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HomeMy WebLinkAbout1981-0123.Todd.81-09-30123/81 IN THE MATTER OF AN ARBITRATION Under The CROWN ELWLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENTS BOARD Between: Eleanor Todd - Grievor and .- .z The Crown in Right of Ontario Ministry of Correctional Services - Employer Before: Ross L. Kennedy - Vice-Chairman Donald B. Middleton - Member Frank Collom - Member-'- APPEARANCES: For the Grievor: Martha Mercer, Ontario Public Service Employees Union For the Employer: Jim Benedict, Manager; Compensation & Staff Relations, Human Resources Management, Ministry of Correctional Services Hearing: September 18th, 1981 Suite 2100, 180 Dundas Street West, Toronto, Ontario. -2- AWARD The grievance in this matter dated December 19th, 1980 claims entitlement on the part of the grievor to a salary .allowance retroactive to October lst, 1977, the effective date upon which the salary allowance was provided for in the Collective Agreement between the parties. The grievance points out that the allowance was granted effective September lst, 1980, and the position, in substance, is that the allowance should be paid retroactively to October lst, 1977 because of the griever's entitlement from that date. The basic facts of this grievance are not in dispute and may be summarized as follows: The qrievor is employed at the Rideau Correctional Centre as a Nurse 2, General and has been so employed on the classified staff since September 6th, 1976. Her actual employment with the Ministry commenced in the fall of 1975. She completed, in the year 1957, a one-year post- graduate programme in Public Health Nursing, and this fact was disclosed on her employment application form at the time she commenced employment with the Ministry. In her evidence, she, outlined the job duties performed which include participation as a Nurse in the regular Sick Parade and Doctor Parade procedures in the Institution, interviewing and testing of all new arrivals at the Institution, and participation in various of the proqrammes within the Institution involving counselling and assistance to inmates. In describing her duties and, in particular, in relating the relationship between'those duties and the sort of training and preparation she had received in the Public Health course, we would have no hesitiation in -3- finding, as a fact, that her Public Health training would be useful in the execution of her duties at the Rideau Correctional Centre. We would also accept as a'fact that, throughout the period of her employment to the date of the grievance, there , was no material change in the nature of her duties or in the manner in which she performed them. On December 8th, 1977, in the course of negotiations between the parties with respect to a Collective Agreement, a settlement was reached for the period October lst, 1977 to September 30th, 1978. The terms of the settlement incorporated the following amendment for the Scientific and Professional Services Category of the Collective Agreement: D. SALARY ALLOWANCES FOR NURSING CLASSIFICATIONS 2. An allowance of $480. per annum in addition to each listed rate in the salary range may be paid for successful completion of a post- graduate Certificate or Diploma Program in nursing of at least one year's academic duration from an educational institution of recognized standing to an employee in the classification of: Nurse 1 and 2, Clinic Nurse 2 and 3, General Nurse 1, Public Health Nurse 2, Special Schools; The allowances specified are subject to the following conditions: (a) the qualification is not a mandatory requirement for entry to the classification: (b) the qualification is deemed to be useful in the execution of the employee's duties (i.e. is job related); (cl the application of the allowance is at the discretion of management; and (d) only one allowance may be paid at one time. The foregoing provisions of the Collective Agreement have remained in force continuously from that date and represent the / - 4. - portion of the Collective Agreement giving rise to this grievance. Under date October lSth, 1980, the Regional Personnel Administrator wrote to all Superintendents of the Institutions under his Department in the following terms: At a recent Personnel Branch meeting it was suggested that "N" Salary Notes are not being applied consistently across the Ministry. It would be appreciated if you would discuss these notes with your Head Nurse and your Office Manager to ascertain whether or not any note applies to the nursing staff at your Institution, I have attached a copy of the "N" Salary Notes for your information. As a result of the receipt of the foregoing letter at the Rideau Correctional Centre, the Head Nurse, considered to be part of management, discussed the matter with the yrievor and, sometime thereafter, the grievor was advised that, effective September lst, 1980, her post-graduate programme in Public Health Nursing would be recognized for the purposes of the additional allowance referred to in the Collective Agreement language above set out. This was the