HomeMy WebLinkAboutGregory Group 10-12-02
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IN THE MATTER OF AN ARBITRATION
BETWEEN:
Ontario Public Service Employees Union,
Local 239
Union
-and-
Cambridge Memorial Hospital
Employer
IN RESPECT OF:
A Group Grievance dated May 28, 2008
BEFORE:
M.V. Watters, Sole Arbitrator
APPEARANCES FOR
THE UNION: J. Brewin, Counsel
G. Wiens, President Local 239
B. Keenan, Vice-President Local 239
D. Post, Grievor
APPEARANCES FOR
THE EMPLOYER: S.D. McAleese, Counsel
K. Hilker, Human Resources Advisor
R. McKinley, Coordinator Diagnostic Imaging
C. MacInnes, Director Quality and Clinical Support
V. Leung, Manager, Laboratory
HEARING:
April 28, May 4, May 19, September 17,2010
in Cambridge, Ontario.
-AWARD-
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[1] This proceeding arises from a group grievance dated May 28, 2008. The
grievance claims, in substance, that six (6) Senior Technologists should be
reclassified to the higher Charge Technologist classification, effective January 1,
2008. At the outset of the hearing, the parties agreed to proceed first with the
grievance of Mr. David Post, a Senior Technologist in the Hematology
Department. It was further agreed that consideration of the status of the other five
(5) employees would be deferred pending the receipt of the Award relating to Mr.
Post.
[2] The Class Definitions relevant to the resolution of this proceeding were
established as the result of an Interest Award issued in 1988 by a Board of
Arbitration chaired by D.G. Pyle. They read as follows:
REGISTERED TECHNOLOGIST
Technologists working in a hospital clinical setting
encompassing the departments of Laboratory, Radiology,
Respiratory and Nuclear Medicine. These technologists
work under general supervision and perform the range of
tests and procedures related to their section and/or
department.
SENIOR TECHNOLOGIST
Technologists working in a hospital clinical setting
encompassing the departments of Laboratory, Radiology,
Respiratory and Nuclear Medicine. In addition to
performing the range of tests and procedures related to
their section and/or department, these technologists are
responsible for the daily workload of others and also
provide technical guidance to assigned staff. They
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ensure proper techniques are utilized and ensure that
work output meets established standards.
This level may also encompass positions of those
technologists working alone and having sole
responsibility for the technical operation and
administration of a section or division.
This level may also include positions of technologists
who carry out the functions of clinical instructor.
CHARGE TECHNOLOGIST
Technologists working in a hospital clinical setting
encompassing the departments of Laboratory, Radiology,
Respiratory and Nuclear Medicine. These technologists
perform the range of tests and procedures related to
their section and/or department as required. Under the
direction of a unit manager or departmental director
these technologists plan, organize, co-ordinate and
control the work of a formally recognized unit of
organization. These technologists are responsible for
organizing staffing schedules, assessing unit staffmg
needs and ensuring that all work of assigned staff meets
accuracy and reliability standards and requirements.
In addition, these technologists may approve overtime
and/or allow time off. These technologists may develop
protocol for new or revised methods and/or procedures.
Furthermore, they may make recommendations or decisions
on the unit's budget estimate, monitor the unit's
expenditures against the budget estimate and/or
administer the unit's budget.
[3] The applicable article of the collective agreement provides:
ARTICLE 25 - COMPENSATION
25.01 When a new classification in the bargaining unit is
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established by the Hospital, or the Hospital makes a substantial
change in the job content of an existing classification, the
Hospital shall advise the Union of such new or substantially
changed classification and the rate of pay which is established.
If so requested within thirty (30) calendar days of such advice,
the Hospital agrees to meet with the Union to permit the Union
to make representations with respect to the appropriate rate of
pay, providing any such meetings shall not delay the
implementation of the new or substantially changed
classification. Where the Union challenges the rate established
by the Hospital and the matter is not resolved following the
meeting with the Union, the matter may be referred to
arbitration in accordance with the arbitration provisions
contained in this collective agreement, it being understood
that any arbitration board shall be limited to establishing an
appropriate rate based on the relationship existing among
other classifications within the Hospitals (which are covered
by the O'Shea award) and the duties and responsibilities
involved. It is further understood and agreed that when
determining the appropriate rate, primacy must be given to the
relationship between job classifications covered by this
collective agreement and that such relativity must be
maintained. Each change in the rate established by the
Hospital either through meetings with the Union or by a Board
of Arbitration shall be retroactive :from the time at which the
new or substantially changed classification was first filled.
[4] Mr. Post, hereinafter referred to as the grievor, was the sole witness to
present evidence on behalf of the Union. The grievor commenced employment at
Cambridge Memorial Hospital in 1977 in the Blood Bank Department. He has
worked as the Senior Technologist in the Hematology Department since in or
about 1986. The aforementioned department is part of the Core Laboratory, which
also encompasses the Chemistry Department and the Transfusion Medicine
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Department. The grievor is the sole Senior Technologist in the Hematology
Department. He reports to Mr. Victor Leung, Laboratory Manager.
[5] Mr. Leung was the sole witness to present evidence on behalf of the
Employer. He has been the Laboratory Manager since 2002. In this capacity, he
has overall responsibility for the operations of the entire Laboratory. Registered
Technologists, Senior Technologists, Laboratory Assistants, Phlebotomists, and a
Clerk-Receptionist and Secretary-Dicta Typist all report to Mr. Leung. He, in turn,
reports to Ms. Cheryl MacInnes,. Director Quality and Clinical Support. Mr. Leung
worked as a Senior Technologist in the Chemisty Department between 2001 and
2002. He has a Masters Degree in Clinical Bio-chemistry.
[6] Prior to 1996, the Employer utilized all of the three (3) levels of
Technologists described in the Class Definitions, set out above. For budgetary
reasons, however, the Employer was compelled to reorganize the workplace in
1996. This resulted in the elimination of the Charge Technologist position and in
the formation of the Core Laboratory. Following the reorganization, Registered
Technologists rotated through the three (3) units of the Core Laboratory, instead of
working in a single department, as had previously been the case. It was the
grievor's evidence that before this change, he reported to the Charge Technologist
and that thereafter he reported to the Laboratory Manager.
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[7] Before turning to the evidence, I wish to make the following initial
observations about the Class Definitions:
1. The primary or core responsibility of Registered Technologists is
to perform the range of tests and procedures related to their
section and/or department. They perform such work under
general supervision. I am inclined to think that on a daily basis,
such supervision would be provided by the Senior and Charge
Technologists and, on an overall basis, by the Laboratory
Manager. Clearly, there is some overlap in the Class
Definitions as this form of bench work is also performed
by the two (2) higher levels of Technologists. Senior
Technologists perform the range of tests and procedures
in addition to a number of other listed duties and
responsibilities. Similarly, Charge Technologists perform
the tests and procedures on an "as required" basis;
ii. The additional duties and responsibilities of Senior
Technologists are, as follows: they are responsible for
the daily workload of others; they provide technical
guidance to assigned staff; they ensure proper techniques
are utilized; and they ensure that work output meets
established standards. On my reading, these duties and
responsibilities focus on the provision of technical guidance
and expertise. Additionally, they contemplate that
incumbents in the classification will exercise a quality
control function in respect of the work of Registered
Technologists.
The Class Definitions also provide that the Senior
Technologist level may encompass positions of
Technologists working alone, who have sole
responsibility for the technical operation and
administration of a section or division, or who carry
out the functions of a Clinical Instructor. It is apparent
that these .latter two (2) options are inapplicable here, as
they do not capture the work performed by the grievor
in the period most material to this dispute; and
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111. Under the direction of a unit manager or departmental
director, Charge Technologists have the following duties and
responsibilities: they plan, organize, coordinate and control
the work of a formally recognized unit of organization; they
are responsible for organizing staffing schedules and assessing
unit staffing needs; and for ensuring that all work of assigned
staff meets accuracy and reliability standards and requirements.
Additionally, Charge Technologists may approve overtime and/or
allow time off; develop protocols for new or revised methods
and/or procedures; and may recommend, monitor or administer
matters related to the unit's budget. On my reading, the Class
Definitions appear to contemplate that Charge Technologists
will exercise a broader set of responsibilities in contrast to the
Senior Technologists. While they, too, are responsible for
the provision of technical expertise and the exercise of quality
control measures, the Charge Technologists are charged with
the day to day supervision, control and administration of their
department subject, obviously, to the direction and ultimate
authority of the Manager.
[8] The Class Definitions pertinent to this case have been previously considered
in a number of arbitration awards, the most applicable being St. Joseph's Hospital.
Brantford and Ontario Public Service Employees Union. Local 219 (1994),
unreported (Sprlngate) and Grey Bruce Regional Health Centre v. Ontario Public
Service Employees Union. Local 235 (Bennett Grievance), [1997] O.L.A.A. No.
896 (palmer). Both of these awards involved grievors classified as Senior
Technologists who sought to be reclassified at the higher Charge Technologist
level.
