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HomeMy WebLinkAboutWILKINSON-1991-11-04 IN THE MATTER OF AN ARBITRATION BETWEEN TORONTO EAST GENERAL AND ORTHOPAEDIC HOSPITAL INC. (the "Hospital") AND THE ASSOCIATION OF ALLIED HEALTH PROFESSIONALS: ONTARIO (the "Association") AND IN THE MATTER OF THE CLASSIFICATION GRIEVANCE OF JULIA WILKINSON SINGLE ARBITRATOR Ross L. Kennedy APPEARANCE FOR THE HOSPITAL Christopher G. Riggs - Counsel APPEARANCE FOR THE ASSOCIATION Cindy Wilkey - Counsel THE HEARING COMMENCED AT TORONTO, APRIL 9, 1990 AND CONTINUED DECEMBER 3, 1990 AND MARCH 18, 1991. R ~ Q "'c~;' ~ ~ ~~~~ IN THE MATTER OF AN ARBITRATION BETWEEN TORONTO EAST GENERAL AND ORTHOPAEDIC HOSPITAL INC. (the "Hospital") AND THE ASSOCIATION OF ALLIED HEALTH PROFESSIONALS: ONTARIO (the "Association") AND IN THE MATTER OF THE CLASSIFICATION GRIEVANCE OF JULIA WILKINSON SINGLE ARBITRATOR ij\ \? \\J\?\\\lm~i~ \U\" . 02. 'gcQ ;,\ ,\ Dr::C 1 I ~ . \ \ \, ~ . ~,.)0 \J\i 'T~ '.:: 'H.ic....- l.l,__-' ----- Ross L. Kennedy .----- APPEARANCE FOR THE HOSPITAL Christopher G. Riggs - Counsel APPEARANCE FOR THE ASSOCIATION Cindy Wilkey - Counsel THE HEARING COMMENCED AT TORONTO, APRIL 9, 1990 AND CONTINUED DECEMBER 3, 1990. INTERIM AWARD The Grievor is employed by the Hospital as an Echocardiography Technologist and was originally classified as a Registered Technologist. In a grievance dated December 21, 1989 she claimed that she was improperly classified and sought reclassification as a Senior Technologist retroactive to October 7, 1988 with full compensation for lost wages. The collective agreement between the parties expired in March of 1988 but has subsequently been continued pursuant to the provisions of the Hospital Labour Disputes Arbitration Act. That dispute proceeded before a board of arbitration chaired by Professor Gorsky, and a hearing was held in August of 19890 A decision had not been released in that arbitration as of April 9, 1990, the first day of the hearing with respect to this grievance. The collective agreement between the parties provides for three classifications and salary levels for Technologists which are, in ascending order of rate of pay, Registered Technologists, Intermediate Technologists and Senior Technologistso By letter dated October 7, 1988, the Grievor set out to the Hospital her position that she was improperly classified and ought to be reclassified as a Senior Technologist. By letter dated March 6, 1989, the Hospital advised the Association of its intent to - 2 - create a new classification of Echocardiography Technologist to which the Grievor would be appointed. The proposed wage rates did not fit within the existing Technologist classification structure but in substance were very close to the rates provided for an Intermediate Technologist. The Association responded by reminding the Hospital of the statutory freeze on terms and conditions of employment pursuant to the Hospital Labour Disputes Arbitration Act, and the Hospital withdrew its proposal for the new classification pending the outcome of the interest arbitration. Then in October of 1989 the Hospital restated its earlier proposal to establish the position of Echocardiography Technologist on the basis of the same wage scale as previously proposed, to be adjusted on receipt of the award in the interest arbitration. On November 22,1989 the Grievor was formally appointed to that classification, retroactive to March 3, 1989. The Association's position as outlined in counsel's opening statement is that the Hospital has improperly created a new classification that is distinct from the scheme set out in the collective agreement and that there is no bona fide new position to justify such action on the part of the Hospital. The Association's fundamental position is that the Grievor has been improperly classified within the existing structure and that the proper application of the classification structure to the Grievor's particular job duties would classify her as a Senior Technologist. In - 3 - the alternative, and if it were determined that a new classification was appropriate, then the Association's position is that internal equity as required by Article 3.05 of the collective agreement and a proper analysis of the actual duties performed by the Grievor would result in wage rates equivalent to those of Senior Technologistso The opening position outlined by the Hospital was that, to be a Senior Technologist, an employee had to have a regular designated supervisory responsibility for the classification and the Grievor's job did not meet that testo It was Mr. Riggs' position that the Grievor had no ongoing supervisory responsibility for any other staff and that she was not accountable in any way for any supervisory responsibility. She had no function in scheduling, discipline, evaluation, organization or supervision of work. It was also mentioned in opening that the Technologist classification structure had been dealt with in the materials placed before the interest arbitration board. The Gorsky