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HomeMy WebLinkAbout1986-1312.Jacobsen et al.91-08-12EMPLOY~S DE LA CO”RONNE DE L’ON%wm CQMMISSION DE SEmLEMENT REGLEMENT DESGRIEFS IN TEB MATTER OF AN ARBITRATION Under THE CROWN ENPLOYEEB COLLRCTIW BARGAIN&NG ACT Before THE GRIB'VRNCB SETTLEMENT BOARD BETRREN OPSEU (Jacobsen et al) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE: J. Roberts Vice-Chairperson G. Nabi Member E. Orsini Member A. Ryder Counsel Ryder, Whitaker, Barristers & Sol Wright & Chapman ,icitors FOR TBB EMPLOYER C. Slater Senior Counsel Human Resources Secretariat Legal Services Branch Management Board of Cabinet BEARING March 17, 1987 February 22, 1991 May 22, 1991 July 9, 1991 -\ ,:- INTERIM AWARD I. INTRODUCTION This is a very old case. In a grievance filed on October 16, 1986, the griever complained that she was constructively dismissed without just cause from her position as a Psychometrist I at the Huronia Regional Centre. A similar grievance was filed at about the same time by Dr. J. Gilman. a Psychologist at the Huronia Regional Centre, and the two grievances were joined for purposes of arbitration. At the outset of the first day of hearing, March 17, 1987, the Ministry made a preliminary objection to jurisdiction in which it was claimed that neither grievance was arbitral because the actions of the Ministry could not be construed as disciplinary in nature. In fact, the Board was advised, the Ministry had always taken the position that there was no discipline. As a result, it was submitted, the grievances did not raise any matter which was arbftrable under the Collective Agreement or the Crown Employees Collective Bargaining Act. We began to hear evidence relating to this preliminary objection on March 17, 1987: however, the next day of hearing was not scheduled until February 22, 1991. Apparently, the parties had not pressed the grievances forward for two reasons: First, they were proceeding with a tribunal complaint filed in April, 1986, which involved, inter alia, essentially the same transaction as gave rise to the grievances: secondly, they apparently were involved in settlement negotiations. The tribunal complaint perhaps deserve some further comment. It seems that the initial complaint was settled between the parties on August 12, 1986, which was before the grievances herein were filed. The settlement, however, called for a review of certain matters by an eminent psychologist, and there were disagreements as to the scope of his review. There also was an allegation that MS. Jacobsen and Dr. Gilman had been penalized or disciplined in violation of a provisions of the settlement. These matters came on for hearing before the tribunal in the first half of 1988, and the Tribunal issued its decision on Qctober 11, 1988. The Tribunal concluded that the review was conducted as contemplated by the Memorandum of Settlement and that any lack of compliance with Ministry standards was rectified prior to February, 1988. As to the complaint that Ms. Jacobsen and Dr. Gilman had been disciplined in violation of the terms' of the Memorandum of Settlement, the Tribunal found that .there was no breach of that term because it related only to the period of review by the eminent. psychologist and the actions of the Ministry which were alleged to constitute discipline took place after the review was completed. It seems that after the Tribunal decision, Dr. Gilman settled his grievance and as a result it was withdrawn from arbitration. 3 The grievance of Ms. Jacobsen, however, was not settled. As a result, the preliminary objection to our jurisdiction to hear her grievance came on once again for hearing on February 22, 1991. We completed our hearing of this preliminary objection on July 9, 1991. For reasons which follow, the preliminary objection is allowed. In the opinion of the Board, the matters complained in the grievance did not constitute discipline, and as a result, the grievance did not raise any matter which was arbitrable under ,either the Collective Agreement or the Crown Employees Collective Bargaining Act. II. FACTUAL BACKGROUND The Huronia Regional Centre is located in Orillia, Ontario. It is involved in the treatment and training of'developmentally handicapped individuals. As of March 1987, it had about 800 in- ,house residents. It also provided some commun ity support services for developmentally handicapped individuals who were living in the community. In 1985, the Ministry decided to review the role of Huronia in .the provision of psychological services. A wide variety of information was gathered, including time studies, surveys, psychological assessments. etc. This led to a report which 4 recommended that the providers of professional services, i.e., psychologists and their support staff, be utilized in a different way. Up until that time, psychologists had individual assignments in the Psychology