[9] Arbitrator I. Sprlngate commented as follows in St. Joseph's Hospital:
"The definitions for both classifications refer to technologists
performing the range of tests and procedures related to their
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section and/or departments. The definition for a senior
technologist indicates that the performance of tests
and procedures is a major part of the employee's work,
which is the situation with the grievors. The definition
of a charge technologist provides that the employee
will do the work "as required", which suggests that it
might not be a regular part of a charge technologists work.
The definition of a senior technologist refers to
technologists who are responsible for the daily workload of
others and also provide technical guidance to assigned staff.
The criteria for a charge technologist refers to
technologists who "plan, organize, co-ordinate and control
the work of a formally recognized Unit of organization". The
different areas of the lab might be viewed as formally
recognized units of organization. To meet the definition of
a charge technologist, however, logically the planning,
organization, co-ordination and control of the work must
involve more than being responsible for the daily workload
of others, providing technical guidance, and for ensuring
proper techniques are utilized and that work output meets
established standards. This is because these tasks are
specifically referred to in the definition of a senior
technologist. To meet the defInition of a charge technologist
the planning, organization, co-ordination and control of a
work area must logically involve organizing staffing schedules,
assessing unit staffmg needs and ensuring that all work of
assigned staff meets accuracy and reliability standards and
requirements.
The definitions provide that a senior technologist is
to ensure that proper techniques are utilized and that work
output meets established standards. A charge technologist
is responsible for ensuring that all work of assigned staff
meets accuracy and reliability standards and requirements.
Presumably a difference between the two definitions is that a
charge technologist is required to ensure that all work
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performed in an area meets set standards, no matter what
shifts the technologists performing the work may be working.
A second difference suggested by the language is that unlike a
senior technologist a charge technologist has a personal
responsibility for the quality of work performed by other
technologists, including occasions when the standards are
not met.
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The definition of a charge technologist refers to three
types of duties that a charge technologist may perform. The
definition appears to suggest that the performance of these
duties is consistent with the duties of a charge technologist,
but the fact a technologist does not perform them does not
necessarily mean that the person is not a charge technologist."
(pages 23-27)
[10] The above excerpts :from the St. Joseph's Hospital award were cited with
approval by Arbitrator E. E. Palmer in Grey Bruce Regional Health Centre. In
terms of the one grievor's claim for reclassification to the Charge Technologist
level, he concluded:
"From my understanding of the evidence put forward at the
hearing of this matter, it does not show that Ms. Reich
neither was required to do the planning, organizing and
co-ordination and control suggested by these defInitions
nor did she bear personal responsibility for the failure of
others to meet these standards. No doubt, Ms. Reich was
extremely useful in assisting management in obtaining
these goals; but it was not her task to carry out this type
of work in the sense that responsibility attached to her
for failure to meet satisfactory levels. Even more telling
is the fact that there is no evidence before me that Ms. Reich
was fixed with personal responsibility for the quality of
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other technologists working in the area of her basic skills."
(pages 7-8)
[11] I have also reviewed the awards in South Bruce Grey Health Centre and
Ontario Public Service Employees Union. Local 275 (2008), unreported (Rayner);
Salvation Army Grace Hospital. Ottawa and Ontario Public Service Employees
Union (1990), unreported (McLaren); and Greater Niagara General Hospital and
Ontario Public Service Employees Union (1989), unreported (McLaren). These
authorities are not of great assistance with respect to the resolution of the instant
dispute. The first two (2) awards concerned claims for reclassification from
Registered Technologist to the Senior Technologist level. The latter award
focused essentially on whether the job performed by the employee in question fell
within the parameters of the General Duty Technologist classification.
Bench Work
[12] As mentioned previously, both Senior Technologists and Charge
Technologists perform the range of tests and procedures related to their section
and/or department. The parties referred to this as "bench work". Senior
Technologists perform such work in addition to a number of other duties listed in
the Class Definitions. Charge Technologists perform bench work "as required".
[13] Based on the availability of staff, the grievor schedules himself to work
either "senior" or "non-senior" days. The intent, in respect of the former, is that he
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will perform duties other than bench work. The intent, in respect of the latter, is
that he will devote a considerable part of the day to bench work. It is apparent
from the evidence that such intent is not necessarily the reality, as the grievor can
be required to perform bench work on a senior day and other forms of work on a
non-senior day. By way of example, the grievor may be required to perform bench
work on a scheduled senior day if a Registered Te~hnologist calls in sick, or if
some issue arises with an instrument requiring him to go to a particular bench to
trouble-shoot or problem-solve. Similarly, the grievor advised that he only
infrequently spends an entire day on bench work. In Mr. Leung's words, "you
can't separate senior days and non-senior days when an issue comes up".
[14] The evidence indicates that fewer senior days are scheduled in the summer
vacation season, or during other periods, when the Hematology Department is
short-staffed. During such periods, the grievor devotes more time to bench work
and less to his other responsibilities. The grievor testified that at other times of the
year, he endeavours to schedule three (3), and a minimum of at least two (2),
senior days each week. Mr. Leung suggested that the range was, in fact, between
one (1) and two (2) days. The grievor advised that he has the ability to accurately
track the amount of time spent on both bench work and his other duties. It was his
evidence that for the month of March 2010, he spent more than fifty percent (50%)
of his time on non-bench work functions. He stated that, for the most part, the
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tasks performed were those described in the Charge Technologist Class DefInition.
The grievor observed that his department was short-staffed in March and that, as a
consequence, the aforementioned figure was likely lower than it might otherwise
have been.
ASSESSING UNIT STAFFING NEEDS AND ORGANIZATION OF
STAFFING SCHEDULES
[15] The grievor testified that he and Mr. Leung engage in discussions around the
number of full-time equivalent positions available and required to staff the Core
Laboratory on a twenty-four/seven (24/7) basis. Thereafter, he creates, what was
referred to as, the Master Schedule. The grievor described the Master Schedule as
an "ideal schedule", in the sense that it attempts to provide for sufficient coverage
and appropriate shift rotation across the three (3) units in the Core Laboratory. The
Master Schedule currently provides for seven (7) to ten (10) Registered
Technologists on the day shift, two (2) on the evening shift, and one (1) on the
night shift. The names of employees working in the Core Laboratory are not
entered in the Master Schedule. The document, rather, simply identifies the
number of full-time equivalents required, at a minimum, for the various shifts. I
was told that the Master Schedule is not changed :frequently and that any
adjustment made would likely reflect an increase to the total staff complement. It
was the grievor's recollection that he last changed the Master Schedule some three
(3) to five (5) years ago.
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[16] The grievor stated that he prepares a five (5) week schedule every fifth
week. He referred to this as a "working schedule". Simply put, on the basis of the
staff available and their level of expertise, he assigns individual employees into the
positions identified on the Master Schedule. I note, in this regard, that the nature
and content of the work of a Registered Technologist is a function of the bench to
which they are assigned. In making assignments to specific benches, one (1) of the
grievor's objectives is to ensure that the Registered Technologists develop and
maintain expertise across all three (3) of the units in the Core Laboratory. The
grievor testified that he completes the working schedule and determines the bench
assignments without the need to first obtain Mr. Leung's approval. It was his
evidence that he deals with virtually all of the issues arising from scheduling. The
grievor acknowledged that if an issue cannot be resolved, it will be taken to Mr.
Leung for resolution.
[17] It is to be noted that the grievor schedules Registered Technologists, Senior
Technologists, and Laboratory Assistants for the entire Core Laboratory, and not
just for the Hematology Department. The grievor estimated that his work in
respect of scheduling takes up between one (1) and two (2) days every five (5)
weeks.
[18] Mr. Leung stated that he establishes the number of available full-time
equivalents based on budget. The Laboratory Manager further indicated that he
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and the grievor "negotiate" a realistic number of people to staff the shifts premised
on "what is affordable and available". He advised that he does not have a formal
meeting with the grievor for this purpose. Mr. Leung observed that the process is
more in the nature of a conversation. He stressed, however, that he has the overall
responsibility to justify the staffing numbers. Mr. Leung described the grievor's
input as "a recommendation".
[19] Mr. Leung agreed that the grievor assigns Registered Technologists working
in the Core Laboratory to specific benches and shifts. He acknowledged that the
grievor does not have to consult with him prior to making the particular
assignments. Mr. Leung noted, however, that employees other than Charge
Technologists are responsible for scheduling in three (3) other areas, these being
Pathology, Phlebotomy and Histology and that the Laboratory Receptionist
schedules herself.
ENSURING THAT WORK OF ASSIGNED STAFF MEETS ACCURACY AND
RELIABILITY STANDARDS AND REQUIREMENTS
[20] The grievor testified that he is responsible for ensuring that the quality of
work performed by Registered Technologists in the Hematology Department is at
an acceptable level. He stated that he employs the following processes to measure
and achieve this quality control objective: visual observance; daily, weekly and
monthly quality assurance audits; in-house competency assessment programs; and
external quality control assessments. The grievor acknowledged that every
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Registered Technologist is responsible for quality control in respect of their work.
He emphasized, however, that as the person in charge of his department, he
oversees quality control therein and sets the parameters for same. The grievor
maintained that he is responsible to ensure that the quality control program is
effective.