board released its award May 23, 1990 and, commencing at page 18 thereof; the following is stated: EchocardiolITaDhv Technolocist After the hearing on August 8, 1989, the board received copies of correspondence concerning a new classification designated "Echocardiography Technologist". The starting rate for a new employee, hired in November - 4 - 1989, was $2705.00 per month; the maximum rate given to an employee since March 1989 was $2979.00 per month. At Tab 3 of the Association's brief there are 41 "Job Descriptions", the last of which, entitled "Position Description" concerns an echocardiography technologist. Article 3.01(c) gives management the right to determine classification. The board has considered the matter in some depth, and awards the classification of "Intermediate Technologist" to the 2 employees whose job description is "echocardiography technologist". The reasons are these: a) There is a difference between classifications and job descriptions. For example, the 25 Intermediate Technologists are employed in nuclear SCl'lnning, diagnostic imaging, and medical laboratories. Each particular job is singularly described, but all 25 are classified as Intermediate Technologists. b) Since all the technologists belong to a series consisting of 3 levels, the 2 employees are improperly "classified" as echocardiology (sic) technologists, because the latter designation is a job description. c) The salary difference between an Intermediate Technologist at its current maximum (2990) .and the new "classification" at its maximum (2979) is .003%. Such minimal differences do not warrant a separate salary scale. d) The parties are in the process of discussing reductions in the number of tiers in the technologist series, in an effort to emulate the OPSEU agreement. It would be counterproductive to create an inadvertent enlargement in the series. When this hearing recommenced, counsel for the Hospital argued that the Gorsky award directly addressed and determined the issue of the appropriate classification for the Grievor. Therefore, it was argued that since the issue had been explicitly dealt with by Professor Gorsky, that constituted a conclusive determination with - 5 - respect to the present grievance. Mr. Riggs agreed that Professor Gorsky's board did not hear any evidence as to the actual nature of the Grievor's job duties, but if that was considered relevant to the issue, then it was for the Association to have put forth the necessary evidence to show that the job should have been placed at the Senior rather than the.Intermediate Level. Once that issue was decided it could not be relitigated. On behalf of the Association, Ms. Wllkey argued that the Gorsky award was based solely on the written job description and that the issue resolved was whether or not a new classification was appropriate or whether the job fit within the existing classification structure. The decision was that a new classification was not appropriate and that the job could be evaluated within the existing structure, which was exactly the position taken by the Association at the outset of this arbitration. It was argued that the written job description presented to the interest board would warrant the IntE;rmediate level, but that description does not constitute an accurate description of the Grievor's actual job functions. The Gorsky award did not deal in any sense with an evaluation of the appropriate classification level for the job as done by the Grievor, and it was that issue upon which the present grievance focused. Neither did that award consider the argument asserted by the Association that the Grievor's job duties were not materially different on the basis of - 6 - supervisory responsibility from those of a number of other employees already classified as Senior Technologists. It was argued that for the Hospital to assert res judicata or issue estoppel, it would be necessary to establish the three elements of identity of parties, identity of issue, and that both proceedings were brought for the same objective. On this grievance the Hospital failed on each of the second and third of those elements. I am in total agreement with the arguments put forth by counsel for the Association. The position taken by the Association from the outset is that the Grievor's job can accurately be classified within the existing classification structure and that the proper application of that structure would result in her classification as a Senior Technologist. The Gorsky award has confirmed the Association's position that the job can be classified within the existing structure, but gave no consideration whatsoever to whether or not the Grievor's particular bundle of job duties either matched the Hospital's written job description or was such. to bring her within the requirements of being a Senior Technologist. Accordingly, I have no hesitation in fmding that the issues raised by this grievance have neither been considered nor disposed of in the context of the interest arbitration and the hearing will proceed on