HomeMy WebLinkAbout1981-0603.Aikins et al.83-12-13603181
Between:
Before:
For the Griever: -1 J. Miko
Grievance Officer
Ontario Public Service Employees Union
For the Employer: R.B. Itenson
Senior Staff Relations Officer
Civil Service Commission
Hearings: September 7 and 13, 1983
OPSEU (K~. Aikins. et al) :
and
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IN THE MATTER.OF AN~ARBITRATION
Under ‘3
THE CROWN.EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
The’ Crown in Right of Ontario
(Ministry of Health)
P.M. Draper
S.D. Kaufman
G.A. Peckham
Vice Chairman
Member
Member
Grievor
Employer
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DECISION
Grievances have been filed by fifteen employees of the Ministry
of Health employed as Recreation Instructors, classified Instructor 2
(Recreation and Crafts). They grieve that their positions are improperly
classified and request that they be reclassified Recreation Officer 2 on the
ground that the duties they perform are substantially similar to those
performed by employees of the Ministry of Correctional Services so
classified. The parties have agreed that four of the Grievers, Karen Aikins,
Patricia DaIy, Deborah McDonald and James Meek, who are employed at
the Queen Street Mental Health Centre, Toronto, and whose grievances are
before us, are representatives of the group.
The Queen Street Mental Health Centre is a 600 bed psychiatric
hospital which also serves an average of 3,000 outpatients. Patients suffer
from a variety of mental disorders. Most resident patients are voluntarily
in the hospital and some, such as persons being held on
Lieutenant-Governor’s warrants for psychiatric treatment, are not. Some
are permanently confined, others are hospitalized for only short periods.
There are four wards, one of which provides psychogeriatric services to
patients age 65 and over. The hospital has a security force to assist in
patient emergencies and to safeguard the premises.
Instructor 2’s are members of treatment teams which also
include psychiatrists, psychologists, occupational therapists, nurses and
social workers and which meet regularly to discuss programs for, problems
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with, and progress of patients. Members maintain patient case books for
their respective areas of responsibility. Subject to the limitations imposed
by the mental , and physical, condition of.Lindividual patients, the
recreational activities engaged in ~run >the gamut from arts and crafts to
team sports. Instructor, 2’s keep records of patient participation in the
various activities. They sign out and assume responsibility for the care and
.- safety of patients taken from a ward to, for example, the gymnasium, the
swimming. pool, the hospital grounds, or ,off the premises for outings or
shopping trips. They see to it that the necessary supplies, materials and
,.
equipment used in recreational programs are available.
The .two Position Specification, and Class Allocation forms for
Instructor 2’s, one for those concerned with arts and crafts and one for
those concerned with sports, are appended hereto. They describe the
purpose of the positions as being to plan, organize and implement
recreation programs for the rehabilitation of psychiatric patients. The
skills and knowledge required include the theories and philosophies of
therapeutic recreation and recreation techniques for the disabled, leisure
counselling, medical terminology, evaluation of patients and assessment of
programs. Apart from disputing the, percentage breakdowns, the Grievors
concede that the duties and responsibilities are accurately described. The
qualifications for the positions as set out in the Recreation and Crafts
class standard include at least one year as an Instructor 1, or acceptable
experience in recreation work, or acceptable combined formal training and
experience. It appears that Instructor 2’s typically have community college
diplomas in recreational leadership and have completed such ministry-
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sponsored courses as remotivation therapy or liie skills.
Two Recreation Officer 2’s, employees of the Ministry of
Correctional Services, were called to testify on behalf of the Grievors.
One, Howard Ferguson, is employed at the Maplehurst Correctional
Complex, a medium security institution accommodating some 400 .male,
adult inmates, (sixteen years of age and over) divided almost equally
between an Adult Training Centre and a Correctional Centre. Inmates of
two of the three units in the Adult Training Centre attend classes to obtain
credits towards a secondary school diploma. One of the mandatory
courses, leisure education, is given by Fergusori. Of the three units in the
Correctional Centre, one is a segregation unit which retains inmates in
protective custody, who may be from either of the two Centres. The other
Recreation Officer 2, Henry Van Oort, is employed at the Toronto West
Detention Centre, which accommodates some 540 inmates, male and
female, who are before the courts on various criminal charges and some of
whom are held in a segregation unit. He formerly worked at Monteith
Correctional Centre, a minimum security institution.