[21] The grievor stated that he establishes the systems and develops the
procedures for daily, weekly and monthly audits. He noted that while such audits
can be done by other Registered Technologists, any identified problems are
submitted to him for resolution. If the grievor is unable to resolve the issue, or if
disciplinary action is required, he refers the matter to Mr. Leung. It was the
grievor's evidence that he directs the quality control program for the Hematology
Department relating to all instruments used therein. He further stated that he is
responsible to oversee and report on both internal and external quality control
programs. In this regard, the grievor testified that he performs the following tasks:
assists Registered Technologists in resolving quality related problems experienced
with instruments, reagents, or methodology; ensures that acceptable quality control
standards are set up for instruments and all testing; reviews and evaluates all
quality control records in order to identify possible problems; prepares a spread-
sheet summarizing his review of monthly quality assurance reports for the
Laboratory Manager's review; reviews external quality control reports to
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determine if the results are acceptable and, ifnot, to determine the corrective action
required; and reports to Mr. Leung as to the results flowing from any external
assessment. The grievor agreed that the Laboratory Manager and Laboratory
Director are ultimately responsible for quality control.
[22] Mr. Leung advised that he has been an accredited Laboratory Assessor since
2005. He received training in this area :from Quality Management Program
Laboratory Services (QMPLS), an arm of the Ontario Medical Association.
Laboratory accreditation is now mandatory in Ontario for purposes of ensuring a
high standard of patient care. Mr. Leung stated that he has perform~d about ten
(10) assessments in Ontario and out of the country. He noted that no other Senior
Technologist is similarly qualified to perform these types of assessments of
laboratory services.
[23] Mr. Leung testified at some length about a number of manuals he has
prepared, all dealing with aspects of quality control. This evidence may be
summarized, as follows:
1. Mr. Leung prepared the Quality Manual, with some input :from
Registered Technologists and Senior Technologists. The Manual,
which is a mandatory document required by QMPLS, addresses
the essential elements of the quality systems that support the
Laboratory's operations. More specifically, it describes the
Quality Management system, provides guidance to staff on the
Laboratory's operation, and evidences the Employer's commitment
to quality management. I was informed that this Manual is
not frequently updated. A copy of its Table of Content was
filed as exhibit # 16;
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11. Mr. Leung wrote the Quality Improvement Manual. The
Manual is designed to ensure that the Laboratory has a
process in place for continuous improvement across a
number of key areas. Mr. Leung acknowledged that
certain parts of this Manual were prepared by others.
For example, the grievor collected data and then drafted
a Standard Operating Procedure relating to turn-around
times. Mr. Leung noted that the grievor engaged in
this task only after he, as Laboratory Manager, had made
this subject a measure of Laboratory performance.
Mr. Leung advised that he makes any necessary changes
to the Manual. A copy of its Table of Content was filed
as exhibit #17;
111. Mr. Leung wrote the initial Analytical Quality Control
Manual for the Chemistry Department. I was told that
the purpose of this Manual was to establish a framework
so that the Laboratory would have structures and
processes in place to support quality control. The processes
included the monitoring of the quality of procedures and
implementation. I was led to believe that the Manual is
updated and maintained by Senior Technologists.
Mr. Leung advised that the grievor prepared a similar Manual
for the Hematology Department. A copy of the Table of
contents of the Chemistry Analytical Quality Control
Manual was filed as exhibit # 18;
IV. Mr. Leung created and updates the Document Control
Manual. The Manual provides guidance as tp how
laboratory documents should be initiated, managed,
changed, archived, retained and disposed. A copy of its
Table of Content was filed as exhibit # 19;
v. Mr. Leung was the original author of the Purchasing
Inventory Control Manual. This Manual addresses
issues such as how to proceed with respect to capital
and non-capital purchasing, catalogue and non-catalogue
purchasing and inventory control. Its Table of Content
was filed as exhibit #20; and
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v!. Mr. Leung created the Post-Analytical Manual with
some input :from the Senior Technologists. The
Manual is a compilation of different processes
utilized after a test result is obtained, such as the
formatting of test reports, the identification of critical
results and expected turn around times. Mr. Leung
acknowledged that some of the documents found in the
Manual were prepared by Senior Technologists. Such
documents relate to matters within their scope of
expertise, including turn around time and editing of
tests results. A copy of the Table of Content for this
Manual was filed as Exhibit #21.
[24] It was the gist of Mr. Leung's evidence that the Laboratory Manager and the
Laboratory Director have the overall responsibility for quality control. He asserted
that the rest of the Laboratory staff, including Senior Technologists, have to ensure
that all technical standards are met and that all accreditation requirements are
satisfied.
[25] In cross-examination, Mr. Leung agreed that he expects the grievor to
oversee and review the work of Registered Technologists in the Hematology
Department. He explained that included within this task is the responsibility to
ensure Registered Technologists perform their work within the context of the
quality control processes he has established. Mr. Leung referenced the
responsibility to ensure the accuracy and reliability of such work. Mr. Leung
initially noted that Registered Technologists, not working on the same shift as the
grievor, are self regulated under the applicable professional Standards of Practice.
He later stated that if such staff had a problem, such as a technical difficulty with
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an instrument, they would be expected to contact the grievor even ifhe was not on
site at the time. He added that, if they were unable to contact the grievor, the
Registered Technologists should leave a note for him concerning the problem.
Prom his perspective, this reflects the Senior Technologist's duty to provide
technical guidance to staff.
[26] Mr. Leung further agreed that he has assigned the grievor the task of
identifying problems in the quality of work performed by the Registered
Technologists. He stated that when the grievor discovers a problem, he expects
him to try to resolve it. Additionally, he expects the grievor to keep him abreast of
the situation. Mr. Leung advised that reports of problems in the grievor's
department are in:frequent. Lastly, Mr. Leung agreed that the grievor has "the front
line task" of ensuring that Registered Technologists assigned to work in the
Hematology Department are capable of working in the unit and that the quality of
their work meets required standards.
, [27] Mr. Leung stated his belief that the grievor does not have personal
accountability or responsibility for the work of other staff in the Hematology
Department. He suggested that if a staff member fails to properly follow a
Standard Operating Procedure and "messes up", the grievor would not be
responsible for that person's error. Mr. Leung testified that if such a situation
occurred, he would discuss it with the grievor in an effort to resolve, and avoid a
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repetition of, the problem. On several occasions during the course of his evidence,
Mr. Leung commented that he delegates the task, but not the responsibility to the
grievor.
APPROVAL OF OVERTIME
[28] The grievor testified that he grants overtime based on the operational
parameters laid out by Mr. Leung. It was his evidence that the key parameter is the
need to have adequate coverage on the shift consistent with the Master Schedule.
The grievor advised that he may approve overtime in advance, such as when he is
establishing the working schedule, or in response to an ad hoc situation, such as a
scheduled staff member calling in sick. The grievor noted that he does not require
the Laboratory Manager's prior approval before authorizing overtime in these
circumstances. He acknowledged that, on occasion, he may consult with Mr.
Leung, but maintained this would only occur if there was a long term need for
overtime. The grievor stated that, in that scenario, a long term strategy would have
to be developed.
[29] Reference was made to a memo dated June 23, 2009 prepared by Mr. Leung
relating to the issue of overtime. The material part of the document reads:
"In view of the financial constraints we are all facing, audit
of overtime hours is being conducted hospital wide and a
monthly report sent to senior management.
Please note that the following policy will be strictly enforced:
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1) For regular work days Mon-Fri except holidays, unless the
OT is pre-approved, all OT are to be approved by myself
or another manager covering for me.
for weekends/holidays and off-hours, OT will not be
incurred unless it is essential, in which case detailed
documentation is required.
2) OT without documentation in the OT tracking book is
not acceptable and will not be paid until documentation
is provided.
"
(exhibit #5)
The grievor asserted that his practice after the receipt of the above memo was
much the same as before. He observed that Mr. Leung is not always available to
approve needed overtime and that such need cannot always wait for his return,
especially in cases of some urgency. The grievor also noted that in certain
instances where there has been a heavy workload, staff have stayed on shift on an
overtime basis without it being approved ahead of time.
[30] Reference was also made to an Overtime Tracking form, an example of
which was filed as exhibit #6. The form contains the following headings: Date,
Name, # Hours Claimed, Paid or Lieu Time, Reason Code, Hours Claimed,
Explanation, Signature of Staff Member, Signature of Charge Nurse. It was agreed
that Mr. Leung would sign the form under the latter heading. It was the substance
of thy grievor's evidence that the Laboratory Manager may not review and approve
the ov~rtime until well after it has actually been worked and entered by the grievor
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into the computer for pay purposes. Simply stated, :from the grievor's perspective,
such approval is after the fact. He noted that all of the overtime documented and
approved on exhibit #6 was done in that fashion. The grievor could not recall any
situation where Mr. Leung had denied overtime where the time was actually
worked.