first awareness that the \ qrievor ever had of the Collective Agreement provisions for such an allowance, and she therefore proceeded to file a grievance on the basis that she should have received the allowance from the date upon which it was included in the Collective Agreement, namely October lst, 1977. The employer's response to the qrievor stressed the permissive language of the section and indicated that it was an exclusive management right to make the determination as to the entitlement to the allowance. -5- On behalf of the employer, J. V. Whibbs, the Regional Personnel Administrator, testified as to the background circumstances leading up to his letter of October 15th, 1980. He indicated that, for some time within the Ministry, a very traditional view of the role of nurses within the institutions had been held, and that the general position taken by the Ministry had been that, with respect to the nursing functions within the correctional institutions, there were not any post- graduate Certificate or Diploma progranunes that would, in fact, be useful to the execution of the employees' duties. He' indicated that, for a period of some 18 months prior to October 15th, 1980, the matter had been the subject of active discussion among various personnel officials as to whether or not, in the light of the way actual duties were being performed in some of the institutions, the traditional view was in fact valid. All officials concerned met early in the month of September to review the matter and, apparently, concluded that there would be real value in post-graduate training for the nurses employed in the institutions to assist them in performing some aspects of their duties that went beyond traditional nursing functions. In particular, the evidence would indicate that Public Health training is of benefit to the nurses in their participation in Life Skills programmes in the Institution, counselling of inmates and other aspects of the job. These aspects of the job would be much more significant in the minimum security institutions such as the Rideau Correctional Centre. At the meeting in September, the administrative decision was made to recognize such post-graduate - 6 - training, and it was Mr. Whibbs' evidence that the grievor was the only one of the 15 nurses employed in his Region who was affected by the decision. He testified that the relevance of the training would not be the same for all institutions, as the nursing programme in those institutions varies depending on the nature of the inmates. It is clear, however, that the training is useful in the context of nursing at the Rideau Correctional Centre. In cross-examination, it was Mr. Whibbs' evidence that the grievor did not qualify in 1977 because at that time, in the view of the Ministry, her degree was not considered to be within the requirements of the section. This view changed with a growing awareness of the importance of the Life Skills programmes within the correctional area. There were two additional areas in which evidence was led and which may be commented upon briefly. Firstly, we would accept that the grievor did not, in fact, have any knowledge of any potential allowance until the matter came up in October of 1980. Evidence was provided as to how each of the Union and Management made known the terms of the Collective Agreement and, more particularly, the terms of negotiated amendments. It would appear, in summary, that the Union does not circulate complete copies of all documentation to members, but only to district offices and local presidents. Summaries of negotiated changes, however, are distributed widely and, from the point of view of Management, all Collective Agreement documentation is readily available to any employee who seeks it within each of the institutions under the Ministry's control. Consideration was given by the parties as to whose obligation it was to -7- disseminate contract information to employees but, in view of the conclusion we have reached on the correct interpretation of the contract language, we do not find it necessary to comment further on that aspect of the evidence. Secondly, for the Union, a witness was called who was employed from August of 1979 until 1981 as a Nurse 2, General at the Ottawa-Carleton Detention Centre. She, too, possessed a post-graduate degree in Public Health Nursing. She had previously been employed by the Ministry on a full-time basis from 1973 to 1975 and on a casual basis from 1975 to 1979. She had become familiar with the particular provisions of the Collective Agreement being considered on this arbitration by reason of the fact that she was well-acquainted with one of the members of the negotiating team in the 1977 negotiations and learned of the new provisions from her. When she applied for employment in 1979, she inquired.:~as to whether or not her Public Health Degree would be recognized for the purposes of obtaining the allowance, and she was advised that it would be so recognized. Her job duties, as she described them, were quite similar to those desribed by the grievor in the course of.her