HomeMy WebLinkAbout1984-0274.Wallace.87-04-29274184
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN E%PLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEaNT BOARD
BETWEEN:
BEFORE:
OPSEU (K. Wallace and L. Jackson)
Grievers
- And -
The Crown in Right of Ontario
(Ministry of Health)
M. R. Gorsky Vice-Chairman
T. J. Kearney Member
G. B. Walker Member
FOR THE GRIEVOR: I. Roland
Counsel
Gowling & Henderson
Barristers & Solicitors
FOR THE EMPLOYER: D. Brown
Law Officer
Crown Law Office Civil
Ministry of the Attorney General
HEARING DATES: August 29, 1984
April 2 and 3, 1985
May 17, 1985
November 1, 1985
. .
DECISION
The Grievors were at all material times employed by the
Ministry of Health in the position of Rehabilitation Counsellors
and were classified as Rehabilitation Officers. 2.. They gri'eved
that they had been improperly classified and requested "
reclassification to the position of Social Worker 2 "with
retroactivity to the time the matter was first raise-d with the
Employer". Those with whom they were compared were under the *
classification of Social Worker 2: Mrs. E. Segal occupied the '-.
position of Rehabilitation Counsellor,~ Mrs.,B. Gander, occupied
'the position of Vocational Rehabilitation Counsellor and Mr. . .
Robert Philip's position title was: . . Rehabilitation Officer.
Unlike the Grievors, they were employed by the Ministry of -. . .
Community and Social Services.
The Union position was that the evidence had demonstrated
that the Grievors performed the same or sub&antially similar
work to that performed by persons in a higher classification.
Reference was made to,the case of Lowman et .al. and.The Crown in
Right of Ontario (Ministry of Transportation and Communications) ._
n/82, 34/a;:, 35/82, 36/a2 (Saltman). The Union relied on the
statement.contained at p.8 of the latter award:,
"In order to succeed in its claim, he Union must prove that the Grievors were performing duties which come within the higher classification as measured against the relevant class standards or as measured against the Employer's actual classification practices. More particularly, if the Grievors are performing duties which come within the descr iption of a higher class
standard, the grievance must succeed. The grievance
will also succeed, notwithstanding that the duties do
not fall within the higher class standard, if other
employees performing the same duties are classified at the higher classification, which the grievance claims.
"There has been some debate in the jurisprudence as to
whether it is sufficient, in establishing a claim far a higher classificaiton, for the Union to prove that the employee's duties were "substantially the. same" as the duties performed by other employees in the higher classification sought or whether the Union must p&e
that the duties performed were "identical". ‘For
instance, the Board has said that the Union must prove that the employee's duties were "virtually identical"
to the duties of other employees in Re McCourt 198/78; "substantially similar" in Re Beals 8 Cain 30/78; and
"the samel' in Re Montague 110/78.' This' latter test
would appear to have the approval of the Divisional court: see Ontario Public Service Employees Union v. '
The Queen in right of Ontgario (Ministry of Community and Social Services), . . . .'I
2
The position of the Union in this case was that the Grievors
need not be found to be performing "virtually identical" duties
in order for them to succeed. It was submitted that it'was . .
sufficient if they were doing "essentially" the same,thing as the
higher classified employees. Counsel for the Union said that the
duties need not be absolutely identical but must be very close to
thosa performed by higher classified employees. As I understand
Counsel for the Union, he would ask us to accept the
"substantially the same" test and not the "virtually identical"
. . test. It wxs the position of Counsel for the Union that what the
Grievors did amounted to "essentially the same thing" as the work
performed by the witnesses Gander, Segal and Philips. We were
asked to concentrate on what was said to be the essential
functions and duties of the Grievors and those with whom they
were compared. It was acknowledged that some difficulty was
presented by the fact that the examples furnished were with
3
respect to employees of different ministries, working out of
different offices with a different mix of individuals and
problems to be faced. We were, nevertheless, asked to find that
the essential duties and responsibilities of M.rs..Gander, Mrs. .'
Segal and Mr. Philips were essentially the same as the Giievors,
in a functional sense.
In the case of OPSEU v. The Queen in the Right of Ontario et
al, (1982), 40 O.R. (2d) 142 (Div. 'Ct.) at 145. The Court ^ /
stated:
"On a classification grievance the Board is generally mandated to consider two matters, namely whether or not the Grievor's job measured against the relevant class standard
comes within a higher classification. which he seeks, and, even if he fails to fit within the higher class standards, .whether there are employees performing the same duties .in a higher mare senior classification."
