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HomeMy WebLinkAbout1986-1029.Kreider.89-09-29ONTARIO EMPLOY&DELA CO”RONNE c!ROWNEMPLOYEES 0E“ONTARIO GRIEVANCE CPMMISSION DE %Tl~~MENT REGLEMENT DES GRIEFS IN TEE NATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLENENT BOARD Between: OPSEU (A. Kreider) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer B'efore: For the Grievor: For the Employer: Hearings: J.D. McCamus Vice-Chairperson I. Freedman Member W. Lobraico Member M. Ruby Counsel Gowling, Strathy & Henderson Barristers & Solicitors W. Emerson Employee Relations Officer Ministry of Community & Social Services August 2, 1988 August 3, 1988 DECISION These grievances contest the classification of the Grievors as Residential Counsellor 2 (Residential Life) during their period of service as so-called "Team Therapists" at the Oxford Regional Centre in Woodstock, Ontario. The three grievances have been consolidated as they are said to rest on identical facts. It has been agreed by the parties that the grievance of Mr. I&eider should be considered as the grievance of all three. Accordingly, subsequent references to the Grievor and the grievance in this award are to be taken as references to Mr. Xreider and the circumstances of his grievance. The Centre is a large institutional facility providing a full range of services to developmentally handicapped individuals who reside in the facility. There are approximately 500 residents distributed amongst a series of residential areas. These areas are divided up into four units, each of which is administered by a Unit Director. The Units are, in turn, subdivided into wards. Each ward is staffed by a group of Residential Counsellor 2's (RC-2's) who function as surrogate parents for the residents and provide direct care to them on a 24 hour basis. The RC-2's are supervised by Assistant Residential Supervisors (RC-3's) who report to a Residential Supervisor (RC-4) who reports to the Unit Director. The present grievance arises from the creation of a special team of RC-2's which was originally known as the Behaviour Modification Team (B.M.T.). Initially at least, the establishment 2 of the B.M.T. was a collaborative exercise of the centre's psychology department and the residential staff reporting to the Unit Directors to provide more specialized treatment of residents exhibiting severely maladaptive behaviours of various kinds. The Grievor was a member of the B.M.T. During his service on the B.M.T. and on what appears to be a successor to the B.M.T. established in October of 1995 and referred to as the North Park Training Program, the Grievor remained classified as an RC-2. It is argued onbehalf of the Grievor that the duties and responsibilities assumed by RC-2's who became members of the B.M.T. were such as to render the RC-2 classification no longer appropriate. Further, it is submitted that the classification of Psychometrist 1 constitutes the best fit with the Team Therapist position. Although the Psychometrist Class Series of positions are found within what might be referred to as the psychology stream rather than the residential stream -- thus, Psychometrist l's and 2's carry out their responsibilities under the professional supervision of a Psychologist -- the Union places considerable reliance on the existence of a position titled Community Behaviour .Consultant which is classified at the Psychometrist 1 level and which, it is alleged, involves duties and responsibilities very similar to those assumed by the Team Therapist. It is urged on behalf of the Employer, however, that the duties and responsibilities of the Team Therapist were not in any material respect different from those assumed by a regular RC-2. Although it was conceded that the percentages of time spent on 3 particular kinds of tasks by the Team Therapist would differ from those spent by the regular RC-Z's, the Employer maintained that all of the tasks performed by the Team Therapist were within the range of normal responsibilities of the RC-2's. A shift in the amount of time committed to a particular sub-set of normal tasks is not, in the Employer's view, a basis for a successful classification grievance. Relying on Patrick and Baker v. M.C.S.S. 547/80 (Barton) at p.21, amongst other cases, the Employer argues that the Grievor must first establish that the duties assigned to the Grievor do not fall within the existing Job Description and Class Standard before turning to consider whether some other classification might not be a more appropriate one. Evidence concerning the operation of the original B.M.T. and the transition to the North Park Training Program model in October of 1985 was provided by Mr. Chris Rowntree. Mr. Rowntree's evidence was generally supportive of the Grievor's claim. The B.M.T. had already been functioning for a period of time when Mr. Rowntree joined it as Clinical Coordinator in 1982, a position which he continued to hold after the transition, to the North Park model. Mr. Rowntree continued to hold this position at the time of the filing of the present grievance on September 4, 1986. As Clinical Coordinator, Mr. Rowntree was a member of the Psychology Department reporting to the Chief Psychologist, Dr. M. Blake, and was classified at the Psychometrist 2 level. Insofar as Mr. Rowntree's evidence pertains to the B.M.T. exercise prior to the establishment