examination Mr. McMahon acknowledged that there were varying
scores associated with the Education Consultant position arising from the internal
pay equity analysis. In particular the range of scores for positions in the Education
Consultant classification ranged from a high of 540 to a low of 345 for Ms. Taylor’s
position. Mr. McMahon explained that despite the wide range in scoring for these
positions, the parties chose to pay all of the positions in the Education Consultant
classification the same wage rate.
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[28] Turning to the OHA survey, Mr. McMahon reviewed OHA member hospitals with
an annual budget of $100 million to $250 million. Mr. McMahon considered a non-
union position at Ontario Shores (another mental health care hospital) – Coordinator
Education Compliance at $32.20 per hour.
[29] Applying the Korn Ferry Hay method, Mr. McMahon explained that the new
classification received points placing it in “Grade 3” for non-union positions at the
Hospital. The annual salary for that pay grade is $55,200 to $62,790. Mr. McMahon
determined that the Student Placement and Learning Compliance Coordinator
position would be properly situated at $32.20 per hour, as that would result in an
annual salary of $62,790 (based on 1,950 hours worked).
[30] The June 27, 2017 letter from Mr. Miller to Mr. Sheehan established the
following pay grid for the newly established position:
Step 1 Step 2 Step 3 Step 4
$28.88 $29.86 $30.85 $31.83
Submissions - summarized
[31] The Union takes the position that the job description does not accurately reflect
the totality of the Student Placement and Learning Compliance Coordinator duties,
and the pay rate assigned to this new classification by the Hospital is deficient. The
Union argues that there are substantial similarities between the new position in the
Education Coordinator classification and the existing Education Consultant
classification. The Union submits that the new position of Student Placement and
Learning Compliance Coordinator in the Education Coordinator classification ought
to be compensated at the same rate as the Education Consultant classification.
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[32] The Hospital takes the position that the job description accurately represents
the duties required of the Student Placement and Learning Compliance Coordinator
position. The Hospital asserts that their approach to assessing the new position in the
Education Coordinator classification was reasonable and should not be disturbed.
The Hospital points out that they utilized existing job evaluation tools that have been
developed jointly by the parties to assess the new classification. The Hospital also
relies on the external comparison that they undertook in arriving at the rate of pay.
The Hospital argues that I should not exercise my discretion under article 21.02 if I
find that the rate established by the Hospital falls within the range of outcomes that
one might expect from free bargaining between the parties. In this case, the Hospital
submits that the current rate assigned to the Student Placement and Learning
Compliance Coordinator position in the Education Coordinator classification is
“appropriate” within the meaning of article 21.02 and the grievance ought to be
dismissed.
DECISION
[33] The issue to be determined is the appropriate rate of pay for the new position
of Student Placement and Learning Compliance Coordinator in the new Education
Coordinator classification. My jurisdiction to resolve the grievance flows from article
21.02 of the Collective Agreement.
[34] The parties acknowledge the recent decision of Arbitrator Louisa Davie, facing
a similar dispute between the parties with respect to the Concurrent Disorders
Counsellor classification, see Waypoint Centre for Mental Health and OPSEU, Local 329
(Durant) (2018), 289 L.A.C. (4th) 205. Arbitrator Davie considered the interpretation
and application of article 21.02. The parties agree that the decision of Arbitrator Davie
provides guidance and ought to be followed. I agree and believe that it is useful to set
out the relevant portions of her award.
6. I note at the outset that I accept the Employer’s position in its written
submissions that under the terms of this collective agreement the content of
any new classification, the job description and decisions about the duties to be
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performed and the qualifications required to perform those duties is a
management right which the Employer has sole authority to determine.
Although not obliged to do, in this case the Employer obtained input from the
Union with respect to the job description.
7. In this award it is important to bear in mind that the job description has been
agreed upon. There is no dispute about the adequacy of that job description and
no question that it accurately reflects the job being performed. As indicated at
the outset the issue before me is a narrow one – what is the appropriate rate for
this new classification.
…
17. In this case my task in establishing an “appropriate rate” is complicated by
the fact that the collective agreement offers little guidance in outlining the
factors to be weighed in any determination of “appropriate”. The parties have
not negotiated a particular job evaluation tool and there is no evidence or
submission before me to suggest that the Employer has a particular job
evaluation plan which it consistently uses to value positions and determine
wage rates. At best the only guidance to be found in the collective agreement is
“to establish and maintain mutually satisfactory salaries”.