dates to be agreed with the parties. DATED this 10th day of December, 1990. / AWARD The background circumstances of this grievance are outlined in the Interim Award and need not be repeated here. The effect of the Gorsky Award in the interest arbitration between these parties is that the Grievor's job description did not warrant a separate classification and salary scale and was to be included within the existing series. Based on the written job description itself; the Gorsky Board directed that the position rated the classification of Intermediate Technologist. It has been the Grievor's position throughout that her job duties as actually performed by her rated the classification of Senior Technologist, and it is that issue to which I now direct attention. The Grievor obtained an Honours Bachelor of Science Degree in 1979 and subsequently completed the formal and clinical training necessary to become registered as an Echocardiography Technologist. She was hired by the Hospital in 1983, at which time the Hospital did not, in fact, have a an Echocardiography facility set up, and the Grievor testified that she had significant involvement in setting up the Echocardiography Lab, determining the scheduling and other procedures and designing the appropriate requisition and report forms. At the risk of oversimplification, Echocardiography may be briefly described as an ultrasound study of the heart. Basic studies and doppler studies are conducted by the Echocardiography Technologist alone, whereas saline and amyl nitrate studies are .2. conducted by the Echocardiography Technologist in the presence of a Cardiologist. On these latter two studies substances are introduced into the patient by pill or injection, and the effects on the heart and arteries are observed by way of the ultrasound probes. It is clear from the evidence that the actual work of the Echocardiography Technologist requires a high degree of judgment and skill to obtain the appropriate images and to interpret them correctly. Such skill and judgment can be acquired only through hands-on training and experience. It is clear from the evidence that the Grievor is highly competent in the technical aspects of her job, is not directly supervised in the performance of her work, and is relied upon by doctors and others in the department. The Grievor's immediate Supervisor is the Manager of N Services and Cardiac Labs, and the Manager does not possess any qualifications in the area of Echocardiography. In addition to performing Echocardiography studies, the Grievor has a number of other functions, including scheduling patients, keeping statistics, processing and distributing reports, ordering supplies and maintaining equipment and arranging for service of equipment. Until early 1988 the Grievor was the only Echocardiography Technologist employed by the Hospital. At that time a part-time Technologist was hired, and the Grievor was given the responsibility of training the new employee. The Grievor did receive an additional salary allowance while she was involved in training. Because - 3. of a high degree of turnover in that second position of Echocardiography Technologist, the Grievor was, in fact, almost continuously involved in training new employees from early 1988 until the date of the grievance. Because of the necessary experience factor in becoming fully qualified, a new employee's work is generally reviewed on an ongoing basis even after basic technical competence is achieved, and this function was performed by the Grievor. It was the Grievor's evidence that) while it was not specified as part of her job in the written job description, she did, in fact, review all of the work that went out of the department on an ongoing basis. It was also the Grievor's evidence that she would do the more complicated of the studies, while the basic ones were performed by the other Echocardiography Technologist. The Grievor stated that it was her decision that the work be organized in that manner. In February of 1990, after the date of the grievance, the Hospital did acquire a second Echocardiography machine, and the Grievor did have an involvement in the selection of that equipment. It was her evidence that three potential suppliers were evaluated and that she prepared a written evaluation of each of the three machines. The machine that was preferred by the Grievor was the one that was acquired by the Hospital. .4- On an ongoing basis, the Grievor further had involvement in instructing cardiologists and medical students with respect to Echocardiography studies and doppler skills. She also reviews current journals to keep up to date on changing techniques and new equipment. She passes on information obtained from these sources to the cardiologists. With respect to the formal job description used by the Hospital which had been before the Gorsky Board, the Grievor did not agree that its contents correctly described her job. Specifically, she stated that the written description failed to reflect the general review work of other studies