HomeMy WebLinkAboutUnion 21-01-25
In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act
Between:
County of Lennox and Addington
(the “Employer”)
-and-
Ontario Public Service Employees Union, Local 457
(the “Union”)
OPSEU File No. 2018-0457-0019
Arbitrator: Randi H. Abramsky
Appearances
For the Union: Kris Lala Counsel
Emily Denomme Student-at-law
For the Employer: Steven Menard Counsel
Hearing: September 18, 2019, in Kingston; November 17, 2020; December 18, 2020;
December 21, 2020 and January 6, 2021, via videoconference.
2
AWARD
1. The Union alleges that the Employer violated the collective agreement and a Memorandum of
Understanding in regard to short-term vacancies when it assigned two bargaining unit members
to tasks/projects outside of their normal duties. The Employer asserts that there was no
violation of the collective agreement or the Memorandum of Understanding.
Facts
Laurie McDonald
Family Support Worker
2. Ms. McDonald works as a Family Support Worker (“FSW”) and has done so since January
2007. She is the only individual employed in that capacity for the Employer. The FSW position
falls under the Employment Case Worker (”ECW”) job description, as do a number of other
case worker positions.
3. As the FSW, Ms. McDonald works with clients in receipt of Ontario Works, a provincial
program that provides financial and employment assistance to those in need. She works with
sole-support parents to obtain spousal and child support payments. Clients are referred to her
when a case worker learns, as part of the in-take process, that spousal or child support payments
are owed. She then meets with the client and learns about the situation – the relationship with
the other parent, if they are married or not, the number and ages of the children, and so forth.
She then, together with the client, develops a plan to move forward, be that a private agreement
or through a court proceeding.
4. In a private agreement situation, she sends a standard form (which she created) to the other
parent concerning financial information for the last three years. Based on that information, the
amount of child and spousal support can be determined under provincial guidelines. The
matter may then be negotiated, and if agreement is reached, a formal agreement is created and
3
signed. If the payments are not made, the agreement may be registered with Family Court, and
enforced by the Family Responsibility Office. The Grievor assists in the negotiation of the
agreement, drafts the documents and files them in Court. She then appears with the applicant
at Court hearings, including case conferences, as an advocate and guide to the process. In
preparation for a case conference, the Grievor prepares a case conference brief – a summary
of the application and the steps taken to reach agreement, which is filed with the Court and
served on the respondent.
5. The actual case conference is attended by the Judge. The Grievor attends with the client, along
with Duty Counsel – a free lawyer provided at Family Court – and together they present the
information to the Judge, who also hears from the responding party. The Judge then gives
guidance, and the parties try to resolve the matter. The Grievor assists and advises the applicant
during this process. If an agreement is reached, it is written up as a Memorandum of
Settlement, which if the Judge finds it reasonable, becomes an order for the Judge to sign. If
no agreement is reached, a date for a settlement conference is scheduled. If no agreement is
reached before that date, a Settlement Conference brief is written by the Grievor, after
discussions with the client. The parties then meet again with the Judge to determine if an
agreement can be reached. If not, then a trial management conference is set which must be
handled by a lawyer, and she encourages her clients to seek legal aid. This entire process can
take between a year to a year and a half. The Grievor also gets involved when payments are in
arrears.
6. The Grievor testified that it took her about a year to learn the full job of FSW. It requires
knowledge of the Ontario Works Act and the regulations; the Family Law Act, the Divorce Act;
the Children’s Law Reform Act, the Family Responsibility Office Act and family law
regulations including the Ontario Child Support Guidelines and Spousal Support and Advisory
Guidelines as well as some of the rules of civil procedure. She works with the Family
Responsibility Office, the Children’s Aid Society, and court staff.
7. Ms. McDonald testified that her job remained basically the same from 2007 to 2017. Prior to
2017, the Ontario Works program required an applicant to seek financial support from all
4
potential sources– a spouse, former spouse or other parent. Beginning in January 2017, the
Ministry of Children and Social Services decided to no longer require child support payments
to be deducted from income for eligibility for Ontario Works. Consequently, an applicant was
no longer required to seek child support; now, it was optional, although clients still had to
pursue spousal support. This change did not have an immediate impact on the Grievor’s
workload and she remained “very busy.” On cross-examination, the Grievor acknowledged
that over time, the volume of her FSW work fell “slightly”. In her view, it was “not a large
change.” She testified that although she did not receive requests from other caseworkers to
pursue child support on behalf of a client, she was still getting referrals, “quite a few”, and was
working with clients more intensely, pursuing various forms of support. She was still “busy”
until the Summer of 2017.
“CHPI” – Community Homelessness Prevention Initiative – and the Homeless
Enumeration Project
8. The Community Homelessness Prevention Initiative (CHPI) is a program under which the
Ministry of Housing provides funds to the Employer to help people obtain housing (by paying
the first/last month’s rent) or stay in their housing (by paying for arrears in Hydro, gas or
propane). Ms. McDonald was not involved in this program prior to 2017. In the Spring of
2017, she was assigned to handle the intake role for this program for applicants outside of
Ontario Works. This intake work is by phone with applicants, where basic eligibility
information is obtained. Once that information was obtained, she would send the information
to a case worker who would then meet with the client and determine eligibility. If eligible, the
caseworker would send the paperwork back to her to issue payment through the data base.
9. This role took a significant amount of Ms. McDonald’s time. She testified that it was “getting
harder” to do FSW work, as CHPI clients were in “a moment of crisis” when they called and
it “restricted how much else I could do.”
10. The Homeless Enumeration Project (“HEP”) arose when the Ministry of Housing required
each municipality to create a list of the homeless people in their area. She became involved
5
with it in August, 2017 when she was called to a meeting with the Manager of Housing and
her direct supervisor, the Manager of Ontario Works. She was then assigned to work on the
HEP, originally with a co-worker, a Business Analyst, to prepare a proposal about how this
project should be done.
