HomeMy WebLinkAbout1981-0607.Hirst et al.87-07-24IN THE MATTER OF AN ARBITRATION
UNDER
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
BEFORE
THE GRIEVANCE SE'ITLEHEM BOARD
BEFORE:
FOR TRECRIEVOR:
FOR THE EKPLOYRR:
HEARINGS:
OPSEU (R. Rirst et al)
- And -
TRE CROWN IN RIGHT OF ONTARIO
(Ministry of Health)
M. It. Gorsky Vice-Chairman
s. Kaufmen mmher
L. Turtle Member
M. I. Rotman
Counsel
Rotmen, Zagdanski
L. H. McIntosh
Counsel
Ministry of the Attorney General
September 20 and 21, 1984
February 7, 1986
March 7. 1986
607/81
Griever
Employer
DECISION
& Introduction to the Issue and the Evidence
There were, originally, eighteen grievances before this
Board. At the outset of the hearing, at the request of the
Union, two of the grievances, those of C. Adkin and P. Brooks,
were adjourned sine die. -- The grievances of the sixteen remaining
employees who filed grievances were the same. They were all
classified as Instructors 2, Recreationand Crafts. These
employees include Recreationists, and Occupational Therapist
Facilitators, (“O.T.F’s”) at the Penetanguishene Mental Health
Centre, hereinafter referred to as the "Centre.'! .-The Centre is
divided into two divisions. One is the Regional Psychiatric
Hospital, hereinafter referred to as the "Hospital" and the other
is Oak Ridge. At the time the grievances were filed, six of the
Grievors were Recreationists at the Hospital, five were
Recreationists at Oak Ridge and five were O.T.F.'s at the
Hospital.
The Union proceeded to adduce evidence from three of the
Grievors. These were Robert Jeffrey, who wasat the time of the
grievance a Recreationist working at the Hospital since May of
1976. At the end of February, 1984, he was transferred to Oak
Ridge. The Grievor, Robert Hirst, was a Recreationist at Oak
Ridge from October 1979 until April 1984, when he was transferred
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to the Hospital. The Grievor Ed Maguire, has been an O.T.F. at
the Hospital for approximately six years.
There was a dispute between the parties'as to whether the
Union proceeded with the three grievances on the understanding
that the outcome would bind the parties with respect to the other
grievances. The Union considered these grievances to be
representative of the others and believed that in so proceeding
the resolution of the three grievances would have binding effect
on the other grievances before this Board. The Employer disputed
the representative nature of the grievances proceeded with, but,
nevertheless, stated that 'I . . . it is apparent that the
resolution of these matters will effectively dispose of the other
grievanties." I take it that, whatever the differences between
the parties as to the representative nature of the grisvances
proceeded with, they are in agreement that the resolution of the
three grievances will have binding effect on the other
grievances.
The Grievors say that their jobs are improperly classified
as Instructors 2, Recreation and Crafts. There are two ways in
which a grievor in a classification case such as this can
demonstrate that his/her position has been improperly classified-
the, is to show that his/her I'job measured against the relevant
class standard comes within the higher classification which he
seeks". "(E)ven if he fails to fit within'the higher class
standards," a Grievor may succeed in showing that his/her job is
improperly classified where "there are employees performing the
same duties in a higher more senior classification." (OPSEU)
Brecht v. The Queen in the Right of Ontario (19821, 40 OR (2d) '
142 at p.145 (Div. Ct.). In this case, the Grievors are not
relying on the best fit test but on the second method of
establishing that they have been improperly classified and claim
that they ought to be classified as Recreation Officers 2,
hereinafter referred to as "Recreation Officers". I will
elaborate, subsequently, on the meaning of "same duties",
referred to in the Brecht case.
The thrust of the Union evidence was' that the Centre is
"significantly different than other psychiatric hospitals in the
Province in that part of it is for persons who are '.criminally
insane"'. There was much evidence adduced by the Union, over a
hearing that took five days, which endeavored to show 'that this
was the case. The essential Union position was that
Recreationists, who work in that part of the Centre where some of
the patients are criminally insane (Oak Ridge) do substantially
the same job as Recreation Officers do in correctional settings.
The Union argued was that Recreation Officers have the same -
therapeutic function as that of Recreationists and O.T.F.'s and
Recreationists and O.T.F.'s have the same security function as
-Recreation Officers. In support of its position,the Union
adduced evidence of transfers of staff and patients between Oak
Ridge and the Hospital to demonstrate that Recreationists perform.
substantially the same job at Oak Ridge and the Hospital.
If the Union does not succeed on either of its arguments
then it must fail. That is: If the Recreation Officers do not
have the same therapeutic function as Recreationists and
O.T.F.'s, the grievance cannot succeed, even if Recreationists
and O.T.F.‘s have the same security function as Recreation
Officers.
Both parties were in agreement that the job of Recreationist
at Oak Ridge is the same job as the job of Recreationist at the
Hospital. The parties did not agree, however, with the
Employer's submission that the job of Recreationist at Oak Ridge
and at the Hospital is the same job as that of a Recreationist at
any other Provincial Psychiatric Hospital. The Employer's
further position was that the job of Recreationist and that of
O.T.F. are different jobs, and it further submitted that neither
the job of Recreationist nor that of O.T.F. is the same job as
thatperformed by Recreation Officers for the purpose of the
second test.
The Union submitted that there was no evidence led to show
whether or not the job of Recreationist at the Centre was the
same job as the job of Recreationist at any other Provincial
Psychiatric Hospital and, accordingly, the Board had no knowledge
of this allegation. The Union's position also was that the
evidence would disclose that, at the Centre, the job of an O.T.F.
was substantially similar 'to, and had the same core duties as the
job of Recreationist. The Union's position also was that the job
of both the Recreationist and the O.T.F. was essentially the same
job with the same core duties as that performed by Recreation
Officers.
