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HomeMy WebLinkAboutRivette-Bancroft 20-10-26IN THE MATTER OF THE ARBITRATION BETWEEN: CORNWALL COMMUNITY HOSPITAL (“Hospital”) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, Local 402 (“Union”) Grievance of Roxanne Rivette-Bancroft ______________________________________________________________________ Before: Michelle Flaherty, Sole Arbitrator ______________________________________________________________________ Appearances : For the Union Anjana Kashyap, Counsel Charlene Campeau, Local President Roxanne Rivette-Bancroft, Grievor For the Employer Porter Heffernan, Counsel Noel Platte, Student-at-law Brian Todd, Manager Human Resources Deena Shorkey, Director, Child and Youth Mental Health Services - 2 - AWARD Introduction 1. This grievance concerns a June 2018 job posting for a position entitled “Social Worker (BSW)”. The Grievor applied for the position but was not considered because she did not meet the minimum qualifications set by the Hospital. Specifically, she did not have a Bachelor’s degree in Social Work (“BSW”) and she was not a registered Social Worker with the Ontario College of Social Workers and Social Service Workers (“RSW”). 2. The Union grieved the Hospital’s decision to screen out the Grievor. It submits that she is able to do the job and has equivalent qualifications, which the Hospital was required, but failed, to consider. 3. The Hospital disputes that it has an obligation to consider the Grievor’s other experiences to determine whether they constitute equivalent qualifications. The Hospital referred to the Social Work and Social Service Work Act, 1998, S.O. 1998, c. 31, which provides that only RSW’s may expressly or by implication use the title “Social Worker.” Particularly in light of this statutory obligation, the Hospital states that an RSW and BSW were not unreasonable or arbitrary requirements. Proceedings 4. I was appointed as mediator-arbitrator. We held a mediation on April 15, 2019, but it did not result in a resolution. The matter proceeded to a hearing, beginning on February 12, 2020. The hearing began with the Grievor’s testimony in chief. 5. Following the first day of hearing, the Hospital indicated that it would bring a motion seeking the dismissal of the grievance. 6. In my capacity as mediator-arbitrator, and with the consent of both Parties, I met with the Grievor and the Union on October 16, 2020. - 3 - 7. The Hospital’s motion was heard on October 19, 2020. For the purposes of the motion, the Parties provided an agreed statement of fact and a joint book of documents. No further witnesses were called and counsel made oral submissions by videoconference on October 19, 2020. Facts 8. The Grievor has worked for the Hospital since 2002, when she was hired as a Mental Health Counselor. The Grievor is a valued employee and has excelled in all of the roles she has held with the Hospital over the past 18 years. 9. The Grievor does not have a Bachelor’s of Social Work, nor is she a registered member of the Ontario College of Social Worker and Social Service Workers. 10. Since her date of hire, the Grievor has completed a number of continuing education courses. Notably, the Hospital encouraged the Grievor and other employees to register with the Ontario College of Registered Psychotherapists and it paid for a portion of the required training. Since 2016, the Grievor has been a registered member of the College of Psychotherapists. She is authorized to perform the controlled act of psychotherapy within her scope of practice. 11. The College of Registered Psychotherapists of Ontario was created in 2007 and the practice of psychotherapy was added to the list of controlled acts in the Regulated Health Professions Act, 1991. The addition of the practice of psychotherapy to the list of controlled acts was proclaimed in force on or about December 30, 2017, with a two-year transition period to allow those practicing psychotherapy to become registered with the appropriate College. The status of psychotherapy as a controlled act came fully into force on January 1, 2020. - 4 - 12. From February 22, 2017, until January 14, 2018, the Grievor occupied the role of Intake Worker, while the regular incumbent (a registered social worker) was on maternity leave. While occupying the Intake Worker position, the Grievor was paid on the Mental Health Counselor pay grid of the central Collective Agreement. 13. On or about June 4, 2018, the Hospital posted for a Full-Time Social Worker (BSW). The duties of this position included: Reporting to the Manager, Child and Youth Mental Health Services, the Social Worker provides counseling and therapy services to children, youth, and their families. The social worker provides coverage and suicide risk assessment for crisis support services as required. 14. The required qualifications for the position included: a Bachelor’s Degree in Social Work with a least 3 years of recent experience in child and youth mental health; and an RSW Designation from the Ontario College of Social Workers and Social Service Workers. 15. The Grievor submitted her application for the position of Social Worker. She was advised that she did not meet the minimum qualifications and was not granted an opportunity to interview for the position. The Collective Agreement 16. The relevant provision of the Collective Agreement is article 13.06, which states: In filling posted vacancies the selection shall be made based on skill, ability, experience, and relevant qualifications of the applicants. Where these factors are relatively equal, bargaining unit seniority must be the governing factor. 