Dealing with the second criteria established by the
Divisional Court, for the Grievor to succeed upon a "class usage"
claim, the Union must show "that the Employer's actual classific-
ation system differs from the written one." He Brick and
Ministry of Transportation and Communications (1982) GSB X4/80
(Samuels), at p.50. In Re G. Piffard et al and the Ministrv of
Community and Social Services 1982, GSB 602/84; 605/84; 606/84;
reference was made to Re Crockford and Ministrv of Conununitv and,,
Social Services (19851, GSB 548/83 (Roberts), at p.10; and @
Aikins and Ministrv of Health (1983), GSB 603/81 (Draper)
standing for the proposition: "In its decision over the years,
the Board has come to accept that this test is satisfied upon a
showing that the Grievors are performing substantially similar
‘i 9
4
work to that assigned to a job in the higher classification." In
the Piffard case, the arbitrator said further at p.55: .'I ;.. we
accept the' measure of 'substantial similarity' as whether the
work of the grievors 'is the same in its distinctive and
essential elements as that being performed by employees in the
classification sought."'
In the present case, the Union entered evidence which was
intended to show that the work performed by the Grievors was
substantially similar to the work actually being performed by the
Social Worker 2's, the examples chosen being Mrs. Gander, Mrs.
Segal and Mr. Philips.
There are a number of earlier cases where a test of virtual
similarity had to be satisfied before the second part of the test
could be met. The later decisions cited in this .decision recognize
that it is not a task for task comparison that must be met but
rather a test based on "distinctive and essential elements . . .
being performed . . . . "This is how I view "the same duties".
We were also asked to find that although differe.nt words
were used to describe the functions, duties and 'responsibilities
of Mrs. Segal, nevertheless, in substance, the Grievors did the
same thing. We were asked'to accept Mrs. Gander's description of
her duties and responsibilities and those of the Grievors as
being essentially the same. Mrs. Gander's evidence was said to
be of more weight because of the fact that she had worked in the
position of the Grievors as well as in her own present position
(as a Social Worker 2).
5
We were asked to compare Exhibit 7, being the Position
Specification of the Grievors with the Position Specification of
Mrs. Gander and Mrs. Segal [Exhibits 9 and 10) and to find that
they represented the same jobs; We were asked to find that the
focus of all the jobs was'vocational rehabilitation. The same
argument was made inthe case of the job performed by Mr. Philips
(Exhibit 11). We were asked to,find that there was, in fact, no
real distinction between a Rehabilitation Officer 2 and a Social-
Worker 2 when the actual functions performed by the Grievors and
the three comparison employees were examined. They were all said
to focus on the vocational potential and needs of their client
population. Mrs. Gander, NIX. Segal~ and*Mr. Philips were said to
go th'rough the. same exercise with their client population as did
the Grievors. Their client population is made up of persons
requiring vocational ~rehabilitation as a result of physical,
emotional and mental disability. The only difference, it was
stated, between their work and the work of the Grievors was based
on such differences as existed because of the nature of the
institution and of the particular client population. In the case .
of the Grievors,' the population suffered, primarily, from
psychological and emotional disabilities including problems of
mental retardation. However, it was stated that their client
population includes, as well, persons suffering from physical
problems. The population serviced by Mrs. Gander and Mrs. Segal
suffers more from mental and physical problems, with a lesser
number hav~ing emotional problems. However, in all cases, it was
6
said, the clients have social problems. It was noted that the
client population of Mrs. Segal and Mrs. Gander are not as
disabled as those within the client population of the Grievors
and Mr:Philips. _
In the case of Mr. Philips, his .client population suffers
from a number of disabilities, with the principal focus on mental
problems (severe mental handicap) although other clients suffer
from physical and emotional problems. This population is more ~
severely disabled than that of the Kingston .Psychiatric
..: facility, where the Grievors work,and the facilities where Mrs.
Gander and Mrs. Segal work. We were asked to find that the mix .,. ..:.: and severity of the disabilities affecting the client population
: -..
of'the Grievors fell somewhere .between the client populations. of .
Mrs. Segal and Mrs. Gander and that of Mr. Philips. what was
emphasized was that the exercise of carrying out the duties and
responsibilities was, in all essential matters, the same for the .