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In order to determine whether two or more jobs are the same,
within the meaning of the Brecht case, the Board must ascertain
and compare the essential or core duties of each job. The Board
must then assess the time spent, the emphasis placed upon the
duties, the purpose of the job, the setting, the subjects,dealt
with and the education and experience required, all of which
items are important in making a comparison of the jobs.
& Evidence and Arwnt
1. Evidence Called BY the Union
Three witnesses were called by the,Union who are classified
as Recreation Officer 2, Correctional Services. These were
Howard Ferguson, Paul Thompson and Gamy Belog.
Mr. Ferguson is' a Recreation Officer 2, Correctional
Services, at the Maplehurst Correctional Centre. He testified
that his duties were accurately set forth in Exhibit 11, beingthe
Position Specification and Class Allocation form relating to
himself. Under the "S&nary of Duties'and Responsibities" found
in Exhibit 11 it is stated:
"90% participates in the development, implementation and operation of the recreation program.”
The Maplehurst Correctional Centre is a medium security
institution and Mr. Ferguson testified, in referring to the 90%
allotment,of his time, that much of his time involved the
organization of "general recreationcal) activities", such as
sports, games, arts and crafts for the inmates. In his evidence,
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Mr. Ferguson further stated that he is a Peace Officer and
carries keys to the institution and that he is able to act as an
escort. He added that he is responsible for responding to alarms
and that he might be alone with up to ten inmates and is able to
report inmates for misconduct.
In Mr. Ferguson's position specification (Exhibit 111, it is
provided that a Recreation Officer 2 must preferably' have
completed two years of a recognized recreation leadership program
at a university or community college and that he/she must have
one year's satisfactory experience in a correctional setting.
Mr. Ferguson served for one year as a Correctional Officer before
becoming a Recreation Officer. He testified that Recreation
Officers now receive the Correctional Officer's basic training.
Mr. Ferguson also testified that he did.fitness counselling
and appraisals. His rationale for his position was that it
existed "to channel inmates in proper recreational directions,
[and] channel energy in approprate.ways." The Union argued that
this underlying purpose was not significantly different from what
was being attempted at the Centre by Recreationists and O.T.F's.
Mr. Ferguson further testified that he.had "security
-awareness due to the nature of the institution." The Union
argued that a similar security awareness could be found at the
Centre, whether at Oak Ridge or the Hospital. It was Mr.
Ferguson's evidence that he was never called away to assist in
security matters. His evidence was that security matters were
handled by Security Officers and that Recreation Officers plan
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their activities with knowledge that one of their important
responsibilities is related to security awareness even though 95%
of their energy is directed to other matters. Although Mr.'
Ferguson testified that security training was not a technical
requirement of the Recreation Officer position, he stated, as is
above noted, that Recreation Officers now receive the
Correctional Officers basic training.
Mr. Ferguson testified that when a "panic button" is pressed
at Maplehurst, he does not hear about it unless it was pressed in
the gymnasium. Referring to equipment, Mr. Ferguson testified
that he was responsible for counting equipment and if anything
was missing.in the inmates' uni+ he had the sole responsibility
for performing a search there.
In cross-examination, Mr. Ferguson was asked by Counsel for
the Employer whether the recreational aspect of the program that
he was involved in was intended to be diversionary. Mr. Ferguson
answered that this was only partially the case. He went on to
testify.that Recreational Officers were involved in teaching
skills. In referring to fitness, he concluded that teaching of
skills leading to fitness amounted to a form of therapy.
Mr. Thompson, who is located at the Quinte Detention Centre,
testified that his primary function was to provide sports and
leisure activities for inmates in order to aleviate their stress
and boredom and to fill up their idle time. He testified that
the activities consist mainly of baseball, broomball, soccer and
weight lifting. Arts and crafts are run by outside volunteers
and not by Recreation Officers. Mr. Thompson, is also a Peace
Officer. He carries keys to the institution and can act as an
escort for inmates. He is responsible for responding to alarms
and can be alone with inmates without other staff being present.
His Position Specification was not made an exhibit.
Mr. Thompson testified that he had no security training as a
Recreation Officer and testified further that Correction Officers
go to the Aylmer Police College for a two week security course
but that recreation staff do not.
In addition to testifying that Recreation Officers at the
Quinte Detention Centre provide activities to alleviate stress,
tension and boredom, Mr. Thompson added that,his se+ces assist
inmates to develop certain skills so that upon release they will
have better time management skills. He stated that the
philosophy underlying his position is to improve an inmate's
outlook and his ability to ,fill his time with more socially
.acceptable kinds of leisure behaviour upon his release. The Union
argued that this was consistent with the underlying purposes of
the activities of Recreationists at the Centre, be it- Oak Ridge
or the Hospital.
Mr. .Thompson testified that inmates were seen by
-psychiatrists and psychologists and some were referred for
assessment or treatment. Some of the inmates are sent to psychiatric
hospitals, some of whom return to Quinte.
Mr. Thompson stated that the primary function of Recreation
Officers relates to recreation,while the security aspects of the
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position are inherent,given the nature of the institution. The
Union argued that this was the same situation applicable to
Recreationists at the Centre,
During cross-examination, Mr. Thompson testified that there
is'a young offenders section at Quinte with a Recreation Officer
being part of the treatment team.
In cross-examination, Mr. Thompson stated that he was
responsible for the return of equipment and the reporting of
missing items to the Shift Supervisor. He stated that he
performed no searches, Correctional Officers being responsible
for this. It was the position of the Union that the
situa,tion was similar at the Centre.
Mr. Belog is located at the Secure Treatment Unit of the
Syl Apps Youth Centre. Mr. Belog's Position SpecifiCafiOn is
found in Exhibit 21. He stated that there is only one other
person who holds the same position as he does and indicated that
his job was constantly changing. He testified that his principal
function has been, and continues to be, the planning and
organizing of recreational and leisure activities for the
residents. He also coaches sports teams which participate in
leagues in the local community. He stated that even though he
works in the Secure Treatment Unit, the recreation programs he
organizes are not part of the treatment plans developed for the
residents. They are general or diversional recreational
activities.