11. The Ministry of Housing provided a guide which set out its expectations and set out two types
of potential counts – either a “point in time” count whereby those individuals who were living
“on the streets” were counted, or a “period prevalence count” which was more appropriate for
rural areas. She started researching the different kinds of homelessness and where to find them,
as well as homeless enumeration. Although she started with a partner, the project “quickly”
became her responsibility. She testified that when she started, she “knew nothing” about
counting homeless people. The Ministry provided links to resources. Based on her research,
she recommended the “period prevalence count” method, and her recommendation was
accepted.
12. In September, the Ministry put on a one-day training on the “period prevalence count” which
reviewed the basics - the questionnaire, the type of volunteers, the materials required, the
ethical considerations, and other matters. The Grievor put the questionnaire together which
included the required questions as well as questions unique to Lennox and Addington. This
period took place between September and December.
13. The Grievor was the point person on this project and was responsible for planning and
executing the enumeration – identifying and contacting agencies/organizations that would be
involved such as food banks, missions, the Salvation Army, Addiction and Mental Health
Services, the Health Centre, and drop-in centres. In all, there were 35 agencies/organizations
that agreed to participate, after she had contacted eighty. She developed materials for educating
and training them, creating promotional materials such as posters and brochures and creating
an honorarium for participants, which had to be recorded and tracked. For this project, she
was supervised by the Manager of Housing. This period of the project took place between
December and April. The actual enumeration was scheduled for one week, May 5-May 12,
2018.
6
14. Ms. McDonald created “resource kits” for the agencies for the actual enumeration, consisting
of identification materials, pens, clipboards, the questionaires, the remuneration funds,
receipts, and consent forms. She assembled around 300 kits and distributed them. She later
had to make more. She also responded to questions – “a lot of questions” about the process.
Except for the actual enumeration week, Ms. McDonald was the only employee assigned to
this project.
15. After the seven-day period, she picked up the kits, and the “sealed envelopes” with the
answered questionaires. She reviewed them for duplication, then began to work with the data
by geographic location and information – the data required by the Ministry and the data sought
by Lennox-Addington. There were 144 data points to input for each questionnaire. That
process took Ms. McDonald about a month to complete, after which she wrote a report for the
Ministry with the results, including graphs and dashboards. This was completed in July, in time
for the first Housing Forum where she shared the results of the enumeration with the service
providers, and where the issue of potential next steps was addressed. Ms. McDonald organized
this conference, created the power point presentation about the enumeration and hand-outs. A
second forum was held in August.
16. From August to November 2017 Ms. McDonald continued to work on “lingering” FSW
matters, although she had “no time, unless it was an emergency”, as well as some CHPI. From
December to March, she did some CHPI work, but not much FSW work. It was “not possible.”
During the enumeration and the data review/report period, she did “some CHPI” work – some
of the intakes and payments, but not much FSW. She testified that FSW was “never taken off”
her plate and, from time to time, she had to do something connected to FSW – if served with
a motion for arrears, for example. It was “never zero” but it was “not a caseload.” It was “not
in any way as before.” Some days, some weeks, she performed no FSW work at all. At all
times, she remained the only FSW employed by the Employer.
17. Once the enumeration project ended, during the Summer of 2018, the Grievor was assigned “a
few side projects” for the Director and the Manager of Housing – power point presentations
7
for the Director, organizing Vision Day and a review of Housing’s Five-Year Plan. She still
continued CHPI and very limited FSW work. She asked for clarification about her job– was
she now part of the Housing group? Who was her manager? It seemed to her that it was “more
obvious” that she was working for Housing, not Ontario Works or FSW. She testified that as
soon as she asked, she was placed back into her FSW role. She was advised that she would no
longer be doing Housing work. Beginning in January 2019, she was back to working full-time
as a FSW, although she was still doing some CHPI work – mostly payments and “some of the
intake”. She estimated that she was performing FSW work 80 percent, and CHPI 20 percent.
18. The Grievor agreed, on cross-examination, that at all times she remained a full-time employee;
her hours remained the same as did her pay rate, and she continued to work Monday-Friday.
She agreed that her FSW position fell under the Employment Case Worker job description,
and that job description allows employees to perform “other assignments”. She agreed that no
additional employees had to be hired to accommodate her change in duties. She acknowledged
that CHPI work has regularly been done by caseworkers for a number of years, but was not
part of her responsibilities until 2017. She agreed that a number of the skills she utilized in her
FSW work applied to CHPI intake – interviewing, gathering information, filling out
applications, determining eligibility, responding to inquiries, although the programs were
different and required her to learn them as well as SAMS, the computer program utilized for
payments.
19. She agreed that some of the tasks associated with the Homeless Enumeration Project were
similar – maintaining statistics, preparing correspondence and reports, working with partners,
entering data, making presentations, responding to inquiries, but disagreed that it involved
“client assessment”; she “never spoke to a client” in the project. Nor did she initiate any “case
conferences”.
20. A review of Ms. McDonald’s calendar from April 2017- February 2019, shows that although
some FSW work continued each month, it fell significantly beginning in July 2017. In October
2017, her calendar shows two entries for FSW work; four entries in November; two in
December; two in January 2018; two in February; five in March; two in April; five in May;
8
three in June; five in July; four in August; five in September; two in October; three in
November; four in December. Starting in January 2019, however, there were 11 entries for
FSW work, and six in February. With a few exceptions (being in Court), there is no evidence
concerning the duration of these activities. She had no recollection of the specifics behind
most of the calendar entries, or if they actually took place. She did not record “no shows” on
her calendar. She testified that she went from “all FSW to bits and pieces”.
21. According to Supervisor Munro-Cape, Ms. McDonald was selected for the HEP project
because she had the skills and ability and she had the time, since her FSW work was
“declining.”
Elaine Sweeny
22. Ms. Sweeney works as an Employment Case Worker, (“ECW”) out of the Picton office. She
has worked with the Employer since 1995, and became an ECW in 2008. She worked on a
different five-year project from 2010-2015, and returned to the ECW role in 2015. She is also
active in the Union, having served as a Union Steward, Vice-President and now President of
the Local.
