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HomeMy WebLinkAboutWong 21-11-16IN THE MATTER OF AN ARBITRATION brought pursuant to the Ontario Labour Relations Act, 1995, as amended, and in respect of a job evaluation grievance brought pursuant to Article 33 of the collective agreement; BETWEEN: RYERSON UNIVERSITY (the “Employer”) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION on behalf of its Local 596 (the “Union”) AWARD Sole Arbitrator: Marilyn A. Nairn Hearing held: October 20, 2021 (Toronto, Ontario) APPEARANCES For the Union: Hilary Cook, Kella Loschiavo, Karen Wong, Megan Herrington For the Employer: David Alli, Anu Pooni, Stephanie McConnell, Christa Leeder 1 AWARD 1. This is a job evaluation grievance brought pursuant to the process set out in Article 33 of the collective agreement between these parties. The position at issue is titled “Registered Early Childhood Educator” (“RECE”). It is a multi-incumbent position, although this grievance was brought by one individual. RECEs work in the Early Learning Centre (“ELC”) at the University. 2. Extensive and detailed written briefs, including exhibits, were filed by OPSEU (the “Union”) and by Ryerson University (the “Employer” or the “University”), which I was able to review at length in advance of the hearing. At the hearing, questions arising from those submissions were asked and answered and the parties’ summary submissions were heard, in keeping with the informal and expedited process contemplated by the terms of the collective agreement. Article 33.10(c) of the collective agreement also stipulates that a “brief written notice” of the decision is to issue. The reasons contained herein are therefore limited. 3. The ELC is part of the Faculty of Community Service, School of Early Childhood Studies at the University. It is both a childcare centre and a laboratory school used for internal and external research, as a space and observation tool for faculty and students, and as a field education facility for placement students from the School of Early Childhood Studies. The RECEs come into regular, if not continuous contact with the children enrolled in the program, their parents and families, early childhood education students at the University, and with University faculty who engage in research relevant to issues of early childhood development. The RECE will also engage on an intermittent basis with visitors who may include faculty from other academic institutions, staff from other early childhood education programs, and inspectors. 4. The following general comments are appropriate at this juncture. Because of COVID-19, the ELC has been closed for a significant period. At the time of this hearing, the ELC had only recently reopened and was still subject to COVID-19 public health protocols. As well, just prior to shut down, the ELC had been given approval to implement a Pilot Project that intends to provide RECEs with 1.5 hours each afternoon to be out of the classroom. This time is to be used for program preparation, consultation/meetings, documenting observations, and research. This is to be contrasted with 2 hours per week historically available to RECE’s outside the classroom. 5. That project has had limited opportunity to operate as intended, although the manager of the ELC supports the Pilot Project. The job description and this job evaluation anticipate and take account of differences inherent in that change to the daily schedule. That revised daily schedule required the ELC to hire seven part-time staff to work in the classrooms. Whether that staffing level and the time intended for work outside the classroom will materialize as planned remains to be seen and any change or inability to do so may affect the appropriate evaluation of the RECE position. It is also the case that a new position of supervisor has been introduced since the previous job evaluation. Again, that individual has had limited opportunity to work in the ELC due to the pandemic closing so it is perhaps premature to assess if or how that position affects the RECE role. 2 6. For purposes of the job evaluation process, it is the position that is assessed, not the person performing that role at any given time. The fact that a sub-factor may previously have been assessed at a higher or lower level is not singularly determinative that the same level ought to continue. Each assessment is to be done in accordance with the terms of the job evaluation plan (“JEP”), having regard to both the described and actual duties and responsibilities of the position, and in relation to appropriate comparator positions at that time. So, for example, should the complexity of all jobs increase or all decrease, their relative comparison may remain the same. 7. The grievor is a senior, experienced RECE, and is a highly valued member of staff. Her dedication is apparent from the materials filed by the Union. 8. This grievance was filed following a managerial review of the position in 2019, pursuant to which the position was reduced from a grade 12 to a grade 11 under the JEP. The job description ultimately developed by the Employer in 2020 and provided as the final document summarizes the position as follows: Plans, implements, and maintains programming for toddler and preschool children, ensuring compliance with the Child Care and Early Years Act, City of Toronto expectations and Public Health protocol. Creates and maintains relationships with children’s families, as well as internal and external stakeholders to provide the best possible care to each child. Participates in research and provides support to Early Childhood Studies students to further the development of the early childhood education field. 