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Mr. Belog further testified that he also arranged for
external programs such an alcohol and drug abuse program for the
residents, which are part of treatment plans. Mr. Belog does not
conduct these programs but arranges for such things as the times
and places where they will be held.
Mr. Belog testified that he spends about 30% of his time in
a class room situation teaching life skills but stated that the
amount of time devoted to this function was "shrinking". He
testified that he had been seconded, at the beginning of 1984,to
the Ministry of Education for that purpose.
There was some dispute between the parties and a review of
my notes indicates that Mr. aelog .had once been a member of a
clinical team prior t.o his secondment to the Ministry of
Education. He stated that there was some activity directed
toward placing Recreation Officers on clinical teams, however
there was no evidence to support this. Mr. Belog did testify
that Recreation Officers have input and access to the clinical
teams and he believed that he would be back on a clinical team
after completion of his s'econdment.
Mr. Belog confirmed that the Supervisor of Juveniles
supervisessecurity in the searching of junveniles for missing
-equipment.
Mr. aelog, in chief, testified that at one time he had been
involved in recreational assessments. During cross-examination
he admitted that he had only been so-involved on one occasion.
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Mr. R. Jeffrey, one of the Grievors, testified that
Recreationists operate a recreational program in arts and crafts,
sports, etc. He testified that Recreationists take patients on
excursions into the community and the Union argued that this
corresponds with the testimony of Mr. Thompson, who stated that
he took inmates, both minimum and medium security, into the
community from Quinte:
Mr. Jeffrey testified that Recreationists, whether they were
involved with sports in the yard during the summer, or directly
involved with patients within the institution, in such activities
as arts and crafts and\or where tools were used, were "front line
security," but added that this was not their primary function.
He stated that because Recreationists were ~working directly with
patients they had to be extremely aware of the presence of tools
and equipment and that if patients were going to "strike-out",
the Recreationists were the closest persons to the patients. The
Union argued that while Recreationists at the Centre (Oak Ridge
or the Hospital) were not Attendants or Correctional Officers or
Security Officers, they were dealing with volatile and
unpredictable people and Recreationists, along with other staff,
had to be- constantly aware of safety and security for themselves
and the other patients.
Mr. Jeffrey testified that Recreationists must be aware of,
and employ, crisis interventions skills because of the
unpredictability of the patients. He testified that a crisis
intervention course was offered on a voluntary basis but was
5,
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considered important, and Recreationists were encouraged to enrol
in the course.
Mr. Linehan, an Attendant at Oak Ridge, gave evidence on
behalf of the Union. Mr. Linehan stated that there was a maximum
level of security maintained at Oak Ridge. He testified that
Recreationists were expected to and did respond to certain
alarms: 'E.g. "code yellow's".
Mr. Linehan further testified that when a Recreationist is
with patients, there are two Attendants with him. On a code
: yellow, one of these t.wo Attendants always responds, and the
Recreationist is left with the patients. He further testified
that security requires a ratio ~of ten patients to'one Attendant.
He'said that on a diversion the Recreationist is part of that
ratio. He further stated that in some cases a Recreationist may
be diverted to another area or be expected to assist if the
emergency is in his\her area.
Mr. Linehan further stated that familiarity with the Crisis
Prevention and Intervention Course and Manual is a necessary
requirement for everyone including Recreationistswork~ing at Oak
Ridge. The Manual teaches, among other things:
(1) Restraining of patients; .
.(2) 'Defusing of tense situations;
(3) Self-defense techniques; and
(4) Types of security.
There was no evidence as to such requirements within the Ministry
of Correctional Services and the Ministry of Community and Social
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Services. Mr. Linehan testified that Recreationists, in their
areas, are expected to intervene in physical fights before
Attendants, as they are closest to the situation.
Mr. Linehan also testified that responsibility for
recreational tools and equipment lies with both the Recreationist
and the Attendant. He further testified that if a tool is
missing, both the Recreationists and the Attendant are in serious
difficulty with management, as a breach of security has occurred.
Robert Hirst, one of the Grievors, testified as to the
nature of the daily activities of a Recreationist at both Oak
Ridge and the Hospital. He testified that Recreationists could,
unilaterally, but only temporarily, remove a patient's
privileges, even though these privileges were only granted by the
clinical team of which the Recreationist was a member.. I would
find on the evidence that the Recreationistcould only halt a
particular activity when it was being abused. It was up to the
physician who presides over the clinical team to withdraw a
patient's privileges. I do not believe Mr. Hirst intended to say
that a Recreationist could withdraw privileges other than with
respect to a particular activity. The.evidence of Mr. Hirst was
that the privileges could only be granted by the clinical team
.and the evidence satisfies me that it is ultimately the
physician, as the head of the team, who has the final say in the,
granting or removing of privileges.
In referring to security, Mr. Hirst testified that there was
a greater security problem at the Hospital than at Oak Ridge.
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The Union also called Mr. Joseph Lamontagne as a witness.
Mr. Lamontagne is employed by the Ministry of Community and
Social Services at the Syl Apps Centre and is a Supervisor of
Juveniles in a secure treatment unit. He stated that the Syl
ApRs Centre is a maximum security institution for juveniles where
the aim of the institution is observation, detention, secure care
and secure treatment. The entrance requirement for a juvenile is
not the breaking of the law, but certification under the Children
Mental Health Act. He testified that Supervisors of Juveniles
were sent to the Centre to be trained in the use of equipment,
etc.
Referring.to the recreational program at the Syl Apps
Centre, Mr. Lamontagne testified that the job of security
belonged to the Supervisor of Juveniles and not the Recreation
Officers. It is the Supervisor of Juveniles who breaks up fights
and removes juveniles.
Mr. Lamontagne further testified that, at the Syl Apps
Centre, recreation is used as part of the treatment plan. He
stated that he requests a Recreation Officer to assist in the
drawing up ~of a treatment plan and that Recreation Officers also
served as resource persons for input as to the best way to modify
behavior.