ECW Role
23. After a potential client is reviewed by an intake officer, the claim is sent to an ECW for intake
verification. This involves meeting with the client, during which the information provided is
verified through documentation and other means. If accepted, the Grievor works with the
client to develop an “employment plan”. An employment plan reviews the client’s education
and skills, health, housing status, and determines any barriers to employment, then links them
to appropriate partners who might assist in regard to those barriers. The ECW also reviews
other possible avenues for income with the client, such as Employment Insurance, Worker
Safety & Insurance, CPP, Ontario Works, Ontario Disability Support Program, and makes
referrals, if appropriate, to the FSW or Eligibility Review Officer. Once a client is accepted,
there are ongoing meetings with the client to assess their employment status. Her average case
9
load in 2018 was fifty “benefit units” – families in receipt of assistance, which could be a single
person, a couple or a couple with dependents. She also works on CHPI for her clients (since
homelessness can be a barrier to employment). She also does CHPI intake outside of her
clients.
Essential Social Services Project (“ESS”)
24. In March 2018, Ms. Sweeney spoke to the Director of Social Services, Marilyn Ferguson, to
request the opportunity to attend a management training program called Bridges to Leadership.
About a month later, in April, she was told that would not be possible, but the Director told her
that she could obtain the same management knowledge and skills through working on the
Essential Social Services Project (“ESS”) which was then being led by Michelle Proiux,
Supervisor, Business Services Unit. The project time was estimated to be between three to six
months, full-time.
25. Ms. Sweeney who, at the time was a Union Steward, told the Director that the position should
be posted. The Director declined, saying that she was “sick of this nonsense; there was work
to do and she wanted it done.” She also made it clear that if Ms. Sweeney did not agree to this
assignment, she would review the ECW case load numbers – which she had indicated were
low - and staffing levels. Ms. Sweeney understood this as a threat that staff would be laid off
if she did not accept this position, so she accepted. The Director was not called to testify. She
no longer works for the Employer but there was no indication that she could not be summoned
and required to testify.
26. Their next meeting was in early May, 2018, where she was advised by the Director that she
could not do this project full-time without posting, so she would keep part of her caseload as
an ECW (about 20 cases), and be available one day a week, on Tuesdays, for emergency work.
She would no longer do intake. At her own insistence, she would continue with the Business
Unusual Group meetings and her work on Joint Health and Safety. In her new role, she would
report directly to the Director, although her attendance would continue to be monitored through
her regular manager, Joanne Munro-Cape.
10
27. On May 25, 2018, Supervisor Munro-Cape sent the following memo to the Picton staff:
Re: A summary of yesterday’s conversation – Elaine & her
involvement with preparing an Emergency Response plan
Elaine is allocating some time to work on the Emergency
Response plan by:
Transferring approx. 25-30 cases to her colleagues today
Carrying approx.. 20 cases
Having minimal involvement with intakes and Emergency
Days. For now, the plan is that she will continue to be the
Emergency worker on Tuesdays and will not be part of the
Intake rotation.
Being a 3rd person in the office for Health & Safety reasons
and will only be called upon for assistance as a last resort.
Continuing to be the lead with the P & P [Business as Unusual]
team.
The approximate period for this assignment is 3-6 months. A
review of progress, operation needs and items, i.e., challenges,
gaps, needs will occur on a regular basis.
28. As of June 2018, the Grievor’s case load dropped to 18 benefit units from the 50 she handled
in May. By August, it had dropped to five. 1
29. The ESS Project involved a review of the emergency management systems throughout
Lennox-Addington, all of the lower-tiered municipalities and Prince Edward County, which
are used in the event of an emergency – an ice storm, a major accident on Highway 401, a fire,
etc. She was to review where these municipalities were in terms of their plans, identify gaps in
relation to IMS (incident management system – which is a standardized approach to emergency
management so that the response can be coordinated during an incident), and make
1 To the extent that there is any dispute about the amount of FSW work perfomed by Ms. McDonald or ECW work
performed by Ms. Sweeney, no contrary evidence was presented by the Employer except through cross -examination.
The Employer, however, maintains records which, if they contradicted the Grievors’ testimony could have been
introduced. Consequently, I credit the testimony of both Ms. McDonald and Ms. Sweeney concerning the amount of
their regular work they continued to perform as established on examination -in-chief, cross-examination and re-
examination.
11
recommendations as well as identify training needs and develop appropriate training. The
Director wanted a consistent approach among the municipalities.
30. Ms. Sweeney met with Ms. Prioux who provided her with a USB which contained a great deal
of information as well as a binder of documents. She also went through an on-line introductory
course on IMS. She did “a lot of research.” She also attended a meeting at which the Director
presented the ESS project as part of her on-boarding and training, where she was introduced
as the lead – the Essential Social Services Coordinator - for updating the emergency response
plans. She began reaching out to the municipalities for their emergency response plans to
review them.
31. In June, the Grievor sent a Project Outline to the Director, which outlined the project purpose,
outcomes, background, methodology and project steps, planning and set “deliverables”
through December 2018. It is a detailed document which clearly involved a great deal of work
and research. The Project Outline was approved by management on June 30, 2018.
32. The Grievor testified that she was doing “very little” ECW work. She was no longer in the
intake rotation, and on her Emergency day, she would work on the ESS project unless there
was an actual emergency. This continued during the Summer of 2018, until the Grievor
medically required a leave of absence from September to December 2018 which she said was
“partially triggered by all of this.” Upon her return, she was reassigned to full-time ECW work.
The ESS project was reassigned to another individual outside of the bargaining unit. There is
no evidence that any further work has been done on the ESS project.
