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HomeMy WebLinkAbout1982-0027.Carauana.84-12-05IN,THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearings: OPSEU (Frank Carauana) Grievor - and - The Crown in Right of Ontario (Ministry of. Health) Employer ,>! c. r R. J. Roberts Vice Chairman I. Thomson Member G. Milley Member i.;:, N. Litczay~ Grievance Officer, OPSEU R. B. Itenson, Senior Staff Rel. Off Civil Service Commission June 19th, 1984 August 21st, 1984 L. DECISION This is a classification case. The two grievors, Messrs. Carauana and Dennis, who currently are classified in the classification of Occupational Instructor II , seek to be reclassified to the more highly paid classification of Industrial Officer I. At the hearing, the case for reclassification was based upon a comparison of the duties of one griever, Mr. Carauana, with those of persons holding the classification of Industrial Officer I at the Oak Ridge facility in Penetang. For reasons which follow, the grievances are dismissed. Dealing first with the grievance of hr. Dennis, this grievance must be dismissed because no evidence whatsoever was directed towards the meritSof the grievance. The only evidence that was introduced at the hearing, related to the grievance.of Mr. Carauana. The Ministry gave notice at the outset of the hearing that it would not accept Mr. Carauana as being re-~ presentative of the group including himself and Mr. Dennis. In these circumstaxes, ~the aoard has no alternative but to dismiss the grievance of Mr. Dennis for want of proof of the merits thereof. The evidence relating to the grievance of Mr. Carauana showedthat he was a Workshop Instructor in the Forensic Unit of the.St. Thomas Psychiatric Hospital. This is a locked unit which is specifically adapted to house persons who had been charged with crimes. According to testimony given by.Mr. J. Wilson, the Administrator of the Hospital, any person who is on q'bieutenant-Governor's warrant or warrant of remand,automatically is sent to the Forensic Unit. There the Unit does an assessment of the individual. After the assessment, the individual might stay at the Forensic Unit or be shifted to another of the fifteen other Units at the Hospital. The latter course of action would be -~ 3.' taken'if another program better met,the needs of the patient and there was little risk of his or her running away. While the doors of the Forensic Unit are locked in order to detain the patients, the staff of the Unit do not receive any special security train- ing. Their training, it seems, is identical to that given to other employees of the hospital Who work in unlocked Units. Moreover, no separate security force exists in the Forensic Unit. According to the evidence of.Mr. Wilson,-the risk of injury from patient~aggression is no higher in the Forensic Unit than in many other Units of the Hospital.. He stated that attacks by patients upon staff are an accepted part of the environment of a psychiatric hospital. He indicated . that the Hospital attempts to reduce the incidence of attack through exposing employees to a program entitled Recognition and Manangement of Distrubed Behaviour. Mr. Wilson indicated that this is an award-winning program which has been widely adopted internationally. When pressed on cross- examination regarding this testimony, Mr. Wilson added that there was a higher incidence of aggression in the Geriatric Ward than in either of the Forensic Wards. He said that the geriatric patients were more unpredictable. than those in the Forensic Wards. This was based on a study that Mr. Wilson made of 200 cases, He said "You are more liable to get seriously hurt on the Geriatric Ward." The forensic Unit has three separate floors. on the second floor houses patients diagnosed as schizophrenic. The first floor houses the workshop. wbile‘each floor is locked and the wi~n~dows are barred, 4. the interior layout is not like that of a prison. There are no cells. From four to six patients share individual rooms. These rooms are not locked. In the corridor outside of the rooms, there are no physical barriers between the patients and staff. There is sOTey a line on the floor to separate the patient area from the staff area, and the patients are informed that they must not cross this line. :.:;;; The workshop operates from Monday through Friday, between the hours of 8:30 a.m. and 4:00 p.m. The griever testified that an average. of thirty-four patients are brought into the workshop daily. Tbey'are escorted into the workshop by two nursing staff, apparently for security : '.. reasons. The nursing staff remain in the workshop while the patients are there. The grievor is one of three Instructors in this workshop. He teaches woodworking. Another Instructor teaches rug hooking. and the remaining Instructor teaches plague-making and macrame’ . The griever stated in his evidence that his job is to teach the patients good work habits, to enable them to work in the community. He said that he teaches them safety at work and how to get along with others. Expanding upon this testimony, the griever said, "I teach them how to operate power and hands tools and work with machines. I teach as part of the program,habits like puncuality, reliability, safety habits. I correct their misbehaviour. That is a very important part of our job. The system is that.points are given daily and the points are turned into dollars upstairs. We discuss it with the patients, and telbthem why they earned so much and why they did not." 