9. The previous job description from 2011 summarized the position as follows: To plan, develop, implement, and maintain an exemplary curriculum and care giving model for infants, toddlers, pre-schoolers and kindergarten children; to provide guidance, support, training and evaluation of Early Childhood Education (ECE) students; and to conduct ongoing assessments of children and regularly consult with families. Job Title: Teacher/Preceptor 10. In this grievance, the Union asserts that the position is properly placed at Grade 13, based on its assertion that the role has not changed except that research responsibilities have been added. The Union took issue with the removal from the job description of the references to “evaluating” students and “assessments” of children, arguing generally that the Employer had merely ‘softened’ or removed certain verbs used in the new job description to describe the same work. The Employer maintains that Grade 11 is appropriate to the position. There are nine sub- factors in dispute. 11. The ELC does not enroll infants, and kindergarten children were moved out of the program at the time full-day kindergarten was implemented in schools in Ontario. The program has been directed to toddlers and pre-school children for about a decade, and prior to the last job evaluation. 3 12. Each of the disputed sub-factors is dealt with briefly below. i) SKILL - INTERPERSONAL/HUMAN RELATIONS This sub-factor measures the level of person-to-person skills necessary for the performance of the job, through contact with other employees of Ryerson, members of the general public or other organizations. The historical rating of the position was Level 4 which was reduced to Level 3 in the challenged evaluation. The Union seeks to restore the rating. 13. I find that the position is more appropriately rated at Level 4 for this sub-factor, based on the nature of the RECE work in relation to the children and less directly, their families. The work of the RECE in relation to the ECE students engaged in placements in the ELC does not rise above a Level 3 for this sub-factor, and that work is more appropriately measured under the “Guidance” sub-factor. 14. However, Level 4 is consistent with the rules of application in the JEP that stipulate that “interactions with others are critical to the nature of the work”. The work of an RECE involves and requires continual and appropriate interaction with clients of the University, whether those are the children they serve or their families. 15. Level 4 requires that incumbents engage in “negotiating, motivating, or counselling” other people “as a legitimate part of the job”. Counselling of children and their families is generally done by others although it is the RECE who observes and often recognizes a potential need for counselling or intervention, thereby initiating that work and contributing their observations and views. However, and while this sub-factor has typically been considered in relation to, for example, the negotiation of and commitment to supplier contracts involving significant financial commitments, the legitimate work of an RECE involves regular and critical work in negotiating with and motivating children and families in relation to that child’s development, reflecting a commitment by the University which, although not financial, is one of the highest order, warranting recognition of its significant societal value and personal value to the young client and their families. The JEP does not overtly acknowledge “children”, but there is no basis for failing to consider the children of the ELC as clients and/or “other persons” under the definitions of the sub-factor. Thus, I disagree with the Employer that RECEs do not motivate others because the definition refers to “stimulating or providing an incentive to others to excel in their work”. The work of children has often been referred to as play. 16. It is the very role of the RECE to stimulate those children in such a way that they excel in their development. The skill involved in the proper day to day care and development of the children goes beyond persuading or recommending a course of action to others as required by Level 3. The comparators relied on by the Employer are not involved in motivating others as a legitimate part of their role. 4 ii) SKILL - ANALYTICAL REASONING This sub-factor measures the level of analytical thought, interpretation and reasoning skills required to solve problems, make decisions, exercise judgement, etc. when carrying out the duties off the job. The historical rating of the position was Level 4 which was reduced to Level 3 in the challenged evaluation. The Union seeks to restore the rating. 17. I find that the position is more appropriately rated at Level 3 for this sub-factor, based on the definitions of a “moderate’ versus “high” degree of analysis, interpretation, and reasoning skills. Both levels recognize that these skills are used – the issue is the extent of use “when carrying out the duties of the job” and the complexity of the factors generally under consideration. I agree with the Union that many of the legislative and policy documents are not prescriptive in the sense of providing specific content with respect to programming choices. However, those documents do create a model foundation, establishing developmental principles and objectives, and the work is highly regulated with associated policies and procedures in place that govern responses to many issues and/or situations that arise in the day to day work of the RECE. The City of Toronto’s “Assessment for Quality Improvement” (“AQI”) also provides specifically identified and required areas of programming attention in order to meet those external expectations. The program plan has been developed and it is incumbent on the RECE to produce individual plans that conform to those criteria. That specific “how” is ascertained both from training and experience and further information and resources are readily available to respond to programming ideas and needs. To the extent that a number of the templates and/or checklists now in use were generated by RECEs as a means of standardizing work and generating efficiencies does not detract from the fact that those templates are now available and that the basis for the templates/checklists was drawn from compiling RECEs’ experience, that is, from information available and provided. 