33. On cross-examination, Ms. Sweeney acknowledged that she continued to work full-time hours,
Monday to Friday, and that her rate of pay remained the same. Her classification remained
ECW. As an ECW, she would, on occasion, work on other assignments – the Business As
Unusual committee, coordinating Excel training for staff, Health and Safety, in addition to her
Union work. She acknowledged that the Director could assign her to other tasks, “but not
replace my job.” She agreed that there was no increase in the ECW complement as a result of
her working on this project. She agreed that some of the tasks associated with the ESS project
12
– developing relationships with community partners were similar, but involved different
partners. She had not worked with the Fire Marshalls or the Red Cross before. She had worked
with other municipalities but not about emergency response services. She would prepare
correspondence and reports as an ECW, but about employment matters and Ontario Works,
not emergency response planning.
34. According to Supervisor Munro-Cape, Ms. Sweeney was assigned to the ESS project because
she had the skills and ability to do the work, and had expressed an interest in management
training. According to Ms. Sweeney, she had expressed an interest in a course, Bridges to
Leadership; she did not express an interest in working on the ESS project.
The Grievance
35. On July 18, 2018, the Union filed a policy grievance alleging that the Employer violated the
collective agreement – Articles 5.01, 5.02, 14, 29.03, 29.06 and the Memorandum of
Understanding regarding short term vacancies - when it “substantially changed duties of
different employees, failed to post special assignments and revised positions substantially
without following the process with the collective agreement.”
The Collective Agreement
Article 3 – Definitions
…
3.04 “Vacancy” shall be defined as a position which the
Employer has determined it needs to fill in accordance with
this Collective Agreement.
“Temporary vacancy” shall be defined as a vacancy which is
caused by an employee’s absence from the workplace where
the employee is expected to return and/or return to work is
unknown. Temporary vacancies shall not exceed twelve (12)
months, subject to the terms of Article 14.05 except in the
cases of:
i) An employee who is absent on LTD, or;
ii) An employee seconded to the provincial government,
or;
13
iii) Subsequent vacancies as a result of a Full-time
employee replacing an employee on LTD or
secondment;
iv) An employee is absent on an approved leave of
absence, and subsequent vacancies as a result.
“Temporary Position” shall be defined as a position which has
been created to supplement existing staff. A temporary
position shall not exceed twelve (12) months unless mutually
agreed between the Employer and the Union.
“Temporary Employee” shall be defined as an employee who
is hired externally to fill a Temporary Vacancy or a Temporary
Position. The expiry of the temporary contract shall not be
deemed to be a lay-off. However, Full-time employees may
apply to postings for Temporary Vacancies and Temporary
Positions and if successful shall retain all rights of a Full-time
employee under this Collective Agreement including the right
to return to their former position on conclusion of the
temporary vacancy/position with no loss of entitlements to
increments, etc.
Article 4 – No Discrimination
4.01. The Employer and the Union agree that there will be no
intimidation, harassment, discrimination, interference,
restraint or coercion exercised or practiced by an of their
representatives with respect to any employee because of
membership or non-membership in the Union or activity or
lack of activity on behalf of the Union. Both parties agree to
abide by the provisions of the Ontario Human Rights Code.
…
Article 5 – Management Rights
5.01. Subject to the right of any employee to lodge a grievance
in accordance with Article 10 (Grievance Procedure) the
Union agrees to cooperate with the Employer at all times to
maintain discipline and to maintain the highest possible
standard of service and efficiency and the Union acknowledges
the right of the Employer as follows:
To direct the operation of Social Services in the best possible
interests of the clients, the community and the employees
…
14
To manage Social Services in all respects in accordance with
its obligations, to determine the allocation and number of
employees required from time to time, the standards of
performance for all employees and all other matters
concerning the Employer’s operations, not otherwise
specifically dealt with elsewhere in this Agreement.
…
5.02. The Employer shall not exercise its rights in a manner
that is inconsistent with the Collective Agreement.
5.03. The Employer and the Union shall administer the
Collective Agreement in a fair and reasonable manner.
…
Article 14 – Posting and Filling of Vacancies
14.01. (a) Where a vacancy exists or a new position is
established by the Employer, such vacancies within the
bargaining unit will be posted for a period of fourteen (14)
consecutive calendar days (subject to the terms of Letter of
Understanding Re: Short Term Temporary Vacancies) at each
work site and, at the Employer’s discretion, advertised
elsewhere.
(b). The Employer shall hire from within the bargaining unit
so long as there are applicants with the required skills,
experience, qualifications and present ability to perform the
required work.
…
Article 28 – General
28.01. All Letters of Agreement and Appendices to this
Agreement shall be considered attached to and part of this
Agreement and subject to all of its terms.
Article 29 – Wages
29.01. The wages will be as set out in Schedule A, attached to
and forming part of the collective agreement.
29.02. An employee will automatically progress from one step
to the next in the salary range for his/her classification on
completion of one year in the classification. …
15
29.03. When a new position is to be created or an existing
position within the bargaining unit is to be substantially
revised, the Employer shall notify the Union and provide all
relevant information concerning the proposed new or changed
classification. The parties shall meet within thirty (30) days to
negotiate the salary range for the new or revised position
provided that, should no agreement be reached between the
parties then the Employer will set the salary range for the new
or revised position subject to the right of the parties to have the
rate determined by arbitration. …
29.06 Prior to affecting any changes in the Employer’s
policies or rules, which would affect employees covered by
this agreement, the Employer shall first notify the bargaining
unit representative.
Appendix A
Effective April 1, 2016 – Salary Classifications and Ranges
Grade Position Title Step 1 Step 2 Step 3 Step 4 Step 5 Step 6
E Employment
Caseworker,
Family Support
Worker
$29.84 $30.89 $31.94 $32.99 $34.05 $35.10
D Employment
Caseworker
(Case Carrying
Caseworker,
Eligibility
Review
Officer, Intake
Case Carrying,
Consolidated
Verification
Process and
Case
Presenting
Officer)
Technical
Support
Coordinator of
Quality Child
Care
$26.97
$27.92
$28.87
$29.83
$30.78
$31.73
C Employment
Services
Worker
(includes Child
Care Services
Worker)
$26.49
$27.42
$28.36
$29.29
$30.23
$31.16
16
B Account
Analyst
Rent
Calculation
Clerk
Employment
Support
Worker
$24.29
$25.15
$26.01
$26.87
$27.72
$28.58
A Customer
Service Clerk
$21.69 $22.29 $22.90 $23.50 $24.10
…
Memorandum of Understanding
Re: Short Term Temporary Vacancies
The parties agree as follows:
Temporary vacancies of one (1) month or less may be filled
using the services of a temporary employment agency.
