HomeMy WebLinkAboutUmmels/Whittaker 02-12-29
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IN THE MATTER OF AN ARBITRATION
BETWEEN
KINARK CHILD AND FAMILY SERVICES, BARRIE
(Hereinafter the "Employer")
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
AND ITS LOCAL 355
(Hereinafter the "Union")
GRIEVANCES OF SUSAN UMMELS AND CHEIUE WHITTAKER
APPEARANCES FOR THE EMPLOYER
Mr. David Wakely, Counsel
Mr. John Hewer, Area Programme Director
APPEARANCES FOR THE UNION
Ms. Kelly Waddil1gham, Counsel
Ms. Susan C l~mels, Grievor
Ms. Cheri Whittaker, Grievor
HEARING DATES
November 9, 2001, October 7,2002
DATE OF AWARD
December 29, 2002
This award concerns grievances filed by Susan Ummels and Cheri Whittaker, Child and Family
Youth Workers (CYW) in the Kinark Child and Family Services, Barrie programme because the
Employer refused to approve their part-time employment at another service agency..
Before going further it would be helpful to describe the services Kinark provides and the areas
involved in providing those services.
Kinark Child and Family Services is dedicated to helping teens and families through difficult
times. It provides child, family and group counseling, parent-to-parent support groups,
professional assessments, youth crisis intervention, therapeutic foster care and referral services
when additional help is necessary. It operates as a multi-disciplinary team composed of
experienced professionals such as child and youth counselors, social workers, nurses,
psychologists, psychiatrists and educators. In addition, Kinark supplies special services such as
the trademark "Families First'\ a family preservation programme that provides intensive
treatment to families in their own homes to avoid placing children in residential or other out-of-
home services. Additional special services include a Therapeutic Outdoor Progra.n featuring
camping, recreational and outdoor educational programs at its own Outdoor Cent...: in Haliburton
Count)', special classes for children having difficulty in school to reintegrate them into the
traditional school system or a suitable alternative, Respite Relief for families experiencing
serious emotional, social and behavioral problems and, finally, Residential Treatment for high
risk children and youth who must leave their home environment. The programmes are extensive
and cover many other matters not mentioned in this award. It has an active and extensive web
site which sets out all the information described above, and more.
The corporate office is in Don Mills, Ontario and services the regions of Durham (Whitby),
Northumberland (Campbeltford, Cobourg), Simcoe (Barrie, Midland), Minden (1\ '~inden),
Peterborough (Peterborough) and York (Georgina, Markham, Newmarket).
It is essentially because of the expanse of the territory covered by Kinark services that these
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grievances arise, The facts have been, subject to the evidence presented at the hearing, agreed to
as follows:
I. Kinark Child and Family Services (Kinark) is the largest Children's Mental Health
Centre in Ontario. Kinark provides counselling selVices and treatment programmes to
children and their familics.
2. Kinark has a number of offices operating from counties including Simcoe, York,
Durham, Northumberland, Peel and Peterborough.
3. In 1999, Cheri Whittaker was hired by Kinark to work as a CYW, in Kinark's Simcoe
County Barrie programme.
4. In 1989, Ms. Susan Ummels was hired by Kinark to work as a CYW in :(jnark's Simcoe
County, Barrie programme.
5. In April 1993, Kinark introduced a "Conflict of Interest" policy. All Kinark employees
were asked to review and sign the policy,
6, In September 2000, Ms. Whittaker was employed as a CYW at Kinark's residential
programme on Grove Street, located in Simcoe County, Barrie.
7, In September 2000, Ms. Ummels was employed as a Family Worker based out of the
Simcoe County, Barrie office, .
8. In the summer of2000, Blue Hills Family Service in Aurora, York County, hired Ms,
Whittaker and Ms, Ummels for an 8 week contract to facilitate a weekly 3 hour social
skills group.
9. On or about September 5,2000, Ms, Ummels notified Kinark that she had accepted the
position at Blue Hills.
10. On or about September 7, Ms. Whittaker notified Kinark that she had accepted the
position at Blue Hills.
