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HomeMy WebLinkAboutTERRASSE-1996-16-04 IN THE MATTER OF AN ARBITRATION BETWEEN: EASTERN ONTARIO HEALTH UNIT The Employer - and - ASSOCIATION OF ALLIED HEALTH PROFESSIONALS: ONTARIO The Association AND IN THE MATTER of the grievance of Sophie Terrasse and a policy grievance, both relating to placement on the salary grid. Board of Arbitration: I.G. Thome, Chairman Robert M. Whittaker, Employer Nominee Joe Herbert, Association Nominee Appearances for the Employer: Carole Piette, Counsel David Marshall, Director, Corporate and Support Services Jeanne Lamarche, Director, Home Care Program Apoearances for the Association: Sue McCulloch, Labour Relations Officer Maureen Fraser, Labour Relations Officer Sophie Terrasse, Grievor A hearing in this matter commenced on January 26th, 1996, at Ottawa, Ontario. 2 PRELIMINARY AWARD There are two grievances before us, a policy grievance dated January 12th, 1994, and the individual grievance of Sophie Terrasse dated January 28th, 1994. Both grievances are stated in the same way: The Employer is not providing placement on the salary grid in accordance with related experience. Without limiting the generality of the foregoing, the employer is not recognizing related experience which is gained outside Canada. Both grievances allege a violation of Article 20.01 of the collective agreement, of which the following portions are relevant to the present matter: Article 20 - Salaries 20.01(a) Salaries to be paid to employees and the classification of employees shall be contained in Schedule "A" attached hereto and forming part of this Agreement; (b) Starting salaries - Placement on the Grid: (i) The Employer shall recognize related experience to the extent of one (1) increment for two (2) years experience to a maximum of two (2) increments above the start rate... The essence of the grievance of Ms. Terrasse is that, when she was hired by the Employer in Apri11993 as a Speech Language Pathologist (non-accredited), she was placed at the starting salary rate on the salary grid and thus no account was taken of her several years of experience as a speech language pathologist in France. It is our understanding that the Association intends to call 3 evidence and to argue that the grievor's experience was "related experience" within the meaning of Article 20.01(b) of the collective agreement. At the opening of the hearing counsel for the Employer advised that the Employer took the position that the interpretation and application of Article 20.0 1 (b), as it related to recognition of experience gained outside Cansda, had been fully and :finally litigated in an arbitration between these parties before a board of which Mr. Howard Brown was chairman. The award of that board was dated November 22nd, 1994, and adjudicated the grievance of Pierette Guilbault, who had been hired as an Occupational Therapist. Mr. Whittaker and Mr. Herbert were the Employer and Union nominees then, as they are in the present case. After hearing from the parties' representatives, we asked that they provide us with written submissions with respect to the issue raised by the Employer. A tentative date was set for the continuation of the hearing in the event that we should decide that the hearing should proceed. Some additional facts, which appear not to be in dispute, should be set out before the parties' submissions are considered. Following the grievor's hiring and placement on the salary grid and the filing of her grievance, as noted above, the grievance of Ms. Guilbault came on for hearing at arbitration. (It appears from the award in Ms. Guilbault's case that she had been hired in July of 1991, and had filed a grievance in September 1992.) On February 9th, 1994, Sue 4 McCulloch, Labour Relations Officer for the Association, wrote to the Employer's Director of Corporate and Support Services in the following terms: RE: Experience Recognition - Policy Grievance and Terrasse Grievance Further to your letter of 1994 01 25 and our telephone conversation of February 7, 1994 this letter will confrrm the agreement of the Parties to hold these issues in abeyance until the Guilbeault grievance is determined. You have indicated that the only reason Ms. Terrasse was not given recognition for her experience for the purpose of placement on the salary scale was because her experience was from outside Canada. This issue, therefore, is exactly the same issue which forms the basis of the Guilbeault grievance. I trust that I have presented our discussion accurately. It appears, again from the facts as set out in the award in Ms. Guilbault's case, that Ms. Guilbault had been employed before 1991 as an occupational therapist for eight years in Europe. From January through April of 1991 she had been employed in Ontario, apparently in the same capacity. The Employer had declined to recognize her previous experience outside Canada but had recognized her experience in Ontario. At the time of her hiring Ms. Guilbault held a certificate from the Canadian Association of Occupational Therapists. In the Association's submissions to this board, Ms. McCulloch explained the writing of the letter of February 9th, 1994, as follows: Prior to the position that the Employer took at the Brown arbitration hearing, the issue in dispute was clear and simple. Ms. Guilbault believed she should have been placed at Step 3 on the grid because she had more than 8 years of experience as an occupational therapist. The Employer's position prior to the hearing both verbally and in writing (page 5 2 Brown award) was that the reason for denying the credit for experience under the collective agreement was a result of the fact that the experience was gained outside Canada. The position that the Employer's lawyer took at the hearing was totally different than the employer's position taken prior to the hearing. At the hearing the reason for the denial of credit was as a result of her not having been accredited in Canada prior to gaining the 8 years of experience in France. The award of the Brown board concluded that the Employer had correctly applied the terms of Article 20.01(b) in placing Ms. Guilbault on the salary grid. The following excerpts from page 5 of the award indicate the board's reasoning: ... "related experience" as set out in Article 21.01(b) must be considered in relation to that experience which is connected to the classification for the purposes of applying the contractual requirements in a reasonable context. In so doing that must in the context of this article, refer to the classification of Occupational Therapist set out in the salary scale in Schedule A of the Agreement. To hold that classification requires accreditation in Canada and presently in Ontario, but at the time of this grievance a certificate was issued by the Canadian Association of Therapists which the grievor obtained prior to her hire by the Employer. We :find that it is the experience which relates to that classification which must be considered by the Employer and that classification does not exist for the purposes of this collective agreement without the certification required in this country. ... *** In the foregoing circumstances, counsel for the Employer argued, as noted above, that the interpretation and application of Article 20.01(b) as it related to the recognition of experience gained outside Canada, had been fully and :finally litigated in the Guilbault matter. Counsel argued 6 that res judicata applied to arbitration proceedings, while observing that boards of arbitration had talcen somewhat different approaches to the question. In that respect, counsel reviewed the approaches taken in Re Pharma Plus Drugtnarts Ltd. and United Food & Commercial Workers. Local 175 (1991), 20 LAC.