'The griever alsotestified that his workshop was outfitted much .like a regular carpentry workshop, with lathes, drill presses, planers, and hand tools. He added that all hand tools are lockedin a separate room. They are hung up on 8 wall and are Shadow-graphed against this wall for purposes ,of identifying which tools are missing and must be returned. He stated that this was for security reasons, that he had to know which patient has which tools. If a tool is missing and cannot be found, the patients must be searched. The'grievor testified that this was very serious. In searching the patients, the griever testified, a metal detector is used. There was. some evidence to indicate that security was not as tightly maint+ined as the foregoing evidence would, at first'b'lush, indicate. For example, the griever agreed in cross-examination that knitting needles used in one of the workshops are not locked up when the patients are using them. Some are ieft out when the patients go for coffee breaks or for lunch. In addition, a paper cutter with an 18" steel blade is located within the open area of the workshop. While it is accessible to all patients in the workshop, it is not locked 'up. The griever agreed that a patient could'use this paper cutter to inflict injury upon himself or others. Further, while the Forensic Unit is locked, the evidence indicated that keys are not tighly controlled. The griever testified that he and the other instructors maintain the keys in their possession. The grievor stated on cross-examination, "keys have-been lost accidentally. Yes. We report it. There was a warning by our Director.that if keys were lost, they would have to change the locks. But when these accidents happened the locks were not changed:' The griever testified that incidents of aggression by patients were common in the workshop. It was an everyday occurrence, according to the griever. for en Instructor to be threatened, kicked, bitten, or scrstched. Ae added on cross-examination, "SOmetimeS YOU are kicked and scratched two 'times per day. Sometimes less,~sometimes more. The female patients like to scratch< E was not kicked or scratched last week or the week before. Wo. The lest time I was kicked was around Christmas, 1983. Since~l980, I have been kicked seven to eight times." FEW of these incidents of aggression are reported, the gri&or testified. He said, "We only put a report in when we get seriously injured." According to Mr. Wilson, incidents of seri&s injury are rare. He testified that he checked the records, and there was only one incident since 1978 in the workshop. He attributed this to the fact that prior to being allowed to go to the workshop, patients are screened in order to separate out those who appear most likely to commit serious acts of aggression against members of the staff. He noted that in the past sixteen months, by comparison, there were 200 reported incidents of aggression by patients against.staff throughout the entire Hospital. None of these was in the Forensic Workshop. Mr. Wilson emphasized in h&s testimony that, in his opinion, the job performed by the grievor was no more dangerous than jobs being performed in the other areas of the Hospital. He added that when the Hospital hired Workshop,Instructors, the management did not look for any special training or background. He said that what management looked for was people skills and sonic experience in the area of arts and crafts. The evidence at the hearing indicated that at Oak RXdge, the mdtter of security receives far more emphasis than at the Forensic Unit in St. Thomas. Mr. T. Knight, the Director of Vocational, Recreational, and ,: ,, ,:’ Voluntary Services at the Mental Health Centre in Penetanguishene, testified . 7. that Oak Ridge is a maximum security facility in every sense of the word. He stated that as you approach Oak Ridge, you are monitored by television . cameras. There are barred windows and doors. You must venter the facility .' . : through a Salle pxte. The staff must sign in and out. If you are a visitor, you are photographed. X-ray equipment similar to the equipment at airports is available to x-ray visitors if they look suspicious. In addition, the entrance is monitored by a television camera. As to the patients, Mr. Knight stated that all patients are housed in individual self-contained cells. All war.ds are capable of being separated and locked up from the other areas. The same is true for the .~ workshop and recreational areas- The exercise yards are surrounded by a 17 foot-high fence topped with barb wire. Keys are controlled by the main office which is adjacent to the Salle port@. They are only issued to 'qualified security staff. They are maintained by security staff or industrial officers and they are turned in each day. Mr. Knight stated that because of the emphasis upon security at Oak Ridge, persons holding the clG.sification of Industrial Officer I have two distinct functions, i.e., security and instruction. In this sense, Mr. Knight stated, the functions of Industrial Officers overlap with those of Nursing Attendants, who are charged with the duty to provide nursing and security. He said, "For security purposes, Industrial Officers and Attendants are completely inter-changeable. ." Mr. Knight added, "The primary function of an Industrial Officer is training but that can't take place unless security requirements are met. . . u. Therefore, security is one of the primary duties of an Industrial Officer or Attendant. All Industr.ial Officers in Oak Ridge have had experience as Attendants before becoming Industrial Officers. There was only one exception-- he had twelve years' experience in Oak Ridge and had to take a one month-long security course before assuming duties as an Industrial Officer. You must have both security and vocational skills. I need as a pre-requisite, security skills. I can train vocational skills on the job." The views expressed by Mr. Knight were confirmed in the testimony of Mr. C. Brunnell, an Industrial Officer I at Oak Ridge who was called to testify on behalf of the griever. He said, "Security is the number one aspect of my job. After security has