Prior to the commencement of a temporary agency staff
person’s term, the Employer agrees to advise the Local Union
President.
Notwithstanding the posting provisions of Article 14.01 (a) the
Employer may assign staff to temporary vacancies of greater
than one (1) month but less than three (3) months. Where
possible, assignments will be made in reverse order of
seniority and such that minimal negative impact is caused to
the affected employee(s). Prior to making an assignment, the
Employer will consult with the Union and will provide the
names of the affected employee(s), the commencement date of
the temporary assignment and the expected duration of the
temporary assignment. Employees assigned to temporary
vacancies shall be entitled to mileage in accordance with
Article 27.01(b) and travel time, but no other expenses will be
reimbursed.
Where the Employer has sufficient notice in advance of the
vacancy the Employer will use the “Expression of Interest”
format to advise existing employees of these short term
vacancies. Temporary vacancies for a period greater than one
(1) month but less than three (3) months may be filled at the
discretion of the Employer.
For temporary vacancies filled through the “Expression of
Interest” process, it is understood that employees will be
17
entitled to mileage in accordance with Article 27.01(b) but no
other expenses will be reimbursed (including travel time.)
Temporary vacancies of greater than one (1) month but less
than three (3) months which were posted and for which there
was no successful internal candidate, may be filled using the
services of a temporary employment agency to permit the
Employer to complete the external recruitment process.
For all other vacancies the Employer will follow the
requirements of Article 14.
The MOU is dated October 20, 2017.
Job Descriptions
Job Description – Employment Caseworker
Job Summary:
Operating within the legislative and regulatory standards set
out in the applicable provincial and municipal acts, and within
the County of Lennox & Addington local policies, procedures,
guidelines, regulations, the principal emphasis is to determine
eligibility for financial assistance and to provide a broad range
of employment related services and supports with clients to
developing relationship with community partners.
Caseworkers may focus on specific areas such as Family
Support Worker, Eligibility Review Officer, and Case
Presenting Officer.
Job Relationship:
Reports to the Supervisor/Manager as assigned by the Director
of Social Services.
Responsibilities:
Complete applications and determine eligibility.
Negotiate Participation Agreements.
Refer to programs and community partners.
Complete comprehensive client assessments.
Review monthly income statements and supporting
documentation.
Ensure supporting documents is complete and up-to-date.
Enter information using required databases.
Complete Assignment of Benefits.
Complete Consolidated Verification Process (CVP).
18
Review non-compliance issues in consultation with a
Supervisor
Review and process all benefit requests.
Establish and maintain employment plans
Respond to inquiries.
Evaluate and monitor service delivery effectiveness ensuring
target achievement
Prepare correspondence and reports as required.
Provide Employment Planning Information Sessions.
Calculate & apply overpayments.
Monitor and assess participant’s progress.
Provide guidance, support and leadership to motivate and
empower participants.
Initiate and lead case conferences.
Maintain statistics and well-documented files.
Develop and maintain linkages with community partners.
Maintain knowledge of local job markets, trends, community
resources, and services.
Promote and support Social Service activities in the
community.
Participate in committees as required.
Participate in strategic planning with colleagues.
Participate in presentations to staff, agencies and the Social
Services Committee
Other Assignments
Any other duties or special assignments as requested by the
reporting Supervisor or the Director of Social Services. This
may include functions associated with Service Workers,
Support Worker and Customer Service Clerk Role.
The Family Support Worker (FSW):
Mediate, counsel and negotiate private support arrangements
as defined under the Family Law Act.
Represent the interests of the Counties and the Province in
developing support arrangements.
Complete minutes of settlements.
Assisting with applications, variations and negotiations for
support in Ontario Court (Provincial Division) and Unified
Family Court.
Initiate action to recover support arrears.
Eligibility Review Officer (ERO)
Respond to all referrals and conduct in-depth investigations as
required.
19
Recommend suspension and cancellation of benefits.
Compile & fully documents evidence to support
recommendations & decisions.
Assess & recommend cases that should be referred to police.
Recommend action to appropriate community agencies (i.e.)
Children’s Services & Social Housing benefits.
Case Presenting Officer (CPO)
Complete all Internal Reviews
Prepare Social Benefit Tribunal Submissions.
Mediate decisions with Legal Representative.
Act as a resource for staff re legislation.
Represent the municipality at all Tribunal hearings.
The above responsibilities represent typical job functions, and
are not to be treated as all-inclusive.
….
Decision Making:
Routinely make case management decisions independently to
determine eligibility.
Negotiate participation agreements and support arrangements.
Complete internal reviews.
Freedom of Action (Initiative)
Based on an assessment, will determine case management path
for a wide variety of clients/participants.
Identify cases requiring intensive file assessment and
investigate situation as required.
Character of Supervision (participants)
Guide, support, motivate and empower clients/participants.
Responsible for communicating non-compliance concerns
and/or decisions to clients.
External Contact:
Interact with a wide array of community agencies and
stakeholders.
Follow-up and exchange of information.
Internal Contacts:
Gives advice on the interpretation of policies and practices.
Routine contact for follow-up and confirmation of information
with other departments.
20
Communicate Case Plans to co-workers which may require
follow-up.
Reasons for Decision
36. This policy grievance raises the question of whether the Employer violated the collective
agreement when it assigned CHPI work and the Homeless Enumeration Project to Ms.