[31] Mr. Leung testified that he and the grievor discuss the need for preapproved
overtime required to address periods in which the Hematology Department is short
staffed. It was his evidence that he, as Laboratory Manager, has the authority to
approve or disapprove this form of overtime. Mr. Leung advised that overtime is
granted if there is a need to respond to unforeseen developments, such as an
increased workload or a sick call :from a staff member. He also noted that in
certain ad hoc situations, staffmay stay on at work past the end of their shift. Mr.
Leung agreed that he does not necessarily approve this type of overtime, as he is
not always on site. He acknowledged that this use of overtime is appropriate as
long as there exists a good reason for the staff to stay on. Mr. Leung stated that
exhibit #5 was prepared because of the Hospital-wide audit and to ensure there was
a real need for the overtime.
[32] Mr. Leung advised that if there is a staff shortage on a weekend or evening
shift, when neither he or the grievor are on site, Registered Technologists will self
approve overtime. He explained that they might stay on at work or attempt to
23
locate a colleague able to come in. Mr. Leung testified that he is rarely involved in
this type of situation.
[33] With respect to the Overtime Tracking Form, Mr. Leung explained that the
grievor will enter the overtime documented therein into the computer so that the
employees will be paid for it. I was informed that the Secretary then signs off on
the overtime once it is logged into the computer. It is apparent on the evidence
that, at that stage, Mr. Leung has not seen the Overtime Tracking Form. It is only
subsequently that he reviews and signs the form. Again, his signature does not
reflect an approval before the overtime is worked but, rather, an approval after the
fact. Mr. Leung insisted that he could reverse the overtime entry at that point in
the process. He was unable, however, to recall a case in which he had done so.
ALLOWING TIME OFF AND VACATION SCHEDULING
[34] The grievor testified that once the working schedule is developed, he
determines if requests for time off can be granted. He advised that approval of any
such request is dependent on there being sufficient staff coverage, consistent with
the level contemplated by the Master Schedule. The grievor stated that he grants
time off, in accordance with this process, without the need to fIrst obtain the
Laboratory Manager's approval. It was his evidence that he only consults with Mr.
Leung if there is a problem with the adequacy of staff coverage.
24
[35] The grievor stated that he is actively involved in vacation scheduling, both in
terms of the high demand period between June 1 st and September 30th and vacation
requests falling outside of this period. With respect to the former, the grievor
testified that he and Mr. Leung engage in discussions to determine the maximum
number of Registered Technologists who can be off during the summer period
given the workload demands. It was the grievor's evidence that once this number
has been determined, then staff apply to him indicating the vacation time they are
seeking. If there is a conflict between requests, it is resolved through recourse to
the collective agreement, which provides for preference based on the employee's
seniority. The grievor advised that once he completes the schedule, which
encompasses all staff in the Core Laboratory, he takes it to Mr. Leung for the
latter's ultimate approval. With respect to vacation requests outside of the high
demand period, staff place their requests through an electronic program. The
grievor maintained that he approves or denies such requests depending on whether
there is sufficient staff available to cover the absence. He acknowledged that a
person adversely affected by a decision could take it up with Mr. Leung. The
grievor did not, however, recall any cases in which the Laboratory Manager
overturned his decision on this type of request.
[36] Mr. Leung's evidence on this aspect of the case did not differ materially
from that presented by the grievor. In terms of the prime time summer period, Mr.
25
Leung agreed that it is the grievor's responsibility to "turn the vacation requests
into vacation allotments in accordance with the collective agreement". With
respect to vacation requests outside of the summer months, he advised that Senior
Technologists do the vacation planning based on the availability of staff coverage.
Mr. Leung volunteered that the grievor does an "excellent job" in dealing with
these types of requests. He agreed that he has never overruled a decision made by
the grievor relating to such a request. An email forwarded by Mr. Leung to staff
on January 27, 2010 relating to Vacation Planning was filed in this proceeding as
exhibit # 10.
DEVELOPMENT OF PROTOCOLS FOR NEW OR REVISED METHODS
AND/OR PROCEDURES
[37] The grievor testified that he is responsible for developing new procedures or
for revising existing ones relating to new instrumentation, new methods, or new
ways of employing the methods. The grievor stated that he serves as the technical
consultant in the Hematology Department and, in that capacity, develops
procedures for new instruments and then evaluates their effectiveness. He asserted
that this falls within the scope of his responsibilities and that ifhe does not do them
personally, he is required to ensure they have been done, and done correctly.
Similarly, the grievor advised that he establishes and produces the policies and
procedures "for running" the Hematology Department. He then forwards them to
the Laboratory Manager and the Laboratory Director to review and approve, He
26
noted that the documents are rarely sent back to him with any substantive changes.
The grievor testified that Laboratory policies and procedures are constantly under
review and revision because of the "ever increasing evolution or changes in
Laboratory instruments or regulations governing the day to day operation of the
department". The grievor observed that while a Registered Technologist may
assist him with this task, it is he who is responsible for the content of the
document. He further stated that he is responsible for maintaining and revising
manuals relating to the Laboratory Information System (LIS). In this regard, the
grievor said that he must ensure all Laboratory staff have the requisite knowledge
to work with the system and new developments relating to it.
[38] A list of manuals produced by the grievor was filed as exhibit #22. There
are a total of thirty-four (34) manuals listed under the following general headings:
Hematology Department; LIS Manuals; Referred Out Laboratory Manuals; and
General Laboratory Equipment Manuals.
[39] Mr. Leung agreed that the grievor produced the manuals listed in exhibit #22
and that he is responsible for both their accuracy and maintenance. He asserted,
however, that the bulk of the documents are at the technical or "bench" level, in the
sense they describe how particular instruments operate or how specific testing
should be undertaken. Mr. Leung described the manuals as being fairly narrow in
scope and stated that they are updated only infrequently. He also emphasized that
27
the content of such manuals is heavily influenced by a large number of mandatory
requirements set out by the accreditation body. Mr. Leung emphasized that all
manuals produced by the grievor are subject to his approval or that of the Medical
Director or Director of Quality and Clinical Support. Mr. Leung acknowledged
that he "signed off' on all of the manuals referenced in exhibit #22. He did not
recall, ifhe had suggested any revisions to them. From his perspective, the bench
procedural manuals and Standard Operating Procedures prepared by the grievor are
all technical in nature and fall within the scope of the latter's expertise.
TRAINING
[40] The grievor testified that he is responsible to train staff in the Hematology
Department on any new instrumentation or procedures. In this regard, he creates a
training check list, or protocol, to ensure that staff are properly trained. While the
documentation produced may reference vendor instructions, all protocols for the
Laboratory have to be generated internally. It is clear from the evidence that the
grievor also provides training on the LIS. The grievor stated that with respect to
all of the above training, he is responsible for establishing the training program. If
he does not perform the actual training, the task is delegated by him to a person
who has been previously trained.
[41] The grievor also advised that he is responsible for the development of
training protocols applicable to newly hired Registered Technologists. These
28
protocols are designed to ensure that such new staff are adequately trained to
perform the required duties. It was the grievor's evidence that he determines when
they can be inserted into the regular work rotation. The Core Laboratory Assistant
Training log sheet (exhibit # 11 (a)) and the Hematology Training guideline log
sheet (eXhibit #11(b)) were filed as examples of the type of training protocols
authored by the grievor. It is apparent that in fulfilling this responsibility, the
grievor must also comply with other training related protocols established by Mr.
Leung.
[42] Mr. Leung, in cross-examination, agreed that if someone needs training or
orientation in Hematology, it is the grievor's responsibility to ensure they receive
it, either by providing the training directly or by arranging for it to be given by
other qualified staff. Mr. Leung also noted that Senior Technologists, and on
occasion Registered Technologists, may provide training on new laboratory
equipment.
BUDGET RELATED DUTIES
[43] The grievor testified that he has no real role in the preparation of the
operational and capital budgets. He added that he has only minimal input in
maintaining the actual budget of the Laboratory. It was his evidence that he may
make recommendations in respect of capital expenditures and/or cost cutting
initiatives. The grievor acknowledged that, generally, involvement in matters
29
relating to the budget is not a major part of his duties within the Hematology
Department.
[44] Mr. Leung stated that, in conjunction with the Director of Quality and
Clinical Support, he has the overall responsibility and accountability for decision
makitig around the budget, including such matters as the number of full-time
equivalents, capital expenditures over a specific dollar level, and supplies. He
agreed that Senior Technologists, such as the grievor, may be asked for input on
equipment or the needs of their departments. Mr. Leung advised that this group of
employees have a "quite minimal role" in monitoring expenses against budget. He
stressed that he is the person who reviews the fmancial statements each month, not
the Senior Technologists, and that he may question them about any significant
variances observed. Mr. Leung testified that Senior Technologists may monitor
inventory at the bench level.
DISCIPLINE. PERFORMANCE APPRAISALS. AND HIRING COMMITTEES
[45] The grievor acknowledged that he has no independent authority to impose
discipline on other employees, although he stated that he can make
recommendations surrounding discipline. Similarly, he testified that he has no role
in the performance reviews of Registered Technologists, other than possibly
providing feedback on their technical competence. He noted, in this regard, that
30
Mr. Leung is not in the Core Laboratory on a daily basis and, therefore, cannot
always observe the work of staff.