Ed Maguire, one of the Grievors, also gave evidence. He is
an O.T.F. and is also classified as an Instructor 2, Recreation
and Crafts. He said that members of the O.T.F. classification
were now found at Oak Ridge as well as the Hospital. He also
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stated that the 0.T.F.s rotate duties and,as a result,he
anticipates that 0.T.F.s will regularly rotate between Oak Ridge
and the Hospital. He regarded the Occupational Facilitator brief
furnished to the Board as being reasonably accurate, although he
would have placed more emphasis on the co-operation that exists
between the Recreation Department and Occupational Therapy
Department. He particularly relied on tab R of the brief. Mr.
Maguire also testified that 0.T.F.s had to be security conscious
as security was, in his view, an integral part of the O.T.F. job.
Mr. Maguire also testified as to the type of activity he was
involved in with patients, such as: fitness, life-skills, social
skill training (e.g., . assertiveness tralning). He testified that
there is Also a diversionary function associated with his
position. He also stated that O.T.F's served to improve a
patient's functional ability in social settings as well as being
involved with a patient's physical wellness.
2. Evidence Called by the Employer, Review of Evidence Called by the Union and Discussion of the Evidence
T. Knight, the Director of Recreational, Vocational and
Volunteer'services at the Centre, testified on behalf of the
Employer. In responding to Mr. Jeffery's suggestion that
pecreationists were required to deal with persons who were guilty
of criminal behavior &r. Jeffrey had stated that some
patients were admitted on Warrants of the Lieutenant-Governor or
Warrants of Remand:) Persons admitted on Warrants of the
Lieutenant-Gbvernor had been charged with crimes, but found unfit
to stand trial or not guilty by reason of insanity, while persons
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admitted on Warrants of Remand had been charged with crimes and I
were awaiting a court-ordered assessment), Mr. Knight testified
that there were only a very few patients who had been admitted on
Warrants of Remand or Warrants of the Lieutenant-Governor. In
cross-examination, Mr. Jeffrey acknowledged that he had never
dealt with a patient who had been admitted on a Warrant of the
Lieutenant-Governor 'or on a Warrant of Remand except as part of a
large group at a special event.
Mr. Knight stated that most ,of the patients at the Hospital
were "voluntary", were free to come and go and were not dangerous.
Mr. Knight testified, on the basis of his experience, that the
patient population at the Hospital is 'similar to that of any other
Provincial Psychiatric Hospital and that the population was very
different from the population found in correctional facilities.
The parties agreed that Oak Ridge was not only a. unique
section of the Centre but was unique in the province. ft serves
patients who are considered to be too unmanageable or too dangerous
to themselves or others to be in a regional psychiatric hospital.
Notwithstanding this evidence, and while acknowledging its accuracy,
Mr. Knight testified that the patient population at Oak Ridge was
more like that found in a Provincial Psychiatric Hospital and much
less like the inmate population found in a correctional facility.~
The thrust of much of the Union evidence was to the effect
that the transfer of patients between Oak Ridge and the Hospital
demonstrated that the Hospital had a "dangerous" patient
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population. Mr. Knight's evidence was that patients who were
transferred from the regional hospital to Oak Ridge were
~transferred in the same way and for the same reasons that
patients are transferred from any other psychiatric hospital in
the Province to Oak Ridge and that is because they are considered
dangerous to themselves or others or to be unmanageable. He
testified thatpatients were transferred back to the Hospital
from Oak Ridge when they were no longer considered to be
dangerous to themselves or others or unmanageable. It was his
evidence that Oak Ridge served the function in relation to the
Hospital as it did for all other Provincial Psychiatric
Hospitals. His evidence was that transfers between the Hospital
and Oak Ridge did not mean that the Hospital had a "dangerous"
patient population.
Mr. Knight further testified that, in the nine years that he
had been the Director there had been only three reported
incidents of patient action involving injury to a Recreationist.
Mr. Knight stated that all three reports involved Mr. Jeffery and
all occurred while Mr. Jeffery-was at the Hospital and occurred
while he was restraining a patient rather than as a result of a
patient having struck out at him.
In dealing with the functions of Recreationists and
Recreation Officers it was the thrust of Mr. Knight's evidence
that a Recreation Officer, in correctional institutions, provided
diversionary activities within the institution for the purpose of
permitting inmates to obtain a release of pent-up energy. He
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viewed the Recreationists at the Centre as being part of a
clincial team, primarily offering therapeutic programs in a
clinical setting. In dealing with the 0.T.F.s and comparing them
with Recreationists, Mr. Knight stated that Recreationists are
required to provide recreation to all patients in the facility
while 0.T.F.s deal with patients who are referred for specific
therapeutic intervention. Mr. Knight added that the Recreation
Officers employed by the Ministry of Correctional Services, were
Peace Officers while Recreationists and 0.T.F.s were not.
In argument, Counsel for the Employer stated that
Recreationists spent only approximately 45% of their time
organizing or participating in "general recreational activities."
One of the Grievors, Mr. Jeffery, testified that he spent an
average of only four hours out of each eight hour shift with
patients. Only part of that four hours is spent conducting
general recreational activities. It was 'also argued on behalf of
the Employer that unlike two of the three Recreation Officers,
Recreationists conduct arts and crafts sessions.
It was .also argued, on behalf of the Employer, that in the
case of the O.T.F.'s., with the exception of one or two weeks a
year, during which they participated in special events planned
for the whole facility, they conducted no general recreational
activities. In particular, they conduct none of the sporting
activities which take up most of the time of the Recreation
Officers.
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.
It was further argued that most of the time of
Recreationists and virtually all of the time of O.T.F.'s was
taken up with the tasks required of them as members of clinical
teams. The clinical teams included psychiatrists, psychologists,
nurses and social workers. As a member of a clinical team, a
Recreationist and.a O.T.F. complete assessments on patients
referred to them. They attend clinical team meetings where
treatment plans are developed. In addition to general retreat
programs, a Recreationist conducts a therapeutic recreation
,ional
program which is an aspect of the treatment plan developed. The
O.T.F. implements the occupational therapy recommended by the
clinical team. The programs run by the 0.T.F.s are set out in
detail in schedules D to K of the Brief with respect to the
Occupational Therapy Department.