(4th) 251 (Barton) and Re Victorian Order of Nurses CLanark Branch) and Ontario Nurses' Association (unreported, June 10th, 1993, Emrich). Arguing that a party should not be pennitted to reopen an earlier grievance by trying to bring a subsequent one to argue the same issue on new facts, but facts which were essentially the same as those resolved in the previous grievance, the Employer suggested that a party which believed that a decision was wrong should more appropriately take the matter to judicial review - as the Association had chosen not to do in the present case. Emphasizing that the parties were the Employer and the Association, counsel referred to Re Loeb IGA Southside and United Food & Commercial Workers International Union (1994), 39 LAC.(4th) 353 (Kilgour). With respect to the policy grievance, the Employer asserted that the issue raised was identical to the issue considered in the Guilbault grievance and argued that the Association should not have an opportunity to re-litigate the same issue. With respect to the grievance of Ms. Terrasse, the Employer took the position that the Association had agreed in its letter of February 9th, 1994, that the issue in the Guilbault and Terrasse grievances was identical. Further, the Employer argued that the fact that Ms. Guilbault was hired as an accredited Occupational Therapist while Ms. Terrasse was hired as a non-accredited Speech Language Pathologist was a difference which was not substantial or 7 material. The Association took the position that the grievance of Ms. Terrasse arose out off acts and issues which were substantially and significantly different from those in Ms. Guilbault's case. As will be apparent from the portion of the Association's submission reproduced above, the Association considered that it had not agreed that the issue in the Terrasse and Guilbault cases was identical, given the way it had been characterized by the Employer's counsel at the hearing of the Guilbault matter. The Association also laid some stress on the fact that Ms. Terrasse had been hired as a non-accredited employee, and argued that the award in Ms. Guilbault's case appeared to turn on experience for the purpose of the classification in which the individual was placed; since accreditation in Canada was not required for placement on the non-accredited scale, the Association considered that Ms. Terrasse's experience outside Canada would qualify as "related" for compensation purposes. The Association also argued that judicial review was not the exclusive method of dealing with an award that a party believed was wrong, and further that the Brown award resulted in a breach of the Human Rights Code in that it did not result in equal treatment with respect to employment for foreign employees. So far as the policy grievance was concerned, the Association asserted that that grievance involved all classifications, some of which did not require accreditation. 8 *** It is fair to say that boards of arbitration have taken differing approaches to the extent to which the doctrine of res judicata should be applied in arbitration proceedings. Taking the view that we do of the individual grievance of Ms. Terrasse - that the nature of the dispute it raises is different from that raised in the Guilbault case - it is not necessary to consider the doctrine as it might apply to the grievance of Ms. Terrasse. However, we will have certain comments to make about the doctrine in its application to the policy grievance, the nature of which is not entirely clear to us at this stage. The Terrasse grievance, of course, involves the same Employer and Union and requires an interpretation of the same clause of the collective agreement as was in issue in the Guilbault case. Ms. Terrasse, as did Ms. Guilbault, is seeking to have her years of working experience outside Canada recognized for the purposes of placement on the salary grid, and has been denied that recognition. What is different about this case - apart from the fact that a different grievor with a different professional background is involved - is that the nature of the dispute raised in the grievance appears to be a different one. The Guilbault case involved an occupational therapist who held the necessary accreditation at the time she was hired. In placing her on the salary grid, 9 the Employer recognized only experience which she had gained as an occupational therapist accredited in Canada. In :finding that the Employer had correctly applied the terms of Article 20.01(b), the board was of the view that only experience which related to the grievor's classification need be considered and that the classification did not exist for the purposes of the collective agreement without the certification required in Canada. The Terrasse grievance involves a speech pathologist, who can be hired on one scale if accredited and on another scale if not accredited. Ms. Terrasse was hired on the non-accredited scale. When account is taken of this distinction between the two grievors' situations, it appears that there is scope for the Association to argue that the experience which must be considered by the Employer, when placing a non-accredited speech pathologist on the grid, should not be restricted to experience following accreditation in Cansda. On this issue at least, we are not being asked to say that the award in Guilbault was wrong, but that it did not adjudicate how a non-accredited person should be placed on the grid. We must consider whether the Association's letter of February 9th, 1994, should preclude consideration of the Terrasse grievance. It seems clear from the text of the letter that the Association understood, at the time the letter was written, that the Employer was denying recognition for her experience only because her experience was gained outside Cansda, and that Ms. Guilbault had been denied recognition for her experience on the same basis. The position 10 taken by the Employer at the Guilbault hearing was that Ms. Guilbault had been denied recognition for some of her experience because she had not been