Grievors and Mr. Philips, Mrs. Segal and Mrs. Gander. That is,
they.are said to have gone through the same assessment exercise
and also to have gone through a similar exercise in utilizing
resources to carry out a client assessment. They are all said to
be responsible for identifying educational assessment and '
training programs and to act similarly in assisting their clients
in the vocational aspects of the program and in moving to jobs,
if they are able to do so. They are all said to be responsible
for carrying out placement in programs, training, job placemebt,
pre-vocation and life skills. They are also responsible for
7
assessing a client's potential, identifying suitable programs,
access to work situations, monitoring clients, assisting clients
to work through problems which arise in carrying out the job of
vocational training and placement. All of them were said to
focus on the individual client's program and were respon's'ible for
endeavoring to meet the client's vocational needs. _
We were asked.to find that the Grievors utilized the. many
facilities available at the Kingston PsychLatric Hospital and, .
where such facilities were not available, they were required to ..
seek out existing facilities in the community. The Grievors were
able to utilize funding available through Canada Manpower and
other public funding agencies. The Grievors worked with a mix of .
in-and-out patients, with in-patients going out into the
community to. take advantage of resources and programs. We were
asked to find that there was no real difference between the
nature of the work performed by the Grievors and the work
performed by Mrs. Segal and Mrs.'Gander, 'although the nature of
the funding was not the same. Mrs. Segal and Mrs. Gander had
funds available to them to purchase services in the community.
As was the case for Mrs. Segal and Mrs. Gander, the Grievors
were said to be required to be aware of relevant legislation
applicable to them and all of them drew on similar sources for
assistance in the community. Reference was made to the uniform
resort to COMSOC and other agencies such as Canada Manpower. The
relative similarity that we were asked to.find was utilization of
common resources to provide similar services for a client
a
population. We were asked to find that such difference in
funding as existed amounted to a distinction absent a meaningful
difference.
In the case.of Mr. Philips, who worked within an .
institutional setting,, there was an acknowledgment- of the
different emphasis based on the different client population.'
However, we were asked to note that the functions being carried
out by Mr. Philips, including objectives and techniques, the -
manner of proceeding and the resources.empl~oyed, were "' ?
substantially the same for him and for the Grievors.
In dealing with supervision, we were asked to find that
there was no distinction between the Grievers and Mr. Philips,
Mrs. Segal and Mrs. Gander. We were asked to note that th'e
Grievors were subject to very iittle iknediate. supervision and
that they worked virtually independently, with their cases being
reviewed once a month. Although they obtained information during
periodic team meetings with respect to .individual clients in the
institution, this was said to amount to an exchange of
information between the members of the team. The Grievors were
said not to obtain orders or direction but were merely in receipt
of suggestions. While referrals were received by them from
psychiatrists, it was up to them to prepare the vocational
rehabilitation assessment and to carry out the assessment plan
and the monitoring, with little direct intervention for in-
patient clients. In the case of out-patient clients there was no
team structure set up, but exchanges of infcrmation were effected
- .I I
~.
9
in an informal fashion. We were asked to find, from the evidence
relating to Mrs. Segal, Mrs. Gander and Mr. Philips, that the
supervision structure applicable to them was very similar to that
which applied to the Grievors.. In the. case of.,Mrs. Gander'and
Mrs. Segal, there was no team structure in place, however, they
drew on other disciplines as needed and meetings might ‘be set up
to deal with problems .affecting individual clients. Inter-
disciplinary resources were drawn upon'to effect the best
vocational program for a client. Reference was also made to the.-
fact that within his institution, Mr. Philips had both formal and
informal exchanges of information with a number of people
concerning his client population. In the case of Mr. Philips,
out-patient clients would use the facilities of the institution .
and~he coordinated and structured programs to best suit the needs
of the client. In the case of discussions concerning out-
patients, he'chaired the informal meetings which were held.
Mr. David Eyes, the Manager of the Community Services Unit
at the Prince Edward Heights facility in Picton, who is employed
by the Ministry of Community and Social Services, was Mr. *
Philips' Reporting Supervisor. Mr..Eyes, in his testimony, noted
that Mr. Philips draws upon the experience of other disciplines,
as required, to assist him in carrying out his rehabilitation
counselling function. As part of his job, Mr. Philips deals with
individual consultants and relies on the multi-disciplinary team
within the institution.