The Recreationist and the O.T.F. periodically monitor
their,respective programs in order to measure their effectiveness.
They prepare and submit to the clinical team regular progress
notes on patients involved in their programs. They also report
back to the clinical team with respect to the results of their
programs. The evidence disclosed that none of the Recreation
Officers was a regular member of a clinical team and none
performed the functions of members of a clinical team as above
described.
There was some evidence from the Union, relying upon
the evidence of Paul Thompson, given in cross-examination, that
there was a Recreation Officer in the Young Offenders Unit of the
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Quinte Detention Centre who was part of a treatment team. The
Union argued that this represented evidence that there were
Recreation Officers who had a therapeutic function similar to
that of the Recreationists and 0.T.F.s. The position of the
Employer was that there was no evidence concerning the actual
duties, time spent on the duties, the purpose of the job or the'
education and.experience necessary for the job of Recreation
Officer in the Young Offenders Unit in the Quinte Detention
Centre. And, in fact, that there was no e,vidence at all about
the nature of the job. I found Mr. Thompson's evidence to be
very weak in that he appeared to be saying that he believed that
aPecreation Officer was part of the treatment team. Even if
this were the case, the evidence concerning his duties was also
weak and I find that thisevidence has little cogency in support
of the Union argument that Recreation Officers have a significant
therapeutic function. I would have expected, if this were the
case, that the Union would have produced such a Recreation
Officer and adduced such evidence from him/her.~
,The actual functioning of the Grievers as Recreationists
appears to be in'keeping with the purpose of the job as set out
in Exhibit 3, being the preamble to Instructors, Recreation and
Crafts class series, under "Definitions". That is: "To use
recreation and crafts primarily to assist in the partial or
complete rehabilitation of mentally disabled patients." The
purpose of the job of the 0.T.F.s is,"to plan, support and
implement specific Occupational Therapy programs under the
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overall supervision of the Chief Occupational Therapist". ( See
Exhibit a - Position Specification for O.T.F.) This'is in
keeping with their actual functioning as stated in evidence.
In their evidence, the Recreation Officers called on behalf
of.the Union confirmed that the purpose of.their job was to
contribute to the security of the institution by diverting the
inmates and alleviating their stress and boredom. Howard
Ferguson testified that the purpose of his job was to "channel
the energies" of the inmates. He identified his program as
acting as a "safety valve for the institution". In the cross-
examination of Paul Thompson, Mr. Thompson identified the purpose
of the recreation program as ~being possibly "rehabilitative" in
the sense that it may teach the inmates how better to use their
leisure time, but he identified that function as anincidental
one and a "limited one". The primary aim of the program, in
actioh, is not therapeutic or rehabilitative of a specific
illness or condition, as in the case of the Recreationists and
the 0.T.F.s. It is consistent with the purpose of the job of
Recreation Officer, "to participate in the development and
implementation of a balanced institutional recreation program".
(See exhibits 10 through 14.)
Union Counsel submitted that- there was a distinct
therapeutic aspect to the recreation programs conducted by the
Recreation Officers and that they represented rehabilitative
therapy programs and where "an integral part of the professional
treatment program." He quoted from Exhibit 4, the preamble to
the Recreation Officer Correctional Services Class Series. The
quotation was, in fact, from p.2 of the preamble under the
heading "special programme". It was only at institutions
"designated" as "special program institutions" that the
"recreation programme must be designed for special rehabilitative
therapy as an integral part of the professional treatment
programme." There was no evidence of the kind of treatment
provided in or the nature of the conditions sought to be
rehabilitative in these "special programmes institutions" or how
they compared to what was done,at the Centre. As only a few
correctional institutions are designated as "special programme
institutions" and none of these were.described in evidence, on
the evidence I could not find special rehabilitative therapy was
a significant purpose of the job of a.Recreation Officer either
in accordance with the class standards,or as the job was actually
performed. On the evidence I would conclude that the purpose of
the job of Recreation Officer, as it is provided for in the class
standards and as it manifests itself in performance, is
essentially to create diversional recreational activities for
persons in correctional institutions or institutions having -that
purpose. Therapeutic effects are secondary and subordinate
to the main purpose and function of Recreation Officers.
The Recreationists' responsibilites, both as found in the
class standards and in actual practice are to conduct recreation
of a specific therapeutic nature. While the O.T.F.'s may provide
certain recreational activities, they are a .lmost always carr ied
I
L3
out in the context of furnishing specific occupational therapy.
The Union, in its written brief (last paragraph p.51, did not
dispute that the aim of the programs of the Recreationists and of
the 0.T.F.s were therapeutic. I do not find that the Union has
demonstrated that the programs of the Recreation Officers have
the "identical" therapeutic purpose nor do I find that any
therapeutic purpose within the Recreational Officer program is
functionally or substantially similar to that of the
Recreationists or the 0.T.F.s. As noted above, this is enough to'
defeat the grievances.
Because the matter was fully argued, I will.deal with the
balance of the submissions made on behalf of the Grievors. In
addition to arguing that Recreation~ists, 0.T.F.s and Recreation
Officers have functionally similar therapeutic functions, Union
Counsel argued that they have the same responsibility for
security which,if not identical,was functionaily the same. The
factors relied upon in support of this argument were the nature
of the subject populations and the security measures taken in the
job settings. The Union argued that Recreationists, 0.T.F.s and
Recreation Officers all work with the same sort of subjects. The
Employer denied that this was the case.
The evidence discloses that Recreationists and 0.T.F.s work
with patients who are mentally ill. Recreation Officers work
with inmates who have been convicted of crimes serious enough for
them to have been incarcerated for the protection of the public.
On the evidence I must find that inmates of correctional
24
facilities are not mentally ill. As already noted, the evidence
is insufficient to support the evidence given by Mr. Jeffery that
Recreationists had to deal, in a significant way, with persons
who were guilty of criminal behaviour.