18. The University did not dispute that the RECE acts as a field educator to the ECE students engaged in a placement in the ELC. The task of completing the mid-term and final student placement evaluations requires the RECE to assess students, as they must observe and document the student’s work and draw conclusions as to its merit in the context of the ELC’s guiding principles. However, that evaluation is to be completed in respect of factors identified by the evaluation form, providing information as to what to look for, even while requiring investigation in terms of observing and measuring the students against those factors. 19. Historically RECEs were involved in faculty research to the extent of assisting with logistics, not content. Some RECEs participated in creating and making presentations to students in the ECE program and at conferences, although the latter were limited in number. These were also largely on a voluntary basis. The new job description, the Pilot Project, and the materials indicate that RECEs are now expected to actively participate in 2 research projects per year as well as having the opportunity to initiate research. The job description states that RECEs will conduct research and create papers/reports under the guidance of faculty members. There was evidence of a paper co-authored by an RECE and a faculty member published in 2019 by a peer- 5 reviewed journal, a notable accomplishment. This is an additional duty and expectation of the position. However, research is a more limited aspect of the position and I am not persuaded that the extent of this work gives rise to a Level 4 in the context of the duties of the position as a whole. Nor have I given weight to the fact that a number of presentations were assigned and created during the unique period when the ELC was closed due to COVID and there was an effort to generate work for RECEs. The sub-factor measures the level of analytical reasoning required and the words used in the JEP imply consideration of both the qualitative nature of the reasoning required as well as a quantitative component. Level 3 incorporates recognition of research, acknowledging that further investigation may be required. Having regard to both qualitative and quantitative aspects, I am persuaded that for the vast majority of the required work of the position some information is typically provided and additional information must be found through further investigation. iii) RESPONSIBILITY - ACCOUNTABILITY – IMAGE This sub factor measures the degree to which actions required to carry out legitimate position responsibilities may affect the reputation or image of the position incumbent’s immediate work group, other work groups and/or the University. A base level of ordinary business courtesy is to be assumed for all positions. The subfactor levels indicate the degree to which the position incumbent’s actions, over and above the base level, could impact the University’s image. The University's public image could be affected in at least four areas: as an internal provision of service to other units; as an educational institution; as an employer; and, as a part of the community. The historical rating for this subfactor was Level 3 which was reduced to Level 2 in the challenged evaluation. The Union seeks a Level 4 rating. 20. I find that the position is more appropriately rated at Level 3 for this sub-factor. Actions taken by RECEs in performing their work have a potential to significantly impact the University’s public image as an educational institution and as a member of the community within a limited public audience. The Level 2 rating requires that the position responsibilities focus on the University’s internal reputation among departments and work groups with only a limited service orientation towards the public. At Level 2 that public service orientation is incidental to the work being performed in supporting the immediate department or project. The work of the RECE is almost entirely publicly focussed, providing daily care to members of the public, the children, and supporting the families in that process. There is a direct link between the RECE and that limited public audience, and the work inherently anticipates the active promotion of the ELC (and by extension the University) in, for example, ensuring a quality program so as to meet the quality assurance goals set by the City’s AQI standards, which results are available publicly. Actions required of RECEs in performing their responsibilities may also affect the public reputation of the University’s School for Early Childhood Education as a leader (or not) in the field of early childhood development. However, this public audience is not a wide audience and therefore the position does not warrant a Level 4 rating. The role of the Resource Consultant as a comparator appears to be more academic, more departmentally focussed, and without direct responsibility 6 for the children, resulting in less potential for significant adverse impact on the University’s public image. iv) RESPONSIBILITY - INDEPENDENT ACTION This subfactor measures the increasing levels of independence in carrying out job duties and the scope of decision making required. The historical rating of the position was Level 4 which was reduced to Level 3 in the challenged evaluation. The Union seeks to restore the rating. 