of the North Park Training 4 Program, it is uncontradicted and offers compelling evidence of a significant change in the duties and responsibilities of RC-2's who became part of the B.M.T. The basic idea of the B.M.T. was to set up a specialized unit which would not function within one of the residences and which would concentrate on clinical and therapeutic work with residents who were identified as being in need of special treatment of this kind. The B.M.T. was established in office space which contained a laboratory where residents referred to the program could be observed. The Team was made up of two or three RC-2's who served as Team Therapists and were assigned, for this purpose, to the Developmental Unit, together with one or two Psychometrists from the Psychology Department. As well, the Team had access to and met regularly with a Consulting Psychologist and consulted directly, from time to time, with Dr. Blake. The Team met on a weekly basis, together with the Consulting Psychologist, to review cases that had been referred to the Team and to develop therapeutic strategies involving behavioural modification techniques. 'Once a program was developed for a particular resident, it would typically be implemented for a period of time through visits by the resident to the B.M.T. facility. Ultimately, however, the resident would be returned to the ward on a full time basis and further implementation of the therapeutic program would be carried out on the ward by the regular RC-2's. According to Mr. Rowntree's evidence, the Team Therapists were intimately involved in developing and implementing programs for residents referred to the Team and in insuring that the program 5 for a particular resident was continued in a satisfactory manner once the resident had been returned on a full time basis to the ward. In effect, then, the RC-2's who moved to the B.M.T. became specialists in program development and implementation for residents requiring special treatment. Although no job description as such was prepared for the Team Therapists, Mr. Rowntree outlined their duties and responsibilities in considerable detail and, more particularly, attempted to identify the ways in which their responsibilities exceeded or were different from those of a regular RC-2. Mr. Rowntree identified four areas of distinction. The first related to the selection, training and supervision of‘Team Therapists. Team Therapists were selected from the existing group of RC-2's in a selection process involving representation both from the Developmental Unit and the Psychology Department. Team Therapists were selected on the basis of a demonstration of particular interest in the activities of the B.M.T., the candidate's demonstrated ability to work with severely disabled residents and the level of the candidate's skills in the provision of clinical services. Once appointed, Team Therapists received extensive "hands on" on-the-job training. It was Mr. Rowntree's view that a Team Therapist was not fully functional until he or she had experienced a full year of training and skills development of this kind. Team Therapists received direct clinical supervision from the Psychometrists and had direct contact with and received advice from the Consulting Psychologist. In Mr. Rowntree's view, although the administrative reporting line for 6 Team Therapists went through the Unit hierarchy, the functional supervision of the Therapists' work came from the Psychology side of the Team's operation. The second point of difference drawn by Rowntree related to the virtually exclusive involvement of Team Therapists in programming activity. The regular RC-2's were engaged in shiftwork, providing 24-hour custodial care. As a result, although RC-2's did have some involvement in programming activity, their major preoccupation, it was alleged, was the provision of custodial or parenting services. Though RC-2's were obliged to develop programs for two clients in a given year, the evidence indicated that this would normally involve the formal development of a program only two times in a year. Further, it was suggested that RC-2's spend little of their time actually implementing programs of this kind. The Team Therapists, on the other hand, devoted their time principally to work of this kind. They would provide service to approximately five clients at a time. They were involved in weekly meetings with psychological personnel. The Team Therapists developed, in effect, a specialty in this area in an attempt to meet the needs of residents whose problems could not be adequately handled in the wards themselves. The third point of distinction outlined by Rowntree concerned what he believed to be a significantly more intense involvement in the discharge of clinical duties. The duties of the Team Therapist were described by Rowntree in Exhibit 6, in part, as follows: (Ex. 6, p.2) 7 "These duties typically begin with the administration of a variety of complex assessment devices which are not normally conducted by Residential Counsellors. They include assessments of adaptive behaviour using standardizedmeasures, functional assessments requiring prolonged direct observation, and detailed task or performance analysis. Team Therapists are next responsible for the direct implementation of the therapeutic programs which they have developed. While Residential Counsellors share