18. In the context of this purpose clause the approach to the task of determining
an appropriate rate which I propose to take is one which, to the extent possible,
seeks to replicate what the parties themselves might have agreed upon had
their discussions referenced in article 21.02 been more successful.
19. In applying this replication principle I accept that it is not the role of an
arbitrator tasked with establishing “an appropriate rate” to impose his/her own
notion of social justice or what is “fair”. What is “fair” may be too subjective.
Here the parties have a different view of what wage rate would be “fair”.
20. I do not accept the submission that if the Employer did not establish the
rate in a manner that was arbitrary, discriminatory or in bad faith an arbitrator
should not interfere with the rate established. The issue is not whether
management exercised a Management Right in an arbitrary , discriminatory or
bad faith manner. The issue is what is an appropriate rate. In my view the
arbitrator’s role under article 21.02 is remedial and the proper test is to attempt
to replicate an outcome the parties might have achieved had their negotiations
in establishing an appropriate rate not broken down.
…
22. I do not accept the “best fit” approach advocated by the Union. The cases
relied upon by the Union which adopt this type of analysis deal with a different
type of issue, namely, whether an employee is performing work of a higher
rated classification.
23. As I believe that the replication principle is the proper approach to
determining an appropriate rate, a comparative analysis of the new CDC
classification in the bargaining unit is necessary. The parties would not have
negotiated and agreed upon an appropriate rate for the CDC classification
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without regard to the other classifications and wage rates in the collective
agreement.
…
31. The balancing which an arbitrator should undertake in determining an
appropriate rate under article 21.02, or “mutually satisfactory salaries” as
outlined in the purpose clause, is delicate in circumstances such as these where
the work of the grievors has evolved over the years into a new classification and
their current job duties and responsibilities do not fit neatly into any existing
classification. In these circumstances the rate set by the article 21.02 arbitrator
as “appropriate” should not be so lean or insubstantial as to prompt the
Employer simply to adopt a hard stance or a miserly rate because of a belief that
there is little downside risk to the prospect of having an arbitrator decide the
matter and increasing the rate set by the Employer. Neither however should the
rate set by the arbitrator as “appropriate” be so generous as to encourage the
Union to simply file a grievance to have the matter determined by a third-party
and thereby discourage the type of discussion clearly contemplated in article
21.02. That face-to-face discussion by the parties who are most familiar with
the operations and the positions within the organization should be the
preferred method of determining an appropriate rate.
…
35. Two predominate factors in establishing appropriate wage rates are “skill”
and “responsibility” and those are the factors I have examined in depth in
comparing the CDC classification to other positions within the organization.
[35] In this matter the Union asserts that the Student Placement and Learning
Compliance Coordinator job description is not accurate. I disagree with the Union’s
position on this point. The evidence indicates that the job description reflects the core
duties and responsibilities of the position, which includes coordinating the student
placement program and ensuring organizational training compliance. I accept that
Ms. Weicker performs other duties that are not specifically identified in the job
description. However, it is not unusual for job descriptions to be broadly drafted. In
addition, I am of the view that the other non-specified duties performed by Ms.
Weicker fall fairly within the general responsibilities that are set out in the job
description.
[36] There is no doubt that an overlap exists between positions found in the
Educational Consultant classification and the Student Placement and Learning
Compliance Coordinator position found in the Education Coordinator classification.
Both classifications and the positions found therein are part of the Organizational
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Development and Talent Management team. However, in my view the Student
Placement and Learning Compliance Coordinator core duties are related to the
student program and staff training compliance. The Student Placement and Learning
Compliance Coordinator position and the duties performed by Ms. Weicker in the
Education Coordinator classification are not substantially similar, in a very important
material way, to the duties of those in the Education Consultant classification. In
particular, Ms. Weicker in her Student Placement and Learning Compliance
Coordinator role is not responsible for developing and creating new training or
engaging in facilitation, as required by and defined by the Hospital. The creation and
development of new and original training, as well as engaging in facilitation are more
highly advanced skills and responsibilities that fall exclusively within the Education
Consultant classification.
