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HomeMy WebLinkAboutUnion 23-01-10 1 In the Matter of an Arbitration Under s.48 of the Labour Relations Act, 1995 BETWEEN: CORPORATION OF THE COUNTY OF GREY (GREY COUNTY EMS) (the “Employer”) AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the “Union”) (Gr. 2018-0250-0014-VPN Navigator) BEFORE: Eli A. Gedalof, Sole Arbitrator APPEARANCES For the Employer Mark Mason, Counsel, Hicks Morley LLP Jennifer Moreau Geraldine Cole Jason Hunter For the Union Christopher J. Bryden, Counsel, Ryder Wright Homes Bryden Nam LLP Jeff Thomas Andy Millman Bradi Watson AWARD INTRODUCTION 1. This grievance, duly referred to me for arbitration, was filed on November 30, 2018. It arises from the Employer’s decision to create a First Response/Vulnerable Patient Navigator (“VPN”) position within the Union’s paramedics bargaining unit. There are currently two classifications under the 2 Collective Agreement between the parties, which are Primary Care Paramedic (“PCP”) and Community Paramedic (“CP”). There are two key differences between the work performed by the VPN and the work performed by a typical PCP. First, and the focus of the Union’s case, the VPN spends some of their time contacting patients by telephone and referring them to various community services. The goal is to divert them from making 911 calls for transport, and to connect them with more appropriate avenues of care in the community. The second difference is that while most PCPs work on an ambulance as part of two-person crew (driver and attendant), the VPNs work alone, for half of their shifts, as first responders. CPs, in contrast to both a typical PCP or a VPN, visit patients to treat them in their homes, and do not generally perform hospital transports or first response. 2. The Employer considers the VPN role to constitute a work assignment within the PCP classification and pays the VPNs at the PCP rate. The Union maintains that when the Employer created the VPN job, it created a new classification. 3. Article 11.03 of the Collective Agreement permits the Employer to create a new classification, but this ability is subject to negotiating the wage rate with the Union. Failing agreement between the parties, the matter may be arbitrated. The Union grieves that the Employer breached Article 11.03 of the Collective Agreement by failing to negotiate or, failing agreement, to arbitrate, a new wage rate for the VPN classification. 4. The parties agreed to bifurcate this matter, and to first seek a decision on whether the VPN role constitutes the creation of a new classification. The issue in dispute at this stage is therefore whether the VPN role properly falls within the PCP classification, or whether it constitutes a new classification within the meaning of Article 11.03 of the Collective Agreement. THE COLLECTIVE AGREEMENT 5. The central provision in this grievance is Article 11.03, which reads: 11.03 New Classifications The Employer may create a new classification subject to negotiations on wage rates with the Union. Failing mutual agreement on the wage rates, the matter may be processed through the grievance and arbitration procedure. 3 6. In responding to the grievance, the Employer also focusses on the Management Rights clause, which includes the following: Article 4-Management Rights 6.01 The parties hereto acknowledge that it is the exclusive right of the Employer, subject to and in accordance with the terms of this Agreement: … c) Determine in the interest of efficient operation and the highest standard of service, the hours of work, work assignment, work schedule and methods of doing work. … THE EVIDENCE 7. The facts in this case are largely not in dispute. The parties referred to several documents, including Job Demands and Job Hazard Analysis for the PCP and CP jobs, job descriptions and job postings, Ministry standards for paramedics, and employer guidelines. The contents of these documents are not contentious and where they were addressed in evidence or in the parties’ submissions they were presented as accurate. Each party also called one witness. 8. The Union called Andy Millman, who is currently working as a VPN. Mr. Millman’s circumstances are somewhat unusual because he is also trained as a CP and works in a float position, and so may work shifts in the VPN role (with solo first response), a typical PCP assignment on an ambulance with a partner, or as a CP. As a result, Mr. Millman was knowledgeable of and well - placed to describe all of the positions in issue in this grievance. He also proved to be forthright and candid in his evidence, both in his examination in chief and in his cross-examination. 9. The Employer called Jason Hunter, who is the Manager of Quality Assurance and Community Programs. Mr. Hunter began his career with the County as a PCP before moving into a managerial position in 2018, which was around the time the VPN role was being introduced. He was not involved in the initial creation of the role, or the orientation provided when it was introduced, but now oversees the VPNs. Mr. Hunter largely confirmed Mr. Millman’s testimony, and was similarly knowledgeable, forthright, and candid in his own evidence. 4 10. As noted above, the evidence in this matter focussed on the job duties of the VPN, and how those duties compared and contrasted with those of a typical PCP and, to a lesser extent, the CP. 11. There are various avenues to becoming a paramedic, but typically it involves a two-year college course, a provincial exam, testing by a prospective employer and certification at a base hospital. PCPs report to a duty supervisor who deal with day-to-day issues, but for significant issues PCPs might also speak with a manager, including Mr. Hunter. 