the responsibility for the few programs in their living areas, Team Therapists are fully responsible for all phases of implementation of their programs. The evaluative component of Team Therapist's clinical duties also differs from that expected from Residential Counsellors. Team Therapists maintain accurate and complex documentation of every therapeutic session, and are required to analyze and formally present this data to their supervisors on a weekly basis. Residential Counsellors, however, are expected to maintain much less complex documentation and summarize it on an annual basis for the 2 clients which they represent." In short, although Residential Counsellors are involved in clinical work to some extent, the nature and extent of the clinical work undertaken by Team Therapists was, in Rowntree's view, substantially different. The final distinction between the two jQbS described by 8 Rowntree related to a training or consulting function. When responsibility for the implementation of a therapeutic program was transferred back to the ward, the Team Therapist maintained some responsibility for insuring that the regular RC-2 was adequately briefed with respect to the program and for providing advice to the RC-2 as needed from time to time. In summary, then, the evidence of Mr. Rowntree suggests that the move to the Team Therapist position involved a substantial alteration of duties and responsibilities and, in effect, the development of a cadre of specialist therapists to work on therapeutic projects that would not be found within the normal responsibilities of the regular RC-2. Although it is true, as was urged on behalf of the Employer, that the language of the job description of the RC-2 (Ex. 2) includes in its statement of purpose and in its summary of duties and responsibilities language referring to the development of programs and their implementation, we are satisfied, on the basis of Mr. Rowntree's evidence, that Team Therapists working with the B.M.T. assumed responsibilities that were not within the range assigned to the regular RC-2 and were not, therefore, envisaged by the somewhat general language of the RC-2 job description. Accordingly, were it the case that this grievance pertained only to the B.M.T. operation, we would have little difficulty concluding that the Grievor had successfully established that the duties and responsibilities assigned to Team Therapists lifted them out of the RC-2 job description. 9 The analysis of this problem is complicated, however, by the fact that in October of 1985, a new structure was put in place to accomplish the objectives originally assigned to the B.M.T. The evidence concerning the role played by the Team Therapists in the new North Park Training Program was to some extent in conflict and requires, therefore, some explication. The initial plan for the North Park Program was one of establishing a 24-hour residential service. The evidence of Mr. Barry Murphy, who accepted an appointment as Unit Program Director of the North Park Unit in July of 1985, was to the effect that that plan was abandoned on the basis that there was not adequate staffing available to carry out as ambitious an initiative as this. Accordingly, the plan was revised to involve what appears to have been a modest expansion of the B.M.T. program. The new North Park Training Program included, however, a structural change. A few additional RC-2's were added as Team Therapists but, as well, an RC-3 and an RC-4 were appointed for the ostensible purpose of engaging in day to day supervision of the operation. The RC-4 appointed for this purpose, Mr. Greg Swain also testified in these proceedings. The evidence of Murphy and Swain, together with that of Rowntree, suggests that the B.M.T. program was continued in its main essentials but subjected, in formal terms at least, to the type of supervisory hierarchy typical of the residential wards. The program continued to function, however, as a five days a week, 8 hours a day, special unit to provide clinical services of the kinds described above to problem cases referred to the Unit from the wards. 10 It would appear from the evidence of all three individuals that the transition to the North Park model was not entirely problem-free. In particular, it would appear that disagreements developed as to the nature of reporting relationships and the way in which the program was to be operated. Little specific evidence was presented on this point but disagreements of this kind do appear to explain a difference in perspective, if not in factual terms, of the evidence of Murphy and.Swain on the one hand as against Rowntree on the other. From Rowntree's point of view, business continued as usual under the North Park model. The Team Therapists continued to play the same function. Their training, selection and the functional supervision of them by the Psychometrists and psychologists continued as before. The more specialized nature of the clinical services continued to distinguish their work from that of the regular RC-2's. Their special role was manifest in special training made available to them, and so on. Such supervision as emanated from the new residential supervisory team was merely administrative and nominal in nature, pertaining essentially to personnel issues. Prom the perspective of Murphy and Swain, however, the supervision provided by