[37] In my view, the Union is in essence attempting to have the new position of
Student Placement and Learning Compliance Coordinator classified as an Education
Consultant. In this regard, they have not proven to me that the new position is
misclassified. I agree with the Hospital that the Union has failed to demonstrate that
the work performed by Ms. Weicker brings her squarely within the Education
Consultant classification. While the Union has shown that there is some overlap
between Ms. Weicker’s position and Ms. Taylor’s Education Consultant position, they
have not shown that Ms. Weicker performs the essential duties or “central core” work
of the Educational Consultant classification, see Re Fairview Nursing Home Inc. v.
London & District Service Workers Union, Local 220 (1983) 9 L.A.C. (3d) 342 (Rayner).
[38] Turning to the appropriate pay rate for the Student Placement and Learning
Compliance Coordinator position in the new Education Coordinator classification, I
disagree with both the Hospital and the Union as to what the appropriate wage rate
ought to be for the new classification. I find that neither the Hospital’s wage rate nor
the Education Consultant wage rate proposed by the Union would have been the
outcome of what the parties might have agreed upon had their discussions been more
successful as referenced in article 21.02. I am of the view that the pay rate assigned
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by the Hospital is too low and would not have been agreed upon by the parties. At the
same time, I find that the Union’s proposal that the new classification be paid the same
as the Education Consultant classification rate of pay is unrealistic and too high. In my
view, the appropriate rate of pay that would be agreed upon by the parties would fall
somewhere in between the wage rate of Ms. Weicker’s former position in the
Administrative Assistant classification and the higher rated Education Consultant
classification.
[39] As indicated by Arbitrator Davie, the task of an arbitrator when determining the
appropriate rate of pay for a new classification is to replicate an outcome that the
parties might have achieved during negotiations. Much like an interest arbitrator, the
examination of comparable positions or classifications can provide evidence and
guidance in the analysis.
[40] It would appear that when the Hospital rated the new Education Coordinator
position, they attempted to find suitable comparators. However, for reasons
elaborated upon below, I am of the view that none of the Hospital’s comparators are
appropriate given the skill and responsibility of the new Student Placement and
Learning Compliance position.
[41] The Hospital initially utilized the existing pay equity job evaluation tool. I do not
wish to be too critical of the Hospital for utilizing the pay equity job evaluation tool.
However, the use of the pay equity tool to find comparators was misguided in my
view. First, the parties did not agree to utilize the pay equity job evaluation tool for
determining the appropriate rate of pay for a new classification. Second, the purpose
of undertaking a pay equity evaluation is for a different purpose involving a
comparison of jobs traditionally performed by men as compared to those jobs
traditionally performed by women. The goal is to pay women at least the same as men
for work of comparable value. While pay equity is an important consideration when
setting wage rates, it is not determinative. Furthermore, no issue of pay equity was
raised with respect to either the Education Coordinator or Education Consultant
classifications.
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[42] The results of the Waypoint and OPSEU Summary Job Evaluation Record (pay
equity evaluation) undertaken by the Hospital are illuminating and support my
scepticism as to the value of using the pay equity tool in determining the appropriate
rate for the new classification. The pay equity score of the Student Placement and
Learning Compliance Coordinator was 388 by Mr. McMahon and 363 by Mr. Miller.
Based on the pay equity evaluation, the positions of Vocational Instructor,
Procurement Officer, Health Records Technician, Health Information Analyst and
Payroll specialist were chosen as comparators. As pointed out by the Union,
Education Consultants received pay equity scores, utilizing the same tool, ranging
from a low of 345 for Ms. Taylor to a high of 540. In my view, the pay equity analysis
would equally support comparing the new Education Coordinator classification with
the Educational Consultant classification, at least as performed by Ms. Taylor. In my
view, the pay equity evaluation tool is not an appropriate measure for determining
comparable positions.
[43] I note that I was provided with very little evidence as to the qualifications,
duties, skills and responsibilities of the internal unionized positions (Vocational
Instructor, Procurement Officer, Health Records Technician) used as comparators by
the Hospital. At best I have broadly crafted job descriptions with overlapping generic
skills that might be compared to the new Education Coordinator classification. In my
view, none of the internal unionized positions are comparable with the skill and
responsibility required of the new Education Coordinator classification.