21. I find that the position is more appropriately rated at Level 3 for this sub-factor. I recognize the Union’s submission that the relevant legislation and policies were largely in place prior to the 2016 evaluation. That however is not determinative. The RECE does not have considerable latitude, that is, the discretion to determine what tasks are required. Much of accepted practice likely seems second nature and invisible to an experienced RECE but those parameters and daily routines limit an RECE’s discretion and govern the responsibilities of the position, providing considerable restraint on the RECE’s freedom to act. While the RECE may have considerable latitude in selecting what and when to document, the daily/weekly logs, monthly stories, and diaries are completed in accordance with accepted practice. The AQI, for example, stipulates that two indoor and two outdoor observations are to be included in daily logs. Similarly, the RECE has considerable latitude in selecting daily activities planned as part of a weekly schedule, provided those activities conform to standards generated by accepted practices and policies and they comply with the requirements established for the weekly schedule (for example, indoor/outdoor activities; language and literacy activities). The Union’s submissions acknowledge that certain training is conducted by peers, based on the RECEs experience. That is, the Employer has concluded that the RECEs’ experience reflects accepted practice, such that peer training will appropriately reflect its expectations regarding the work. Other tasks such as cleaning or safety checks are required and there is no discretion as to whether or not the task is to be completed. Those tasks are also prescribed by checklists in accordance with developed and accepted practice. v) RESPONSIBILITY - GUIDANCE GIVEN This sub-factor measures the level of responsibility for the direction, guidance, and coordination of the work of other employees. It applies only to positions with formally assigned duties related to the work of others as outlined in the position description... The frequency and/or duration of time spent providing direction and guidance to others is considered under Levels 3 and 4 only. The historical rating for this subfactor was Level 1, which remained unchanged in the challenged evaluation. The Union seeks a Level 3 rating. 22. I find that the position is more appropriately rated at Level 2 for this sub-factor. The RECE provides guidance and a level of oversight to volunteers assisting in the ELC. The RECE also 7 provides peer training consistent with Level 1. The manager of the ELC agreed that the RECE also acts as a field educator with respect to placement students from the School of Early Childhood Education. The job description describes this work as “support and advice” to students, requiring the “review” of student documents and “completion” of evaluations. 23. The sub-factor states that there must be a ‘legitimate employment contract’ between the University and the student in order for this sub-factor to apply. There is no ‘employment’ contract here as the placement students are engaged in a required practicum forming part of their required curriculum as students in the School of Early Childhood Education. However, when asked for clarification at the hearing, the Employer did not dispute that the assessment of this sub-factor properly included the RECEs’ work in relation to placement students as well as co- workers and volunteers. 24. This sub-factor measures responsibility in relation to the work of others. Level 1 stipulates that the position “may show other employees how to perform tasks”, words equated by the Employer to those in the job description of providing “support and advice” and “communicating” with students regarding their strengths. 25. This work is identified by the job description as a “key requirement and responsibility” of the position. Placement students spend a full term working 4 days per week in the ELC. The Union asserted that the Grievor typically has 4-5 placement students assigned to her each term (3 terms per year). The Employer acknowledged that each RECE would have at least 2-3 students assigned to them. Each student must prepare 8 activity plans over the course of their placement as part of their required assignments. The manager of the ELC disagreed that the RECE did an evaluation of these plans as no grade was assigned. However, she agreed that it is the responsibility of the RECE to review the students’ activity plans for both safety and the appropriateness of the program plan and, after the conclusion of the program, to provide feedback to the student as to its’ strengths and weaknesses. This constitutes an evaluation. Those activity plans must also be incorporated (coordinated) into the regular weekly schedule by the RECE. While the RECE does not assign the activity plans, they are responsible for ensuring that the work is done within appropriate standards. RECEs may also assign tasks to students throughout the day as those students do not simply ‘shadow’ RECEs but actively participate in the ELC. This goes beyond on occasion showing another how to perform a task or providing straightforward instructions regarding a specific task. 26. Similarly, the RECE does not assign a grade