that she carried out. It did not reflect the ongoing training of staff and students, the role in the selection and evaluation of new equipment, and the adaption of new techniques. She further felt that it did not reflect the day-to-day dialogue required with doctors. In her view, on a day-to-day basis, no one else but her had any responsibility for the actual functioning of the Echocardiography Lab. The Association called three Senior Technologists employed in each of the Departments of Nuclear Scanning, Diagnostic Imaging and Cytology to outline the nature of their jobs with particular reference to supervisory responsibilities. In Nuclear Scanning the Senior Technologist does determine work priorities in the - 5 - absence of the Chief Technologist but otherwise does not supervise the work of the other Technologists in the Department. She does provide technical help to junior staff and is responsible for ordering pharmaceuticals, quality assurance on pharmaceuticals and sterility tests and disposal of radioactive substances. If the Chief Technologist is not available, she is expected to assume those responsibilities. The Senior Technologist in Diagnostic Imaging testified that there were a total of seven Senior Technologists in her Department, all reporting to a Chief Technologist. Her particular area of responsibility was quality assurance, which required ongoing testing of all equipment in the Department. She was occasionally assisted by a Junior Technologist in performing those duties, but not on any regular basis. She would also work on occasion on the floor if there was a shortage of staff. She indicated that she had no involvement in supervising other employees, imposing discipline or evaluating work performance. She was usually the person who would orient new Technologists into the Department. The Senior Technologist in Cytology is the only Technologist in her particular lab. She testified that she was responsible for the total running of the Cytology Lab under the supervision of a Chief Technologist. She was hired in June of 1986, and on her arrival she rewrote the manuals and took over the record keeping in the lab. . 6 ~ When she was hired, the lab systems were out of date, and she recommended to management what new equipment should be purchased. She monitors lab supplies and again recommends what is to be purchased. She has no supervisory responsibility for any other Technologists or other employees. She does from time to time render assistance in the Histology Department, if they are short staffed. As at the date of the hearing, she was responsible to take over in the absence of her Chief Technologist, and in that circumstance she became responsible for the functioning of the Pathology Department. However, from the evidence of Management witnesses, it is clear that that responsibility was assumed well after the date of the grievance. Prior to that, the Senior Technologist in Cytology did not have a direct responsibility for staff. The Hospital called the Chief Technologist in Diagnostic Imaging to review the roles of a number of Senior Technologists in his Department. In all, he supervises seven Senior Technologists and a large number of Intermediate and Junior Technologists. He descnoed the functions of Senior Technologists as including responsibility to order supplies, training of new staff; review of new equipment, training of students, setting up policy and procedure manuals and the supervision of the work of other Technologists. In his view; the Senior Technologist from his Department who had testified for the Association with respect to her role - 7. in quality assurance was responsible to see that proper procedures were being followed and, if they were not, to correct the employees involved. It was further his view that when she was doing actual work in the various areas of the Department, she had at that time the same supervisory responsibility for other employees as did the other Senior Technologists. The Supervisors of the other Senior Technologists who testified were called by the Hospital, and their evidence was not materially different from that of the Technologists, other than to stress the supervisory component of the job. Evidence was also provided by the Grievor's direct Supervisor, the Manager of IV Services and Cardiac Labs. It was her evidence that she did not hold the Grievor responsible for the supervision of any other employees, but rather it was a situation of shared support between the Grievor and other staff in the area. She agreed that the Grievor was responsible for the training of other Technologists and that she received a responsibility allowance while filling that role. She indicated that she would rely on the Grievor in making a determination as to when a new Technologist was ready to operate independently. She agreed in cross-examination that it was possible the Grievor had continued to monitor the work of new Technologists subsequent to the end of the formal training period but that this was .8- not a formal part of the