been attained its more easy to teach. ..l You can't work in the shop unless you paid your dues as an Attendant and learned the security aspects of the Institution. Not that I know of." While Mr. Brunnell testified to considerable similarity between his workshop and that in the Forensic Unit at St. Thomas regarding the method of instruction of patients, e;g., in carpentry skills, he also testified to a greater degree of care in controlling potentially dangerous tools. He said, "The only tools lying around are the patients! There is nothing else' lying around. There are no paper cutters, no knitting needles, no." At the hearing, counsel for the Ministry made two submissions, either one of which, it was contended, would suffice to dispose of Mr. Carauana’s griev- ance. The first of these was jurisdictional in nature. It was that Mr. Carauana was not entitled to~claim the classification of Industrial Officer I because the grievance he submitted did not claim this classification but instead, that of Industrial Officer II. We find, however, that the Ministry waived its right 9. to object to jurisdiction on this basis. Evidence going to this issue clearly indicated that at the second stage meeting on Mr. Carauana's grievance, the Union clearly stated to the representatives of the Ministry that the classification of Industrial Officer II had be&n claimed in error .:. ~>..- and that the presentation on behalf of the griever wquld be made on the basis of a claim for the classification of Industrial Officer I. The Ministry did not object. Instead, the~Ministry dealt with the claim of the classification of Industrial Officer I on its merits. Once the Ministry did so, according 1 to settled~ principles of arbitral jurisprudence: it waived its right to object to the defect in the original grievance. Accordingly, owe turn to the second submission of the Ministry. This submission went to the merits of the case. It was that the griever had failed to show that his job was so similar to that of a an Industrial Officer I at Oak Ridge as to require him to be accorded~'the same classification. In support of this submission, counsel referred the %ard to a recent case, Re McLean and Ministry of Community and Social Services, GSB No. 499/82 (Saltman), issued on October 9, 1983. In that case, three persons holding the classification of Occupational Instructor II in the Woodworking Shop of the Huronia Regional Centre claimed the classification of Industrial Officer I. The basis for'this claim was the same as that made here, i.e., compari$on with Workshop Instructors having the classification of Industrial Officer I at Oak Ridge. : ,....:,: I After making a detailed comparison of the duties of the grievers. with those of Industrial Officers at Oak Ridge, the Board denied the grievance stating, in pertinent part: 1. See Brow & Scatty, Canadian Labour Arbitration Ud), at 9S-100. i r (. Most importantly, the industrial officers at Oak Ridges have the same responsibility for security as the attendants with whom they are interchangeable and security in the workshop takes precedence over instruction. (In fact, since knowledge~ of Oak Ridges' security procedures is a requirement for the job of industrial officer, industrial officers are usually recruited from the attendant staff.) On the other hand,.it would appear that at the Huronia Regional Centre security is subord- inate to instruction. This does not mean that security is unim- portant at the Huronia~ Regional Centre, but only that due to, the nature of the institution and of the clientele (ten percent of whom live outside the institution), the requirements of security are less onerous than at Oak Ridges. Accordinly, since the essence Of the jobs at the Huronia Regional Centre are fundamentally and eSSSntially different than the jobs at Oak Ridges, the Board cannot find that the Grievors were doing the same work as the industrial officers at Oak Ridges. . . . 111. at 13-14 The Board concluded that because of the emphasis at Oak Ridge upon responsibility for security, the essence of the job of an Industrial Officer was fundamentally and essentially different from that of an Occupational Instructor at Huronia. While the facts of this case tend to indicate that the Forensic Unit at St. Thomas might have a : more secure environment than that at Huronia, the responsibility for security of Occupational Instructors at St. Thomas still falls far short of that of Industrial Officers at Oak Ridge. The evidence of the grievor and Mr. Wilson tended to coincide on this point. The grievor testified that his job was to teach patients good work habits. Mr. Wilson testified that this certainly was the emphasis in recruitment, that what was looked for when hiring Workshop Instructors was people skills and some experience in the area of arts and crafts. This also was reflected in the lack of any formal procedure' for key control. On the other hand, all the witnesses from Oak Ridge, whether for the Union or the Ministry, emphasized the importance of responsibility for security in the job of an Industrial Officer I. mr. Brunnell testified that security was the number one aspect of his job. Mr. Knight testified that before anyone could become an Industrial.Officer at Oak Ridge, he or she had to have experience or training in the security procedures of the Institution. ,.,‘:I,., .:: ,.. .:, . : :;, : ..’ r.. :..7 ,u,;:. , .,.: ; .: :. i >:: : ., ‘: f~;.:, : I .‘. 11. Accordingly, it is impossible on the evidence before the Board to conclude that the grievor was doing essentially the same work as an Industrial Officer I at Oak Ridge; In the words of the Board in Re McLean, there is a fundamental difference in the essence of the jobs. The grievance is dismissed. DATED at London, Ontario, this 5th day of December 1984. I. Thor&o , Member G. Milley, Member