The Grievors testified with respect to patient aggression.
This would appear to be an attempt to establish that there was a
considerable element of danger from the patient population at the
Centre. As noted, the only testimony supporting the Grievors,
directly on the point,was from Mr. Jeffery. Mr. Hirst did not
give evidence in-chief as to any incidents involving patients.
In cross-examination he stated that he had been involved in
incidents with Patients; and that he had reported them to
Attendant staff and not to Mr. Knight. As noted, from the
evidence of Mr. Knight, the incidents he was aware of involved
restraining,a patient rather than a case of a patient who had
struck out at Mr. Jeffery. In the absence of better evidence, I
am unable to equate the element of danger that existed at the
Centre as being the same or functionally the same as at a
correctional institution.
It is interesting to note that in the Caruna case 27182 (at
tab 2 of the Rmploye.r's Submissions) it was found that there was
.a higher incidenceof aggression in the Geriatric Ward than in the
Forensic Wards; Geriatric patients being more unpredicable than
those 'in the Forensic Wards. The evidence of the Union witnesses
supported this finding and it is difficult to find that there was
a higher risk of injury at Oak Ridge than at the Hospital and
.
25
that working at the Hospital created any higher degree of risk
than working at any other Provincial Psychiatric Hospital. On
the evidence, I would find that the inmates of correctional
facilities create a risk for those working with them and that
there is a risk to those working with patients in psychiatric
hospitals. Yet there is a differences in the risk. Accepting
the argument of the Union that those working with inmates in
correctional facilities are at risk because such inmates contain
in their numbers dangerous offenders, the nature of the risk at
psychiatric facilities is because of the unpredictablility of
patient behaviour. However, on the evidence, such risk as exists
at psychiatric facilities is no different at the Centre,
including Oak Ridge, than at other Provincial Psychiatric
facilities.
The difficulty in deciding cases such as this one arises
from the confusion which exists ,because of the seeming similarity
of the activities being compared. In the broad sense, the work
of a Recreation Officer has some therapeutic purpose. I cannot
agree, however, that this makes the therpeutic elements in the
postions of the Grievors and those with whom they were compared
functionally equivalent. The evidence was all in the other
direction. There is a difference between utilizing sports
activities as a basis for releasing pent-up tensions, which I
find to be the fundamental purpose of the Recreation Officer job
and the therapeutic purposes inherent in the Recreationist job
and in the function of the O.T.F. job. I cannot, therefore,
26
accept the argument of Counsel for the Union that they are the
same or functionally the same, in part, because they have a
therapeutic purpose.
It was suggested by Counsel for the Union that it is ironic
that Counsel for the Employer should submit that activities
intended simply for diversionary purposes be rated and rewarded
at a higher level than activities which have behind them a
complex, calculated and therapeutic role. This Board does not *
have the obligation to rate the jobs for pay purposes. Counsel
for the Union has asked us to compare the actual functioning of
the jobs and does not reply on the "best fit" criteria. Having
compared the actual functioning of the jobs, in part in the light
of their purposes, we cannot conclude that the therapeutic
functions are sufficiently similar so as to support the argument
made on behalf of the Grievors.
Counsel for the Union also adduced evidence with respect to
the population served by the Syl Apps Youth Centre. The Syl Apps
Youth Centre is a training school and is administered by the
Ministry of Community and Social Services. Prior to 1978,
training schools were administered by the Ministry of
Correctional Services. The evidence indicated that training
schools for juveniles were essentially the same as correctional
facilities for adults. That is, they were for persons who had
broken the law. Counsel for the Employer noted that they were
not hospitals for the mentally ill and this was supported by the
evidence given in cross-examination by Mr. Lamontagne, when he
L was recalled. This would appear to serve as the basis for
27
classifying persons who conducted recreational programs in
juvenile correctional facilities as Recreation Officers,
Corrections. Given the actual purpose and function of the Syl
Apps Youth Centre,I cannot find any significance in the fact that
it'is under the Ministry of Community and Social Services.
In this regard, I again refer to the evidence of Mr.
Lamontagne, who was an employee of Ministry and Community and
Social Services at the Syl Apps Centre where he was Supervisor of
Juveniles in a Secure Treatment Unit. Mr. Lamontagne stated
that the Syl Apps Centre is a maximum security institution for
juveniles, where the aim is observation, detention, secure care
and secure treatment. His evidence was that the Syl Apps Youth
Centre is unique among juvenile correctional facilities and is
divided into two sections. In addition to its general
correctional ,setting, it has a Secure Treatment Unit. The
juveniles in the general correctional setting are there because
of criminal behaviour and are not mentally ill. I am satisfied
from the evidence of Mr. Lamontagne that only some of the
juveniles in the Secure Treatment Unithave committed crimes and
that they have apparently been committed under the Children's
Mental Health Act as dangerous to themselves or others. The
-adolescents in the Secure Treatment Unit may be: "... anti-
social, severely disturbed, aggressive, hostile, violent and
[their] behaviour is unpredictable [and] constitutes a possible
risk of assault ore injury .., ." (See Exhibit 20 - Position
Specification of General LWties S\lpervisor in a Secure Treatment
28
Unit). Mr. Belog's Position Specification confirms that the
residents may "exhibit violent, aggressive behaviour." (Exhibit
21, at p.2 under "Skills and Knowledge, continued").
There is a certain attraction in finding greater similarity
than, indeed, exists between the Centre and the Secure Treatment
Unit at Syl Apps. The populations served by the Regional
Hospital and that served by Syl Apps are very different. The .
patients at the Hospital are there because they are mentally ill
and not because of criminal behaviour. It would appear that most
of-the inmates at Syl Apps are there because of criminal
behaviour and there was no evidence to demonstrate that they are
mentally ill. While the juveniles in the Secure Treatment Unit
,of Syl Apps may not have committed crimes, they are considered
"dangerous" and are not at liberty to leave the facility. The
patients at the Hospital are mostly "voluntary" and unalike the
residents of the Secure Treatment Unit are free to come and go.