accredited in Canada before gaining it. As we have indicated, it is at least arguable that the same reasoning might not apply to the placement of a non-accredited employee on the grid. In these circumstances we do not thinlc it reasonable that the Association should be foreclosed by its statement that the two grievances involved" exactly the same issue", based upon its understanding at the time the letter was written. Different considerations may apply to the policy grievance. On the basis of the material before us it appears that the situations of Ms. Guilbault and Ms. Terrasse were what gave rise to the policy grievance. So far as Ms. Guilbault's grievance is concerned, it seems to us that the parties have had their opportunity to litigate the issues raised in that grievance. The policy reasons for declining to, in effect, rehear a grievance were summarized in Re Pharma Plus Drugmarts (supra) in which Arbitrator Barton considered several meanings of the concept of res judicata in civil proceedings. The following comments, at p. 253, are relevant to the Guilbault grievance - if it is the Association's intention to seek a different outcome in Ms. Guilbault's case: All of these doctrines have a number of different purposes. One of the major purposes of them is to force parties to put their full attention to proper presentation of the first case. They are not allowed to split up the case and have two tries at it. Another reason for the doctrines is to prevent the possibility of inconsistent results in consecutive proceedings involving essentially the same issues. Because a subsequent tribunal might hear somewhat different evidence than the first, where the same issue is litigated twice there is a possibility that the second result might not be the same as the first. This would make the whole system look bad. 11 A further reason for the doctrines of res judicata is that people should be allowed to forget about the past and get on with the future. They are entitled to know where they stand with respect to a particular problem and once it has been resolved are entitled to go on and use the resolution of it as a guide to how to conduct their affairs in the future. It is worthwhile to bear in mind, however, that Arbitrator Barton considered that the area of res judicata was one in which a board of arbitration had a discretion whether to hear a given grievance or not. Re Rainy River Val1ev Health Care and Ontario Nurses' Association (1985),20 L.A.C.(3d) 331 (Devlin), cited in Re Victorian Order of Nurses (supra), contains a most helpful examination of authorities relevant to this area. Re Rainv River was quoted at some length in Re Victorian Order of Nurses and it is unnecessary to do so here. It is sufficient to say that Arbitrator Devlin's review identified and reconciled two arbitral approaches to res judicata. On the one hand, " ... it would appear that where boards of arbitration have declined jurisdiction on the basis of a prior award, this has resulted from a determination that the second grievance is in substance the same grievance as previously advanced. In such cases, the board had pierced the form in which the grievance has been presented and precluded one of the parties from rearbitrating the initial grievance ..." (at p. 337). On the other hand are " ... situations which do not involve one or other of the parties endeavouring to rearbitrate precisely the same grievance but rather in circumstances where the second grievance may involve the same or a similar issue as raised in an earlier grievance. In such cases the grievors may be different, the specific 12 circumstances giving rise to the grievance may vary or the grievances may have arisen at different points in time ..." (also at p. 337). In the latter type of case, it seemed more appropriate that a board of arbitration hearing a subsequent grievance should take the prior award into account and regard it as highly persuasive unless convinced that the prior award was wrong. Weare uncertain at this stage what may be involved in the policy grievance. If the Association's purpose in bringing it forward is to obtain another adjudication on Ms. Guilbault's placement on the grid as considered in the Brown award, we would respectfully decline to hear it. If the Association's purpose is simply to ensure that the issues raised in the Terrasse grievance are dealt with, we cannot see that the policy grievance will add anything to the situation. It may be that there are circumstances of which we are not aware and we will therefore await what is said about the matter at the hearing, but we would expect that any representations in that regard should not delay the hearing of the Terrasse grievance. With respect to the Terrasse grievance, we should briefly address certain submissions made by the Association and not mentioned in this preliminary award up to this point. One such question is the issue of movement from the non-accredited to the accredited grid, which the Association has identified as an issue in the T errasse grievance. The Employer has responded that that was not an issue when the grievor filed her grievance and thus is not a matter before us. It is 13 evident that the Association has certain submissions to make regarding the effect of the Regulated Health Professions Act and regarding the effect which the Ontario Human Rights Code may have on our decision. We mention these matters now simply to indicate that it has not been necessary to .determine them in the course of this preliminary award and that, if they are raised at the hearing, we will hear what the parties have to say about them. Dated at Kingston, Ontario, this 16th day of April1996. ~.~- LG. Thome, Chairman I dissent in part "R.M. Whittaker" Robert M. Whittaker, Employer Nominee I concur "J. Herbert" Joe Herbert, Association Nominee ~ frJ 1c'1;;J 1":1:: i ":J " ~i ~:' \ f ~;...c~ ~ '~L:, ~",,:, i, "I t'J~--"-'''--'---'''-' . ,. , U~: i I r:i G 15;& ' , . i c'l" _";'~_., __...,.J _____.____ __ __ ~ _ ~ ___., _ M ~.H _ _~_ IN THE MATTER OF AN ARBITRATION Between: EASTERN ONTARIO HEALTH UNIT "Employer" - and - ASSOCIATION OF ALLIED HEALTH PROFESSIONALS: ONTARIO "Association" Grievance of Sophie Terrasse and Association Grievance BOARD OF ARBITRATION Guy Thorne Robert Whittaker - Joe Herbert Chairperson Employer Nominee Association Nominee ASSOCIATION SUBMISSIONS February 23, 1996 2 In "THE FACTS" the Employer states in 1. that the Grievor was placed on Step 1 in accordance with Article 20.01 (a) and Schedule A of the Collective Agreement. The Association disputes this aspect of the sentence as "a fact" as the position of the Association is that her placement was not in accordance with the Collective Agreement, Health Educator Promoter is also included on that salary scale. 