[46] Mr. Leung testified that it is his responsibility to disciplme employees
working in the Core Laboratory. He stated that he has not needed to issue formal
discipline to any employee in the Hematology Department over the course of the
past five (5) years. Mr. Leung did recall the grievor bringing certain conduct to his
attention, which would have warranted discipline had it persisted. Mr. Leung was
not subsequently required to confront the matter and agreed it is a reasonable
assumption that the grievor dealt with the issue. The Laboratory Manager
similarly advised that he completes the performance appraisals of Registered
Technologists in the Core Laboratory.
[47] Mr. Leung stated that he has involved the grievor in numerous Hiring
Committees given his expertise in the area of Hematology. He testified that he
values the grievor's input when involved in these panels and acknowledged that
the grievor could make suggestions vis a vis the quality ofthe candidates. Mr.
Leung observed, however, that the decision to hire is ultimately his to make.
CHARGE TECHNOLOGIST DUTIES PRE-1996
[48] The grievor testified that, prior to 1996, the Charge Technologist organized
the schedules, assigned the bench work, granted time off and approved overtime.
He further advised that he assisted the Charge Technologist with quality control
31
and the development of protocols. The grievor stressed, however, that the Charge
Technologist had the responsibility over these matters. Reference was made to a
job description for Charge Technologist-Hematology, which was last reviewed in
1990 (exhibit #7). The document lists eighteen (18) duties under the headings of
'Technical' and 'Supervisory'. It was the grievor's evidence that he now performs
fifteen (15) of these duties, in whole or in part. In cross-examination, the grievor
acknowledged that he does not have the designation of Advanced Registered
Technologist referenced under the heading of 'Qualifications and Experience'. He
noted, however, that two (2) of the four (4) Charge Technologists working prior to
1996 also did not possess such qualification. The grievor stated that a Charge
Technologist, in the pre-1996 period, might delegate some of their duties to a
Senior Technologist. He observed that, in that event, the Charge Technologist
would have to oversee the work to ensure it was done correctly. From his
perspective, such work would be done by the Senior Technologist under the direct
supervision of the Charge Technologist.
GRIEVOR'S CURRENT DUTIES
[49] The grievor in April 2010 prepared a list of duties he currently performs in
the Hematology Department. This document was filed as exhibit #4. It lists the
following duties:
"1. In charge ensuring all details of service delivery are completed
32
in a timely fashion and according to established standards
including planning, organizing and direct day to day
activities of Hematology department including delegation
of specific projects or tasks.
2. In charge of developing and maintaining quality control
program including internal quality control program as
well as external quality control program.
3. In charge of quality assurance program including monthly
audits, staff proficiency and establishing general quality
assurance process with lab director approval.
4. In charge of ensuring a regular maintenance program is
developed and maintained by all technologists including
troubleshooting equipment, calibrations and deciding
when service if (sic.) required. Maintaining adequate
back up systems in case main operating systems are not
available. Ensures proper documentation and maintaining
service records for all equipment in Hematology and
general laboratory equipment.
5. In charge of training newly hired core laboratory technologists
in the area of Hematology, Meditech training and general
laboratory procedures.
6. In charge of method evaluation and implementation of new
procedures, instruments and the training of technologists
to ensure technologists are adequately trained.
7. In charge of developing and maintaining procedures relating
to Hematology department, referred out laboratories,
general laboratory equipment, LAB, OE, MIC, MIS, LIS
modules of Meditech.
8. In charge of ensuing adequate supplies and services for
Hematology department and general laboratory equipment
are available with regards to routine purchasing, reagent
and service contracts.
'33
9. Laboratory liason technologist with the Information Technology
department to ensure Meditech is working adequately and
efficiently.with regards to maintaining and upgrading LAB,
OE, MIC, MIS, LIS modules dictionaries.
10.Coordinate Meditech upgrades, schedule downtimes, etc. to
ensure minimum disruptions and ensure new upgrades are
reviewed to ensure working properly and communicate
new enhancement to staff.
11.In charge of scheduling core laboratory technologists and
core laboratory assistants to ensure adequate numbers of
staff are available, rotation of shift are adequately
distributed, overtime authorized, and shifts are covered
in event of vacation, sickness, etc. Also maintaining
Meditech scheduling module to ensure all hours worked
and taken are correctly entered into Meditech. Work
directly with lab manager to determine staffing needs and
scheduling requirements.
12.Assist lab manager with interviewing and hiring of staff
for core laboratory.
13.In charge of maintaining and ensure adequate delivery of
services by reference laboratories used by the core
laboratory with regards to maintaining procedures,
protocols, quality assurance for processing reference
laboratories samples and ensuring test results are
entered correctly and a timely fashion.
14.Represent department(s) in external meeting if required.
15.Acts as resources to provide technical expertise to physicians
and management as required for Hematology, referred out
testing and Meditech Modules.
16.Ensure lab licensing requirements are met for Hematology
and Laboratory Information System departments and
participate in lab licensing inspections.
34
17.Perform routine testing as required when staff needs are
inadequate.
"
.................................................................................................................................... ..
On my review of the evidence, the grievor maintained that at least ten (10) of the
above listed duties are Charge Technologist duties and that four (4) of same may
be performed by both Charge Technologists and Senior Technologists.
[50] In his evidence, Mr. Leung made the following observations regarding the
duties listed in exhibit #4: the grievor does not assign duties at particular benches,
as these benches have predetermined duties; while the grievor looks after monthly
audits and staff proficiency at a technical level, he, as Laboratory Manager, and the
Medical Director have overall. accountability; and in terms of maintenance and
preventative maintenance for instrumentation, the Laboratory conforms to the
manufacturer's suggestions.
JOB POSTINGS - JOB DESCRIPTIONS FOR SENIOR TECHNOLOGISTS
[51] In cross-examination, the grievor was questioned about the following
documents: (i) Job Posting dated April 11, 1996 for Senior Technologist-Blood
Bank/Transfusion Medicine (exhibit #12); (ii) Job Posting, last reviewed in
October 2004, for Senior Technologist (exhibit #13); (iii) Job Description dated
September 10,2009 for Senior Medical Technologist, Core Lab (exhibit #14); and
(iv) Job Posting dated July 23,2009 for Senior Medical Laboratory Technologist,
35
Core Lab Chemistry (exhibit #15). The evidence with respect to these documents
may be summarized as follows:
1. The grievor testified that exhibit #12 is accurate in terms of
what the Senior Technologist did in the Hematology
Department as of 1996. He stated that the listed duties are
part of his current responsibilities, but emphasized they do
not reflect the totality of his present work;
11. The grievor testified that exhibit #13 captures some of his
current duties and responsibilities. He specifically referenced
the following duties cited on the exhibit:
"6. Responsible for establishment and evaluation of Quality Control
Program to include internal and external quality control.
7. Ensures the maintenance of discipline specific policies,
procedures and methodologies is accomplished.
9. Evaluate new equipment and technology to meet the needs
ofCMH and the community."
The grievor stated that duties #6 and #7 are those of the Charge
Technologist. He added that, with respect to Duty #9, while the
person who evaluates the equipment does not have to be a
Charge Technologist, the actual program pursuant to which the
evaluation is done is the responsibility of the Charge
Technologist. It was the substance of the grievor's evidence
that he performs the aforementioned duties;
111. The grievor testified that exhibit # 14 accurately describes
some of his current duties, but is incomplete in respect of
same. Of the fourteen (14) duties listed, he stated that the
following six (6) are duties and responsibilities of the
Charge Technologist:
"
. Responsible for internal quality control and external quality
36
assessments (proficiency surveys) and to ensure the quality
of laboratory results meets MOHL TC licensing and Ontario
Laboratory Accreditation requirements.
· Prepare up-to-date procedure manuals.
· Instrument and method evaluation.
· Troubleshooting of instrumentation, methods and
anomalous tests results.
· Supports and helps maintaining the laboratory Quality
Management System.
· Compliance with requirements of OLA, MOHL TC etc."
Again, it was the substance of the grievor's evidence that he performs or
oversees the performance of these duties in the Hematology Department.
Mr. Leung testified that he prepared exhibit #14 based on his belief of what
a Senior Technologist should do. He stated that the grievor performs all of
the listed duties. Mr. Leung acknowledged that the grievor also performs
the following duties not included in exhibit #14: scheduling within an
established framework; serves as the LIS expert and is the liason with the
I. T. Department; establishes procedures for testing referred out of the
Laboratory; and ensures the Laboratory operates properly when its
computers are down;
iv. The grievor testified that he performs or oversees the performance
of the duties listed on exhibit #15. He reiterated that the cited
duties are an incomplete list in terms of everything that he does.
Mr. Leung stated that he prepared exhibit #15 based on the content
of exhibit # 14. He asserted that "a major part" of exhibit # 15 is
applicable to the grievor's job. From his perspective, the document
is an accurate reflection of the duties and responsibilities of a
Senior Technologist.