Department. There were three psychologists in the department and they were assisted by a staff of 10 psychometrists. The department was headed up by a Chief Psychologist, Dr. A. Kuechler, until his resignation in November, 1984. Pending the report, Dr. Xuechler was not replaced, and after the report issued, it was decided to utilize the psychologists and psychometrists in a different way. Generally,, the 3 psychologists were to be used on a consulting basis with no support staff to assist them. Psychometrist positions within the Psychology Department were to be eliminated but at the same time 8 new positions were to be added to a related Ministry Agency, Simcoe Community Behaviourial Services (S.C.B.S.). They consisted of a Clinical Team Leader and 7 Behaviourial Consultant positions. It was anticipated that the Dehaviourial Consultant positions would, in the main, be filled by those persons who had been psychometirists in the Psychology Department at Huronia. The grievor, Ms. Jacobsen, was one of these psychometrists. Her actual position title was Behaviour Therapy Technician, but she was classified as a psychometrist I (Atypical). The "Atypical" designation was added apparently, to reflect the fact that the griever did not possess a university degree in psychology or related disciplined, which was one of the qualifications for psychometrists. She had been in this position since March 24, 1980, and had a continuous service date of April 21, 1975, having started out as a Residential Counsellot. Apparently, the grievor was notified of the decision to shift the psychometrist jobs to S.C.B.S. on December 6, 1985. Thereafter, on December 10, 1985, the griever was sent the following letter in anticipation of her participation in this move: MEMORANDUM To: A. Jacobsen Psychology Re: Career Development As'discussed on December 6, 1985, your assistance in providing the following information by January 10, 1986 would be most appreciated. 1. A copy of your transcripts/marks which will be applied toward completion of a Batchelor's Degree. 2. Written indication of your personal interest and intent to proceed or not to proceed with an orientation to S.C.B.S. 3. A written request for assistance toward finishing your degree so that you may meet the educational qualification of the Behaviourial Therapist position, S.C.B.S. A follow-up meeting will be arranged to review these matters during the week of January 13 - 17, 1986. Your assistance in this regard would now be most appreciated. . 6 (signed) Robert Chemiuk Director, Clinical Support Services The evidence left little doubt that if the grievor had responded favourably to this letter, she would have been assigned to one of the Behaviourial Consultant positions at S.C.B.S. The grievor, however, did not respond in ~this fashion. On January 6, 1986, she sent the following response to Mr. Cherniuk: MEMORANDUM To: B. Cerniuk, Director, Clinical Support Services Date: January 6, 1986 Re: Your 'Career Development' memo of December lo/85 I regret that I will be unable to accept your invitation for an orientation to S.C.B.S., because I feel.that this service is outside Ministry and Professional standards and is not in the best interest of our clients. This is the same issue, which management was made aware of in 1981-82, that resulted in client mis-management in the Behaviour Modification Program. Methods for controlling clients are powerful techniques which can lead to abuse if these methods‘are not used in conjunction with positive training programs based on Psychological principles that are integrated with Medical Treatment Plans. I understand from our meeting of December 6th, 1985, that your offer to fund my course-work at the University of Waterloo is contingent on my accepting a position at S.C.B.S. Since I am unable to do so, I have not included my transcript or a request for funding. I would like to have the opportunity to continue providing Psych. Services to the residents of H.R.C. I look forward to meeting with you to discuss other options. (signed) Angela Jacobsen, Behaviour Technician. 7 This letter indicated that Ms. Jacobsen was very seriously opposed to the planned move because she -- apparently in agreement with.a position taken by Dr. Gilman -- felt that the service fell outside Ministry and professional standards and was not in the best interests of Huronia's clients. The letter indicated that Ms. Jacobsen wished to meet with Mr. Cerniuk to discuss options involving remaining at Huronia. Both Ms. Jacobsen and Dr. Gilman objected to the,essence of the change which management was trying to implement. Mr. Cemiuk testified that the idea behind the transfer to S1C.B.S. was to change to a behaviourial approach in dealing with clients rather than the former client-based psychological services approach. The grievor apparently believed that the new approach would not meet the requirements of Ministry and professional standards. After MS. Jacobsen met once again with Mr. Cerniuk, it was decided by the latter that she should move to a position in 0 Cottage. By February, 1986, this move had been accomplished. In this position, she retained her salary and classification: however, her duties were considerably different from those she previously executed in the Psychology Department. In her prior position, the grievor worked with Dr. Gilman developing new programs, making assessments, doing baseline studies, discussing clients with 0 Cottage staff and providing Dr. , .