McDonald, who had previously worked exclusively as a FSW, and when it assigned the
Essential Support Services project to Ms. Sweeney, who previously had worked exclusively as
an ECW. For the reasons that follow, I am persuaded that the Employer’s assignment of the
CHPI work to have been permissible, but that the other two assignments violated the collective
agreement.
37. This grievance is not the parties’ first dispute concerning short term assignments. It appears
to be an issue of on-going concern, which first led to the 2009 Knopf award, Re Corporation
of the County of Lennox and Addington and OPSEU, Local 547, unreported decision of
Arbitrator Knopf, June 2, 2009, and the October 2017 Memorandum of Understanding
regarding short-term vacancies.
38. The Knopf award involved five policy grievances. No detail concerning the specific facts of
those grievances is set out in the Award, except that “[t]he fundamental questions raised by the
grievance concern the Employer’s right to assign work and determine vacancies” under
“Articles 3.03, 14.04 and the Letters of Understanding concerning Extension of Temporary
Contracts and Short Term Temporary Vacancies.”
39. The Award then states as follows:
Having heard the evidence and considered the submissions of
the parties, the language of the Collective Agreement and the
applicable jurisprudence, I must declare that the following
general principles apply:
21
1. Under this Collective Agreement, there is no specific
restriction on the Employer’s ability to determine the
content of job descriptions and/or determine if a
vacancy exists.
2. Further, there is no prohibition on the Employer’s
assigning different job duties and functions within a
classification to employees in that particular
classification. For example, the Employer may assign
various tasks within the Caseworker classification to
Caseworkers.
3. The language of the Memorandum of Understanding
regarding the Extension of Temporary Contracts must
be read with Article 3.03. Therefore, the Employer,
employees and the Union have the rights and options
outlined in that Memorandum of Understanding in the
event there is a request for an extension of leave time.
4. Nothing in the Collective Agreement prohibits an
employee from applying for a vacancy within his/her
own classification. However, the application and
selection process will be governed by Article 14.01.
Applying these general propositions and principles to the facts
of these particular grievances, it must be concluded that:
a) Re: Grievances #2008-0457-0002; 2008-0457-0005;
2008-0457-0008: There was no violation of the
Collective Agreement because the facts reveal that the
assignments of Caseworker duties and responsibilities
fell within the Caseworker classification. However, if
these types of assignments result in an increase in
complement within a classification, that would mean
that the position would have to be posted in
accordance with the Collective Agreement.
…
40. The Knopf Award allows the Employer to assign a caseworker to duties and responsibilities
that fall within the Employment Caseworker classification – not any and all duties or
assignments that it needs to have done.
22
41. It is undisputed that CHPI duties are routinely part of the ECW position. The Union argues,
however, that FSW is its own “classification” as evidenced by having its own separate wage
rate in the collective agreement, and therefore CHPI work should not have been assigned to
Ms. McDonald. It submits that both the ECW job description and the Knopf award preceded
the Pay Equity study that led to a separate classification and pay rate for the FSW position in
2014.
42. The only evidence concerning the basis of the higher rate of pay for the FSW was Ms. Munro-
Cape’s testimony during cross-examination that she believed it was the result of the Pay Equity
review in 2014, but she was not directly involved in that review process and she was unsure.
No other witness was asked about this. No earlier collective agreements, including the
agreement in force at the time of the Knopf award in 2009, were introduced into evidence.
Without that document, I am unable to determine the wage rate “classifications” that existed
at the time. But even if the FSW had previously been grouped with the other ECW positions
in terms of the wage rate, the current agreement does not separate the FSW from the ECW
classification. Appendix A contains a separate wage category/classification for “Employment
Case Worker, Family Support Worker”. It therefore does not separate the FSW from the
Employment Case Worker classification; it just provides a higher wage rate for this category
of ECW.
43. Consequently, the assignment of CHPI duties to Ms. McDonald was permissible, even though
it is very different than her work as a FSW, because CHPI intake/payments fall within the
duties and responsibilities under the Employment Caseworker classification. CHPI is a
program where government funds are provided to enable participants to keep or obtain
housing, if they are eligible. The ECWs assess and determine eligibility and this work is
routinely and regularly performed by caseworkers. This assignment falls squarely within the
ruling in the Knopf award. As the CHPI assignment did not result in an increase in caseworker
complement, there was no requirement to post.
44. In terms of the HEP project and the ESS project, the question is whether the Employer’s
assignment of ESS work to Ms. Sweeney and the HEP project to Ms. McDonald was also a
23
permissible assignment within the Employment Case Worker job/classification (which is the
Employer’s position) or a “temporary position” which had to be posted (which is the Union’s
position).
45. Having carefully considered the facts, the collective agreement and the arguments of the
parties, I am persuaded that the assignment of the HEP project to Ms. McDonald and the ESS
project to Ms. Sweeney do not fall within the ECW classification, but were “temporary
positions” which had to be posted under the collective agreement. The role, purpose and duties
of both the HEP and ESS are fundamentally different than those of a caseworker. The core of
the ECW role is to determine eligibility for social assistance programs, work with
clients/participants to establish eligibility, recommend potential financial supports and work
with and monitor the client/participant. As stated in the ECW job description, the “principle
emphasis is to determine eligibility for financial assistance and to provide a broad range of
employment-related services and supports with clients….” Both the HEP and ESS projects
were completely different. Neither involved entitlements to social assistance or working with
clients. They involved no case management or working with clients at all. They were important
assignments, but fundamentally different than their regular work as a FSW or ECW, with
different reporting relationships, different deliverables and objectives, and working with
different groups.
46. Consequently, this was not a situation where the Employer simply transferred work within a
classification, or reassigned work within a classification as occurred in Re Northumberland
Co-Operative Ltd. and UFCW, Local 1288P [1994] N.B.L.A.A. No. 10 (Collier), or Re Retail,
Wholesale, Bakery & Confectionery Workers, Local 461 and Canada Bread Ltd., [1965]
C.L.A.D. No. 2 (Reville). It assigned completely different roles to both Ms. McDonald and
Ms. Sweeney.