12. A typical PCP is described as a 911 responder, who drives or rides in an ambulance with a partner, as driver and attendant, attending at calls, providing care, transporting patients to hospital and relaying care to hospital staff. In addition to the driving and patient care work, the role also includes performing station checks, base duties (cleaning, shovelling etc.), vehicle checks, re-stocking, and cleaning. They also perform a significant amount of documentation, estimated at approximately 2-3 hours per shift. With respect to documentation, all calls must be logged either at the station afterward, at the hospital or while in the ambulance but not driving. PCPs use iMedic to fill in Ambulance Call reports, or “ACRs”. PCPs do not, however, document directly to the patient’s chart in the Electronic Medical Record (EMR), using Radius (the program used for EMRs). 13. Of significance, PCPs can and do refer patients to community services. However, they do this work when they are in the field responding to calls, and not between calls when they are at their base. Further, it was clear from Mr. Millman’s evidence that there is not a consistent practice of doing this in Grey County, and there is nothing in the evidence to suggest that PCPs perform this referral work in any systematic fashion. Mr. Millman estimated it was probably done about 25% of the time but acknowledged that he was really just guessing. What is more common is that a PCP will get a VPN to follow up and make the referrals. 14. A CP is a paramedic, with all the same training as a PCP, but who provides care directly to patients in the community, generally in their home, under the direction of a primary care physician. In essence, the CP conducts house calls to provide regular treatment to patients in their homes for conditions such as Chronic Obstructive Pulmonary Disease (COPD), Congestive Heart Failure (CHF) and Diabetes. They may also attend if the patient calls feeling unwell. In addition to their regular paramedic training, the CPs are provided with 4-6 weeks of training for the CP role. The training includes a practical component, learning how to use equipment such as the iSTAT machine for testing blood in home, and involves spending time at the hospital learning how to treat the typical conditions they will be dealing with, 5 and practicing skills such as drawing blood. Mr. Millman described it as requiring a deeper level of exploration of the patient’s care than would be required in the time-sensitive context of transporting somebody to hospital. CPs are also required to document directly into the patient’s chart, i.e., in the EMR, using Radius. PCPs, as noted, do not chart in Radius. Further, while it is possible that a CP might be called upon to respond to a 911 call where there is no other coverage available, the two roles are generally distinct. 15. The VPN role was introduced in 2018. An email was sent to all EMS staff with a job description for the “upcoming First Response/Vulnerable Patient Navigator positions”. Unlike the CP role, the VPN positions are very much integrated into the typical PCP role. For half of a VPNs shifts, their duties are indistinguishable from any other PCP (although in Mr. Millman’s case half his shifts might be spent working as a CP as opposed to a PCP). They work on an ambulance responding to 911 calls with a partner and carry out all the normal functions of a PCP. 16. For the other half of their shifts, however, they work alone as first responders. PCPs might also be required to work alone from time to time, but it is very much the exception. This is reflected in both the witness testimony and in the Job Demands Analysis, which refers to the PCPs as working in pairs, usually alternating roles from one call to the next. 17. Currently, the VPNs use pickup trucks to perform this first response work. A PCP would normally be working with a partner, so that one would be preparing the patient, for example by putting on the blood pressure cuff or chest leads, checking blood sugars or starting an IV, the other would be having the conversation with the patient to get any necessary information. In the case of the VPN first responder, they will be doing both the patient work and having the conversation. In other words, the VPN’s first responder work is all subsumed within the work performed by a typical PCP, but the VPN does it alone until an ambulance arrives or the situation is resolved. As noted, even PCPs who are not working in the VPN role may be called upon to perform first response work alone, such as when a partner is late or absent and the team is short-staffed. Even the most junior PCP might be called upon to do solo first response work. According to Mr. Hunter, however, this does not occur very often. Further, Mr. Hunter also acknowledged that the requirement that a VPN have the equivalent of one year’s full-time service in order to move into the role was because of the first response work associated with the position. 18. The VPN first responders do not generally do patient transfers, but rather will get the patient ready for transfer once the ambulance arrives. There may be exceptions to this division of work where the ambulance crew needs an extra set of hands, or where an IV is required and it is the VPN who happens 6 to be qualified. Also, there may be cases where the patient does not require transport and the VPN can provide the necessary care on their own. In all these cases, though, the VPN is exercising the same skills, carrying out the same critical thinking as would a typical PCP, working under the same regulations and guidelines and with the same responsibilities. The job demands and hazards, other than those associated with the actual transfer, are also the same or similar. The VPN first responder is also required to complete ACRs for all calls, just as does a typical PCP. 19. VPNs also spend a significant amount of their time performing “standby” work, which may range from as short as a few minutes at a time to several hours. Standby arises when a crew from a particular station is called out, and additional coverage is required in the community until that ambulance is freed up again. For example, Mr. Millman, stationed in Markdale, might be called to drive to Durham to be on standby in case a first responder is required while the Durham ambulances are occupied. Depending on what arises during the standby period, the VPN may be called upon to perform response work or, as the name suggests, simply stand by. 20. In addition to these duties, VPNs spend a relatively small amount of time (roughly 5-6% of their overall workload) doing “vulnerable patient navigation” work. This work involves phoning patients who are repeat users of ambulance services, or who have been referred to the VPN list, to connect them with community services. The idea of the program is to help patients receive appropriate care in the community so that they do not find themselves in the difficult circumstances of requiring emergency transport to hospital. They do this work when time allows and when they are not engaged in first response work or serving as backup/standby for other stations. There are no minimum requirements in terms of time spent or quotas of calls. Mr. Hunter’s expectation is that the VPNs participate in the process and work toward refining the program to make it more effective. Some days they may do no vulnerable patient navigation work at all, and this has never resulted in any corrective action by the employer. 