10
Emphasis was placed on the fact that Mrs. Gander had filed a
classification grievance when she was a Rehabilitation Officer 2
and as a result was reclassified, in 1981, as a Social Worker 2.
Mrs. Gander's evidence.was that, on the basis of her having
performed the same duties'and having had the same - 11
responsibilities as the Grievors, she concluded that there was. no
relevant difference between what she now does, what‘she did,when
she was a Rehabilitation Officer 2, and what the Grievors now do,
Fmbhasis was placed on the fact that she had performed the
Grievers' functions when classified as a Rehabilitation Officer 2
at the Kingston Psychiatric facility.
Counsel.for the Union referred to Exhibit 12, which is a
copy of the, "Policy on Selection Criteria," which received
approval.from the Civil Service Commission on November 20, 1980.
The selection criteria replaced staffing standards which were to
be deleted as of November 30, 1980. Attached to Exhibit 13 is a
memorandum addressed to all Personnel Directors dated March
1980, on the subject of "Implementation of the Policy on
Credentialism". The memorandum was "intended to provide
3,
direction on the inter-relationships of Credentialism, .Staffing
Standards and Classification Standards."
The memorandum notes that where the Credentialism Policy
does not coincide with stated requirements contained in the
Staffing Standards Manual, "ministeries are permitted to
disregard those portions of staffing standarcs which conflict
with the policy on credentialism."
., ,i .,,
11
The philosophy of the Credentialism and Classification
Standards is set out at p.2 of the memorandum of March 3, 1980.
It states:
"During Classification Standards development, we - . . identify where appropriate- tar job evaluatron.purposes, specific skills and knowledge required for specific'
levels and types of work within the service.
This does not involve the identification of sources of acquiring such skills and knowledge, except where there are statutory or other mandatory requirements for a
degree, certificate, or licence, creditation, or other credential." i
At p.2 of the memorandum of March 3, 1980, there is
contained an interim direction, with certain exceptions not
relevant in this case, where ministries w.ere'~"requested to follow
the intent of the credentialismpolicy in all classes . ..I'
In the credentialism policy, it is stated that:
"Credentials may be used in the selection process only under three conditions: 'i
.l. Where required by statute.
2. Where essential without equivalent for
satisfactory job performance.
3. Where a credential or an equivalent combination of education and experience would indicate possessipn of the required knowledge, skills and experience necessary
for Satisfactory job performance."
Counsel for the Union argued that in the light of the policy
on credentialism, there was no requirement that the Grievor's
have formal academic qualifications in order to succeed in this
grievance. It was further noted that neither Mr. Philips nor
Mrs. Gander had professional social work training at the
university level, and that,.accordinqly, the Grievors' lack of
i
12
formal or educational qualifications represented no impediment to
the allowance of the grievance.
Mr. Brown, for the Employer, submitted that the Grievors did
not perform substantially the same j&as the.three persons'with
18 whom they were compared. It was his position that the
objectives, resources, techniques used and the manner of
functioning in the case of all of the five persons discussed
could apply to anyone in the rehabilitation field, such as I
physicians and other members of the clinical teams involved. The
intention in all cases was to maximize the potential of a
handicapped person. Mr. Brown argued that the most common '.
purpose was insufficient to assist the Grievors. It was
submitted on behalf of the Employer that there, were needs of.the
client population which went beyond the vocational and the degree
to which a higher order of professional functioning was expected
of Mrs. Gander, Mrs. Segal and Mr.. Philip represented ~the
principal distinguishing feature in this case. Reference was
made to the class standards. Reference was made to the preamble
of Fxhibit 6, being the Social Workers Series, which indicates
that Social Workers are within the Scientific and Professional
category. We were asked to find that the Rehabilitation Officer
Series is an Administrative Services category.
The Social Worker 2 class,standard is as follows:
"This class covers the positions of qualified social workers who provide professional social work services to clients under the general supervision of a senior social worker or other professional or administrative official. They conduct interviews, compile social histcries and
formulate psychosocial diagnosis of the personal and
13
environmental causes of social dysfunctioning. They implement tratment plans to assist clients to resolve their
problems and develop their maximum potential. They provide service by any one or a combination of the social work
methods appropriate to the functions of the department and service, They evaluate the effectiveness of the treatment plan and modify or revise as necessary. They consult.with members of other professional disciplines and may serve as members of treatment'teams, institutional and-community
committees. They may supervise and.review the work of
social work assistants, child care workers, residential. counsellors and other staff in the area. They participate in conferences.and group discussions, interpret departmental policy and objectives, and maintain liaison with other disciplines, jurisdictions,-and community agencies. They may assist in ,the training of departmental personnel and
students in social service courses.