Recreation Officer 24 are peace officers, as are all officers of
correctional institutions. They may be appointed to institutions of any
security’classification. Their first responsibility is the custody of inmates
and the security of the institution. They are required to respond to alarms
and to assist other officers in supervising inmates as, for example, in an
emergency. They have authority to report inmates for major misconduct,
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which may lead to charges and punishment. They are prohibited from
associating with inmates or ex-inmates:” Security is the. primary
consideration in the adoption of recreational prdgrams and in the range of
recreational activititis. The ‘movements of inmates are strictly controlled
and security Pickets are posted during sport events. Equipment that might
be used as a weapon or a tool is carefully accounted for. Checks are made
for contraband and searched of’ inmates are conducted. Recreational
activities take place’ within the rules and regulations of the institutibn and
vary actiording to the particular type of institution. They may be as
limited as a walk in the yard or as unconfined as a canoe outing.
Recreation Officer 2% are responsible for the repair and maintenance of
equipment and the condition of recreational facilities; for example, the
gymnasium, rink, baseball diamond.
imong the duties and responsibilities set out in the two
Position Specification and Class Allocation forms for the positions held by
Ferguson and’Van Oort, which are appended hereto, are.that the incumbent
must exercise constant alertness and vigilance to ensure the custody and
control of inmates. The skills and knowledge required include completion
of a related university or community college course and at least one year’s
experience in a’ correctional setting. Both men have completed such a
course and have served for more than a year as Coirectional Officers
before becoming Recreation Officers, for which they .received training in
self-defence and ycriminal psychology. As noted, it is not technically
necessary for Recreation Officers to have served as Correctional Officers.
However, we are told that that is normally the fact.
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The case for the Crievors is based on the contention tnat the
work performed by them is sufficiently similar to that performed by
Recreation Officer 2’s to warrant the reclassification of their positions to
the Recreation Officer 2 classification. It is not argued that the Crievors
are not performing the work specified for their positions, or that they are -
performing more or different work than that so specified. There is no
suggestion that the Grievors are doing anything materially different than
Instructor 2’1 have always done, or that their work has been progressively
changed or enlarged so as to bring it closer to that of Recreation Officer
2’s. Rather, the argument goes that the variations in recreational work
performed between Instructor 2 positions, which the Employer has placed
in the same class series, are no greater than the variations in recreational
work performed between those positions and Recreation Officer positions,
which have been placed in a different class series; that the common, or
core, element is recreational activity; and that the differences in settings
(psychiatric hospital versus correctional institution) and subjects
(psychiatric patients versus inmates detained in custody) are not relevant.
It is submitted for the Employer that the Crievors must first
show ‘that their positions are improperly classified according to the
applicable class standard; that only if that is established should the Board
proceed to a comparison of the work performed by the Grievors with that
performed by Recreation Officer 2’s; and that, in any event, the work of
the respective positions is clearly dissimilar because of the different
contexts in which each is performed.
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To begin with, we’are of the opinion that the judgement of the
.Divisional Court in Re Ontario Public Service Employees Union and
Ministry of Community and Social Services, unreported, December 21,
1982, and the Board’s decision in Brecht, 171/81, which followed, put firmly
and finally to rest the notion that a classification grievance cannot succeed
on proof only that a’grievor performs work virtually the .same as that
performed by employees in a different classification. As well, it seems to
us to follow from Bred that the fact that the work to be compared is that
of positions found in different class series does not place any different onus
on a grievor than would generally apply.
That being said, it remains true that, as noted in Montague,
110/78, n... the concern is with the proper application of the employer’s
classification system.“; and as stated in Edwards and Moloney, 11/78, the
Board must be cautious where there is an extensive overlap of duties, that
classification decisions do not “... interfere with the overall aims of the
classification system.”
In McCourt, 198178, the Board found that “When the Union
rests its case on a comparison with duties of another job...tbe duties of the
two jots must be virtually The same.” Whatever the term used by the
Board in earlier classification cases, “substantially parallel”, “substantially
similar”, “virtually identical” or “virtually the same”, what is to be
determined is whether or not the work being performed by a grievor is the
same in its distinctive and essential elements as that being performed by
employees in the classification sought.
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In Edwards and Maloney, the Board stated: It is particularly
difficult to design classifications for jobs involving paraprofessionafs...and
particularly with regard to those providing services to other people, as in
the weffare and medical fields, it is often difficult to draw bright fines
between different levels of jobs.” Continuing, the Board stated that “The
tasks performed by individuals in different classifications may appear very
similar, yet it must be kept in mind that the dassifications have been
designed for a purpose - whether to reflect different emphases with regard
to similar tasks, or to reflect greater discretion or responsibility by those
in one of the cfassifications, or to reflect the higher qualifications
demanded of those in the more senior classification.” And in Montague,
the Board expressed the view that classification of position does not turn
on the fact that an employee performs a given duty, and that the positions
of employees performing many similar tasks are placed in different
classifications because of such factors as degree of complexity or .of
independent judgement required in performing the task.