to the completion of a mid-term and final evaluation of each placement student. However, the RECE is required to complete an assessment of the students’ work based on their observations of the student during the placement against established criteria set out in those evaluations. Those evaluations are relied on by the faculty member charged with grading the student. In addition to the specific review of their work, the RECE is expected to act as a role model to the students, which inherently incorporates elements of ‘guidance’ and ‘training’. They also have a professional responsibility under the terms of the Child Care and Early Years Act to supervise volunteers and students. Children cannot be left 8 without the supervision of an RECE, regardless of whether a volunteer or placement student is present, thereby inherently incorporating an element of oversight of those individuals. 27. I recognize that the work of the Resource Consultant and RECE-Family Supports is graded at Level 1. That work appears to be primarily in a consultative, advisory role but that could perhaps be described in similar terms to the work of an RECE in dealing with placement students. The RECE work also does not appear to have changed over time. As noted earlier, that is not determinative. This responsibility continues in the context of the Pilot Project. I am not persuaded that the RECE role rises to a Level 3 as the primary work of comparators at Level 3 is to coordinate and/or supervise the work of others (a quantitative measure) and to do so in a more direct reporting relationship. However, the work of the RECE requires an exercise of responsibility to both faculty and the placement students to ensure that the student’s work is directed and guided appropriately. While the RECE is not a “lead hand” in an employment context, the work bears some similarities to that role, such that I am not persuaded that a Level 1 captures this exercise of responsibility as it does not contemplate any degree of oversight evidenced by the assessment and review functions, nor recognizes the ongoing regularity of the work. EFFORT - MENTAL This sub-factor measures the extent to which the job requirements contribute to mental fatigue in terms of the length of mental, auditory, or visual attention to detail requiring fixed or focussed attention. Fixed or focussed attention is measured in terms of the length of time mental, auditory or visual attention to detail is required to perform these duties. The historical rating for this subfactor was Level 3, which remained unchanged in the challenged evaluation. The Union seeks a Level 4 rating. 28. I find that there is no basis to increase the rating for this sub-factor to Level 4. The work of the RECE does not require continuous fixed or focussed attention to detail, that being for more than 3 hours at a time, most days as required by Level 4. The Union relies on the need to monitor the children and their environment on an ongoing basis. However, while inattention can have serious consequences, an RECE’s monitoring is not continuous nor is it necessarily detail-oriented. A change in activity can break the required fixed or focussed attention to detail measured by this sub-factor. A quiet activity involving all of the children in the classroom can create a break. This sub-factor does not measure the passivity of the work tasks or the need to multi-task by anticipating events/planning while performing other tasks. Rather, it measures the need for ongoing, uninterrupted attention to detail over time. The sub-factor is also inversely related to the time demands sub-factor. The Union’s submissions acknowledge that RECEs experience constant interruption inherent to their work. That precludes continuous fixed or focussed attention to detail. While RECEs are certainly required to pay close attention in their work, Level 3 recognizes that fixed or focussed attention to detail is required for 2 to 3 hours at a time, most days. 9 EFFORT - PHYSICAL This sub-factor measures the level and duration of physical exertion, including fine motor skills, required by the job. The historical rating for this subfactor was Level 3, which remained unchanged in the challenged evaluation. The Union seeks a Level 4 rating. 29. I find that there is no basis to increase the rating for this sub-factor to Level 4. The Employer acknowledged that the RECE’s work requires light physical exertion for ‘sustained’ periods of time, most days and that it may also require moderate physical activity for ‘moderate’ periods of time. On this basis, the Employer asserts that Level 3 is appropriate. I agree. While the 8am-4pm shift worked by the RECE likely requires longer physical exertion as the program is more active during the morning hours and might suggest a Level 4 rating if considered on its own, the RECEs rotate their start times each week, meaning more time is spent on a shift during children’s nap time or during the 1.5 hours of largely sedentary work. The JEP definitions require that the level of exertion be measured in continuous blocks (“at a time”). The Level 3 rating recognizes that these physical exertions are intermittent, in that there are typically periods of light exertion followed by periods of moderate exertion, including perhaps lifting a child, but the physical demands change constantly as the activities change and while the RECE participates in an activity. In addition, the physical tasks are shared among the RECEs, the students, and any volunteers, allowing for breaks in continuous effort for all. 30. The University has also introduced a number of improvements that facilitate the safety of RECEs in performing their work and also reduce the physical effort required. For example, there are stairs to the change table, trolleys are used to move food and other items, and more effective strollers have been purchased. WORKING CONDITIONS – ENVIRONMENTAL This sub-factor measures the level of exposure to certain undesirable and disagreeable working conditions which are inherent in the nature of the work and not the result of accidental location or circumstances. Also included are routine and repetitive job duties which create a monotonous work environment. The historical rating for this subfactor was Level 4, which was reduced to Level 3 in the challenged evaluation. The Union seeks to restore the rating. 