2. "and any other relevant article" should be included ADDITIONAL FACTS 1, The policy grievance was filed January 12, 1994. The period for which the grievance, as a continuing grievance relates is from December, 1993 onward, 2. Prior to January 1, 1994, Speech Language Pathologists were not licensed in Ontario. The Ontario Speech and Language Association was the provincial body which was recognized (on a voluntary basis) as the body responsible for accreditation and setting the standards of practise in Ontario. Prior to January 1, 1994, Dietitians were not licensed in Ontario, The Ontario Dietetics Association was the provincial body which was recognized (on a voluntary basis) as the body responsible for accreditation and setting the standards of practise in Ontario. Prior to January 1, 1994, Occupational Therapists were not licensed in Ontario. The Canadian Association of Occupational Therapists was the federal body which was recognized (on a voluntary basis) as the body responsible for accreditation and setting the standards of practise in Ontario. 3 Prior to January 1, 1994, Physiotherapists were licensed to practise in Ontario under the Drugless Practitioners Act. As of January 1, 1994 the Regulated Health Professions Act came into effect. Schedule 1 of this Act lists the various self governing health professions and names of the individual Health Profession Acts. .The following Regulated Health Professions are currently in the EOHU - AAHP:O bargaining unit: Speech-Language Pathology Dietetics Occupational Therapy Physiotherapy The following are also included in the bargaining unit and are not included under the Regulated Health Professions Act: Addiction Workers Prevention Workers Speech-Language Pathologist (non-accredited) [pre 1994 term] Social Worker (SSW & MSW) Health Educator Promoters The Ontario Association of Professional Social Workers is the provincial body which is recognized (on a voluntary basis) as the body responsible for accreditation and setting the standards of practise in Ontario. There is also a voluntary College of Social Workers, 4 ASSOCIATION RESPONSE AND RESPONSE TO EMPLOYER'S SUBMISSION The Employer's submission indicates that the Brown award: as it relates to recognition of experience gained outside Canada has been fully and finally litigated before the Board in the Guilbault matter. (p4) The issue of recognition of out of country experience was fully dealt with in the Brown award. (p8) We believe this difference is not substantial or material and does not take away from the arbitrator's findings that related experience arises where the experience is gained in Canada. (p9) Unfortunately, the Employer did not understand the award, Mr. Brown did not say anything about experience gained outside Canada in a general sense. The fact is he dealt exclusively with experience which was gained prior to accreditation in Canada and presentlv in Ontario, In the Guilbault case, that experience happened to be outside Canada. However, if someone were accredited in Ontario and subsequently gained experience outside Canada, presumably that experience would be credited. Likewise, where the classification had two scales, one of which did not require accreditation (Terrasse) there is no suggestion in the award that the experience outside Canada should be denied for credit, Furthermore the award, because it was based on an individual grievance and individual facts, spoke not at all to classifications for which there are no accreditations. It did also not deal with classifications in the salary scale which do not require accreditation but where positions in that job classification do (one of the Health Educator/Promoter positions, Le, "nutrition field" requires a dietitian. Although a "Dietitian" is required to be licensed, the classification of Health Educator Promoter on the salary scale is not.) Clearly the Employer thinks the issue is about experience outside Canada because that is the only issue which was ever discussed between the Parties. The issue of accreditation was a creation of counsel for the employer at the hearing before the 5 Brown Board and unfortunately it was the issue on which Mr. Brown based his decision. The Association submits that the Thorne Board should use its discretion not to apply the doctrine of Res Judicata for the following reasons: 1. The facts giving rise to the prior case and the issues to be determined in the Terrasse and Policy grievances are substantially and significantly different. 2. The issue of movement from the "non-accredited" to the "accredited" grid is an issue in the Terrasse grievance which was not an issue in the Guilbault grievance, 3. The grievances arose prior to and post the Regulated Health Professions Act which fundamentally affects the application of the award. 4. The Association was not obligated to judicially review the Brown Award if it felt it was wrong. 5. The Brown award violates of the Human Rights Code. Based on the foregoing and supporting case law, the Association requests that the Thorne Board hear the merits of the Terrasse and Policy grievances. 6 DIFFERENCES BETWEEN GUILBAULT AND TERRASSE GRIEVANCES I Accredited vs Non-accredited Salarv Scale In support of the res judicata, the Employer appears to rely heavily on the fact that in February 1994 the Association wrote to the employer indicating that the issue in the Guilbault grievance and the Terrasse and Policy grievance were exactly the same. Prior to the position that the Employer took at the Brown arbitration hearing, the issue in dispute was clear and simple. Ms. Guilbault believed she should have been placed at step 3 on the grid because she had more than 8 years of experience as an occupational therapist. The Employer's position prior to the hearing both verbally and in writing (page 2 Brown award) was that the reason for denying the credit for experience under the collective agreement was a result of the fact that the experience was gained outside Canada. The position that the Employer's lawyer took at the hearing was totally different than the employer's position taken prior to the hearing. At the hearing the reason for the denial of credit was as a result of her not having been accredited in Canada prior to gaining the 8 years of experience in France. The Brown award on p 7 states: We find that the Employer correctly applied the terms of Article 20,01 (b) in the placement of the Grievor on the salary grid by properly crediting the grievor with her experience at Paramed in Ontario prior to her employ at this Health Unit, We find that is the extent of consideration required to be given by the Employer which need not under these terms investigate experience prior to the grievor obtaining the designation of Occupational Therapist and certified in Canada, "Whether that experience contributed to or was the basis for the Canadian certification does not bear on the Employer's responsibility to place employees on the salary grid under Article 20,01. 