~_,. Gilman with certain reports. In 0 Cottage, Ms. Jacobsen was no longer involved in developing new programmes. Instead, she regularly implemented two-choice discrimination testing of clients in a repetitive fashion. No longer did she go to meetings or do in-depth analysis of'resident behaviour. No longer was she consulted regarding programme design or requested to perform baseline studies or observational sweeps. MS. Jacobsen's reporting relationship also changed. Mr. Cerniuk became her nominal direct supervisor: however, Mrs. Bridget Sowieta, a Residential Counsellor 4, who was the Supervisor of all Residential Counsellors at 0 Cottage, became her first-line administrative superior. In this capacity, Mrs. Sowieta had administrative authority over Ms. Jacobsen, but did not have authority over Ms. Jacobsen's professional judgements. Apparently, Dr. Gilman retained jurisdiction in the area of professional responsibility. Mrs. Sowieta testified that she became Supervisor at 0 Cottage on January 11, 1985. The job was a daunting one, she testified, because at that time 9 employees in 0 Cottage chose to leave and she had a number of new Residential Counsellors who had no experience in dealing with persons with emotional illness. r 9 This had to be rectified, Mrs. Sowieta said, because the residents in 0 Cottage were the most disruptive at Huronia. One of the first programmes which she instituted to deal with this situation, Hrs. Sowieta said, was the one in which the grievor ultimately became involved. The idea was to have Behaviour Therapy Technicians like the grievor teach the inexperienced Residential Counsellors in the behaviourial training of residents. Between 1986 and 1987, there were 4 Behaviour Therapy Technicians involved in this work at 0 Cottage, including the .I grievor. While they were administratively supervised by Mrs. Sowieta, they reported their professional results to Dr. Gilman. In the same period of time, Mrs. Sowieta said, 0 Cottage was being phased out. In fact, it was closed in early 1988. In order to assist in this phase-out, it was also the responsibility of the griever. and the other Behaviour Therapy Technicians to provide individual assessments of the residents. They would assess 5 to 8 people a day, one at a time, and then analyze the results and make out their reports. Once the assessments were completed, the residents were placed upon individual treatment plans. Initially, the Behaviour Therapy Technicians administered all the programmes; however, as more and 10 more Residential Counsellors became trained, they began working side-by-side with the Behaviour Therapy Technicians, collecting data and reporting it to the Psychologist. Mrs. Sowieta testified that the assessment and training programme involving the Behaviour Therapy Technicians was never intended to be permanent. Initially, she only had wanted the Behaviour Therapy Technicians to stay for a period of six months and then return to their original assignments: however, as time went on it took longer. The number of Behaviour Therapy Technicians was gradually reduced, with first one leaving and then another. Ms. Jacobsen and another Behaviour Therapy Technician, Ms. Debbie Leach, stayed until the Cottage closed. It is perhaps an understatement to say that the rela~tionship between Ms. Jacobsen and Mrs. Sowieta was not a smooth one. .There were several run-ins. Mrs. Sowieta testified~ that when Ms. Jacobsen initially was assigned to 0 Cottage, she did not know that previously, MS. Jacobsen had always had an office. This sparked their first confrontation. Many more were to follow. Ultimately, the solution to the office problem was to place MS. Jacobsen and Ms. Leach in a treatment room which adjoined the -administrative office occupied by Mrs. Sowieta. This was the room in which both Behaviour Therapy Technicians performed their assessments and also wrote up their paperwork. Because the room was intended for treatment purposes, there was a window with a one- way mirror between the administrative office and the treatment room. 11 When Ms. Jacobsen and Ms. Leach first occupied this space, there was a curtain which was drawn over the one-way mirror. One weekend, however, Mrs. Sowieta caused the curtain to be removed. This meant that she could observe the two Behaviour, Therapy