Grievor's job description. In her view, the Grievor was not held accountable for that function. In evaluating the evidence that is before me, I find particular difficulty by reason of the fact that there exists no general description of the functions and characteristics that underlie the classification of a Senior Technologist. There is no general set of duties or standards against which the particular job performed by the Grievor can be measured to determine whether or not it meets the requirements of being a Senior Technologist. A straight comparison of the written job description relied upon by the Hospital with the actual job duties as described by the Grievor discloses a number of aspects of the Grievor's job that are not referred to in the written job description, all of which would tend to indicate a higher level of responsibility. The evidence and a review of the various job descriptions for Senior Technologists that were fIled on the hearing demonstrate that there exists a very wide variety of job duties and responsibilities performed by persons in the Hospital who are classified as Senior Technologists. These people are performing highly technical, skilled and complex jobs and, as a result, it is obvious that the nature of the job duties will vary with the particular job. It is, therefore, very difficult to fmd common threads that will give a clue as to why some jobs are classified by the Hospital at the Senior Technologist level and other jobs at a lower level. There is .9. no evidence whatsoever as to what principles guide the Hospital Administration in determining job classifications, and no one provided any explanation on behalf of the Hospital as to why the Grievor was not classified as a Senior Technologist and as to why other witnesses who testified did hold that classification. The only explanation offered related to a purported evaluation of supervisory responsibilities, but again there was no indication as to how the Hospital's classification structure purported to defme what constituted supervision. It would appear from the evidence and argument offered by the Hospital that the Hospital uses a very narrow defmition of supervisory responsibility, and in a sense seems to limit it to the supervision of other persons, as opposed to the supervision of a particular function and area of work within the Hospital. In its brief filed on the interest arbitration before the Gorsky Board, the Hospital made reference, in the context of Technologists, to what was happening generally in Ontario in the Hospital industry. Apparently the Hospital sought to introduce the same sort of structure as existed elsewhere. The Hospital's brief made reference to the definition of a Senior Technologist as established by OPSEU and the participating hospitals, and that defmition provides that the senior level may encompass positions of those Technologists working alone and having sole responsibility for the technical operation and administration of a . section or division. That concept seems to have been abandoned in the position that the Hospital takes on this arbitration. .10. It is my conclusion, based on a consideration of the totality of the evidence which I have heard, that in the context of job classification there is no material distinction between the job performed by the Grievor and the jobs performed by the Senior Technologists who testified at the hearing. If consideration is directed at a very narrow concept of supervision as relating only to the supervisory duties over other employees, the Grievor's duties in this area are equivalent to those of the other Senior Technologists. The Hospital seeks to isolate the training aspect and ignore it on the basis that a specific responsibility allowance is paid for that function. However, the evidence makes it clear that only extensive experience in the Echocardiography Technologist position subsequent to the completion of formal training will result in a fully qualified and competent Technologist. It is clear that after the formal training of new employees ended, the Grievor continued to perform that type of supervisory activity in relation to the new employees during the initial several months of their employment. The Grievor also indicated that up to the time of the grievance she did review all of the work performed in the Department on an ongoing basis, and while the Hospital considers that to have been gratuitous conduct on the part of the Grievor and simply a part of her professional responsibility, it is obvious that nothing was done to discourage her in that activity. Accordingly, to the extent that supervision of other employees is a criterion for achieving the classification of Senior Technologist, I am satisfied that the Grievor's responsibilities .11. in that area are equivalent to those of some of the other Senior Technologists in the Hospital. The other aspects of the exercise of independent judgment, a high degree of professional responsibility, the maintenance of records and essentially the responsibility for