7 The Association expected the Board to answer the question "is experience gained outside Canada related experience?" The Brown Board did not answer that question. The Brown Board stated that experience gained prior to Canadian certification is not related experience for classifications requiring certification in Canada. The award did not answer the question vis a vis the claim for experience of Sophie Terrasse. She was hired as a "non-accredited" Speech Language Pathologist which would appear to be exempt from the Brown decision. Although her experience was also gained outside of Canada the operative part of the Brown award appears to pivot on experience for the purpose of the classification as per the salary scale. Since accreditation in Canada is clearly not required for placement on the non-accredited scale, it would appear that her experience outside Canada would qualify as "related" for compensation purposes. Despite 11 Y, years of experience in France as a Speech-Language Pathologist, the employer placed her on Step 1 of the Non-Accredited Speech Language Pathologist scale. Although this action is consistent with the employer's previous reason for denying the grievance, i.e, "it has been the practice of the Eastern Ontario Health Unit when hiring personnel from outside Canada not to recognize previous experience that may not meet the established Canadian standards", it is totally inconsistent with the position it took at arbitration. At the arbitration hearing the Employer specifically differentiated between salary scales where creditation is not required, ...such as for the Speech Language Pathologist (Non-Accredited) (p3 of award). The Brown award echos this position, II Occuoational Theraoist vs French Soeech Lanauaae Patholoaist Another significant distinction between the Guilbault grievance and the Terrasse grievance is the profession of each grievor. Ms. Guilbault is an Occupational Therapist and Ms. Terrasse is a French Speech Language Pathologist. 8 The Eastern Ontario Health Unit provides services in the Counties of Stormont, Dundas, Prescott, Russell, and Glengarry. The level of French as a first language is significant in this region and in fact Ell of four of the 5 counties are designated under the French Language Services Act as having a right to service in French (only the Township of Winchester is designated in the County of Dundas). For all of the professional services which are provided by the Health Unit, there is a level of French competency which is required in order to deliver service to the French population, The level of such competency differs in accordance with the nature of the service. The very essence of the French Speech Language Pathologist's position is the French language. Whereas an Occupational Therapist may require competency in French to communicate with the client, the Speech Language Pathologist has to be able to deal with the mechanics of French speech. Ability to communicate in French is not sufficient, In Canada, the only places which provide Speech Language Pathology education in French are Universite de Montreal, and the University of Ottawa. The University of Ottawa graduated its first very small class last year (Ie 1 Y, years post the date of the grievance), Besides Canada, French Speech Language Pathologists are educated in France, Belgium and Switzerland. Of the 4 current French Speech Language Pathologists at the Eastern Ontario Health Unit, 2 are from France and 2 are from Belgium. If the Board is to consider whether experience from outside Canada, or experience prior to certification in Canada or in Ontario is related, it must be done within a context. When the job, by virtue of its very nature (the French language) is such that it does not exist to a large extent in Canada as a whole, or in Ontario, surely that restriction must impact on a decision as to what is "related". The Health Unit's entire complement of French Speech Language Pathologists were educated 9 and had experience outside of Canada prior to their hire. The Association submits that even if the Thorne Board upholds the Brown Award vis a vis Occupational Therapists (and the Association does not suggest it should), the Board should not apply the Brown award to French Speech Language Pathologists. MOVEMENT FROM THE "NON-ACCREDITED" TO THE "ACCREDITED" GRID Besides the issue of the differences between the Guilbault and Terrasse awards, there are further issues as regards the Terrasse grievance, itself, The movement from the "non-accredited" to the "accredited" Speech Language Pathologist scale is also an issue. As previously indicated Ms. Terrasse was hired as a non-accredited SLP and was paid at Step 1 of that salary scale which continued beyond the date at which she filed her grievance. In the fall of 1993, Ms. Terrasse filed her documents in order to meet the requirements of the Regulated Health Professions Act and College of Audiologists and Speech Language Pathologists of Ontario (CASLPO). In October 1994 the Employer received confirmation that she was certified by the CASLPO for the year 1993-1994 and placed her on Step 1 of the Accredited Speech Language Pathologist scale retroactively to January 1, 1994. It is the Association's position that Ms. Terrasse should have been placed on the third step of the Speech Language Pathologist (accredited) scale as opposed to the initial step where she was placed. REGULATED HEALTH PROFESSIONS ACT At the time of the Guilbault grievance, the standard for accreditation as an Occupational Therapist was eligibility for membership in the Canadian Association of Occupational Therapists (CAOT). 10 Brown wrote (p5) In so doing that must in the context of this article, refer to the classification of Occupational Therapist set out in the salary scale in Schedule A of the Agreement. To hold that classification. requires accreditation in Canada and oresently in Ontario. but at the time of this grievance a certificate was issued by the Canadian Association of Therapists which the grieyor obtained prior to her hire by the Employer. (underlining added) For the purposes of the Guilbault grievance an Occupational Therapist needed to be eligible for membership in the CAOT in order to be an "Occupational Therapist" under the terms of the collective agreement. Since January 1, 1994, as a result of the Regulated Health Professions Act, in order to be an "Occupational Therapist" under the terms of the collective agreement the employee must hold a "certificate" from the College of Occupational Therapists of Ontario (COTO). Policv Grievance The Policy Grievance states: The Employer is not providing placement on the salary grid in accordance with related experience. Without limiting the gerality of the foregoing, the employer is not recognizing related experience which is gained outside Canada. As previously stated, at the time of filing the grievance, the Association believed that the issue was related to credit for experience gained outside Canada. It appears that the