21. The VPNs receive the names of patients to contact from a variety of sources. PCPs may identify suitable candidates when they are working in the field, dealing with repeat callers, and refer them to the VPN. The software program also generates a list of patients who have called 911 three times or more in the past 90 days. They may also receive referrals from the LHIN. The VPN then has to filter through the list to make sure the individual is actually a suitable candidate for referral to a community service. VPNs are provided with guidance and a script for making these calls and referrals in a document entitled “Working with Vulnerable Population and Referral Patients”. The work involves finding the ACR that resulted in the referral and reviewing the reason 7 for the call. Sometimes repeat calls might arise fr om a serious condition that would not align with a community referral. Additional work may also be required to track down a phone number, particularly where the call was from somebody else’s phone. The VPN will send the run numbers to Mr. Hunter, who will then obtain the numbers from dispatch. Mr. Hunter acknowledged that there can be some “research” required by the VPNs to sort through and find the necessary information. 22. Like the CPs, who may also make similar referrals, VPNs are required to chart directly in the patient’s EMR, using Radius. Mr. Millman described the EMR as more “fluid” or open-ended, than the documentation typically performed by PCPs. ACRs are more structured, requiring that specific information be provided. The VPN role does not include, however, the kind of “back and forth” communication with doctors through EMR that is performed by the CPs. As Mr. Hunter described it, the VPNs are required to make a “quick note” so that others can see what referrals have been made. The CPs, in contrast, are “waist deep in documentation every day”. 23. To the extent that there was “training” for the VPN role, it was not a formal training program such as what is provided to CPs. In Mr. Millman’s case, there was a day where they talked about working alone and the associated safety issues and were provided with some time to get used to navigating Radius and learning how to search the ACRs. They also talked about available referrals, such as what might be offered through the LHIN or different agencies, or to addiction clinics. More recently, it appears that the training for subsequent VPNs has been even less formal and is better described as on the job orientation. 24. Mr. Millman estimated that with all the various demands doing first response, performing standby/backup duties, and allowing for the time necessary to investigate the background of the patients, he might speak to 3 or 4 individuals over the course of 7 shifts. He noted as well, however, that with short staffing due to Covid and considering the high degree of variability from one day to the next, he was really making a guess about the time spent doing this work, or the number of calls made. ARGUMENT AND ANALYSIS The Union’s Argument 25. In the Union’s submission, the key distinction between the PCP and the VPN role is the VPN’s work in following up on community referrals, and the associated research with respect to the patient that is necessary to make those referrals. This work, argues the Union, is qualitatively different from the 8 work of the PCPs. In the Union’s submission, it is the qualitatively different nature of the work, even where it occupies a relatively small portion of the incumbent’s work time, that is most relevant. 26. In support of its position that the referral follow-up work is distinct from the work of the PCP, the Union refers to the initial email advising employees of the new position. The Union emphasises that the email identifies the VPN as a “position”, and accurately sets out the distinct nature of its work. The Union also relies on the Job Demands Analysis for the PCP role, which does not include the patient follow up work performed by the VPN. Neither, in the Union’s submission, is the VPN role the same as the CP role. Both serve a similar purpose, reducing strain on the 911 system, but the CP role includes in person patient follow up and treatment. Like the CP, however, the VPN is required to use the Radius program, and to document in EMR. The Union argues that just as the CP position attracts a higher rate of pay than the PCP role, consistent with the additional responsibilities associated with that position, so too should the VPN role. The failure to treat it as a separate classification would, in the Union’s submission, result in inequitable compensation across the bargaining unit. The Union argues that the need to maintain internal equity is a factor that supports finding that the VPN role is a new classification. 27. In further support of its argument, the Union relies upon the general principles set out in St. Joseph’s General Hospital, Elliot Lake and ONA (Janveaux), Re, 2008 CarswellOnt 10364 (Ont. Arb.)