37
STANDARDS OF PRACTICE FOR MEDICAL LABORATORY
TECHNOLOGISTS
[52] Standards of Practice issued by the College of Medical Laboratory
Technologists of Ontario (CMLTO) were filed in this proceeding as exhibit #9.
These standards, which apply to all Technologists, set out the level of quality and
safety expected for professional services provided to the public. They are
applicable to all dimensions of practice including non-technical areas, such as
education, administration, quality assurance and research. The Standards of
Practice set out and describe the components of the following six (6) essential
competencies: Knowledge; Application of Knowledge and Skills; Evaluation and
Decision Making; Safe Work Practices; Professional Conduct and Accountability;
and Quality Management.
THE GRIEVOR'S AND MR. LEUNG'S PERSPECTIVE ON THE
CLASSIFICATION ISSUE
[53] The grievor's views as to the history and status of this issue may be
summarized briefly as follows:
1. Prior to 1996, Registered Technologists, Senior Technologists
and Charge Technologists in the Hematology Department
all did the work described in their respective Class DefInitions;
ii. Following the 1996 reorganization, the Senior Technologists
assumed the Charge Technologist duties over a period of time.
The grievor asserted that he now performs the work previously
done by Charge Technologists pre-1996. While he may have
assisted the Charge Technologist in that earlier period, he now
is responsible for the work;
38
111. Prior to 1996, he reported to the Charge Technologist, who in
turn reported to the Laboratory Manager. Post 1996, he
reported to a Laboratory Manager or to an equivalent position;
and
IV. The grievor claimed that he is the person in charge of the
Hematology Department on a daily basis. On his analysis,
Mr. Leung, in contrast, is in charge of the entire Laboratory.
The grievor emphasized that Mr. Leung does not oversee or
supervise the day to day operation of the Department.
[54] Mr. Leung disputed the grievor's assessment. He maintained that he has the
overall responsibility for the Core Laboratory, and its various departments or units,
and is fully accountable for all aspects of its operations. In this regard, he made
the following statement: "I as Manager create the :framework that other staff can
work with, as I have overall accountability and responsibility for the Lab."
[55] It is apparent on the evidence that the Union requested a reclassification of
the Senior Technologist position at a Labour-Management meeting held on June 5,
2006. By letter dated June 16,2006, Ms. M. Orton, Human Resources Advisor,
advised Ms. G. Wiens, the Local President, that the request was not warranted.
The material part of the letter reads:
"The employer has taken the opportunity to thoroughly review
the supporting documentation that OPSEU has provided in their
request. You may recall that during the 1995 reengineering
process that Cambridge Memorial Hospital undertook, the
position of Charge Technologist was eliminated. Many of the
'Charge' duties were dispersed and absorbed into the
Coordinator's job description. It is the employer's opinion
that the relevant points covered under exhibit 3- Technologist
job class defInitions-Charge Technologist section still reside
39
in the Managers job descriptions."
(exhibit #8)
The grievor acknowledged that no grievance was pursued until the instant one filed
in May, 2008. He noted that he assumed increased responsibility between June,
2006 and May, 2008 with the advent of the Ontario Laboratory Accreditation
process. It is his experience that the Laboratory thereafter has been more
complicated to run given that there are more regulations to follow.
ARGUMENT
[56] It is the position of the Union that the duties and responsibilities of the
grievor fit best within the Class Definition for Charge Technologist. Counsel for
the Union advanced the following arguments in support of this position:
1. Counsel noted that, in cross-examination, Mr. Leung agreed that
the grievor was given the task of ensuring all work performed
by Registered Technologists, including those working on
different shifts, meets accuracy and reliability standards. He
further noted that Mr. Leung agreed that the Registered
Technologists would contact the grievor by telephone if a
problem occurred at a time when he was off shift, and that
the grievor would try to resolve same through such
communication or when he next went into work;
11. Counsel referenced the statement in the St. Joseph's Hospital
award that Charge Technologists have a personal responsibility
for the quality of work performed by the Registered
Technologists. Counsel acknowledged that Mr. Leung claimed
that this responsibility was his. He emphasized, however, that
the Laboratory Manager agreed that the grievor was given
the responsibility for overseeing such work. It was counsel's
submission that as the grievor was assigned the task, he must
also have been delegated the related responsibility. Counsel
observed that the grievor believes he is accountable for the
40
quality of work performed in the Hematology Department;
subject to his own accountability to the Laboratory Manager.
He argued that the grievor is much more than simply a
technical resource for the Registered Technologists;
111. Counsel submitted that the grievor is expected to deal with
any problems arising in the Hematology Department and that
Mr. Leung does not expect the grievor to report to him in
respect of every quality issue experienced. On counsel's
recollection of the evidence, Mr. Leung stated that the
grievor only rarely reported to him on quality of work issues.
I was asked to conclude that this is because the grievor
routinely resolves such issues;
IV. Counsel noted that the grievor is entrusted with the
responsibility of preparing highly complex manuals.
From his perspective, this responsibility is not diminished
by the fact Mr. Leung signs off on the manuals;
v. Counsel stressed that the grievor has to ensure that the
Registered Technologists are capable of working in the
Hematology Department. He considered it material that
the grievor either does, or oversees, any necessary
training and that he prepares any related documentation;
vi. Counsel referenced the grievor's evidence that he spends
more than fifty percent (50%) of his time on tasks other
than bench work. He submitted that this evidence was
not challenged by the Employer;
Vll. Counsel submitted that, effectively, the grievor schedules
all Registered Technologists working in the three (3)
departments of the Core Laboratory. The grievor assigns
the Registered Technologists to specific benches on the
various shifts, and must ensure there is an efficient
rotation so that they are capable of working in the three
(3) distinct units. In this regard, counsel emphasized that
the grievor is required to assess the capacity of staff to
work in the various assignments. He argued that these
responsibilities reflect the judgment demanded of a Charge
41
Technologist. On counsel's analysis, Mr. Leung's role in
scheduling is very limited;
V111. Similarly, counsel submitted that, effectively, the grievof is
the person who approves overtime, not Mr. Leung. He
referenced the evidence suggesting that Mr. Leung signs
the Log Book after the overtime has been worked and
entered into the computer for payroll purposes. Counsel
observed that Mr. Leung might question a particular
overtime claim and has the right to reverse any of the
grievor's approvals. He noted, though, that this latter right
has never been exercised by the Laboratory Manager;
lX. Counsel asserted that Mr. Leung agreed the grievor makes
the :front-line decisions pertaining to vacation requests.
,On his analysis, Mr. Leung's role is to hear and resolve
any complaints arising from these decisions. He noted
that Mr. Leung has always supported the grievor's decision
making;
x. Counsel acknowledged that Mr. Leung would not agree
the grievor is in charge of the Hematology Department. He
stressed, however, that the Laboratory Manager did agree
that the grievor's scope of responsibility is broad and
encompassing. In counsel's submission, the grievor has
front-line responsibility for the day to day operation of
the Hematology Department. He agreed that the grievor,
in the exercise of this responsibility, is accountable to
Mr. Leung; and
Xl. Lastly, counsel referenced the grievor's list of job duties
(exhibit #4) and the Job Description for Charge Technologist-
Hematology (exhibit #7). He argued that the duties performed
by the grievor are well-described by both documents. Counsel
maintained that the grievor's evidence surrounding these
exhibits was not seriously challenged by the Employer.
In summary, it is the Union's position that the grievor has the front-line
responsibility for the "quality of the total output of the unit". Counsel submitted
42
that such responsibility is much greater than that assigned to Senior Technologists
under the Class Definitions. In as much, I was asked to find that the grievor
performs work at the Charge Technologist level and should, accordingly, be
reclassified.
[57] In response, it is the position of the Employer that the majority of the
grievor's duties fall within the Class Definition for Senior Technologist. Counsel
for the Employer advanced the following arguments in support of this position:
1. Counsel did not take issue with the grievor's evidence that
more than fifty percent (50%) of his time is spent on work
other than bench work. It was his submission that "senior
duties", or work performed on "senior days", are in substance
captured by the Senior Technologist classification description.
He also noted that the grievor engages in a lot of bench work,
which can, on occasion, take up an entire day. On his
analysis, such work is not performed on an "as required"
basis;
11. Counsel asserted that the time spent by the grievor in scheduling
is minimal and that the level of his involvement with same is
not at the Charge Technologist level. Counsel argued that the
responsibility for both staffing and scheduling rests with
Mr. Leung. On a related point, he asserted that the grievor
does not assign the work, as the work performed is determined
by the specific bench. From his perspective, while the grievor
may have some limited discretion in organizing the work of
the unit, he does not have any significant responsibility in
coordinating or controlling it, as contemplated by the Class
Definition for Charge Technologists. Again, counsel
suggested that this responsibility is exercised by Mr. Leung
in his capacity as Laboratory Manager;
iii. Counsel submitted that Mr. Leung retains the authority over
the scheduling of vacations. He emphasized that the Laboratory
43
Manager establishes the :framework for required staff coverage
and that this framework, ultimately, determines the number of
staff who may take vacation at any particular time, be it
during the summer period or at other times in the year.