I would find that the Recreationists and 0.T.F.s employed at
psychiatric hospitals including the Hospital, deal with a quite .
different population from Recreation Officers, whether the latter
are employed in adult correctional facilities, juvenile
correctional facilities or in the Secure Treatment Unit of the
Syl Apps Youth Centre.
,.
An essential'part of the Union's ,argument was that the
population that is served by Oak Ridge and by the Secure
Treatment Unit of Syl Apps are both considered "dangerous" and
therefore the population served by the Recreationists and
‘4.
*
29.
Recreation Officers are the same. A significant feature of this
case is the fact that both Oak Ridge and the Secure Treatment
Unit of the Syl Apps Youth Centre are unique facilities. The
evidence was clear that all other Recreationists at the Hospital
anh at the other Provincial Psychiatric Hospitals deal with very
different persons from Recreation Officers both at adult and
juvenile correctional facilities. Patients of psychiatric
hospitals'are typically mentally ill but not dangerous or
criminal in the sense that the inmates,at correctional facilities
are dangerous or criminal. Inmates at correctional facilities
are typically dangerous, are criminals but are not mentally ill.
Patients at Oak Ridge are atypically mentally ill and dangerous.
Residents of the Secure Treatment Unit at Syl Apps are ,atypically
dangerous and may be mentally ill. The Union compares the
population served by these two atypical programs and draws the
conclusion that the two classifications as a whole serve
identical populations. The evidence does not disclose that this
is the'case. It follows, as a corollary to the first point, that
the comparison between the population df Oak Ridge and that of
the Secure Treatment Unit of Syl Apps does not assist the Union
with respect to those Recreationists who work at the Hospital.
The evidence also disclosed that until 1994, O.T.F.'s did
not work at Oak Ridge. The Union's argument depends upon the
similarity of the population at Oak Ridge to that of the Secure
Treatment Unit of Syl Apps to support its argument that persons
served by the Grievors are the same as those served by the
30
Recreation Officers. In doing so, I find the Union must rely on
the Oak Ridge population as I find that the population served by
the Regional Hospital is quite different from both that of the
typical adult or juvenile correctional facility and that of the
Secure Treatment Unit of Syl Apps. The evidence discloses that
the 0.T.F.s did not work at Oak Ridge at the relevant time and
the Union would be unable to show thatthere is any similarity
between the population served by the 0.T.F.s and the population
served by the Recreation Officers at any correctional facility,
including the Secure Treatment Unit of the Syl Apps Youth Centre.
The Grievors also endeavored to demonstrate that they had a
functionally similar responsibility for security measures at the
Centre as did Recreation.Officers where they
worked. Evidence given by the Grievors emphasized that they took
a Crisis Intervention Course which taught them a number of verbal
and physical techniques for defusing potentially dangerous
situations. The Union sought to rely.upon the introduction of
the Crisis Prevention and Intervention Manual in support Of its
position that patients are dangerous and that Recreationist are
at risk from patient aggression. (See Exhibit 19, p.3 and the
Union's Submission at p.3 and 4 and Tab 2.) There was no
- evidence led by the Union to link the "man hours lost" referred
to in the introduction to the Manual, to the Recreation Staff.
Mr. Knight's evidence was that there had been only three reports
of injury to a Recreationists in nine years, and this evidence
was not disputed.
,
31
In his evidence, Mr. Knight testified that the taking of the
Crisis Intervention Course does not give a person any more.
responsibility for security than taking a C.P.R. course requires
a person to respond to "Code Blue," that is, a medical emergency.
There was no dispute that there are certain risks that exist in a
psychiatric setting, but the evidence does not satisfy me that
the risk is the same as that found in facilities where Recreation
Officers are located and function. In examining the Manuals of
Procedure, for, both the Recreation Department and .the
Occupational Therapy Department, and after having heard the
evidence, I cannot find that the Manuals impose any special
responsibility for security upon the Recreationists or on the
O.T.F.'s. The evidence disclosed that there are many persons on
the staff who must be familiar with security procedures, such as
clerical staff, but this does not make such staff responsible for
security.
Exhibit 18, being Tab 3 of the Union's Submissions, is
entitled "Security Procedure For Maximum Security Setting At
Penetanguishene." Exhibit 18 was introduced into evidence by Mr.
Linehan, who testified that it represents a list of the security
procedures at Oak Ridge only and that all the items listed, with
the exception of one or twd, were.matters attended to by the
Security staff at Oak Ridge and not by the Recreationists or the
0.T.F.s.
On all of the evidence I am satisfied that while all
employees at Oak Ridge would have a strong awareness of Security,
security was, by acknowledgment of the .Grievors, not their
primary function. As above noted I cannot find that there was a
greater need for security at the Hospital than at any other
Provincial Psychiatric Hospital. In cross-examination Mr. Hirst,
acknowledged this to be the case.
I am also influenced by the fact that extra security at Oak
Ridge is provided not by the Recreation or Occupational Therapy
staff but by Security staff, consisting of Nursing Attendants and
Industrial Officers and by the.nature of the physical setting. I
am also influenced by the fact that Mr. Linehan and Mr. Knight
agreed that Security staff are always present in programs run by
the Recreation staff and, at the present time, by 0.T.F.s at Oak
Ridge. I 'am unable to find Recreation staff and 0.T.F.s are
counted in the calculation of the security ratio of patients to
staff. When there is an emergency and some security staff are
diverted from the area, the ratio of patients to staff simply
increases.
I am also influenced by the fact that the only persons to
carry keys at Oak Ridge are Security staff and only Security
staff serve as escorts. The evidence also disclosed that there
are "panic buttons" throughout Oak Ridge and only Security staff
have the responsibility for responding to these alarms.
Recreationists and O.T.F.‘s are responsible for insuring that
tools and equipment are returned to the proper places but it is
the ultimate responsibility of Security staff to fill out daily
33
reports with respect to such tools and equipment and to submit
the reports to the Head of the Security staff.