(Randall)(“St. Joseph’s”), emphasising that the VPN job does not entail performing the same work as the PCP in a different manner, or an accretion to the job of the PCP; it includes a qualitatively different function, or a “substantial and qualitative change” (see Lanxess Inc. v. C.E.P., Local 914, 2009 CarswellOnt 7693 (Brant)(“Lanxess”)). It is not the limited time spent performing these functions that is relevant, argues the Union, but rather the change in focus of the job. It likens the comparison of the VPN to PCP roles as akin to the “change in orientation” at issue in the second grievance in St. Joseph’s and raising the same concern with respect to internal equity in compensation. The Union also emphasises that in addition to doing patient follow up and referrals, the VPN also works as a first responder, answering calls alone rather than with a partner. This solo work entails further demands on the position beyond the typical PCP role, and must considered together with the referral work. The Union also argues that where there is downtime between responding to calls or fulfilling back up duties, the VPN cannot rest and recover as other PCPs might between calls, but rather uses that time to carry out the patient follow up work. This context, in the Union’s submission, further distinguishes the VPN role from that of the PCP. (See also Westcoast Energy Inc. v. E.C.W.U., Local 862, (1994) 46 L.A.C. 9 (4th) 88 (Coleman)(“Westcoast Energy”) and IWK Health Centre v. N.S.G.E.U., (2011) 211 L.A.C. (4th) 326 (Kydd)(“IWK Health Centre”)). The Employer’s Argument 28. The Employer maintains that the patient follow up work performed by the VPN constitutes a work assignment within the PCP classification. In the Employer’s submission, the Union’s effort to distinguish the VPN role from the PCP position, and to draw a comparison to the CP role, is misguided. In fact, asserts the Employer, all three positions work to support the same overarching purpose of reducing the number of emergency transports required, reducing strain on the system, and diverting patients to more appropriate avenues of care. But unlike the CPs, the VPN is not providing follow up direct patient care outside the context of an emergency call. Neither does the VPN role require the 4-6 weeks of intensive training, or the heavy documentation requirements associated with the CP classification. In this regard, the VPN role is indistinguishable from any other PCP role. Further, the evidence shows that PCPs do make patient referrals, albeit from the field rather than in follow up telephone calls as does the VPN. If anything, argues the Employer, the documentation requirements in the PCP role are arguably more intensive than in the VPN role. In this context, the Employer argues that the VPN role is better understood as a work assignment within the PCP position. 29. In support of its position, the Employer argues that the language agreed to by the parties at Article 11.03 sets a higher bar for the Union. It applies only where the Employer creates a “new classification”. It does not refer to making a “change” to an existing classification, or some similar modifier, as was the case in several of the authorities relied upon. Under Article 4.01, the Employer has the “exclusive right” to determine, among other issues, “work assignment[s]” and “methods of doing work”. The VPN role may have been referred to as a new “position” in the email announcement, but the Employer has never said it is a new “classification” and there is no basis for concluding that the Employer created a new classification. The VPN role has the same qualifications and requirements and is subject to the same certification as other PCP roles. It entails the same hazards. For half of the shifts, there is no difference at all between the two roles, and for the other half it involves making a small number of phone calls, taking up between 5%-6% of the employee’s time. 30. The Employer relies upon O.N.A., Joseph Brant Memorial Hospital v. Joseph Brant Memorial Hospital, (1972) 24 L.A.C. 104 (Hinnegan) (“Joseph Brant”), Westcoast Energy, Ottawa Hospital v. O.P.S.E.U., (2003) 120 L.A.C. (4th) 21 (Kaplan)(“Ottawa Hospital”), Sudbury Regional Hospital v. O.N.A. 10 (2008), 177 L.A.C. (4th) 394 (Surdykowski)(“Sudbury Regional Hospital”), Homewood Health Centre v. U.F.C.W., Local 175 (1995), 49 L.A.C. (4th) 300 (Williamson)(“Homewood”), Hamilton Health Sciences v. O.N.A. (2010), 198 L.A.C. (4th) 353 (Levinson) (“Hamilton Health Sciences”) and Almonte General Hospital and CUPE, Local 4489 (Autonomous IV Classification), Re, 2016 CarswellOnt 13133 (Mitchnick)(“Almonte”), which it asserts each provide more compelling analysis than the decision in St. Joseph’s. What these cases illustrate, argues the Employer, is that evolution in the way a job is performed, including the assignment of additional duties, are the norm, especially in health care. Such changes in duties within the basic scope of practice do not meet the “substantial change” requirement to establish a new classification. 31. Most significant among the authorities, argues the Employer, is Almonte, which dealt with paramedics and IV certification. In the Employer’s submission, if the addition of IV certification to the classification, which requires some 220 hours of training, does not result in the creation of a new classification, then the minimal and relatively straightforward VPN duties certainly do not. As in Almonte, the Employer argues, all the work performed by the VPN falls squarely within the PCPs scope of work. 32. With respect to the first response duties of the VPN role, the Employer emphasises that the Union has led no evidence about the extent of this work associated with the VPN position. In particular, the Employer argues that there is no evidence to support the inference that when the VPN is not doing first response work, they are doing the patient follow up work. In the Employer’s submission, there is simply nothing upon which to determine how much of their time is spent in their own station, doing standby/backup at another station, or in the field. And in any event, the Employer empha sises, all the first response work that they perform is within the scope of the PCP and work that a PCP, no matter how junior they are, may be called upon to perform. The only work that any other PCP might not be called upon to perform is the phone calls that occupy only a small portion of the VPNs time. In the Employer’s submission, to find that such a minimal alteration to the work assignment constitutes the creation of a new classification would effectively render the Employer’s management rights to assign work meaningless. 