We have concluded that the work of the Grievors is not
substantially similar to that of the employees in the classification they
seek, by reason ,of the fact that the custodial duties performed by
Recreation Officer 2’s, alone and with other officers, are an integral and
inseparable part of the work they perform. To adapt a statement found in
Rounding, 18/75, there are skills and duties required of Recreation Officer
2’s which the Grievors do not perform. However, in view of the main
thrust of the submission made for the Crievors, we believe it would be
inappropriate to rest our decision entirely on that finding.
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As we understand it, the proposition.advanced comes down to
the claim that recreational work is8 recreational work whenever, wherever
and for whomever it is performed and properly belongs in one class series..
This seems to us to constitute too simplistic a basis for the comparison of
work to have validity in a classification context. Jobs in broad occupational
categories are commonly differentiated by qualifications, purpose,
complexity, responsibility, organizational structure and other criteria.
Such criteria, together with the actual tasks assigned, define the nature of
the work performed, which is the issue to be settled. In its first decision in
IBrecht, that is, prior to the judicial review of the case by the Divisional
Court, the Board, in comparing the work being performed by employees in
the two classifications in question, considered, “...areas of documentation,
programming, type of juvenile Supervised, reporting relationship, security,
staffing and organizational structure...“; an approach, incidentally, which
the court did not appear to question. Finally, comparison is not a precise
exercise mechanically performed; it is a process of analysis and evaluation
requiring that facts be weighed and judgements made.
A recent Board decision, McLean, et al, 499/82 bakmanj, is
also in point.
The Grievers act in support of medical and paramedical hospital
staff in the treatment of psychiatric patients. The recreational work they
perform is to provide therapeutic recreation as one of the curative or
palliative measures prescribed or approved by the treatment team.
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The recreational work of Recreation Officer 2’s is performed
with persons who are in confinement after having been charged with, or
convicted of, crimes. The recreational programs they administer have as
their primary purpose the correction of anti-social attitudes and behaviour
by directing the interests and energies of inmates to leisure activities.
We are satisfied, on the evidence, that the Grievors have failed
to establish that their positions should be reclassified Recreation Officer 2,
and we so find.
The grievances are dismissed.
Before leaving the case, we call attention to the role of the
Board in resolving classification disputes. To paraphrase the cautionary
comments made in a number of earlier classification cases, whetheror not
the wage or salary values attached to the positions in question should be
different than they are is not a relevant consideration.
DATED at Consecon, Ontario this 14th day of December, 1983.
P. Draper Vice Chairman
Ilbw
“I dissent” (Dissent attached)
S.D. Kaufman Member
G.A. Peckham ,Member
DISSENT -
I have read the reasons of the Vice-Chairman provided to me
by December 13, 1983, and I must, with respect, dissent on a number
of points and with the final conclusion of the majority.
The evidence with respect to a security force at Queen Street
Mental Health Centre came from Mr.' Dale Heinrich, Director of
Vocational and Recreational services at Queen Street Mental Health
Centre.
In his evidence-in-chief, Mr. Heinrich advised this Board
that there is a security force at Queen Street Mental Health Centre
and that the security force's role was to assure that unauthorized
persons did not enter the premises and to deal with out-of-control
patients. On cross-examination, Mr. Heinrich advised the Board
that he did not know the classification of the security force, that
the security force were not present on the wards, and that he under-
stood that they would come if they were called.
The Board also heard that about one-quarter of the wards at
Queen Street Mental Health Centre are locked, and that the Grievors
work on all the wards. The Board was not advised as to the propor-
tion of involuntary admissions in the patient population.
On cross-examination, Mr. Heinrich also stated that he had
minimal direct involvement with Recreational Instructors, i.e. the
Grievors, as he saw most of them only once a week at a staff~meeting.
His evidence caused at least this Board member some concern that he
was not entirely familiar with the day-to-day role and duties of
the Instructor 2 (Recreation and Crafts) and (Sports), or with those
of the security forces.
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On cross-examination, Mr. Heinrich advised the Board that a
call of "Code 99" is heard on the Public Address System at Queen
Street Mental Health Centre when there is an emergency or an out-
break of violent behaviour and that a call of "Code 99" is heard
on an average of once a day. He told the Board that the clinical
staff, including the Grievors, must appear on the scene and deal
with such behaviour as best as possible. Mr. Heinrich advised us _
that he was speaking of a patient's acting out, aggressive behaviour,
possibly swinging out at a staff person.