Counsel noted that, in respect of vacations during the peak
summer period, there are collective agreement provisions
which are applicable. Simply stated, it was his submission
that there is little discretion for the grievor to exercise in
the matter of vacation scheduling or other requests for
time off;
iv. Similarly, counsel maintained that Mr. Leung is ultimately
responsible for the approval of overtime. He noted that the
Laboratory Manager approves pre-approved overtime and
sets the parameters for the use of other overtime. Counsel
referenced the fact that Registered Technologists may
self approve overtime in certain situations, without any
approval of the grievor. He acknowledged that Mr. Leung
may approve a lot of overtime on an after the fact basis.
Counsel stressed, however, that such approval remains
within the scope of Mr. Leung's discretion;
v. Counsel observed that Mr. Leung is the person with authority
to produce ":framework" manuals. In contrast, he suggested
that the grievor is only involved in the preparation of
"bench" manuals, which he described as being very technical
in nature. Counsel argued that both Registered and Senior
Technologists have the requisite ability and expertise to
create these latter manuals. With respect to the development
of protocols and procedures, counsel submitted that Mr. Leung
is ultimately responsible for this task. He asserted that the
grievor's evidence on the point reflects "a gross overstatement
of the reality". In a related vein, counsel noted that the grievor
does not necessarily do all of the training. He stated that some
of it, on the evidence, can be provided by Registered
Technologists;
VI. Counsel argued that the grievor has no power to ensure that all
work in the Hematology Department meets accuracy and
reliability standards and requirements. Additionally, he
44
submitted that the grievor has no personal responsibility
for the quality of work performed by Registered Technologists
working on either his, or other, shifts. It was counsel's
assessment that Mr. Leung, as Laboratory Manager, is
accountable if "output quality is not met". He further
noted that, pursuant to the relevant professional standards,
individual Registered Technologists are both responsible
and accountable for the quality of their work;
Vll. Counsel referenced the Job Description for Charge
Technologist-Hematology (exhibit #7). He noted initially
that the grievor does not have the Advanced Registered
Technologist designation. He further suggested that the
grievor does not perform a number of core duties listed in
the exhibit. On his review, the grievor's duties and
responsibilities are more in accordance with the Job
descriptions for Senior Technologists filed as exhibits
#13 and #14;
V1l1. Counsel observed that based on the grievor's own
evidence he has either no role, or at most an insignificant
role, in matters relating to budget, discipline and
performance appraisals; and
IX. Counsel disputed the grievor's claim that he is in charge
of the Laboratory in Hematology. He reiterated that the
overall responsibility rests with Mr. Leung. Counsel
suggested that in the post-1996 period, Charge Technologist
duties flowed up to Mr. Leung, rather than down to the
gnevor.
[58] Counsel for the Employer asked that I apply the Class Definitions in the
context of evolving professional standards. He submitted that the "best fit" for the
grievor's duties and responsibilities remains the Class Definition for Senior
Technologist. He argued that there is no merit to the grievor's claim to "migrate"
to the higher Charge Technologist level. Counsel suggested that, if deemed
45
appropriate, the parties could negotiate some form of responsibility pay. He
cautioned that an award in the grievor's favour could mean that all of the other
Senior Technologists would be entitled to similar treatment. Counsel stated that
were this to occur, it would have the effect of vacating the classification.
[59] Counsel suggested that the grievor testified there was no real change in his
job duties between 1996 and the present time, other than he now has responsibility
for the duties. Counsel reiterated that it is Mr. Leung, and not the grievor, who
truly has both responsibility and accountability. In his words, the grievor did not
have responsibility before 1996 and he does not have it now. On this basis, he
argued that given the lack of any substantial change to the grievor's job, there is
nothing existing to trigger article 25.01 of the collective agreement.
[60] For all of the above reasons, counsel asked that I endorse the arbitral
reluctance to allow classification grievances, as reflected in the cited authorities,
and deny the instant grievance.
[61] During the course of his reply, counsel for the Union advised that the grievor
did speak to a change in his job commencing in 1996. Before then, the grievor
assisted the Charge Technologist. After that date, he was actually responsible for
the work of the Hematology Department, subject to the direction of the Laboratory
Manager. It was counsel's submission that this transition vis a vis responsibility
satisfies the contractual requirement for substantial change.
46
DECISION
[62] It is apparent, on the evidence, that the grievor spends considerable time on
duties other than bench work. I accept the grievor's evidence, which was not
seriously contested, that more than fifty percent (50%) of his time is devoted to
non-bench work tasks. This percentage would likely be higher but for the fact the
grievor is "required" to perform more bench work when the Hematology
Department is short-staffed. After a review of all of the evidence presented, I am
left with the firm impression that the grievor spends considerably more time on
other duties than would a Senior Technologist. This is not surprising given the
extent of his duties and the fact that many of them have an administrative, and not
merely technical, nature. In the final analysis, however, the time spent by the
grievor on duties other than bench work is not determinative of this dispute. The
threshold question, rather, is whether such work is that of the Senior Technologist,
as claimed by the Employer, or the Charge Technologist, as submitted by the
Union.
[63] I accept that the grievor provides input in respect of the staffing needs of the
Core Laboratory. I also fmd that he has a significant role in scheduling, starting
with his work on the Master Schedule and then his subsequent completion of the
working schedule every fifth week. I think that work on the latter schedule
involves more than simply plugging names into blank slots. The task requires the
47
grievor to exercise his judgment relating to the expertise of the Registered
Technologists and, more specifically, to assess whether they are capable of rotating
through the various units in the Core Laboratory. I consider it material that the
grievor works independent of Mr. Leung when developing the working schedule,
in the sense that he does not require the latter's approval for the bench and shift
assignments. Similarly, it is clear that the grievot resolves the vast majority of
complaints arising :from the schedule. I also fmd it significant that the grievor's
responsibilities around scheduling encompass the entire Core Laboratory and are
not restricted to Hematology. I do not view it as relevant that employees other
than Charge Technologists may engage in scheduling duties in other departments
of the Hospital. The issue before me is narrowly focused and arises in the context
of the specific language of the Class DefInitions of Senior and Charge
Technologists. Ultimately, I am satisfied that the grievor's work on scheduling
falls within the express language of the higher classification, in that he is
"responsible for organizing staffmg schedules" and "assessing unit staffing needs".
I note, in this regard, that the scheduling function is not referenced in the Class
DefInition of Senior Technologist.
[64] In the context of this case, the responsibility assigned to the Charge
Technologists for "ensuring that all work of assigned staff meets accuracy and
reliability standards and requirements" translates into a responsibility for this
48
classification to ensure that the quality of work performed by Registered
Technologists meets prescribed standards. I accept that the accuracy and reliability
standards applicable here are established, in large part, by Mr. Leung and
influenced by the accreditation bodies. The manuals prepared by the Laboratory
Manager establish the :framework within which the grievor and the rest of the
Department operates. It is, nevertheless, clear from the evidence that the grievor
has the day to day responsibility within Hematology to ensure the Registered
Technologists are in full compliance with the applicable standards and
requirements. On my analysis, Mr. Leung acknowledged as much during his
cross-examination. As mentioned previously, he testified that he expects the
grievor to ensure that other staff meet established requirements relating to quality.
Mr. Leung added that this expectation of the grievor would extend to the work of
Registered Technologists on other shifts. While Mr. Leung and the Laboratory
Director may ultimately be responsible for quality control issues, this does not
detract from, or minimize, the grievor's daily duty to oversee the work of
Registered Technologists in his unit vis a vis its quality and compliance with
required standards. I cannot accept Mr. Leung's assertion that he has only
delegated the task, but not the responsibility. Were this approach taken to the
extreme, the grievor would have virtually no responsibility for his work. I
seriously doubt that this was intended by those who first drafted the Class
49
Definitions. In my judgment, if the work falls within the scope of the Defmitions
then responsibility, albeit not the ultimate responsibility, follows. Ultimately, I
have been persuaded that the grievor does have a significant role in his unit with
respect to quality control, and that his work is captured by the language of the
Class Definition of Charge Technologist. The fact that all Technologists are
subject to Standards of Practice is immaterial if the grievor is performing duties
and exercising responsibility falling within the scope of the higher classification.
[65] ~ am satisfied that the grievor approves overtime, both pre approved and ad
hoc. In the case of the former, he may approve it to ensure that staffmg is up to the
level set out in the Master Schedule. While the grievor may consult with Mr.
Leung on this from time to time, I find that he independently uses overtime, as
required, when preparing the working schedules. With respect to the latter form of
overtime, I am satisfied that the grievor regularly authorizes overtime to meet
unforeseen needs, such as an increase in workload or the receipt of a sick-call :from
a staff member. On the evidence, the grievor approves such overtime without Mr.
Leung's prior approval. I do not think that much turns on exhibit #5, Mr. Leung's
memo of June 23, 2009. The grievor testified that it did not affect or impact his
prior practice. It was Mr. Leung's evidence that the form was created to ensure
there was a real need for overtime. I find it significant that notwithstanding the
50
memo, the approval of the Laboratory Manager on the Overtime Tracking Form
was after the fact and not before.