33. This is not a case, the Employer emphasises, such as in Lanxess, where employees who were not first responders were called upon to perform that work. Here, the VPNs were fully trained and active first responders who required no additional training, beyond some on-the-job orientation to the VPN referral work. The Union’s Reply 11 34. In reply, the Union disputes that the language of the collective agreement creates a narrower test. Whether cases are addressing a “new classification” or a “substantial change” the factual assessment should be the same; a substantial or meaningful change to a classification is the same thing as creating a new classification. In response to the notion that a 5-6% change in duties is deminimus, the Union points to the decision in IWK Health Centre, where a change only occupied 2.5% of an employee’s working time and that was sufficient to find a new classification where it constituted a significant qualitative change in the work. Neither, in the Union’s submission, is the fact that the work may not be particularly difficult relevant where it is the qualitative difference, and not its difficulty, that matters. The Union also emphasises, however, that the VPNs work is also different from the standard PCP assignment because the VPN is attending calls on their own and not with a partner. The change, argues the Union, must be looked at globally. 35. In distinguishing the cases relied upon by the Employer, the Union notes that in many instances, what was in issue was the introduction of a new way of performing the job, requiring a new skill. In the instant case, argues the Union, it is not how a particular aspect of the job is being performed that is in issue, it is a new aspect to the job that has been introduced. Analysis 36. In reviewing the authorities relied upon by the parties it is important to bear in mind that the assessment of whether the Employer has created a new classification is essentially a fact-based exercise. The cases referred to by the parties are helpful in identifying general principles relevant to the analysis and provide useful comparisons and analogies for assessing this case. But ultimately, each case must be decided based on the terms of the collective agreement in issue, and the specific facts of the case. In this case, for the reasons that follow, I find that the VPN role falls within the PCP classification and does not constitute a new classification. 37. Beginning with the Collective Agreement, Article 11.03 is triggered only when the Employer creates a new classification. The onus in this grievance is on the Union. The bulk of the parties’ submissions focussed, appropriately in my view, on the nature of the PCP classification, and the extent to which the VPN role did or did not deviate from the work of a typical PCP. To the extent that both parties referred to evidence concerning how the VPN role was characterized—i.e., the Union’s reliance on the email describing it as a distinct “position”, and the Employer’s reference to the fact that it did not cho ose to create a new classification or describe it that way—I find this evidence to be of minimal value. Article 11.03 limits and places conditions on the Employer’s ability to create new classifications. To find that such a substantive provision 12 could be triggered or avoided based on how a person unilaterally chooses to name it, as opposed to what is actually involved in fulfilling the position, risks undermining the substantive right and rendering the determination arbitrary. Such an interpretation of a collective agreement provision should be avoided, as reflected in all the authorities cited by the parties (see, e.g., Westcoast Energy at para. 25). 38. The fundamental issue in this case is whether the creation of the VPN role constitutes an exercise of the m anagement right to assign work and determine work methods within the PCP classification, or whether that right is restricted by the terms of Article 11.03 because it constitutes a new classification. As noted, the authorities provided by the parties provide helpful guidance and analogies in making this determination, and I will therefore review those authorities in some detail, with reference to the particular facts before me. 39. In St. Joseph’s General Hospital, the language in issue was triggered “[w]when a new classification in the bargaining unit is established by the Hospital or the Hospital makes a substantial change in the job content of an existing classification which in reality causes such classification to become a new classification…”. At the outset, I note that having already concluded that the focus should be on the substantive nature of the position and not how it is characterized, I agree with the Union that there is no meaningful difference between the standard in issue in St. Joseph’s and the standard under Article 11.03 of the Collective Agreement in the instant case. 40. St. Joseph’s dealt with two grievors, each in a unique position. From his review of several authorities, the arbitrator distilled the following principles (at para 62): the determination of 'substantial change' is primarily one of fact; it is generally accomplished by comparing a) an existing job description with the tasks now being performed; b) where there is no job description or the latter is out of date, the comparison is drawn with the tasks performed by the previous incumbent or earlier in the tenure of the current incumbent; or c) with other positions in the classification system; the comparison involves a consideration of core duties; the article does not apply to incidental or minor changes where said 'core duties', which define the essential nature of the job, do not change; substantial change is more qualitative than quantitative; there needs to be a qualitative change in some of the various job factors, which include: skills, responsibility, effort, and work conditions; 13 doing similar work "in a different manner", or with some change of emphasis, also does not invoke the article; a "realistic" approach is to be taken to job descriptions; they should be read liberally and broadly, because it is the job content, not the precise words of the job description, that are being compared; there can be an accretion of new duties over a 'reasonable' period of time which trigger the article, even if, standing on their own, they were not 'substantial'; (reasonable to be read as not over the course of contract renewals) internal equity is an important consideration; the article contemplates a comparison of positions in order to determine both the value of the position under consideration and the plausibility of a new classification being inserted into the scheme. 