31. I find that the position is more appropriately rated at Level 4 for this sub-factor. The definition in the JEP speaks to the “level of exposure” to undesirable/disagreeable working conditions inherent in the nature of the work. The rules of application in the JEP define “level” of exposure in terms of “frequency” not degree of exposure. Thus, the difference between a Level 3 and a Level 4 rating is dependent on the frequency of exposure to undesirable/disagreeable working conditions, whether “occurring often” (frequent), or “occurring very often or most of the time” (continuous). 10 32. As noted above, the Employer has introduced certain measures to improve the safety of the work and thereby reduce risk of harm. That further includes building a higher fence surrounding the playground and installing enhanced lighting to dissuade public access, increasing pest control inspections, providing PPE, and introducing a Scent Sensitive Policy. The ELC Family Manual stipulates that children who are sick are to remain at home and wellness checks are to be completed on drop off. 33. However, this sub-factor is not a measure of the inherent risk of injury attributable to a disagreeable/undesirable working condition. There is obviously a connection between implementing safety measures and thereby reducing exposure to certain conditions (as well as reducing risk of harm), rendering a working condition potentially less disagreeable. One expects that reasonable safety measures are taken by the Employer to reduce risk of harm, potentially reducing disagreeable/undesirable working conditions for all employees. However, this sub- factor recognizes job characteristics that result in less amenable working conditions, including, for example, having to be absent from home overnight, or the monotony of routine work. 34. The Employer’s job description recognizes that the RECE may be exposed to loud noise, outdoor weather conditions and unpleasant odours. It also recognizes that the RECE may be unable to leave their workstation until relief arrives, creating an element of confinement. It is also the case that the RECE must remain on duty after hours on those occasions when a parent or caregiver is late picking up a child from the ELC. The assertion in the job description that the RECE “splits” their time between classroom and office environments is inaccurate to the extent that “splits’ suggests equal time in each. The office time is 1.5 hours per shift or about 20% of work time. 35. There was some disagreement as to the meaning of the words “not the result of accidental location or circumstances” in the JEP definition. The condition must be inherent to the nature of the work. The fact that the ELC is located in downtown Toronto where one can expect a need for greater rodent control and/or greater control of public access is properly characterized as an accident of the surroundings and may not be inherent to the nature of the work. A public playground can expect a higher potential for undesirable/disagreeable conditions. Thus, while increased pest control likely does not reflect a reduction in the undesirable conditions to be considered in this sub-factor, higher fences around the playground may. The fact that the ELC programming requires that the children experience the public domain (through walks or visits, for example), there can be exposure to disagreeable elements of that public domain, for example, difficult individuals, loud construction activities, or busy traffic. 36. Exposure to lice and bedbugs is not an accident of surroundings but is inherent to working with children in group settings. The fact that an RECE may not be required to check a child’s hair for lice may reduce but does not eliminate exposure. That RECEs are exposed to chemicals that are deemed safe for use does eliminate their exposure to those cleaning supplies. Using proper PPE can reduce the risk of chemical exposure as it can for any occupation. However, the need for PPE is likely itself an undesirable and/or disagreeable working condition. 11 37. The undesirable or disagreeable conditions to which the RECEs can be exposed include loud noise, infectious disease (a variety of childhood illnesses), bodily fluids and excretions (urine, stool, blood, phlegm, and saliva), pests (lice, bedbugs), unpleasant odours, outdoor weather conditions, (excluding defined “inclement” temperatures above 32°C or below -15°C), and chemicals (cleaning supplies). Having to complete paperwork under lighting dimmed for nap time will be reduced if not eliminated by the office time provided under the Pilot Project. While there is a regular schedule to the day, the essence of the work cannot be described as routine or repetitive as the Union argued, as activities change. 