"KNOWLEDGE AND SKILLS REQUIRED
"Thorough knowledge of the principles, techniques, and methods of social work and ability to apply them in the work situation; ability to formulate psychosocial diagnoses and skill in implementing them; .knowledge of diagnostic and, treatment procedures utilized by related disciplines; good knowledge of departmental programs and policies; ability to develop co-operative working relationships with other professional staff; personal suitability."
The class definition of Rehabilitation Officer 2 Health is
as follows:
"Under general supervision, employees in positions in
this class use a complete range of industrial rehabilitation services to prepare patients, out-patients or ex-patients at a psychiatric hospital or mental retardation facility, for re-employment within the community.
"In conjunction with other hospital staff, these employees review the medical, educational and work background of individual cases; appraise aptitudes; discuss tentative progranunes with clinical staff and decide on a realistic individual vocational rehabilitation programme. They collaborate and maintain liaison with other provincial and federal agencies in matters such as: vocational or on- the-job training and maintenance allowance; job placements and they.provide follow-up counseliing and obtain assistance from community agencies as required. They also promote public understanding and acceptance*of the mentally ill or retarded.
14
"These employees may assist in obtaining contracts for industrial therapy workshops and may participate in their operation. They may supervise and instruct Rehabilitation Officer trainees and clerical staff. They prepare reports and correspondence as required and perform related duties as
assigned.
,"QUALIFICATIONS: 1 ,
1. Grade 12 education; preferably a degree in one of the
social sciences from a university of recognized standing.
2. At least one year's experience in rehabilitation work in the Ministry of ,Health or. directly related experience acceptable to the Civil Service Commission,.,
as the equivalent.
3. Ability to work effectively with the mentally disordered or retarded and with ex-patients; ability to communicate effectively with employers and the public; tact; sound judgement; patience,."
Although acknowledging a certain amount of overlap between the \
Social Work classification and. the Rehabilitation Officer
classification, Mr. Brown asked us to note the significant
differences in the classifications as defined.
Emphasis was placed on the fact ,that Mrs. Segal and Mrs.
Gander worked with clients who had a wide range of disabilities,
primarily not of a psychiatric nature, and that they do not
function within the confines of a psychiatric institution. The
Grievers' primary responsibility was to a client population
suffering from a variety of mental disabilities and--the secondary
problems affecting their client population remained.secondary.
With respect to Mr. Philips, it was observed that most of his
clients suffer from mental retardation.
We were asked to find that the Grievors were part of a
clinical team, in a way that differentiate.3 them from Mrs. Segal,
I
p .: .
15
Mrs. Gander and Mr. Philips. In the case of Mrs. Gander and Mrs.
Segal, there was no clinical team assisting in the counselling
function and no psychiatrist involved as a head of a team. While
there might be conferences called on:an ad hoc basis, this' --
differed from the hospital clinical team environment aff'dcting
the Grievors, where the primary focus was the psychiatric well-
being of the client.
In the case of Mrs. Segal and Mrs.. Gander, they were said to .~~
be their own "clinical team" and that they were the initial and
ultimate monitors of their clients' progress, even though they
.might call on'other persons in different disciplines for
assistance. Mr. Philips, it was ,said, did not operate with a
clinical team. The IPP, which he utilized outside the .
institution, was rarely resorted to and Mr. Philip was not
involved in the annual review group which monitored progress in
the institution.
Mr. Brown further argued that the Grievors were not
independent in the way that Mr. Philips, Mrs. Segal and Mrs.
Gander were independent. Mr. Brown admitted that the Grievors
were, to an extent,.but suggested that an examination of the
framework in which they operated (the clinical team), indicated
that they were part of a structure with a major concern for
psychiatric care: the Grievors being involved in the occasional
rehabilitation component of a patient's care. It was suggested
that there were a number of parts involved in this care which had
to be integrated. While the Grievors were responsible, to a
16
considerable degree, in the implementation and assessment area,
Mr. Philips, Mrs. Gander and Mrs. Segal were more independent and
able to develop the direction of their work and the responses
which might be made in the course ofldealing with a client: It
was argued that while Mr. .Philips was not as independent'as Mrs.