Brown award may have expanded the exclusion of related experience from outside Canada to outside Ontario, The Association intends to address these issues in the present hearing in the policy grievance. Prior to the Brown award the employer did not recognize experience which was gained outside Canada; however, it did recognize experience which was gained inside Canada, albeit outside Ontario. Physiotherapists have been licensed in 11 Ontario for decades under the Drugless Practitioners Act which was repealed and replaced by the Regulated Health Disciplines Act and Physiotherapy Act, Despite the fact that a Physiotherapist who worked in Quebec would not have been licensed as a Physiotherapist in Ontario, credit for experience would have been given, Again this approach is consistent with the employer's reasons for denying the experience outside Canada but not consistent with their position at the hearing which restricted credit for experience to experience gained after "accreditation". "Physiotherapist" on the salary scale prior to 1994 referred only to physiotherapists licensed in Ontario. If the situation of the Physiotherapists were analogous to the Occupational Therapist, (who according to the Employer's position and the award would be granted only credit for experience which was gained after "certification"), the Physiotherapist should have been eligible for only credit for experience gained after licensure in Ontario, Now that the Health Disciplines Act is in force, the application of the Brown award might limit credit for experience for salary purposes to experience gained after joining the relevant college for those professions which are covered by the Health Disciplines Act. It could follow that related experience outside Ontario would not be given credit, The Employer has never applied credit for experience in this manner and the Association believes it would be patently wrong to do so. The concern of the Association; however, is that without further clarification, it is conceivable that the Brown award could be so applied. 12 JUDICIAL REVIEW The Employer has indicated that the proper forum is judicial review if a party believes that an arbitral decision is wrong. The Association contends that judicial review may be an appropriate forum in some cases; however, it is not the exclusive method of dealing with an award that a party believes is wrong. The Association submits that the best body to deal with labour issues is a body which is constituted by or for labour. Although conceivably the Association could have judicially reviewed the Brown award, related issues needed to be resolved which would have required another board of arbitration anyway. The Association, therefore, chose to use this board to resolve all these issues. In Re Toronto Transit Commission and Amalgamated Transit Union, Local 113; Saltman 21 LAC (3d), Ms. Saltman reviews the issue of Res Judicata. She differs from Mr. Barton in that she supports the position of arbitrator Laskin in Re Brewers' Warehousing Co, Ltd. and Local 278C, Int'l Union of Brewery, Flour, Cereal, Malt, Yeast, Soft Drink & Distillery Workers of America (1954), 5 LAC 1797 (Laskin) (the "Brewers' Warehousing" case) (p 1798) which states: It is not good policy for one Board of Aroitration to refuse to follow the award of another Board in a similar dispute between the same parties arising out of the same Agreement where the dispute involves the intelpretation of the Agreement. Nonetheless, if the second Board has the clear conviction that the first award is wrong, it is its duty to detennine the case before it on principles that it believes are applicable. She goes on to say on pp 353/4 "the vast majority of cases, however, follow the policy of aroitral deference proposed by then aroitrator Laskin in the Brewers' Warehousing case, supra, and adopted by Mr. Justice Monnin in the Canada Safeway case, see Re Philips Cables Ltd. and U.E. W, Local 510" "In this board's view, this latter approach is more consistent with the role of labour aroitration, which is concemed not only with the legal issues but with the practical effect of the award; see JFW Weatherill, "The Binding Force of Arbitration Awards" (1958), * LAC 323, Accordingly, although considerable deference ought to be given to prior aroitration awards dealing with the same issue arising out of the same 13 agreement, arbitrators must be free to depart from prior awards which are clearly wrong. However, such a departure is not to be taken lightly (particularly in view of the potential disruption to parties faced with conflicting decisions) and an arbitrator who embarks on such a route must be prepared to analyze the previous decision and establish the basis for the departure: see Re Canadian Johns-Manville and Int'l Chemical Workers, Local 346 supra," The Association submits that the Brown award is manifestly wrong. The Brown Award states on p 5 & 6: In the Ottawa Civic HOSlJital award the collective agreement specifically provided consideration of related clinical experience in countries other than Canada as distinguished from experience in this country,.. To provide that link of experience gained outside of Canada would require specific language such as found in the Ottawa Civic Hosvital case, According to Palmer, in Collective Aoreement Arbitration in Canada, clauses should not be implied into an agreement. "The implication of a clause into a collective agreement as a matter of law should be restricted and only done under the clearest of circumstances. This is so, of course, because the role of an arbitrator is to construe the agreement as it stands, not to create a new one for the parties," The AAHP:O - EOHU collective agreement states: 20,01 (b) "The Employer shall recognize related experience to the extent of one (1) increment for two (2) years experience to a maximum of two (2) increments above the start rate," 7.02 The Arbitration Board shall not have any authority to alter or change any of the provisions of this Agreement, or to substitute any new provisions in lieu thereof, or to give any decision contrary to the express intent or terms and conditions of this Agreement, or in any way modifY, add to or detract from any provision of this Agreement. The Association submits that in order for the clause to exclude related experience outside Canada, or related experience gained prior to certification, the oarties would be obligated to include words to that effect in the collective agreement. This type of restriction was apparent in the Ottawa Civic Hospital collective 14 agreement at the time of the Emrich award. If Mr. Brown's reasoning were correct, that such language was necessary in order for credit to be given for related experience outside Canada, or related experience gained prior to certification, it would follow that in order for credit to be given for related experience outside Ontario, or related experience gained prior