] l. On September 7, 2000, Mr. Peter Moore, Executive Director, advised Ms. Ummels that
her request to facilitate the Blue Hills group was denied as "the populat;Jn of the clients
you intend to work with is a population selVed by Kinark.
]2. In a memorandum dated September 11,2000, Mr. Moore advised Ms. wnittaker that her
request to facilitate the Blue Hills group was denied as" the population of the clients you
intend to work with is a population selVed by can Kinark".
13. On September 131\ 2000, Ms. Ummels filed a grievance. Ms. Ummels is one of the
Union's local stewards.
14. On September 141\ 2000 Ms. Whittaker filed a grievance. Ms. Whitaker was one of the
Union's local stewards.
KINARK EMPLOYEES EMPLOYED ELSEWHERE
15. Kinark has a number of residential relief staff who worked for organizations which
"work with the population served by Kinark" including Mr. Barry Hughes, Ms, Marie
Hill, Mr. Michael Blais, Mr, Tudor Parry, Ms. Leigh Macdonald, Ms, Nallcy
McDonough and Ms. Doris Cadeau.
16. In spring 1999, Kinark offered a full time CYW night position at the Grove Street
residence to Mr. Todd Landon. Mr. Llmdon was employed full time by the Catholic
School Board for Simcoe and Muskoka as an Educational Assistant woing in a special
education school operllted by K illlnk lHld the BOllrd of Education.
J 7. In July 1999, Kinilrk supervisor, Mr. Roh Hutchinsonlefl H te1crhol1c messllge for MI'.
. .
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Landon at his home and advised him that Kinark was unlikely to appro\-: his secondary
employment as an Educational Assistant.
18, In August 1999, Mr. Landon and union steward Mr, Steven Rainey met ~vith Mr. Rob
Hutchinson to discuss Kinark's concerns with Mr. Landon continuing to work at Kinark
and the Catholic School Board.
] 9, Mr. Landon continued to work at Kinark and the Catholic School Board until the spring
of 200 1. It is Kinark's understanding that he is no longer actively working at the
Catholic School Board (except for occasional relief work).
20. On April 9,200 I, Ms. Cathy Slessor was hired as a Crisis Worker for a programme
operated by Kinark in partnership with other organizations, including the Royal Victoria
Hospital in Simcoe County, Barrie. Ms. Slessor works a maximum of 30 hours per week
for Kinark.
21, At the time she was hired, Ms. Slessor was a Relief Crisis Worker (with no assurance of
hours) for the Royal Victoria Hospital in Simcoe County, Barrie. Ms. Slessor identified
this situation to her supervisor and it was reviewed by management.
The Memos from the grievors to the Employer advising it that they had accepted a position at
Blue Hills asserted that these new jobs complied with the Conflict of Interest anc Related
Matters policy iu that neither of them would be providing selvices to clients of Kin ark. The
policy refereed to in their memos was first approved in 1993, revised over time and finally
revised in August of 2000. The policy is meant to maintain the confidentiality and security with
respect to all information and material acquired through employment with Kinark. All employees
are required to sign an Agreement Respecting Confidentiality, Conflict of Interest and Protecting
Information Resources. Both grievors signed this agreement promising not to disclose
information acquired as an employee Kinark, not to knowingly participate in any activity which
was or appeared to be in conflict with Kinark's business, to disclose any interest in or
relationship with any other person or organization with which Kinark does business or use allY
Kinark programs, research systems, manuals or software devel9ped by Kinark,
The policy itself states as follows:
Policy Statement
It shall be a breach of the employee's duty to Kinark Child and Family Services to actively
participate in a competing or potentially competing business, or to use Kinark's resources
in connection with an outside business or activity whether or not it is a competing business.
Kinark's premises shall be used [01' Kinal'k Child and Family Services business only.
(Their emphasis)
Is also a breach of that duty to fail to disclose any interesl or relationships, monelary Of
othcrwi:;c, v,llh ;iiiy ilidividil,tI, Llliilll<1l1j' III (Ilgiillinliioll willi which Kinark has any
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business dealings.