Gander and Mrs. Segal, he was said to‘be more.self-directed than
then Grievors.
In referring to the purchase of outside services,. Mr. Brown'.
submitted that in the case of the Grievors the services necessary
to service clients were mainly found within the-medical clinical
team and that the Grievors did not determine when and if services
would be required outside the institution: ,It was argued that
vocational and rehabilitation counsellors made the decision on
their own in a way 'that was beyond the powers of the Grievors.
In the case of the Grievors, it was stated that the decisions
concerning outside consultation,was made by the team and not by
the Grievors.
While acknowledging that there were common objectives and
techniques employed by the Grievors, Mrs. Segal and Mrs. Gander,
we were asked to find that the attainment of the objective and
the techniques.employed required a different level of response
and that in the case of Mrs. Gander and Mrs. Segal, a much
greater variety of problems presented themselves because, of the
different nature of the disabilities dealt with by them. In the
case of Mrs. Segal and Mrs. Gander, their overall
responsibilities *were to orchestrate a successful introduction cf
1
; .~
17
a client into gainful employment. This was not the realistic
purpose of the Grievors' work and, in any event, their work was
overseen by psychiatrists, although it was acknowledged that such
intervention as might be forthcoming-from psychiatrists was not
very great. I ‘
The major point made by Mr. Brown was that the distinction
between the role of the Grievors and those,with whom they were
compared was in the manner that the Grievors exercised their ..
responsibilites .and duties, there being a real difference in that .~~
the Grievors were not as independent in their functioning nor as
sophisticated in their functioning was Mrs. Gander, Mrs. Segal and
Mr. Philips.
Mr.. Brown acknowledged'that from‘1977 to the time of the
hearing, Mr. Philips might not have exhibited as great an
independence' of action and responsibility, however we were
invited to find that there'was a real distinction between what he
did and what his responsibilities were when he was compared with
the Grievors.
In reply, Union Counsel stated that the responsibilities of
the medical members of the'team, with whom the Grievors were
associated, demonstrated a different focus and that in their
functioning the Grievors manifested the same focus on objectives
and the use of techniques as those with whom they were being
compared. It was the position of Union Counsel that the Grievors
represented a team and were involved in vocational rehabilitation
and might be viewed in ~the same way as those with whom they were
18
compared. The Grievors were stated to have brought the
vocational rehabilitation component to the team. They were said
to merely receive information from the team which permitted them
to develop a.vocational program and that in this way they were no
different from Mrs. Gander; Mrs. Segal and Mr. Philips. 1‘
Resources were employed by all of them. The resources were in
the nature of feed-back from specialists whose information
assisted the Grievors, as it assisted the others, in developing a
vocational program. The Grievors were'said to be no more or less
interested in the psychiatric problems of their clients than were
Mrs. Segal and Mrs. Gander. That is, their interest in
psychiatric problems was only significant to the extent that it
bore on the vocational program to be developed. Thus, it was
stated, the duties and responsibilities of the Grievors, Mrs.
Segal, Mrs. Gander and Mr. Philips were the same, in substance,
only the sources of information were different. In all cases,
resources were resorted to and used. The Grievors, it was said,
were no more subject to real direction than those with whom they
were compared.
Union Counsel emphasized tha't this case was not concerned
with the class standards (best fit) but with a comparison of what
the Grievors did when compared with what the Social Worker 2's
did.
We were urged to find that while the psychiatrists, in law,
had the ultimate responsibility with respect to the patient, the
functional respcnsibility with respect to vccational
19
rehabilitation was with the Grievors as the functional
responsibility for their client population was with Mrs. Segal,
Mrs. Gander and Mr. Philips, and in each of their cases, the
responsiblity was primarily related to vocational rehabilitation.
It was said that the legal'responsibility of the psychiatrists
did not alter the validity of a comparison of the work performed
by the Grievors and. the persons with whom they were'compared. It
was stressed that there was, in the case of Mrs. Segal, Mrs. -
Gander and Mr. ~Philips, someone above them in the structure who...
was legally responsible for their work.