testimony, but that witness, of course, had no direct knowledge of conditions at the Rideau Correctional Centre. Mr. Whibbs is presently the Personnel Administrator responsible for the'ottawa-Carleton Detention Centre, but he was not in that position in August of 1979 and was not.familiar with the circumstances of granting the allowance to that particular nurse. The Union argument is, substantially, that the qrievor has, since October lst, 1977, possessed the qualification -8- and applied her training in her day-to-day duties and that there has been no change over the period in the nature of her work and the skill applied to it. The skill was useful in the work and, therefore, she met the criteria of the section. It was argued that the employer's recognition of this situation in 1980 was confirmatory of the situation as it existed October lst, 1977. In this context, the Union argument was twofold. Firstly, it was argued that the section was applied to another nurse in similar circumstances and that, therefore, the employer's application of the section was unreasonable and discriminatory. Secondly, an analogy was drawn to certain classification grievances which have previously come before this Board as represented by Re Schmidt 5/76 which would indicate that, where an entitlement to a classification is established, it will relate back to the date upon which the grievor effectively commenced the duties of the classification. This Board does not agree with the analogy of this case to the classificationgr-ievances. In those cases,. under the Collective .Agreement, there was an entitlement to a specific salary level once the classification had been established: Whereas the language of the provision which we are considering is expressed in permissive terms and provides for a discretion in management. Specifically, the words "may be paid" appear in section D.2. and in 'subsection (b), the qualification must be deemed to be useful and in subsection (c), the application of the allowance is at the discretion of management. It is therefore our view that this issue must be evaluated in the light of the Union's first argument dealing with an unreasonable or discriminatory application of the section. Counsel for the employer acknowledged that, in the application of a discretionary power, the Ministry is obliged to act reasonably, in good faith and in a non-discriminatory manner. However, he argued that, on the authority of Re Doherty 43/76, our jurisdiction in this matter was not the equivalent of a right to review on the merits but only to determine that the discretion had been exercised reasonably in an honest, unbiased and good faith manner. With that argument, this Board would agree. On considering the evidence which is before us, we are unanimously of the view that the evidence does not support a,conclusion that the Ministry acted either arbitrarily or unreasonably in its application of the discretions given to it under Article D.2. The evidence indicates that the matter was considered extensively within the Ministry, and that differing views existed as to the appropriateness of recognizing an allowance in the circumstances of the case before us. Background conditions and circumstances change in various areas of the modern world, and this has been particularly true in the area of correctional services and penal institutions. As the programes develop and evolve within the Ministry, it is only to be expected that the training and qualifications that will be relevant will also change. It is only reasonable that the employer be permitted to respond to such changes and alter past practices which have become inconsistent with changing conditions without having to relive the past. To hold otherwise would be the antithesis of progress and would encourage dogmatic adherence to establish practices. We believe that that is ) :’ - 10 - exactly the situation that occurred on the evidence before us when an administrative change was made within the Ministry effective September lst, 1980 as to its application of salary allowances. On the aspect of a discriminatory application of the discretion, the evidence, again, does not make out a case. Lie heard an example of only one situation of a nurse performing comparable duties who did receive-the allowance. In our view, in order to find that there has been discrimination in the application of a discretionary right, we think there must be established at least some degree of knowledge or intent upon the person who is accused of being discriminatory: and we do not think it would be fair or reasonable to make such a finding on the basis of only one isolated incident. It is clear that~the nurse at the,Ottawa-Carleton Centre was hired during the time that the debate was going on within the Ministry as to what degrees would be recognized for extra a.llowances, and based on the evidence it is just as reasonable to conclude that hers was the exceptional situation rather than that of the grievor. In the result, it is our conclusion that this grievance must be dismissed. DATED at Toronto this V Frank ioliom