the operation of the Department without direct supervison from someone else were all equally characteristics of the job responsibilities of the Grievor and of the Senior Technologists who testified. The basic onus in this matter rests on the Association to show that the Grievor has been wrongly classified in light of the Hospital's classification structure and its classification of equivalent positions. Article 3.05 of the collective agreement dealing with new classifications provides that when determining the appropriate rate for a new classification, the parties understand and agree that internal equity must be a prime factor in determining appropriate rates. That constitutes a contractual recognition of the general arbitral principle that achieving internal equity in the wage structure is appropriate. The Grievor is entitled to be classified in accordance with a consistent application of the Employer's practice and procedures. As previously stated, there is a conspicuous absence in the materials frIed on the arbitration of any specified classification standards for the position of Senior Technologist, and there is no evidence, either of the Hospital's general principles and procedures of classification, or how the particular decision with - 12. respect to the Grievor's classification was arrived at. In these circumstances, I am satisfied that the onus on the Association is satisfied once it is shown, as it has been on the evidence, that the actual duties performed by the Grievor do meet the standards of the job descriptions of other Senior Technologist positions and, more important, the duties performed by the Grievor are, in all material respects, indistinguishable in a classification sense from other specific employees who are classified as Senior Technologists. In my view, that evidence which was presented by the Association is sufficient to raise a presumption that the Grievor has been misclassified and that at that point the onus shifts to the Hospital in an evidentiary sense to explain why, under its classification system, the Grievor is, in fact, correctly classified. In the absence of such evidence, I am satisfied that the Association has met the onus which is upon it and that the Grievor on any consistent application of what appear to be the classification principles of the Hospital should be reclassified as a Senior Technologist. With respect to the effective date of such reclassification, the Grievor made a formal application in writing dated October 7, 1988 for the reclassification to a Senior Technologist. There were ongoing discussions and letters exchanged thereafter, with the Hospital initially in March 1990 purporting to create the new classification for the Grievor. The Grievor submitted a further formal application . .13 - for reclassification on September 12, 1989, and on October 4, 1989 the Hospital again renewed its request for the creation of a new classification. On November 22, 1989 the Hospital purported unilaterally to introduce the new classification and indicated that the Grievor would be placed in that classification with the increased salary rate to be retroactive for her to March 3, 1989. The Association claims retroactive entitlement to the date of that initial letter, namely, October 7, 1988. Reliance is placed on classification decisions issued by the Grievance Settlement Board, wherein retroactive entitlement in cases of reclassification has been awarded back to the date when the classification issue was first raised with the employer, rather than to the date of the grievance. The rationale behind those decisions is that the parties should take every opportunity to work out these matters in an amicable manner rather than proceeding immediately to adjudication. In the circumstances of this arbitration, while the matter was first raised October 7, 1988 but not as a formal grievance, I think it is appropriate that the parties be given a reasonable length of time to investigate the matter to attempt to reach a resolution. On the materials filed, it is clear that as of March 3, 1989 the Hospital had acknowledged that the Grievor was indeed misclassified, and the only dispute between the parties from that point would appear to be what her correct classification should be. When the Hospital unilaterally put in place its new - 14 - classification, it selected March 3, 1989 as the appropriate date for retroactivity, and in all of the circumstances that is a reasonable basis for the purposes of this award. In the result, it is my conclusion that the Grievor was misclassified as at the date of the grievance and, pursuant to the Hospital's classification structure, is entitled to be classified as a Senior Technologist. The effective date for such reclassification will be March 3, 1989, and the Grievor is entitled to retroactive compensation from that date. I will remain seized to deal with any matter relating to the implementation of this award should the parties not be able to agree. DATED this 11th day of April, 1991. /UJII R&s L. Kennedy