[66] The grievor is clearly involved in the process of approving overtime. This
function is absent :from the Class DefInition of Senior Technologist, but is
expressly provided for in the Charge Technologist standard. I conclude that the
grievor's involvement in the overtime approval process is consistent with him
exercising the responsibility of the higher Charge Technologist level. Having said
this, I accept that Mr. Leung, as Laboratory Manager, has the ultimate
responsibility and accountability for the administration of overtime across the Core
Laboratory .
[67] It is similarly apparent that the grievor is actively involved in allowing time
off and in the vacation scheduling and approval process. As with the issue of
overtime, this responsibility is not referenced in the Class Definition of Senior
Technologist. It is, however; clearly contemplated by the Class Definition of
Charge Technologist. The fact that the grievor engages in this work and exercises
the related responsibility, albeit not the ultimate responsibility, supports the
,Union's claim that he is working at the higher level.
[68] There is no doubt, on the evidence, that the grievor develops protocols "for
new or revised methods and/or procedures". This task is expressly set out in the
Class Defmition of Charge Technologist. On my reading, the language in issue,
51
which references methods and/or procedures, would capture the type of bench, or
technical, manuals produced and maintained by the grievor. I do not construe the
language as being restricted to manuals having some broader or policy objective.
The fact that the manuals are ultimately approved at a higher level does not detract
:from the grievor's significant role in their development. This work similarly
supports the Union's request for reclassification.
[69] The grievor, on the evidence, engages in training. He develops training
materials and protocols, delivers the training or delegates the task to others, and
determines when newly hired staff are sufficiently trained to be placed into the
regular rotation. In my judgment, this work has a quality control component given
that training is directly linked to an employee's ability to work to established
standards. The responsibility to ensure this occurs is addressed, to a certain extent,
in both the Senior Technologist and Charge Technologist Class Definitions. While
I think that the training related tasks engaged in by the grievor may involve an
element of planning, organization and coordination of the work of his unit, and
may require a higher degree of responsibility than expected of a Senior
Technologist involved in the delivery of purely technical training, I am disinclined
to rely on this ground to support my ultimate decision. In short, I find that there is
insufficient evidence upon which to base a fIrm and informed conclusion.
'0
52
[70] It is clear that other than providing input on departmental needs, including
capital equipment, the grievor has a very limited role in respect of budgetary
matters. He does not perform the duties, or have the responsibility, contemplated
by the final paragraph of the Charge Technologist Class DefInition. This is not
dispositive, however, as the aforementioned DefInition provides only that a Charge
Technologist "may" be responsible for such matters. I accept that Mr. Leung, as
Laboratory Manager, and other more senior management are primarily responsible
for the budget related matters referenced in the Class Definition.
[71] The grievor is not responsible for the administration of discipline or the
conduct of performance appraisals. It is not surprising that these tasks do not form
part of his job duties and responsibilities, as these matters are typically reserved to
management. I do not read the Class Defmition of Charge Technologist as
indicating that incumbents in this classification are to be actively engaged in these
activities. As a consequence, the fact that this grievor does not discipline or
conduct appraisals of employees in his unit has no real impact on the central issue
in this case.
[72] I conclude that the grievor now performs a significant number of duties
which were previously performed by Charge Technologists in the pre-1996 period.
I note that in closing argument, counsel for the Employer did not take issue with
the fact the grievor engages, either completely or in part, in ten (10) of the sixteen
53
(16) remaining duties listed on the Charge Technologist-Hematology Job
Description (exhibit #7). I further note the grievor's evidence that, in respect of
duties where he previously just assisted the Charge Technologist, he now has the
full day to day responsibility for same within the Hematology Department. On the
evidence, it seems as if the duties flowed down to the Senior Technologists after
the elimination of the Charge Technologist position and not up to other
management staff, as asserted by the Employer. The grievor's evidence on this
aspect of the case was not undermined by cross-examination.
[73] I am satisfied that exhibit #4 is a reasonably accurate list of the grievor's
current duties and that a substantial number of these duties fall within the Charge
Technologist Class DefInition. I note that the grievor was not cross-examined at
much length about exhibit #4.
[74] I have closely reviewed the series of Job Descriptions and Job Po stings for
Senior Technologists, which were filed in this proceeding as exhibits #12 through
#15, inclusive. From this review, it seems as if the Employer has gradually, over a
period of time, added Charge Technologist duties to the Senior Technologist job.
There is, in my judgment, a visible transition :from exhibit # 12 dated April 11 ,
1996, which largely replicates the language of the Senior Technologist Class
Defmition, to exhibit #15 dated July 23,2009, which contains a large number of,
what I view to be, Charge Technologist responsibilities. In passing, I note that a
54
case such as this cannot be determined on the language of job postings or job
descriptions. Rather, it is the language of the Class Definitions that are
determinative.
[75] There is no doubt that the Standards of Practice established by the CML TO
apply to all of the Technologists working in the Core Laboratory. The standards,
simply put, set out expected competencies and conduct for this regulated
profession. These standards, however, are not of much assistance in the resolution
of this dispute. To reiterate, the present grievance does not turn on the Standards
of Practice but, instead, on the content of the Technologist Class DefInitions.
[76] I accept the thrust of the grievor's evidence to the effect that he assumed a
substantial number of duties after 1996 which were formerly performed by the
Charge Technologist in the Hematology Department. Not only did he assume the
duties, but the responsibility as well. This assumption of new responsibility is fatal
to the Employer's alternate argument. While I agree that Mr. Leung has overall
responsibility and accountability for the Core Laboratory, I have not been
persuaded that he controls the operation of the Hematology unit on a day in-day
out basis. Rather, I find that the grievor performs that hands-on role, subject
obviously to Mr. Leung's direction.
[77] Prior to 1996, Charge Technologists were under the direction of a unit
manager or departmental director when they performed their duties. In that period,
55
Senior Technologists, including the grievor, reported to the Charge Technologist.
Since 1996, the grievor has reported to the Laboratory Manager, much like the
Charge Technologists did previously. This identical reporting relationship is
consistent with my conclusion that the grievor has taken on a material portion of
the day to day responsibilities of the Charge Technologist classification.
[78] Class DefInitions, or class standards as they are :frequently called, do not
generally set out all of the duties of the class. Rather, in a broad fashion, they
purport to describe the core responsibilities of employees within the class. There is
commonly considerable overlap between levels within the standards. That is
clearly true here, as certain responsibilities are referenced in both the Senior
Technologist and Charge Technologist Class Definitions. Because of such
overlap, cases of this nature can be difficult to resolve. I think that, to a large
extent, this explains why a "best fit" test has been applied to resolve classification
grievances. In this instance, I fmd that the best fit for the job now performed by
this grievor is the Charge Technologist Class DefInition. I further determine that a
substantial change has occurred in respect of his Senior Technologist position,
sufficient to trigger article 25.01 of the collective agreement and to warrant his
reclassification to Charge Technologist. Pursuant to the request of the parties, I
will leave the question of remedy, including the extent of any retroactivity, to them
for initial resolution. I will remain seized to deal with all implementation issues.
56
[79] F or all of the above reasons, the grievance is allowed.
Dated at Amherstburg, Ontario this J.nJ
day of December, 2010.
fr(). V. Wct!JG.s
M.V. Watters
CELEBRATING INTERNATIONAL
MIGRANTS DAY
CELEBRATE
The victories of migrant workers and the International Migrant Workers Movement in protecting and
advancing our rights
AFFIRM
The principle of self-empowerment of migrant workers, by migrant workers, for migrant workers
STRENGTHEN
The solidarity among all workers: unionized workers, immigrant/migrant workers, workers without jobs
CONVERSATION CIRCLES ON:
. our collective experience as workers of colour/migrant workers
. causes of global migration and Canada's immigration policy
. our unity as migrant workers :from various sectors/communities
. solidarity between the migrant workers movement and labour unions
DATE:
Saturday December 18, 2010
TIME:
3:00 pm - 7:00 pm
LOCATION:
GEORGE BROWN COLLEGE,
Centre For Financial Services
Education Building,
290 Adelaide Street East,
3rd Floor, Room 303
Food and Refreshments
Provided
Bring your organizational
banners and/or flags!
FOR INFORMATION:
Nicole (416)537-6532 ext. 2215
Cultural performances: dance,
theatre, music, painting, photo ex-
hibits!!!!!!!! !
organized by: Caregivers Action Centre - Coalition for Change - George Brown College, Community
Worker Program & School of Labour - No One is Illegal- Philippine Advocacy Through Arts and Culture
and
cope343
~ I..II,*-UIIO.. ;;~ oflL
,r.--..
~t GEORGE
\,~, Bl\OWN
\~,\, ~~':(Jll."'r
"il~~~_Jr
,~""
Floor 3 w (SJC) 290 Adelaide Street East
Centre For Financial Services Education
@
8 Infonnation . Stairs
0 Security e Elevator
@ Emergency Telephone . Telephone
e Wheelchair Access . Text Telephone
0 First Aid . Bank Machine
00 Washrooms
~ Food & Beverage
o Coffee Shop
. TTC Wheel Trans
t> Entrance
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