41. It bears noting that the arbitrator does not state that quantity of change is irrelevant, but rather that substantial change is “more” qualitative than quantitative. Indeed, as is evident in a review of the cases, the quantity of change may well be relevant where, because of the limited alteration of duties, the position simply is not qualitatively changed in any “substantial” manner. The point, as will be clear in my review of the cases below, is that one cannot get to this conclusion by simply adding up the time spent performing changed duties. To do so may may well fail to accurately capture the substantial nature of a qualitative change to a position, particularly where the change relates to a higher level of responsibility in the job. 42. Applying the principles above, the arbitrator in St. Joseph’s found that there had been substantial change to both grievor’s positions. In the case of the first grievor, he found that she had assumed significantly increased responsibility with respect to coordinating the program she worked in, essentially taking over the running of it. At the same time, he found she was given significantly increased clinical responsibility for her patients. Combined, these additional responsibilities constituted a substantial change in her position. The second grievor’s circumstances were closer to the line and more difficult to assess, but the arbitrator concluded that her duties had substantially changed in “orientation”, taking on significantly more responsibility at the level of the “enterprise”, requiring greater exercise of skill, knowledge, and judgement (para 81). He further found that considering this greater level of responsibility, it would create internal inequity to compensate her at the same rate as any other RN in the hospital. 14 43. I accept the principles articulated in St. Joseph’s. I also accept, as the Union argues, that one must look at the job as a whole to determine whether there has been a substantial change. In the instant case, that means considering both the first response and the vulnerable patient navigation aspects of the VPN role. But in comparison to the facts in St. Joseph’s, it is apparent that in the instant case there has not been such a significant change in the orientation of the position or in its level of responsibility. The vast majority of the VPNs work, all but 5-6% of it, relates to providing coverage for and responding to 911 calls. All this work falls squarely within the scope of practice of a PCP. This work is either carried out in exactly the same manner as any other PCP, or as a solo first responder. In either case, the witnesses agreed that the skills required, and the demands of position were essentially the same. 44. Further, the evidence before me does not establish that the vulnerable patient navigation work entails a greater degree of responsibility or places any increased demands upon the VPN than the demands placed on the PCP, in a manner analogous to the changes in position in St. Joseph’s. The documentation the VPNs are required to complete is different from other PCPs, but it appears to be relatively minimal and straightforward, and does not approach the demands of the CP role. Further, while other PCPs may not refer patients to community services in the systematic manner of the VPNs, it is work that they can and do engage in from time to time. 45. The Union also suggests that the demands on the VPNs are greater because they are carrying out research and phone calls between call-outs, where the PCPs might be resting. But as the Employer argues, the evidence does not actually provide any foundation for this conclusion. Neither witness provided any relative quantification of downtime and effort, and one might just as easily conclude, as the Employer speculated, that the standby work performed by the VPN, even combined with t he need to carry out solo first response work, is less demanding than working on an ambulance responding to calls. To be clear, though, the Employer’s submission was intended to be generally illustrative of the absence of the evidence that would be required to conclude that either position is more or less demanding; it acknowledged that Mr. Millman was not the kind of person to do any job “halfway”. In short, the evidence before me does not establish the same concern with respect to internal equity as was articulated by the arbitrator in St. Joseph’s. 46. In Lanxess, the issue was whether the assignment of back up firefighter duties to a classification that had not previously done that work (the BOT classification) constituted a “substantive and qualitative c hange” to the job functions thereby creating a “new job” (paras 25 and 30). The new backup firefighter work included regular training and mostly routine inspection of the 15 fire truck and PPE. It occupied approximately 5% of the BOTs working time, and the rest their time was spent performing the core work of the pre-existing classification. The Union relies on this decision for the principle that it is a substantive change to the position that matters, and not the quantity of the changed work. I accept the principles as articulated in Lanxess, but again a careful review of the facts and how those principles were applied is instructive. Most significantly, what this case illustrates is that measuring the time spent performing a particular duty does not necessarily capture the full extent of the change. As the arbitrator explains at paras 38-41, it is not the 5% of the BOTs time performing routine checks of equipment that resulted in the creation of a new job. It was rather that the backup firefighters were “constantly” on call to do the work and were required to acquire and maintain the skill and ability to perform it for “100% of his shift and perform essentially the same emergency response functions as the full-time firefighter”, i.e., the core work of a different classification. It is in this context that the fact that the BOTs still spent 95% of their time doing the same work they had always done was not determinative. 