The decision as to whether a particular business or activity is a competing business is
within the discretion of the Executive Director or, with the Executive Director in
consultation with the Board of Directors,
Kinark Child and Family Services, through the Executive Director, reserves the right to deal
with each conflict or potential conflict on the case by case basis. This will be dllne while
taking into consideration the best interests of the organization. Eff0l1s will b made to
cooperate with employees in dealing with any problems that arise.
All disclosures witl be treated as confidential between the Executive Director, the Board of
Directors and the employees involved.
Purpose
To avoid any activity or outside interest that might reflect unfavorably upon their own or
Kinark Child and Family Services integrity. To identify and address any situation involving
either or both duel relationship or boundary issues,
The following policy regarding relationships between Kinark staff and clients that may lead
to conflict of interest must be followed:
I, When employees of Kinark child and Family Services are working out<:ide of Kinark for
personal financial gain in the professional capacity for which they are e'nployed, they are
not permitted to work with the client population served by Kinark or n :Iear relatives of
Kinark c1icnts.
2. Kinark employees \YilInot become foster parents to Kinark clients ( current or past).
3. Kinark employees may use Kinark services as long as no preferential treatment is given or
perceived to be given to children of employees.
4, Kinark employees do not takc Kinark clients to their homes.
5. Kjnark employces do not socialize with Kinark clients.
6. Kinark employees' private practice clients are not referred to Kinark for service.
7. Kinark clients are not referred to Kinark employees for service in their private practice.
8, Kinark employees must identify dual relationships and any boundary issues that may rise
in the course of their work with Kinark client's. Each such situation must be declared in the
same manner as a conflict of interest is identified. It will receive the same review and
consideration,
9. Kinark employees who intended to establish or are involved in related employment!
consulting/educating activities must meet with their SupervisorlDirector to ensure there is
no conflict of interest between the external business activity or Kinark '~hild and Family
Services activities.
Important Note
Unless olhcrwise notcd, client is defined as a client currently rcceiving service and Kinark
employee is defincd as a current employee regardless of employment status.
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One other piece of document81Y evidence was offered at the hearing entitled PRINCIPLES AND
GUIDELINES FOR PRIVATE PRACTICE FOR EMPLOYEES which reads as follows:
In response to the requirement that all Kinark staff members must dcclare any business/employment
interests outside of work where there is or may be a conflict of intercst with Kinark's work, many
clinicians have indicated that thcy maintain a private practice which involves clinical work. These
principles and guidelines were developed to provide a framework in which clinical work outside of
Kinark may be approved by the Executive Director. In developing the principles and guidelines the
issues which were given consideration included confidentiality and privacy, conflict of interest and
dual relationships.
I. Because of the risk of a breach of confidentiality, privacy concerns in waiting rooms,
perceptions which may inhibit other staff members from using needed services and dual
relationships, no employment with Corporate Health will be approved so · Jng as Corporate
Health is the EAr supplier to Kinark.
2. Treatment, counselling, assessments and other interventions with chilu,'en and families
eligible for Kinark services residing in Kinarkjurisdictions will only be allowed if these are
services which are not provided by Kinark, which are not planned in the immediate future
and which fall outside the mandate of Kinark services,
3. There must be a full declaration to clients and referral sources from the professional
accepting the referrals that states that the professional is an employee at Kinark. Referral
sourccs should inform clients of the employment relationship before referring the client to
the professional. In any case, the professional has the obligation for full disclosure before
the service begins,
4. No professional sClvices should be given to any current Kinark clients and families whose
treatment/services at Kinark ended less than two years ago.
5. No professional services should be given to current staff members or their families, If
former staff members and their families are seen, the former staff member should have
terminated his/her employment relationship two or more years ago.
6, Because of the unique nature of many private practice arrangements, other considerations
and information may be requircd to determine whether the work is a conflEd of interest. The
Executive Director reserves the right to judge each case on its merits.
7. A staff member must submit his/her request for approval one month prior to the
commencement of the potential conflict of interest situation.
This area is extremely complex. Kinark does not want to be overly restrictive, yet it is necessary to
protcct the standards and reputation of the organization, This set of principles and guidelines has
been developed as a starting point. Revisions will occur as practice in this area evolves.