47. It may be true that some of the tasks, taken in isolation, apply both to a caseworker and Ms.
McDonald’s work for the HEP, such as making presentations, answering inquiries or
connecting with partners. That approach, however, misses the forest (the caseworker role) for
the trees (the individual tasks). The Employer may assign tasks that fall within the caseworker
24
role, but may not assign tasks that, taken as a whole on an objective basis, do not fall within
that role. The Knopf Award establishes that the Employer has the right to determine the content
of job descriptions. It does not, however, give the Employer the right to ignore the job
descriptions it has established and assign a fundamentally different job to an employee.
48. The fact that the job description provides for “Other Assignments” and states: “Any other
duties or special assignments as requested by the reporting Supervisor or the Director of Social
Services. This may include functions associated with Service Worker, Support Worker and
Customer Service Clerk Role” (italics in original) does not change this result. This provision
does not mean that any “duties or special assignment” may be assigned, regardless of their
nature or duration. The type of short, special assignments that Ms. McDonald did for the
Director after the completion of the HEP project are the type of special assignments
contemplated by this paragraph in the job description. The two assignments at issue in this
grievance are fundamentally different.
49. The ”special assignments” paragraph in the job description must also be read in conjunction
with the collective agreement as a whole including Articles 3, 14.04 and the Memorandum of
Understanding regarding Short Term Temporary Vacancies.
50. In Article 3, the parties set out “definitions”. Article 3.04 defines “vacancy” to mean “a position
which the Employer has determined it needs to fill in accordance with this Collective
Agreement.” It defines “temporary vacancy” as “a vacancy which is caused by an employee’s
absence from the workplace” where the employee is expected to return and/or return to work
is unknown. It also defines “temporary position” to be “a position which has been created to
supplement existing staff.” The collective agreement states: “Full-time employees may apply
to postings for Temporary Vacancies and Temporary Positions and if successful shall retain
all rights of a Full-time employee under the Collective Agreement including the right to return
to their former position on the conclusion of the temporary vacancy/position….” It is a basic
rule of contract interpretation that that all words must be given their plain and ordinary meaning
and that where different words are utilized by the parties, it is presumed different things are
meant.
25
51. Consequently, “vacancy”, “temporary vacancy” and “temporary position” are different things.
Yet the collective agreement is also clear - given that full-time employees may apply to
postings for temporary vacancies and temporary positions - that when a “temporary position”
is created it has to be posted.
52. Whether a “temporary position” is created is a question of fact; it is not simply a determination
by management that cannot be reviewed. Re Pilkington Brothers Canada Ltd. and United
Glass and Ceramic Workers, 1976 CarswellOnt 1488 (Burkett) (the right to decide if a
“vacancy” exists is not an unqualified right.”) The Knopf award, which held that “there is no
specific restriction in this Collective Agreement on management’s ability to determine if …. a
vacancy exists”, does not negate this approach. It only determined that there was no specific
restriction on management’s ability to decide if a vacancy exists – that is, if a position needs
to be filled. Once management decides it needs to fill a position, it must be done through Article
14.
53. The definition of “vacancy” in the collective agreement is consistent with arbitral decisions. If
an employee leaves a position, that does not automatically create a “vacancy” if there is no
operational need to fill the position. It is up to management to determine its needs and decide
whether or not to fill the position. Once the Employer has decided it needs to fill the position,
that creates the “vacancy” and it must follow the collective agreement to fill that position. Re
Northumberland Co-Operative Ltd. and UFCW, Local 1288P, supra at par. 26. As stated in
Re United Brewery Workers, Local 800 and Loblaws Groceterias Co. Ltd. (1967) 18 L.A.C.
420 (Weatherill), quoted in Re Pilkington Brothers Canada, supra at par. 10:
Whether or not work is required in any particular
classification…is, in my view, a matter for the Company to
determine. When the Company does determine that work is to
be done in a particular classification, and there is no employee
in that classification, then a vacancy, whether temporary or
permanent, exists.
26
54. The definition of “temporary position” – a position which has been created to supplement
existing staff - is consistent with this approach. It allows management to decide whether it
needs the work to be done. That fully accords with the Knopf decision in which she held that
“there is no specific restriction on the Employer’s ability to determine…. if a vacancy exists.”
55. It is true that there is no further definition of “temporary position” contained in the collective
agreement, but it is clear that management determined that it needed someone to lead and
perform the work in regard to the HEP, and for someone to lead and perform the work in regard
to the ESS. Both projects had defined tasks and responsibilities and a time frame to accomplish
them. It was not incidental, occasional or intermittent work. The projects consisted of a clear
“bundle of duties” and required a substantial allocation of time to perform them. See Re
Toronto East General Hospital and ONA (Elimination of Positions), 2013 CarswellOnt 3852
(Abramsky) and Re Red Deer Regional Hospital and UNA, Local 2 (Position Elimination),
2001 CarswellAlta 2538 (Joliffe).
56. It is also clear, on the evidence, that these two temporary positions were “to supplement
existing staff.” The Employer asserts that it did not “supplement” staff as no one new was
hired; the two Grievors had the capacity and time to perform the HEP and ESS projects. These
words in the collective agreement, however, do not mean that an additional employee must be
hired. That is evident from the fact that full-time employees have the right to apply for and
accept temporary positions, retaining the right to return to their full-time job when the
temporary position ends. In that case, the opening created by the full -time employee’s
acceptance of the temporary position may or may not be filled by management. According to
the on-line Cambridge Dictionary, the words “to supplement” mean:
Something that is added to something else in order to improve
it or complete it; something extra.
57. To “supplement existing staff”, therefore, means that management needs to add an extra
temporary position to complete the work that needs to be done. It does not mean that an
additional employee must be hired.
27
58. Since management determined that it needed someone to perform this temporary work, these
temporary positions had to be posted. Article 14.01(a) sets out the posting requirement. It
states:
Where a vacancy exists or a new position is established by the
Employer, such vacancies within the bargaining unit will be
posted for a period of fourteen (14) consecutive calendar days
(subject to the terms of Letter of Understanding Re: Short
Term Temporary Vacancies) at each work site and, at the
Employer’s discretion, advertised elsewhere.