47. IWK Health Centre addressed a similar issue. In that case, the Employer began assigning Respiratory Therapists (“RTs”) responsibilities related to Extracorporeal Membrane Oxygenation using a machine similar to a heart and lung machine. The use of the machine was rare, amounting to a few times a year, and had previously been performed by contract Perfusionists. In order to free up the Perfusionists to assist with other cardiovascular surgical procedures, the Employer trained RTs to monitor patients while on maintenance therapy. The RTs were provided with a 4–5-day training course, completed a written examination, and were required to complete 50 hours of lab work. To maintain certification, they were required to perform 50 hours a year of actual ECMO work, or of simulation in a wet lab, in addition to continued learning (paras. 9-12). While the intention was to have Perfusionists continue to initiate and end the ECMO process and to restrict the RTs work to monitoring during the maintenance phase, in fact the RTs were frequently required to initiate the ECMO process before the Perfusionist arrived . The arbitrator applied the “substantial qualitative change” standard and concluded the ECMO RT was a new classification. He found that the ECMO work was outside the scope of an RT’s practice and required “an entirely different skill set” (para. 15). The Union relies on this case as the high-water mark, since the ECMO work amounted to some 2.5% of the RTs annual work, and the arbitrator explicitly rejected a strictly mathematical approach (paras. 16-19). Instead, he summarized the correct approach as follows (at para.27): Overall I think that it is quite clear that current arbitral authority regards the proportion of time spent doing new work as only one factor, and that all relevant changes should be taken into account in determining whether 16 the nature of the job has changed in a significant and qualitative way. The more important or core qualities are identified and given appropriate weight when assessing whether there are changes that are significant. The existence of special skills and training or responsibilities may significantly outweigh the proportion of time spent performing the tasks associated with those qualities. In the present case, as in the case of the backup firefighters, the requirement to be prepared to perform, as and when called upon to do so, work that is significantly different from their normal work, and which can carry life-determining responsibilities, should carry significant weight. 48. The facts before me, though, are again distinguishable from both Lanxess and IWK Health Centre. The evidence before me is clear that the vulnerable patient navigation work requires minimal training and does not impose a new kind of substantial responsibility, such as assigning on call firefighting duties to a classification that did not previously do that work or requiring them to be prepared to carry out life-determining responsibilities at any time, exercising an “entirely different skill set”. Indeed, vulnerable patient navigation work is a kind of work, requiring the exercise of the same skill and judgement, as a typical PCP might already perform, albeit in the field based on their observations rather than at a station based on a review of documents. Similarly, the solo first response work is all work that falls within the core duties of the PCP. While the work is carried out in a different manner by the VPN, i.e., alone, and typically without doing the actual transfer to hospital, the evidence is that the skills required, and the demands of the position are entirely subsumed within the PCP classification. 49. The Joseph Brant decision, like the authorities cited by the Union, also applies the “substantial, qualitative change” standard to the function performed by the employees, as opposed to “a mere change, addition to, or subtraction from the actual job content of the classification.” (para. 22) In that case the arbitrator found that the assignment of some of the duties and responsibilities that had been carried out by the charge nurse to the duty nurse was within the scope of the various duties and responsibilities that could already be assigned to the duty nurse: a position that already carried with it a high degree of responsibility. The assignment of those duties did not therefore create a new classification. As addressed above, the same is true of the first response duties assigned to the VPN. They are all duties that could be assigned to a PCP, and they occupy most of the time the VPNs spend when they are not doing exactly what all other PCPs are doing. 50. Westcoast Energy concerned the assignment of a substantial number of new tasks and responsibilities over a different kind of plant (effluent instead of gas processing). The new duties, now being performed by Shift Engineers, 17 were previously performed by Environmental Operators, whose position was eliminated. As the arbitrator summarized (at para. 41): It is a different plant encompassing a different industrial process, with a different purpose, different equipment and different responsibilities….Training is required specific to the effluent plant, both classroom and on-the-job, with resource people available for the first year. The fact of the training and the need for immediately available expertise for a reasonably lengthy period of time is significant and bespeaks a necessity for significant additional knowledge. 