to licensure in Ontario, additional language needed to be incorporated. There was absolutely no dispute t.hat related Canadian experience outside Ontario prior to certification or licensure in Ontario (as required by Physiotherapists even at that time) applied. The arbitrator did not construe the agreement as it stood; instead, in effect he created a new clause for the parties. Support for the Association's reasoning can be found in Re Abitibi Price (Fort William Mill) and Canadian Paperworkers Union, Local 132 (1990), Unreported. On pp 7 & 8 Arbitrator Burkett refuses to be bound by the previous award of Arbitrator Phillips because he felt it was manifestly wrong. In the award, Mr. Burkett first quotes the award of Arbitrator Phillips: "I agree with the Union's statement that these are sophisticated parties with a lengthy history of negotiating such articles. However, I would draw a different inference from this fact than that stated by the Union. The fact that the parties were very careful to specifY limitations on the application of Article 23.15(a) for sickness would lead one to expect equal specificity with respect to mill accidents if mill accidents and sickness were to be treated separately. If I were to accept the Union's interpretation, I would have to agree that the Employer intended to grant vacation pay to employees on long term absences due to mill accidents as well as those on shorter term absences, Even though the matter at hand does not involve a long term absence, the interpretation I placed on this article must apply consistently to situations of long term as well as short term absences due to mill accidents. If the parties had intended this Article to provide such a significant benefit as full vacation pay for an unlimited period of time while employees are off work due to mill accidents, it is likely the parties would have conveyed this fact in clear and unequivocal language analogous to that which appears in Article 23,15 (b)." l5 Mr, Burkett in addressing the Phillips decision states: I am not persuaded by the reasoning set out above. Indeed, in my view, it is manifestly wrong... Finally, the arbitrator reasons that if the parties had intended to provide vacation pay to employee off work by reason of mill accidents "it is likely the parties would have conveyed this fact in clear and unequivocal language analogous to that which appears in article 23,15 (b)". However, there is a clear, unequivocal and unrestricted exemption in article 23. 15 (a) for time off by reason of "mill accidents", The language could not be clearer. .Article 23.15 (b) deals with the restriction upon the exemption for sickness that is made in article 23.15(a). With all due respect; if it had been the intention of the parties to similarly restrict the exemption for mill accidents on would expect language "analogous to that which appears in article 23,15(b)", Absent any reference to "mill accidents" in 23,15(b) or absent a similar clause dealing with "mill accidents" the correct inference is that the parties did not intend to restrict the exemption for time off by reason of "mill accidents under 23.15(a), As is the case in the award above, the original clause in the AAHP:O - EOHU collective agreement is unrestricted. The Parties constructed the clause to clearly indicate what they meant--if experience is related then credit applies, HUMAN RIGHTS CODE The Association alleges that the Brown Award's denial of compensation for related experience because it was not gained after obtaining Canadian credentials breaches the Ontario Human Rights Code. The application of the award does not give equal treatment with respect to employment to foreign employees and the restriction is neither reasonable nor bona fide in the circumstances. The Human Rights Code states: Section 5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offenses marital status, family status or handicap, Section 6 Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap, Section 10(1) In Part I and in this Part, "equal" means subject to all requirements, qualifications and considerations that are not a prohibited ground of discrimination; 16 Section 11 (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where, (a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or (b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right, . (2) The Commission, a board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any, (3) The Commission, a board of inquiry or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship, In respect of the Brown Award, the Association alleges the award breaches the Human Rights Code as a result of its determination that experience is related for the purposes of compensation under the collective aareement pnlv if it occurs subsequent to "accreditation in Canada and presently in Ontario", The award states: "The grievor claims however, that her past experience as an Occupational Therapist in France should be considered to allow her progress to Groups 2, Level 3 at the higher salary rate, There is no doubt on the evidence that the grievor had experience as an Occupational Therapist in France according to her CV and the other documents which were filed and there is no doubt as to her qualification for that classification, That however is not the issue which is restricted to the detennination of what the Employer must consider in placing the grievor on the salary grid pursuant to the specific tenns of Article 20.01 (b), "The grievor's experience in France while significant in the grievor's ability to obtain the Canadian qualification it was gained outside of Canada and was not related to the classification in this agreement which requires creditation in Canada." (P6) "We find that the extent of consideration required to be given by the Employer which need not under these tenns investigate experience prior to the grievor obtaining the designation of Occupational Therapist and certified in Canada,"(p7) 17 Under Section 5 (1) "Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, ethnic origin, and citizenship. Under the terms of the collective agreement, employees are entitled to increased compensation of up to 2 steps on the salary scale if they have related experience. The arbitrator concedes "there is.no doubt...that the grievor had experience as an Occupational Therapist in France,.." His sole reason for denying equal treatment under the collective agreement was a result of this experience having been gained outside Canada, prior to her certification in Canada. Section 11 of the Human Rights Code makes provisions for constructive discrimination. The Brown award did not state that the claim for related experience was not given because of the grievor's race, ancestry, place of origin, ethnic origin, or citizenship but because the experience was gained prior to Canadian creditation. The Association contends that the arbitrator's basis for denial "results in the exclusion of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member". In other words, the Brown award sets up a qualification for claiming related experience which excludes foreign employees in general and Ms. Guilbault in particular. Notwithstanding that a constructive discrimination is prohibited, the HRC makes exceptions where, the requirement, qualification or factor is reasonable and bona fide in the circumstances. Is the denial of experience gained prior to Canadian creditation reasonable and bona fide in the circumstances? The Association suggests looking at the practices of the professional bodies who are likewise covered under section 6 of the HRC to establish whether they categorically deny recoginition of experience from outside Canada. 