John Hewer has been the Area Program Director since 1989 and has worked at Kinark for a total of
28 years. His current duties require him to manage all programs in Simcoe County. He described
the range of his duties as being fi'om the least intrusive, which involves counselling and education,
to the most intrusive, residential cnrc. The goal is to search for alternatives somewhcre between
those extremes by entering into partnerships with other agencies. For example, the day treatment
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programs include a pat1nership with the Board of Education to provide special programs to children
who cannot cope in the regular sehool system through a eombination of special education teachers
and CYW's in the classroom. Residential service is provided in cooperation with other professional
sueh as psychologists, psychiatrists and other medieal and counseling professionals.
Kinark is also in a partnership with the Royal Vietoria Hospital in BalTie, Orillia S, ldiers Memorial
Hospital in OriIlia and New Path, a ehildren's centre, to provide Youth Crisis Services. The
hospitals havc their own adult crisis response service but when a child is involved, the call is
forwarded to Kinark who provides the eounseling and psyehiatric services needed.
All of these partnerships were the result of negotiations between the parties in what Mr. Hewer
described as a eompetitive field. Kinark competes with other service agencies in the area whieh
necessitates the conflict ofinterest poliey set out above, Beeause the area Kinark services is so large,
it is casy to blur the boundaries between serviee areas. For example, the Foster Care program is
managed out of York office but operates in Simcoe County as well. Another example is the Syl
Apps Detention Centre. The government divested itself of the service and Kinar',: won the bid to
operate the faeility as a new initiative for autistic ehildren. Kinark is the lead agency and manages
the services but is not the direct supplier. The funding is provided by the Ministry of Community
and Social Services, who has reeently shifted its foeus fi'om regional service to a broader catchment
area. Now children are refen'ed to Kinark from other regions such as North York or Simcoe. The
boundaries have been redefined making it more diffieult to monitor conflicts of interest or dual
relationships.
Services come to Kinark fi'om the Ministty of Community and Soeial Serviees in different ways.
The most common is through tenders for the services. But Kinark eould beeome aware of a service
through a competition, through a direet eontact or through a loeal agency or plannir:g group seeking
direction or assistance. All of the agencies vie for services and/or the funding to provide those
services. On oceasion, the operation of the services results in an overlap of employees and, when
that occurs, furmal protocols through letters of understanding arc cxecuted to dcfinc who does what,
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where and when,
In the York area programs. Blue Hills is a competitor for children's mental health, although their
range of services is somewhat narrower that Kinark' s. Blue hills provides a residential component
and on-site counseling, Kinark is presently involved in an arrangement with Blue I-Iills covering
emergency placement for fanlilies. Blue I-Ulls is the lead agency and Kinark supplies the employees.
Kinark and Blue Hills have entered into a formal protocol concerning funding) resources, insurance
indemnification and employee involvement.
It is against that background that the grievances arise. Mr. Hewer, when asked about the policy,
stated that the intention was to centralize and standardize decisions related to CC'lflict of interest
situations. For that reason the decision as to what constitutes a conflict of inter ";t is left for the
Executive Director. Kinark, as a corporate entity, operates on a provincial basis, Any area of
potential liability or a breach of the policies that places the agency, a client or an employee at risk
is managed centrally. The seriousness of the risk is determined by the Executive Director. The
policy allows for consideration of each situation on its merits in the expectation that individual
assessments of the risks involved will be made on a case-by-case basis.
Mr. Hewer testified that the policy was designed to deal with real and perceived breaches of
confidentiality. For example, there are long waiting lists for some of the services, as long as 6-9
months, and any suggestion that someone was given preferential treatment ber;ause of a dual
relationship with a Kinark staff member would leave Kinark open for criticism. J :; allegation that
a publicly funded service could be accessed in a preferential manner could affect the prospects of
the agency in future endeavours. If a staff member of Kin ark was seen at Blue Hills providing a
service to a client of theirs who was later referred to Kinark for adjunct services, he/she might be
perceived as receiving preferential treatment by being moved up the queue. Mr. Hewer explained
that when agencies meet in plmming sessions for the provision of services, they try to anticipate
problems and discuss issues of rea! or perceived conflicts. It is not uncommon for a client to be on
1wo waiting lists (11 the same time and the parties aHempllo plcpare rules for how to handle thesc
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situations should they arise.