Mr. Heinrich confirmed that there were wards at Queen Street
Mental Health Centre that housed patients who were a danger to
themselves and others, and who attacked one another and that all
staff must watch out for this and count items like scissors and
matches when programmes are concluded, and as well, keep track of
keys to the units. These were part of the Grievors' duties. None
of this is mentioned in the Vice-Chairman's award. Mr. Heinrich
would not go so far as to say that patients were searched by staff
or the Grievors for these items.
We heard from the grievors directly, that responding to
Code 99 calls and maintaining the security of locked wards by
escorting patients to and from recreational activity areas or by
carrying out recreational activities on the wards if the patients
were elderly and infirm and needed to remain locked in, were an
essential and integral part of their duties.
Mr. Heinrich told the Board that the Mental Health Centre
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expected its nurses to perform more of the escort duties, and
that that was an ongoing issue at the Queen Street Mental Health
Centre. Mr. Heinrich implied to this Board that administration
was experiencing some resistance from the nurses regarding escort
duties. However, it is clear from the Grievors' evidence that
escort duties were ones that they carried out,'without resistance.
*Mr. Heinrich told the Board that some patients held under
Lieutenant-Governor warrants were placed on a secure unit, but
that otherscould go into the community, and that he knew that on
one occasion the,Ministry of Correctional Services provided a
guard for such a patient.
(Sports) integrate security duties with their day-to-day recreational
duties, notwithstanding that security duties are not included in
their Position Specification and Class Allocation Forms and that
they did not directly take issue with their Position Specifications.
The Grievors' own evidence as to their security duties contradicted
their stated satisfaction with their Position Specifications. It
appears that the Grievors' security duties are as all-pervasive as
those of Recreation Officers in Correctional Institutions.
It appears that responding to Code 99 calls, escort duty,
the maintenance of locked wards, counting equipment, etc., is as
important and all-pervasive an aspect of the duties of the Grievors
as "the constant alertness and vigilance" expected to be exercised
by Recreation -Officers in Correctional Institutions "to ensure
the custody and control of inmates".
It appears that Instructors 2 (Recreation and Crafts) and
,.
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With respect, I cannot agree with the Vice-Chairman's
characterization of the Union's argument (page 6, Award) that
"the difference in settings and subjects are not relevant".
The thrust of the Union's argument was that the setting and
subjects, while relevant, were only two of the elements the
Board must consider when determining, according to the tests
in Beals & Cain (G.S.B. 30/79) and Brecht, whether the duties,
or the "essential core" of the duties of the Grievors are "sub-
stantially similar" to the duties or "essential core" of the
duties of the Recreation Officers in the Correctional Institutions,
as they have the higher classification. Setting and subjects are
important elements, and the Union recognized them as such and
dealt with them as such.
In my respectful opinion, the Employer did not discharge the
onus raised by the Union's evidence.
As well, I cannot agree with the Vice-Chairman's reduction
of the Union's position to the proposition "that recreational work
is recreational work whenever, wherever, and for whomever it is
performed". The Union was not putting that proposition forward
in this case. Rather, was asking this Board to determine, on the
evidence, whether the essential core of the duties of Instructors
2 (Recreation & Craft) and (Sports) at Queen Street Mental Health
Centre were the same, or substantially similar to the essential
core of the duties of Recreation Officers in Correctional Institu-
tions.
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I have some difficulty with the final paragraph of the
majority's. Award. At no time in these proceedings did the Un,ion
put forward to this Board that the difference in the wage or
salary values attached to the positions was relevant. This is
an issue which.usually underlies each classification grievance,
but this .Board was not asked to decide this grievance by taking
this matter into account. If'the majority relied on this as one
of its reasons for its award, it was, in my respectful opinion,
misdirecting itself.
In my opinion, McLean et. al.(G.S.B. 499/82 :) is distinguish-
able on its facts.
In my opinion, the majority of this Board has failed to
make the determination required oft it, as a result of improperly
characterizing the Union's argument-and because it has not dealt
at all with the evidence regarding the Recreation Instructors'
security duties;
In my respectful view, the majority of this Board has mis-
directed itself with respect to the issue it had to decide, and
has not compared the Grievors' duties to those of the Recreation
Officer 2.
I would have allowed this Grievance, and found that the
Grievors are doing the essential core of the duties of Recreation
Officers 2,, and directed that they be so classified and compensated
for salaries and benefits accordingly, from June 3, 1981, the date
of the earliest grievance.
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DATED at Toronto, this 13th day of December, 1983
;.,~&I;~+ sI . .
Employee Nominee