18 The practices of the Canadian Association of Occupational Therapists (as an occupational association) and the College of Occupational Therapists of Ontario (as a self-governing profession) are covered by Section 6 of the HRC, As a minimum threshold for determining eligibility for practice in Canada/Ontario, the applicant must be eligible for membership in the professional organization of the country in which she is/was practicing. Both these Canadian organizations investigate the educational systems and experiential requirements for eligibility in occupational therapy organizations in other countries to determine if such requirements meet those of the Canadian system. Once the professional body of the country of origin has passed that threshold, the CAOT and/or COTO further require the successful completion of a Canadian examination to ensure that the individual meets the standards of Canada/Ontario. The Association contends that the professional bodies meet the obligations of the Human Rights Code. They have established standards for Canada/Ontario and subsequently investigate and rate the educational and experiential standards of applicants from other countries as a basis for determining eligibility for professional status. In the case of Ms. Guilbault, they determined that her educational and experiential credentials were sufficient to grant her membership in CAOT (and subsequently COTO). In contrast the Brown award provides no investigation and evaluation for determining "related" experience. All experience is arbitrarily quashed for compensation purposes if it is gained prior to certification. The Brown award determined that under the terms of the collective agreement an "occupational therapist" does not exist for the purposes of this collective agreement without the certification required in this country. In fact the term "occupational therapist" was not a protected term prior to January 1, 1994 although for the purposes of the salary scale of the Collective Agreement the 19 Association agrees that it implies "eligible for certification by CAOT". The Occupational Therapy Act which went into effect January 1, 1994, states: 1 In this Act, "College" means the College of Occupational Therapists of Ontario; "member" means a member of the College 7 (1 ) No person other than a member shall use the title "occupational therapist, a variation or abbreviation or an equivalent in another language, (2) No person other than a member shall hold himself or herself out as a person who is qualified to practise in Ontario as an occupational therapist or in a specialty of occupational therapy. The purpose of the Health Disciplines Act and Occupational Therapy Act is to protect the members of the public in Ontario; they were not established to protect the profession, These Acts protect the public served by the Eastern Ontario Health Unit insofar as they require. Occupational Therapists to be members of their college, the body which is responsible for the development, establishment and maintenance of standards for the profession in Ontario. The Association agrees that in order to be placed on the "occupational therapist" salary scale, a current incumbent would be required to be a member of the College; however, it is unreasonable to extrapolate that in order for related experience to be valid, it must be gained subsequent to such membership, The responsibility for professional standards and hence "accreditation" is politically determined, In Canada it is a provincial responsibility. Other countries have other political boundaries. The practice of Occupational Therapy is similar regardless of location; however, the jurisdiction of related bodies and laws vary according to locale. There is clearly no need for an occupational therapist to have a certificate of competence from the COTO to practice occupational therapy in France. The public in Ontario is not in the least jeopardized when an occupational therapist is practicing in France. 20 The experience which Ms. Guilbault gained as an occupational therapist working in France was relevant for gaining the credentials required to practice in Ontario. It assisted the Occupational Therapist to be more proficient in her profession. It was a benefit to the patients whom she treated, It was germane to the amount of direct supervision the Employer was required to provide. The only purpose for which the experience had no value, as a result of the Brown award, wa;:; for the purpose of compensation under the collective agreement. Was the denial of credit for experience gained prior to Canadian creditation reasonable and bona fide in the circumstances? The Association submits it was not. In the result, foreign employees were not given equal treatment with respect to employment without discrimination and the Brown award attempts to legitimize this discrimination. ~;;.. 21 CONCLUSION In summary the Association requests that the Board exercise its discretion not to apply the doctrine of res judicata, 1. The facts giving rise to the prior case and the issues to be determined in the Terrasse and Policy grievances are substantially and significantly different. The Guilbault grievance involved an "accredited" occupational therapist; the Terrasse grievance involves a "non-accredited" French Speech Language Pathologist. The policy grievance involves all classifications, some of which do not require accreditation. 2. The issue of movement from the "non-accredited" to the "accredited" grid is an issue in the Terrasse grievance which was not an issue in the Guilbault grievance. 3. The grievances arose prior to and post the Regulated Health Professions Act which fundamentally affects the application of the award. 4, The Association submits that the Brown award is manifestly wrong; however, it was not obligated to judicially review the Brown Award. The Association submits that the best body to deal with labour issues is a body which is constituted by or for labour. 5. The Brown award violates of the Human Rights Code. The Association further requests that the Board hear the merits of the Terrasse and Policy Grievances, All of which is respectfully submitted.