51. In the instant case, the VPN role requires minimal on the job orientation. The role does include an additional focus on diverting patients from requiring emergency transfer to hospital, beyond the referral work that is typically carried out by other PCPs. But as was clear from Mr. Hunter’s evidence, this is a purpose that is shared across all classifications to varying degrees, and it is far from the primary focus of the VPN role, which continues to be largely one of providing paramedical coverage for emergency calls. The facts in the instant case are far from the substantial change in purpose, equipment and responsibilities that was evident in Westcoast Energy. 52. The Ottawa Hospital decision concerned Diet Technicians/Technologists in the hospital. The arbitrator found that the addition or alteration of job duties over the years, such as computer charting, attending rounds and the move to cold plating, did not result in a substantial change to the position. Rather the manner of carrying out the work had simply evolved with devel opments in technology and standards of patient care. While less analogous to the facts in the instant case, one can fairly describe the move from ad hoc referrals to community services in the field to a more systematic process for making those referrals, as carried out by the VPNS, as an evolution of that job function directed toward an improved standard of care. 53. In Sudbury Regional Hospital, the collective agreement required the hospital to bargain or arbitrate if it makes a “substantial change in the job content of an existing classification which in reality causes such classification to become a new classification.” The arbitrator emphasised, at paragraph 13, that while the principles applied in such cases are well-established, the outcome in these cases is particularly fact-based (13). I agree with this assessment. He also emphasizes that employers generally retain the right to add and subtract from any particular bundling of job duties and responsibilities, and it is only when there is a (at para 14): substantial (i.e. considerable in importance, value, degree, amount, or extent) qualitative change in the actual core functions performed in order for a new classification to evolve from an existing one. A mere change in 18 the mix or emphasis on duties and responsibilities is not sufficient. That is, the addition to or reallocation of duties and responsibilities must create a def facto different job. When it comes to medical health professionals the addition or reallocation of duties or responsibilities within the basic scope of practice will generally not amount to a substantial change for job classification purposes… 54. In Sudbury Reginal Hospital the issue was whether the assignment of RNs to a Critical Care Response Team created a new classification of C CRT RN. Applicants for the position were required to be experienced ICU RNs and were provided with a 2-day “peer reviewed” CCRT course (para. 24). The Union focussed on the differences between the duties and responsibilities of the ICU RNs and the CCRT RNs, and the additional requirements of the CCRT RN position. The arbitrator dismissed the grievance, finding that the CCRT RN role was essentially an evolution of the ICU RN position, in which the RNs in effect “take the ICU to a patient whose condition appears…to be worsening…with a view to deescalating the situation before it deteriorates to a point that Code must be called, without moving the patient to the ICU” (para. 36). The decision in Hamilton Health Sciences address similar, though not identical circumstances as Sudbury Regional Hospital, and reaches the same conclusion for essentially the same reasons. 55. Similarly, in the instant case, I find that the VPNs, in both their first response and in their vulnerable patient navigation work, are carrying out the duties and responsibilities of a PCP, albeit in an evolved manner intended to better serve the vulnerable patients that PCPs were already looking after, and in a manner that it is hoped will reduce stress on the system as a whole. 56. Finally, in Almonte, the issue was whether the introduction of Peripheral Intravenous Therapy to the work of PCPs in Lanark constituted a new classification. The arbitrator found that it did not because administering IVs fell specifically within the statutory scope of work contemplated for PCPs. The added skill of running IVs did not, therefore, “take them outside the contemplated parameters of their existing classification” (para 11). 57. In the instant case, the uncontradicted evidence is that all the first response work performed by the VPN, which remains the core duty of the position, falls within the statutory scope of work of the PCP. Neither does performing the small amount of vulnerable patient navigation work when time allows take them outside the contemplated scope of practice for PCPs; it is work PCPs can do from the field, rests on the same judgement and skills exercised by PCPs, requires minimal on the job orientation to perform , and serves a common purpose. In this context, the VPN role is best characterized 19 as an evolved role within the PCP classification, and within the management right to assign work and work methods. CONCLUSION 58. For all these reasons, I find that the assignment of PCPs to the VPN role does not trigger Article 11.03 of the Collective Agreement and constitutes a permissible exercise of management rights under Article 4. PCPs assigned to the VPN role carry out the work of a paramedic in ways that, for half of their shifts, clearly differ from a typical PCP assigned to an ambulance with a partner. But all of the work assigned to the VPN falls within the scope of the PCP classification and draws upon the same skills and entails the same level of responsibility. To the extent that the position includes the assignment of particular duties that have not previously been assigned to PCPs—i.e., the research, phone call and charting duties—these duties are relatively minimal and straightforward, and do not constitute a qualitatively substantial change to the PCP classification. 59. The grievance is therefore dismissed. Dated at Toronto, Ontario, this 10th day of January 2023. _______________ Eli A. Gedalof Sole Arbitrator