Swain in particular was anything but nominal. It was their view that Swain supervised the day to day operations of the Program, trained the Team Therapists, supervised their work, evaluated their performance and, in all material respects, functioned as their effective supervisor. The role of I il I / ‘I I I . . . . the Psychometrists and psychologists was that of a consulting nature only, in their view. Swain and Murphy also offered their opinion to the effect that the work undertaken by Team Therapists in the program was not materially different from the regular work of the RC-2's in the individual wards. Our own view is that the evidence, in its totality, establishes that the day to day work of the Team Therapists was not substantially altered by the move to the North Park model. Thus, it is our view that the work of the Team Therapist continued to manifest those characteristics identified above that appeared to set it apart, if only to a limited degree, from the work of the RC-2's. On the other hand, we are satisfied that the presence of a residential supervisory hierarchy did have, or was at least intended to have, some impact on the reporting relationships of the Team Therapists. If the supervision emanating from~the residential .hierarchy was nominal during the B.M.T. phase, we are satisfied that it was more intense in the North Park phase. Nonetheless, we believe that the Team Therapists continued to report in a functional manner to the psychology hierarchy and to receive .training and instruction from the Psychometrists and psychologists. In short, we are satisfied that such changes as were effected by the transition to the North Park model did not significantly undermine the claim made here that there were significant differences between the duties and responsibliities assumed by RC-2's who were appointed as Team Therapists and those of the regular RC-2's working in the residential wards. It is on 12 this basis that we find that the position of Team Therapist was not, at the date of the grievance, September 4, 1986, accurately classified as RC-2 (Residential Life). It is further argued on behalf of the Grievor, however, that a proper claesification for the Team Therapist position would be Psychometrist 1. In support of this proposition, it is argued that the job description for the Community Behaviour Consultant, which is classified as Psychometrist 1, is reasonably similar to the actual duties and responsibilities performed by Team Therapists. Accordingly, it is argued that inasmuch as the Psychometrist 1 classification has been used for a reasonably analogous position, it ought to be considered the best fit for the Team Therapist job. Such evidence as was led with respect to the Community Behaviour Consultant job failed to persuade us that it was sufficiently parallel to the Team Therapist position to warrant a conclusion of this kind. The principal function of the Community Behaviour Consultant is to provide support services to community agencies, agents, families and developmentally handicapped clients in a defined geographical area of the c,ommunity. Although recruits to this position were typically drawn from the RC-2's, it is our view that the clinical and service functions be performed by the Consultants are of a more burdensome kind than those assumed by the Team Therapists. The Consultants functioned with greater autonomy than the Team Therapists. They were expected to work on their own away from an institutional setting and to meet the needs of clients in a variety of settings in the community at large. Although the 13 Consultants reported to and received supervision from psychological personnel, they did not work under the close degree of supervision afforded to the Team Therapists either in the B.M.T. phase or in the North Park phase. Further, the Consultants were engaged in providing consulting services not only to developmentally handicapped individuals themselves but to others in the community, including their families, in need of such advice. Again, this introduces a dimension of responsibility not present in the Team Therapist's job. On the basis of the foregoing analysis, our conclusion is that although the Team Therapist job is not properly classified at RC- 2, neither is it a job which should be classified at Psychometrist 1 on the basis of the analogy put forward by the Grievor, the Community Behaviour Consultant position. Although the Grievor has thus not persuaded us that a proper resolution of the grievance is to order that the position of Team Therapist be classified at the Psychometrist 1 ,level, this does not end the matter. It is now well-established, as a result of the decision of the Ontario Divisional Court in OPSEU and Carol Berrv et al. vs. The Crown in Risht of Ontario (Ministrv of Communitv and Social Services) (607/85, unreported) that the proper remedy to be awarded by the Board in circumstances such as these is to require that the position of Team Therapist be properly classified by the Employer. The parties are in agreement that the remedy should be awarded effective 20 days prior to the filing of the grievance. 14 The Board remains seized of jurisdiction to provide whatever assistance may be necessary to the parties in implementing this decision. DATED at Toronto this 29th day of September,i 19!?. J. McCamus, Vice-Chairpersont _' ,,h. LOljr%CO, Member