Mr. Hewer assel1ed that similar considerations arise between staff and clients. Employees of Kin ark
who are involved in private practice cannot operate that practice with the same population. That
means that, since Kinark does not work with physically challenged people, an em}-loyee of Kinark
could provide private services to that group of the population without fear of a co. ::1ict of interest.
It was said that was not the situation before me. The Blue Hills program involves a social skills
program in the same field of service and for the same client population as Kinark.
The Employer took thc position that the grievors' requests offended paragraph 8 of the policy
regarding dual relationships. An individual could be in two different relationships with the same
person, one at Kinark and one at Blue Hills. That is why the policy requires a meeting with the
Supervisor or Executive Director to discuss potential conflicts of interest before any real conflicts
can arise, including issues regarding funding, liability, reporting structures and conflict resolution.
Mr. Hewer also refeITed to the Principles and Guidelines for Private Practice for Er'lployees, which
he said had been designed to establish consistent criteria and guidelines in determiJ "lg the potential
for problems.
In response to a question about his concerns regarding the grievors' employment at Blue Hills, Mr.
Hewer identified three aspects of the relationship that would be problematic; the grievors would be
providing similar services to the same population Kinark services, which in turn raised issues
regarding lost future oppOltunities for Kinark to enter into a partnership with Blue Hills to provide
the same or similar services. As well, the grievors would be using resources and skills acquired at
Kinark in the provision of service at Blue Hills. These skills were taught at Kinark and it does not
fmiher its purposes by having them applied at a rival agency. Finally, he expressed concerns about
the relative position of Kin ark if invited to participate in the provision of services " ~ Blue Hilts. Its
bargaining power Illight he eroded by the placement of Kin ark employees at Blue Hills.
Mr. Hewer \vas asked about the Statement of fads regarding Kinark employees who have in the past
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or presently work elsewhere. With respect to paragraph 15 of the statement of facts, Residential
Relief Staff are casual part-time employees who fill in for planned and unplanned absences of the
full-time staff. There is no guarantee of hours of work and if the Employer were to object to their
employment elsewhere, their pool of part-time employees would be jeopardized.
Mr. Barry Hughes was a full-time CYW who went to relief status while he attended teacher's college
and while he was employed as a teaching assistant and teacher. The school board is not a competitor
with Kinark and there is no danger of dual relationships. Marie Hill was involved in a nursing home
and had done Residential Relief. The population she serviced was distinct, with very little overlap.
If a situation were to arise during the course of her employment with either l' ~ency, it would
discussed with the Executive Director, Michael Blais was an elementary school teacher. Tudor
Pany is seldom available and does little work for Kinark. Leigh Macdonald is a high school teacher.
Nancy McDonough is a teacher who does Residential Relief when school is not is session. Doris
Cadeau is. and Educational Assistant with the Board of Education of Midland. She is readily
available for short notice calls and is called often. None of these employees, it was said, are engaged
in competing interests and have been dealt with on an ad hoc basis. If problems arise as a result of
their employment with Kinark, they will be considered by the Executive Director individually.
Ms. Slessor, referred to in paragraphs 21 & 22 of the statement of facts, is an employee of Kinark
and Royal Victoria Hospital in BalTie. She was initially employed as a MobileCris's Worker for 30
hours per week. Kinark is the lead agency in an agreement for funding with the Royal Victoria
Hospital and New Path. Kinark manages the flow of money to the hospital and New Path, who, in
turn, contracts with Orillia Soldiers Memorial Hospital for services. Kinark employs Ms. Slessor
but there is an arrangement with the hospital, who also provided adult services, to refer child related
cases to Kinark Youth Crisis service. Ms. Slessor's supervisor developed a protocol that includes
joint training and joint clinical consultations. The arrangement was reviewed with the Executive
Director who decided the dual relationship was favourable and acceptable. Royal Victoria Hospital
is not a competitor with Kinark. Finally, Mr. Landon was employed as a CYW on a contract basis.