Conclusion
Upon review of all of the evidence,1 am unable to find that
the essential duties of the jobs of Recreation Officers,
Recreationistsand 0.T.F.s are the same or functionally the same.
The recreational activities conducted by Recreation Officers are
essentially diversionary in nature. This cannot be compared to
recreational activities of the Recreationists which are primarily
related to the effecting of specific therapeutic purposes. These
purposes relate to the variety of mental illness suffered by the
patient population. As far as O.T..F.s are concerned, I accept
Mr. Knight's evaluation of their functioning. Such therapeutic
function as is involved in the Recreation Officers' work'is
unlike that in which Recreationists and 0.T.F.s are involved.
The difference disclosed by the evidence is not subtle but real
and substantial. The same can be said for the security
responsibilities of Recreationists and O.T.F.s, when compared to
that of Recreation Officers. Recreation Officers have a
substantial and inherent security responsibility. Recreationists
and O.T.F.'s, while they must be aware of security problems
within their institution, do not have a security responsibility
which is functionally similar to that of Recreation Officers.
The grievance must fail on the ground that the Union has
failed to prove that the core duties of the Recreational
Instructors, including 0.T.F.s at the Centre, inclusive Of Oak
. .‘,,
i j
: 34
Ridge are identical or substantially similar to those of
Recreation Officers, when those duties were compared.
In the result, and for the above reasons, the grievances are
denied.
DATED AT London, Ontario
this 24th day of July, 1987.
H. R. Gorsky
Vice Chairman
"I dissent" (see attached)
S. Kaufman
Member
L. Turtle
Wember
DISSEXT
In this case, the Grievors sought to establish that their
positions should be classified as Recreation Officer 2. The Union
argued that the Grievors' essential core duties, or the central core
of their duties were substantially similar to the duties of Recrea-
tion Officer 2. The Ministry disagreed.
The award of the majority states, at page 4:
If the Recreation Officers do not have the same
therapeutic function as Recreationists and O.T.F.'s
the grievance cannot succeed, even if Recreationists
and O.T.F.'s have the same security function as
Recreation Officers.(underscoring mine)
At page 5, the award of the majority states:
'In order to determine whether two or more jobs
are the same, within the meaning of the Brecht
case, the Board must ascertain and compare the
essential or core duties of eaCh job. The Board
must then assess the time spent, the emphasis
placed upon the duties, the purpose of the job;
the setting, the subjects dealt with and.the
education and experience required, all of which
.items are important in making a comparison of
the jobs,
The award of the majority states, in conclusion, at page 33:
Upon review of all of the evidence, I am unable
to find that the essential duties of the jobs of
Recreation Officers, Recreationists and 0.T.F.s
are the same or functionally the same. The recrea-
tional activities conducted by Recreation Officers
are essentially diversionary in nature. This can-
not be compared to recreational activities of the
Recreationists which are primarily related to the
effecting of specific therapeutic purposes. These
purposes relate to the variety of mental illness
suffered by the patient population. As far as
0.T.F.s are concerned, I accept Mr. Knight’s eval-
uation of their functioning. Such therapeutic
function as is involved in the Recreation Officers’
work is unlike that in which Recrenrionists and
0.T.F.s are involved. The difference disclosed b!.'
the evidence is not subtle but real and substantial.
The same can be said for the security responsihi! j Ii’.:-
of Recrentionists and 0.T.F.s. when compared tc rh:i~
nf Recreation Officers. Rec?cnt ion Officers h;Ivl, :I
Sill,.Sf ant i:11 :~nd inh~r~nl sccuri: :: rr:sponsibi 1 i 1 y.
Recreationists and O.T.F.s, while they must be
aware of security problems wiZhin their institu-
tion, do not have a security responsibility which
is functionally similar to that of Recreation
Officers.
The grievance must fail on the ground that the
Union has failed to prove that the core duties of
the Recreational Instructors, including 0.T.F.s
at the Centre, inclusive of Oak Ridge are identical
or substantially similar to those of Recreation
Officers, when those duties were compared.
With the greatest respect to my fellow board members, I
am having difficulty in determining the precise test that their
award required the drievors to meet. For that reason, I am unable
to concur.
Further, in determining classification grievances, this
Board generally follows Brecht (cited in the award of the majcrity)
and the tests used and approved in that case. The test in Brecht
is, generally stated, whether the essential.core duties, rather
than the purported function of those duties,'of the job sought to be
reclassified, are substantially similar to the essential or core
duties of the position to which it is being compared. The actual
duties of the Grievors and the amount of time spent on them are then
compared to the duties and the amount of time spent on them by persons
in the classification being sought.
The Reasons of the majority in this case impose a further
requirement, beyond Brecht ----' that the function of the Grievers' duties
be the same as the function of the duties of Recreation Officers 2.
That, in my opinion, incorrectly imposes a far too narrow tesE. It
requires that the underlying purpose and philosophy of the jobs
being compared bc the same. no:withsf.ancling ihnt the essential ?r
cortf dut: i:,s pcrfornl6~d !i\ the ~wnpl~.! in ! tl:)scr ;,c>si c ir-),:s m:1!' b+ :iuli-
st.:8nti:tl Iy sirnil
,
The requirement of "functional similarity" by the majorit!
imposed a threshold test upon the Grievors, beyond which they could
not progress. The function of the Greivors' duties in this case is
therapeutic and the function of the Recreation Officers' duties is
to provide a "safety valve" to enhance security. The additional
criterion of "function" made the similarity or difference of the
core duties of then jobs under consideration in this grievance irre-
levant. In effect, it made the test in Brecht irrelevant.
I strongly doubt that the test imposed on the Grievers
was the correct one and a fair one, and for this further reason I
am unable to concur.
In a number of significant areas, my appreciation of the
evidence and the weight I would have given to it, differed from
that of the majority, and for this third reason I am unable to
concur.
Dated at Toronto this 24th day of JULY, 1987.
S. D. i(aufma
Employee Nominee