17. The Appendix of Local Issues contains the following management rights clause: - 5 - Article 2 The Union acknowledges that it is the exclusive function of the Hospital subject to the terms of this Agreement to: […] b) Hire, discharge, direct, classify, transfer, promote, demote, layoff and suspend or otherwise discipline employees for just cause provided that a claim of discriminatory classification, promotion, demotion or transfer or a claim that an employee has been unjustly discharged or disciplined may be the subject of a grievance and dealt with in accordance with the grievance procedure; Analysis 18. The Parties agreed that the Hospital’s motion raises the following issues: a. Was it unreasonable for the Hospital to require that applicants for the position of Social Worker be registered members of the Ontario College of Social Workers and Social Services Workers? b. Was it unreasonable for the Hospital to require that applicants for the position of Social Worker have completed a Bachelor’s Degree in Social Work? Legal Principles 19. The Hospital has a number of employees who provide services in relation to child and youth mental health, including psychologists, social workers, psychotherapists, and others. These employees have different scopes of practice, which may overlap in certain respects and differ in others. The result is an array of mental health services, offered through a series of professionals, authorized to apply specific treatment and assessment modalities. - 6 - 20. The jurisprudence cited by both parties makes it clear that an employer is far better placed than the arbitrator to identify the minimum requirements for the positions it posts. As Arbitrator Rick Brown explained in General Dynamics Canada v. Independent Union of Defense Contractors (2006), 150 L.A.C. (4th) 41 (Ont. Arb.) (“General Dynamics”): The most fundamental principle to emerge from the cases reviewed is that an employer has the right to establish and alter job qualifications unless precluded from doing so by its collective agreement, so long as it does not act arbitrarily, unreasonably or in bad faith. An arbitrator's role is to decide whether a qualification is arbitrary, unreasonable or motivated by bad faith, not whether it is correct. These propositions are so well-established there is no need to cite authority in support of them. […] A qualification is reasonable if it is reasonably related to job performance. [...] The obvious rationale for this stance of arbitral deference is that managers are much better suited to fashioning appropriate qualifications than are arbitrators. 21. See also North Bay Regional Health Centre v. O.N.A. 2012 CarswellOnt 8732, [2012] (Rose) at para 16; Seneca College and OPSEU, Local 563, unreported decision dated September 5, 2014 (Keller), pp. 8 – 9; CAW-Canada, Locals 4600 & 4603 v. Cape Breton District Health Authority, 2003 CarswellNS 594 (Venoit), p. 6. 22. In my view, these principles are especially important in cases where, as here, complex service needs must be considered in light of the scope of practice of members of various professional bodies. 23. I was not directed to any provisions of the Collective Agreement that limit the Hospital’s right to establish job qualifications. Accordingly, the Hospital can establish minimum qualifications for job postings, provided it does so in a manner that is not unreasonable, arbitrary, or in bad faith. 24. In this case, the Union does not allege that the qualifications in the competition were set in bad faith. - 7 - Was the Requirement for an RSW Unreasonable or Arbitrary? 25. There is nothing to suggest that the Hospital acted unreasonably or arbitrarily when it identified a need for a Social Worker position. In this regard, the Union does not allege that the Hospital should have held a different job competition, such as for a psychotherapist or counselor position. Rather, the Union states that in conducting a competition for the position of Social Worker, the Hospital should have taken a broader approach to determining the minimum qualifications and should have considered whether the Grievor, a psychotherapist, had the equivalent experience to fill the Social Worker position. 26. In the agreed statement of facts, the Parties agree that registration with the College of Social Workers and Social Services Workers is related to the duties of the position of Social Worker. Applying the principles set out in General Dynamics, this is a sufficient basis to conclude that the RSW qualification was not unreasonable or arbitrary. 27. The Hospital also referred to article 46(1) the Social Work and Social Service Work Act, 1998, S.O. 1998, c. 31, which states: 46 (1) No person except a registered social worker shall use the English title “social worker” or “registered social worker” or the French title “travailleur social” or “travailleur social inscrit” or an abbreviation of any of those titles to represent expressly or by implication that he or she is a social worker or registered social worker. 28. Social work is a regulated profession and the legislation does not permit members of other professional bodies to expressly or by implication use the title “Social Worker.” This statutory requirement is a further basis to conclude that an RSW designation is not an unreasonable or arbitrary requirement for a position entitled “Social Worker (BSW).” - 8 - Equivalent Qualifications and Experiences 29. The main dispute between the Parties is whether the Grievor’s qualifications and registration with the College of Psychotherapists are equivalent to a BSW and an RSW. There is also a dispute as to the scope of my role, and whether it is open to me to determine that the Grievor’s experiences are equivalent to the minimum qualifications set by the Hospital. 30. It is not clear to me that, in the context of this Collective Agreement, I can determine whether the Grievor can do the job of social worker without the RSW designation. However, even if I were to assume (without finding) that an arbitrator can consider equivalent qualifications, I would not conclude that registration with the College of Psychotherapists is equivalent to an RSW. As noted, legislation limits the implicit or express use of the title “Social Worker” to persons with an RSW designation. Given this statutory requirement and the nature and title of the position, I could not conclude that the Grievor’s certifications or her registration in another professional college are equivalent to an RSW designation. Conclusion 31. For the reasons described above, it was not unreasonable or arbitrary for the Hospital to require that candidates for the position of Social Worker (BSW) have an RSW designation. The Hospital was entitled to screen out the Grievor’s application because she did not meet this minimum qualification. 32. Even if it were open to me to consider the Grievor’s other qualifications, I would not conclude that registration in the College of Psychotherapists is an equivalent qualification to an RSW. Given these findings, it is not necessary for me to determine whether the BSW requirement was unreasonable or arbitrary. - 9 - 33. The grievance is dismissed. Signed in Ottawa, this 26th day of October, 2020. _____________________________ Michelle Flaherty