There was said to be nothing significant in the fact that
different expectations with respect to obtaining employment was
had for each client population. This depended on the severity of .
the mix of problems affecting the client population: Although
the Grievors' success would be less than that of Mrs. Segal and
Mrs. Gander, Mr. Philips had an even smaller percentage of
successful long term placements because of the profound mental
disability affecting his client population. The Grievors were
said to be, in this regard, "sandwiched" between Mrs. Seqal and
Mrs. Gander on.the one side and Mr. Philips on the other. The
Union denied that the Grievors were unable to decide the programs
for their client population within the institution. We were
asked to find that there were certain controls affecting Mrs.
Seqal, Mrs. Gander and Mr. Philips in the choice of outside
specialists to assist them.
. ~” 5 _.
After reviewing all of the evidence, I cannot find a
realistic basis for finding a sufficiently significant .difference
between the real functions performed by the Grievors, Mrs.
Gander, Mrs. Segal and.Mr. Philips. :There was no-persuasive
evidence concerning the higher professional social work 'htandards
required of Mrs. Gander, Mrs. Seqal and Mr. Philips, as alleged
by Counsel for the Employer. As Mr. Brown emphasized, social
work can be performed by~a.wide variety of people with varying .~
degrees of training. In some cases, a degree of professional ..
sophistication is demanded which is, to some extent, a function
of professional standing and education. This is recognized in
the Employer credentialism policy, even,though no special source
may be required for- attaining skills and knowledge..
I would be prepared to find, in a proper case, that
experience alone cannot be relied upon a.s a ~basis for finding the
existance of certain professional skills; in this case
professional social-woik skills. A para-medic or,nurse clinician
may be shown to perform some of the same functions as a person
with a medical degree and, statutory requirements aside, it could
be easily demonstrated that they were not performing the same
work for job classification purposes.
Similarly, there may be a case for showing that a higher
level of professional social work training is required in order
to qualify for and function up to the standard of a particular
social work po~sition, eyen if direct observations would tend to
show two positions to be essentially the same. For example,
21
nurses in a psychiatric setting, may give psychotherapy,
including group therapy. This does not, putting aside the
question of formal credentials, make them into psychiatrists. In
this case, the work performed by the.Grievors, Mrs. Segal;Mrs.
Gander and Mr. Philips was"insufficiently differentiated'on any
level. The claims made on behalf of the Employer, that the
Grievors had less decision making control, had a different role,
functioned differently and in a less professionally sophisticated
L1 manner, were insufficiently etablished to overcome the evidence
of similarity which was adduced.
I heard no evidence concerning the incorporation in their
work, by Mrs. Gander, Mrs. Segal and Mr. Philips, of professional
social service and rehabilitation principlesnormally associated
with a graduate of a recognized university social work course or
that of a related discipline. Mrs. Segal holds an M.S.W. degree
and there was no evidence to cause me to conclude that she
employed her training at a level consistant with her academic
attainments. Her evidence did not demonstrate' that she was
undervaluing the extent to which her job called upon her to
utilize other than rudimentary social work skills. From her
evidence, I would gather that there was no need to employ higher
level social work skills associated with a graduate degree in
social work, let alone an undergraduate degree.
I emphasize, that in another case, the evidence of necessary
professional understanding of social work theory and practice
might undermine the tinion positicn. Such evidence did not figure
22
in this case, except~as we were asked to find its existence in
the evidence presented. Upon examining the evidence, I cannot
find a basis for so finding.
In the circumstances, the grievances succeed on the second
test involving substantial~similarity of' duties and ,'
responsibilities and I need not consider the first test. On. the
evidence, I would find that the Grievors ought to be awarded the
classification of Social Worker 2. The Grievors are entitled to.
retroactivity plus interest in accordance with the rule .~.
ennunciated in Re Smith and Ministry of Community and Social
Services (1985), GSB 237/81 (Roberts), which "would limit
retroactivity to 20 days before the date,'o.f filing of the
grievance." Id. at p.5. There are no circumstances which I .find -
to raise an eguity.against the Ministry's reliance on this,rule.
Interest is-awarded upon retroactive payments in accordance with
the formulations set forth in Re Jones and Ministry of
Correctional Services (1984), GSB 537182 (Joliffe). The Board
will retain jurisdiction of this matter pending implementation by
the parties.
A5 agreed by Counsel for the partiks, I was authorized to act as
a, sole arbitrator for the purpose of completing and publishing the
decision.
DATED AT London, Ontario this 29th day of April, 1987.
?I. R. Garsk\f 1 , ‘!lce-Cha;rman