59. Although mentioned in the grievance, the Union did not argue that the Employer’s actions
violated the Memorandum of Understanding in regard to Short Term Temporary Vacancies.
Given the definition of “temporary vacancy” contained in Article 3, it is unclear that the
Memorandum of Understanding applies to “temporary positions.” But even if it did, both the
HEP project and the ESS project were longer than three months, from the outset. This is clear
in the email sent to Picton staff about Ms. Sweeney’s temporary role where it was described to
last between 3 to 6 months.2 The same is true of the HEP project. It began in August of 2017,
with the actual enumeration taking place in May of 2018, and it was expected to include
analyzing the data and writing a report to the Ministry of Housing. Given their duration, even
if temporary positions could be included in the Memorandum of Understanding, these
temporary positions were not covered by its terms, nor exempt from the posting requirements
of Article 14.
60. I am persuaded that these assignments went far beyond an incidental “special assignment”
contemplated in the ECW job description and constituted a “temporary position” – a position
created to supplement existing staff, and that they had to be posted under Article 14.01.
61. The fact that both Ms. McDonald and Ms. Sweeney retained some of their regular work does
not mean that a “temporary position” was not created. For the ESS project, the Director
originally sought to make it a full-time role, but, according to the unrefuted testimony of Ms.
2 The fact that Ms. Sweeney only worked on the ESS project from May to August when she went off work due to a
medical issue does not make this a three-month project. But for that medical leave, she would have continued to
work on the ESS project at least through December and likely beyond.
28
Sweeney, that was rejected by Human Resources since that would require posting. In regard
to HEP, it is clear that Ms. McDonald continued with her FSW work, on a very reduced and
limited basis, because she was the only FSW employed by the Employer. There was no one
else who had the training or experience to do that work. Further, the evidence reveals that the
Employer had some control over the number of referrals submitted to Ms. McDonald during
the time she worked on HEP, which were referred to outside agencies. Ms. Munro-Cape
testified that when Ms. McDonald returned full-time to her FSW role, there were discussions
about how to increase the number of referrals sent to her. Indeed, the very fact that Ms.
McDonald was able to return to the FSW role full -time, with CHPI only constituting 20% of
her workload, demonstrates that her full-time job as an FSW continued to exist. Likewise, Ms.
Sweeney’s work as an ECW was significantly reduced by transferring files to other ECWs and
removing her from the intake rotation. It may be that, as a result, these temporary positions
were a .8 or .9 of a full-time employee, but there is no requirement that a “temporary position”
be strictly a full-time position.
62. Further, both projects were complex and required a great deal of time, research, thought, and
energy to perform. As Ms. McDonald testified, she did “bit and pieces” of FSW, but it was
fundamentally different than her normal role. For Ms. Sweeney, her regular work was very
limited, and she spent the bulk of her time on the ESS project.
63. To accept the Employer’s approach that such assignments need not be posted because a portion
of the employee’s regular work continues would undermine the full-time employees’ right
under the collective agreement to bid on “temporary positions.” The Management Rights
provision states that “[t]he Employer shall not exercise its rights in a manner that is inconsistent
with the Collective Agreement” and that both parties “shall administer the Collective
Agreement in a fair and reasonable manner.”
64. The Union also argued, in the alternative, that the Employer “substantially changed” the job
duties of both Ms. McDonald and Ms. Sweeney within the meaning of Article 29.03, which
triggered the obligation to discuss the change with the Union, and negotiate the appropriate
salary. See Re Canadian Union of Public Employees Local 1594 and Regina Public Library
29
Board (Staffing Changes Grievance) [2010] S.L.A.A. No. 24 (Pelton); Re Homewood Health
Centre and United Food & Commercial Workers International Union Local 175 1995
CarswellOnt 5718 (Williamson); Re Lanxess Inc. and CEP, Local 914, 2009 CarswellOnt 7693
(Brandt); Re Westcoast Energy, Inc. and Energy & Chemical Workers’ Union, Local 862
(Coleman); Re IWK Health Centre and N.S.G.E.U., 2011 CarswellNS 650 (Kydd); and, St.
Joseph’s General Hospital, Elliott Lake and ONA, 2008 CarswellOnt 10364 (Randall). The
Employer took the position that no such change occurred and that the onus to establish such a
“substantial change” lies with the Union. Re Thunder Bay District Health Unit and CUPE,
Local 1759 (2013), CarswellOnt 15067 (Surdykowski); Canadian Union of Public Employees,
Local 1974 and Kingston General Hospital (IT Positions Grievance), [2016] O.L.A.A. No.
352 (Trachuk)
65. In my view, Article 29 applies when the Employer makes a substantial change to a position.
In this case, there was no change to the FSW position (with the exception of adding CHPI), or
the ECW position. Instead, the two employees were assigned to a different temporary position,
which, under the facts, triggered the obligation to post.
66. There is no evidence that either Ms. McDonald or Ms. Sweeney lost any compensation or other
benefits as a result of the Employer’s actions.
Conclusions
1. The assignment of CHPI duties to Ms. McDonald did not violate the collective
agreement.
2. The assignment of the HEP project to Ms. McDonald and the ESS project to Ms.
Sweeney violated Article 14.01(a) of the collective agreement. On the evidence, I am
persuaded that these assignments went far beyond an assignment permissible under the
Employment Case Worker job description and constituted a “temporary position”
which had to be posted. I so declare.
30
3. The assignment of the HEP project to Ms. McDonald and the ESS project to Ms.
Sweeney did not violate Article 29.03 of the collective agreement.
4. The Employer is ordered, in the future, to comply with the terms of the collective
agreement.
5. I shall remain seized with regard to the interpretation and implementation of this
Award.
Issued this 25th day of January, 2021.
Randi Abramsky_
Randi H. Abramsky