38. The Employer sought to distinguish the RECE from the Medical Centre Office Assistant position (“MCOA”) on the basis that the MCOA is daily exposed to sick patients when greeting and triaging patients and is required to handle urine, stool, and blood specimens. A careful reading of that job description makes clear that that work is administrative and is not clinical. That is, there was no evidence to indicate that any specimen samples handled by the MCOA are not contained, and the work is described as “assisting with handling and proper labelling of specimens as required”, indicating that it is not a continuous requirement. The exposure of RECEs to stool, urine, runny noses, and saliva is daily and constitutes exposure occurring “very often”. The most recent job description acknowledges only that the RECE may often be exposed to unpleasant odours. Toileting of all of the children is required a minimum of twice a day, and often more. The exposure goes beyond unpleasant odours and includes the physical handling of dirty diapers and used tissues (exposure to blood would be less frequent). The fact that not all children may require assistance with toileting does not detract from the daily requirement of the position to assist those who do. 39. Regardless of the ‘sick policy’, asymptomatic or mildly symptomatic children may be present and contagious in the ELC. Whereas in 2021 a masking policy might well be expected or certainly tolerated in the MCOA’s role, there is no evidence that, absent COVID-19 protocols, masking would be considered appropriate for RECEs in the ELC. Daily exposure to sick patients when triaging can be mitigated through the proper use of PPE. However, as noted, the JEP provides little assistance in measuring exposure to PPE versus exposure to infection, as it does not speak to comparing “how” disagreeable a condition must be in order to ‘trump’ other disagreeable conditions. The JEP speaks to the regularity of exposure, not to the relative seriousness between different exposures or the amount of exposure, so long as the exposure can be described as undesirable or disagreeable. 40. The MCOA is not exposed to other disagreeable/undesirable conditions such as outdoor weather conditions or loud noise. While required to clean medical equipment, it is not apparent whether that task involves any use of chemical agents. 41. The International Recruitment Officer at Level 3 does not provide a helpful comparator as it is indicated as requiring “frequent” travel, consistent with its Level 3 rating. The Resource Consultant does not work directly with children to the same frequency as the RECE, is not subject to the cleaning and disinfecting policy, is housed in a different area and provides services to 12 students and other centres as well. Their exposure to inclement weather when travelling to other centres across the City would be significantly more limited. 42. The listing of Level 4 positions under this sub-factor at Tab 44B of the Employers’ submissions also includes positions such as “Cashier” in the bookstore, and “Leed Registered Early Childhood Educator”. As between the Resource Consultant compared with the MCOA and these other positions, I am persuaded that the RECE level of exposure to undesirable and/or disagreeable working conditions more closely compares to the latter. WORKING CONDITIONS – TIME DEMANDS This sub-factor measures the extent of time demands inherent in the flow of work and measures how often a combination of time demands exist. The JEP requires that it is necessary to first identify if a combination of time demands exists, and, having identified the combination, determine the frequency with which the identified combination occurs. The historical rating for this subfactor was Level 3, which remained unchanged in the challenged evaluation. The Union seeks a Level 4 rating. 43. I find that there is no basis to increase the rating for this sub-factor to Level 4. In order to achieve a level 4 rating for this sub-factor, it would necessarily imply a lower rating for the Effort- Mental sub-factor as Level 4 requires continuous exposure to time demands whereas a Level 3 rating for mental effort requires fixed attention for two to three hours at a time, most days. The two are inherently inconsistent. Time demands implies the need to multi-task and establish priorities rather than working uninterrupted with fixed or focussed attention to detail. This sub- factor also requires that there be a combination of exposures, identifying frequent interruptions and distractions as one exposure. While the RECE is subject to deadlines for documenting the various logs and diaries, those deadlines are fixed and are not constantly changing. The receipt of eight learning plans from placement students is unpredictable and each RECE must review the plans of an average of five students, rendering the combination of time demands frequent but not continuous. SUMMARY 44. Having regard to all of the above, and having regard to all of the materials and submissions filed by the parties, I find the following ratings to be in accordance with the terms of the JEP for the disputed sub-factors for the RECE position: Skill – Interpersonal/Human Relations Level 4 Skill – Analytical Reasoning Level 3 Responsibility – Accountability – Image Level 3 Responsibility – Independent Action Level 3 Guidance Given Level 2 Effort – Mental Level 3 Effort – Physical Level 3 13 Working Conditions – Environment Level 4 Working Conditions – Time Demands Level 3 45. I remit this matter to the parties to determine the resulting position grade based on these findings in conjunction with the levels assigned to the undisputed sub-factors in the JEP. I will remain seized with respect to any issue arising from the implementation of this award. Dated at Toronto, Ontario this 16th day of November, 2021. “Marilyn A. Nairn” ____________________________________ ______ Marilyn A. Nairn, Arbitrator.