He also did work as Residential Relief. Kinark entered into a contmct with the school board and
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they selected Mr. Landon as an Education Assistant to the Day Treatment class. Everyone was aware
of the possibility aofa dual relationship but approved his appointment. He remained in that position
until 200 I when he took a leave of absence,
The Union took the position that, while the collective agreement allows that the ~romulgation of
policies is a management right, it is not absolute. It stressed that Kinark is the l....gest children's
health centre in Ontario covering 6 counties. In that context, this policy is unreasonably broad and,
as the evidence has shown, has not been applied consistently.
It was said that, in applying a standard of reasonableness, the test is the extent to which the rule or
policy is necessary to the operation of the business. In the case ofRe Northern Brewers Limited
and Brewery, General and Professional Worl{ers Union (2000), 90 L.A.C. (4th) 34~..the grievor
was engagcd in a secondary business that involved an extension of his work for the employer. The
case is helpful because two principles emerge to guide this board. The questions to be asked are
whether the employer has a business interest to protect and was the rule rt. lsonable in the
circumstances. In the instant case, the Union conceded that the Employer has a It )timate interest
in maintaining its client base. However, the policy, as it has been applied in these circumstances,
is too broad. In the Brewers case (supra), the interest being protected concerned a private enterprise
with a high level of competition. That is not the case before this Board. Kinark is a publicly funded
organization whose interests are best served when its staff are seen to be highly trained and
competent. Working at another agency would only further those interests.
With respect to the issue of risk management, the Union asserted that there is, in fact, no risk. Mr.
Hewer admitted in cross-examination that the employing agency would have insurance coverage for
any situation arising from employment at that agency. Anything done while emplo:'ed at Blue Hills
would be covered by Blue Hills insurance and would be its liability, not Kinark'5
The Union submitted that the Employcr's concerns about the grievors working with the same
population are equally unfi)\lnded. Ms. Whittaker had taken an internship program at Blue Hills for
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play therapy. During that time she had worked with Blue Hills clients) the sam~ clients Kinark
claims in this case. Kinark is the largest children's health care centre in Ontar.J, operates in 6
counties and has offices in York and Simcoe County. The grievors are employed by Kinark in
Simcoe County and were asking to work in York County, There was little chance that the clients
would overlap. If someone did find out that the grievors worked for Kinark in Simcoe County that
would only enhance the Employer's reputation, Additionally, submitted the Union, the fact that the
grievors wanted to work in another county further reduced the chances of a dual relationship.
Finally, it was argued that the evidence has shown that the policy has been applied inconsistently.
Other working relationships have been allowed in the past and the grievors) requests to do so should
have been approved.
Mr. Wakely, counsel for the Employer, took the position the Employer can develop policies and
procedures concerning conflicts. The only limitation on the promulgation of rules or policies is a
test of reasonableness. In the instant case this policy has been in effect since 1996 with no
complaint by the Union or its members. That, he asserted, speaks to its reasonableness. It applies
only to those areas Kinark services and deals with concerns about competing agencies within that
area. It addresses concerns about the fact that Kinark spends time and money offering its employees
training in areas directly related to the provision of services that Blue Hills benefits from without any
cost to them.
With respect to the Union's submissions regarding the inconsistent application 0f'the policy, the
Employer submitted that the examples before the Board show that the policy j 's been applied
reasonably in that the circumstances of each situation were reviewed and an assessment was made
concerning possible conflicts. The grievors' applications were never presented in a manner that
would have allowed that discussion.
DECISION
This case concerns a consideration of whether the policy concerning conflicts of interest and dual
relationships is rcasonablc on its h'1CC, and whether it has been rcasonably and consistcntly applied.