[44] I am also of the view that the Hospital’s non-unionized internal comparators are
not appropriate and would not reflect what the parties would have agreed upon had
they negotiated a wage rate for the new classification. Like the unionized positions, I
was provided with very little evidence as to the skills and responsibilities of these
non-unionized positions. But more importantly, I can’t imagine the Union ever
agreeing to use non-unionized jobs as a comparator. Certainly the wage rates of
internal positions are relevant, but they can’t be determinative as management has
control over what they pay non-unionized employees, such rates do not reflect free
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collective bargaining. In my opinion, an appropriate comparator must be a unionized
position with similar skills and responsibilities.
[45] In terms of external comparators utilized by the Hospital, I also have very little
evidence of the qualifications, duties, skills and responsibilities to compare with the
Student Placement and Learning Compliance Coordinator position. The Coordinator
Education Compliance position at Ontario Shores appears to have a similar name, but
I can only guess at the duties being performed by this position. I have no way of
knowing if this external position has the skills and responsibilities of Ms. Weicker’s
position, including the responsibilities for the student placement program. This
position is also non-unionized and for reasons set out earlier, I do not find it to be an
appropriate comparator.
[46] As indicated earlier, I also disagree with the Union’s position that the Education
Consultant classification is a proper comparator. The Student Placement and
Learning Compliance Coordinator position has some overlap with the Education
Consultant classification, but the more highly skilled duties and core responsibilities
of the Education Consultant position do not overlap with the new Education
Coordinator classification. That being said, the Education Consultant skills and
responsibilities are relevant to evaluating the new Education Coordinator
classification.
[47] The Union also points to the OHA data for comparable external positions. Two
of the positions referenced by the Union are an Education Coordinator and a Staff
Development/Education role, both represented by the Ontario Nurses’ Association
(ONA). The Union also referred to an Education Coordinator position represented by
a different OPSEU Local. Again, I have no evidence as to the nature of the work
performed in these external positions. In addition, two of the positions are in ONA
bargaining units, which are comprised mainly of RNs; Ms. Weicker is not a RN. Based
on what little information I have been provided, I cannot find that these positions are
reasonably comparable to the Student Placement and Learning Compliance
Coordinator position.
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[48] I was provided with a tremendous amount of evidence relating to the
qualifications and the overlapping duties, skills and responsibilities of the
Educational Consultant classification and the Student Placement and Learning
Compliance Coordinator. I also heard some evidence about the duties formerly
performed by Ms. Weicker as an Administrative Assistant. I find based on all the
evidence that the skills and responsibilities of the new Education Coordinator
classification falls somewhere between the Education Consultant classification and
the Administrative Assistant classification.
[49] The skills and responsibilities that are required by the Student Placement and
Learning Compliance position are in my view at the higher end of an Administrative
Assistant classification and the lower end of the Education Consultant classification.
As stated earlier, the new position does not include the higher skilled duties or core
responsibilities of the Education Consultant classification.
[50] After carefully considering the evidence and submissions of the parties, I find
that the appropriate rate of pay for the Student Placement and Learning Compliance
Coordinator is the mid-point between the Administrative Assistant classification and
the Education Consultant classification.
[51] Unfortunately I was not provided with the wage rates for 2017. However, I have
the wage rates that were effective April 1, 2016. The Administrative Assistant
classification has six steps and the following rates were effective April 1, 2016:
Step 1 Step 2 Step 3 Step 4 Step 5 Step 6
$23.86 $24.34 $24.91 $25.50 $26.11 $26.89
[52] The Education Consultant classification has seven steps and the following rates
were effective April 1, 2016:
Step 1 Step 2 Step 3 Step 4 Step 5 Step 6 Step 7
$37.08 $37.98 38.89 $39.80 $40.71 $41.78 $43.04
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[53] I am of the view that the parties would have agreed to a similar step progression
model with the top step being step 6. Therefore, I find that the appropriate wage rates
effective April 1, 2016, would be as follows:
Step 1 Step 2 Step 3 Step 4 Step 5 Step 6
$30.47 $31.16 $31.90 $32.65 $33.41 $34.34
[54] The annual wage increases effective April 1, 2017, April 1, 2018, April 1, 2019,
April 1, 2020, and April 1, 2021 are to be added across the board to the above rates
and included in the Collective Agreement Schedule “A” wages. The Hospital is ordered
to calculate retroactive amounts in accordance with article 21.02 and make payment
to Ms. Weicker within two pay periods of this award.
[55] I remain seized of any issue fairly raised by the grievances and not addressed in
this award, as well as implementation of this award.
Dated at Toronto, Ontario this 5th day of January 2020.
John Stout- Arbitrator