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With respect to the first question, the poliey is intended to avoid situations where the interests of the
Employer and the agency itself could be conipromised. It confines itself to areas serviced by the
Employer and does not attempt to deny employees the right to engage in alternative employment
generally but rather specifically within its catchment area. The reason it appears to be broad in its
seope is related directly to the large area Kinark services. As an employer, Kinark is entitled to make
rules respecting the area its business encompasses irrespective of its size. The fa..-t that its service
area is extensive cannot mean that its rights to proteet is business interests is overreaching, Its policy
applies only to its the area its service covers and only affects areas of those services that have the
potential for conflicts of interests and dual relationships,
There is no doubt in my mind that Kinark has a legitimate business interest in developing a policy
that protects its position in the community. I do not mean solely the geographic community but
rather the entire milieu in which it operates. Its standing in the community it serves must be above
reproach. Its clients must have confidence that the services provided and the rules eontrolling the
delivery of those services are applied fairly and evenly to all. If an allegation of preferential
treatment were to arise because of a prior or current relationship with a Kinark sta1 f member, there
could be serious consequenees for the Employer, A slur on its reputation IHight affeet the
willingness of clients to avail themselves of the services. The funding agency might consider an
allegation of impropriety in detennining whether to enter into an arrangement with the Employer in
the future.
Kinark provides counseling and treatment to ehildren and families in very difficult times. People
availing themselves of those services are vulnerable and look to Kinark employees to help them
manage these trying times. It would not be in anyone's interest to allow a situation to arise which
could undermine that relationship. Even if, in faet, no conflicts of interest did arise from the grievors
employment at Blue Hills, the potential for them to arise existed and the Employer ....ecided to err on
the side of caution and deny the grievors' requests. That was clearly a decision. was entitled to
make. From the evidence it is clear that when faced with requests for approval for cmploymcnt
clscwhcrc, thc Employer docs examinc cach situntion, determine thc potential for problems and
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exercises it discretion to approve or deny the request. It examines each request on its merits before
making its decision, I find the policy to be responsive to the Employer's needs a .d reasonable on
its face.
Even if the policy is reasonable, was its application to the grievors reasonable? In the first instance,
I note that the policy does not totally bar employment elsewhere; only in certain circumstances. In
the instant case, the Employer relies on the provision in the policy banning work with the "client
population served by Kinark". There is no dispute that, although the work at Blue Hills is in another
county, it is nevertheless work performed on and for the same client base. The concerns expressed
by Mr. Hewer were not unreasonable in the circumstances. He was clear about the potential for
perceived and actual conflicts and said the Employer based its decision to deny approval on those
concerns. The decision was not arbitrary or made for any other motive but thf' interests of the
Employer's business. It was not unreasonable for the Employer to have reached that conclusion and
I cannot interfere with that decision in these circumstances.
The Union has argued that, given the expanse of the geographical area Kinark services, it is
unreasonable to exclude employment on the grounds advanced by the Employer because the effect
is to ban employment in almost all other circumstances. I disagree. The examples brought forward
by the Union during this hearing are evidence of the flexibility of the policy and its application. The
fact that their service covers such a large geographic area does not mean that the Employer's
concerns are to be ignored or diminished. In fact, it seems to me that, given the broad area of
service, the Employer must be ever more diligent in monitoring potential conflict,;; of interest and
dual relationships.
Finally, the Union has taken the position that the policy has been applied in an unfair and
inconsistent manner and relies on the examples set out earlier. As can be seen from Mr. Hewer's
evidence, in all of those situations, the Employer had an opportunity to explore potential problems
and, after satisfying itselfthat there were none, (Jpproved the requests, In this case the Employer was
presented nol with;'! request for approv;'![ to work at Blue Hills but an statement advising it that not
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only had the grievors accepted employment at Blue Hills but that this employment relationship was
consistent with the policy. That was a decision for the Employer to make, not the grievors. The
evidence was that, if a potential for conflict does exist, the Employer has, in the past, taken steps to
deal with these problems by entering into protocols and letters of understanding in an effort to
accommodate. In the instant case it was not given an oPP0l1unity to do so because ofthe manner in
which it was presented to the Employer. The policy is clear that prior consultation is required before
consent will be granted to outside employment and that was not done so in this cas"-. The Employer
ultimately decided that the job at Blue Hills raised issues with respect to the concerns expressed in
the policy and refused consent. That decision was within the discretion of the Employer and, in my
view, not unreasonable in the circumstances.
For those reasons, the grievance is dismissed.
Dated at Toronto, this 29th day of December, 2002.
~~
Loretta Mikus