Technicians while t,hey were making up their reports. She could not, however, observe them when assessing residents because this activity was carried on behind a screen. There also were run-ins regarding such matters as coffee- breaks, lunch-breaks and sign-in and sign-out procedures. .I MS. Jacobsen testified that her duties at 0 Cottage only involved her in doing,something a psychometrist would do about 25% of the time. She said that from her confrontations with Mrs. Sowieta, she became convinced that the latter was treating both her and Debbie Leach as if they were Residential Counsellots under her supervision. She indicated that based upon this she became convinced that management intended to downgrade her to the position of a Residential Counsellor as punishment for her opposition to the inove to S.C.B.S. As a result, she said, she filed the grievance leading to the present arbitration. 12 At the hearing on February 22, 1991, counsel for the grievor indicated that he intended to introduced post-grievance evidence in order to substantiate that Ms. Jacobsen's fears were well-founded. Counsel for the Ministry objected to the admission of this evidence, and we decided to hear it while reserving upon the question whether it should be given any weight in our decision. Essentially, the post-grievance evidence comprised testimony from MS. Jacobsen to the effect that ultimately, she was reclassified to the lower-rated position of Residential Counsellor 2. She said that on January 9, 1988, she. and Debbie Leach had a meeting with Mr. Cerniuk and Mr. Gilchrist from Personnel. They were told,~ she testified, that they were going to be red-circled and reclassified to R.C. 2 and assigned to the Programme Staff in the Off-Cottage Programme area. MS. Jacobsen said that in the course of this meeting she asked about the possibility of bumping a more junior Psychometrist at S.C.B.S. After all, the resolution of the Tribunal proceedings had long since allayed her fears regarding S.C.B.S., she had originally been offered a position there, and at the time of the transfer to S.C.B.S. she was the second-most senior Behaviour Therapy Technician holding the classification of Psychometrist 1 (Atypical). Mr. Cerniuk was called to give evidence in reply. He said '13 that from time to time after Ms. Jacobsen's transfer to 0 Cottage, Psychometrist vacancies had opened up, not only at S.C.B.S. but also at Penetang, Muskoka and Edgar. To the best of his knowledge, however, Ms. Jacobsen had not applied for them. Mr. Cherniuk also vigorously denied that he picked January- February, 1988 to take action with respect to Ms. Jacobsen and MS. Leach because he wanted to demote Ms. Jacobsen and knew that at that time there were no Psychometrist's positions available within a 40 kilometre radius. He said that he picked that date because the programme in which the two employees were performing work was coming to an end. Moreover, he added, 0 Cottage was no longer in existence and the Tribunal complaint which the 'grievor had initiated in April, 1986 was well behind them. Hr. Cerniuk also added in re-examination that it is the Human Resources Department and the Facility Administrator which decides if a person can be assigned to other positions. The factors which he gave on cross-examination, he stated, were the factors which Human Resources looked at in making this determination and were asked of him to explain in assigning anyone. He emphasized that ‘Ms. Leach, who was not part of any grievances or Tribunal complaints, was treated in the same manner as MS. Jacobsen. ,... . 14 III. CONSIDERATION OF THE EVIDENCE AND CONCLUSION We do not intend to spend a great deal of time in discussing the relative positions of the parties on the admissibility .of this post-grievance evidence. In substance, it amounts to a non-issue because we have reached the conclusion that even if we were to credit this evidence with full weight, we still would be unable to find as a fact that management intended to give the grievor a disciplinary demotion when it assigned her to 0 Cottage in February, 1986.' In order to conclude that the griever's assignment to 0 Cottage was disciplinary, we would have to find that in making that assignment, management intended to punish her for her opposition to the transfer to S.C.B.S. Moreover, this finding would have to be based upon an objective review of the evidence and not the subjective impression of the grievor at the time of her reassignment. See Re Koh and Ministry of Health (1989) G.S.B. #1335/88, at pp. lo-11 (Gorsky). In making this objective ' If it were material to determine how much weight to accord the post-grievance evidence, we would have accorded it only slight weight. We would have taken it as some degree of confirmation of the grievor's.fear of demotion: however, we would not have accorded it any weight in its other aspects, e.g., the intimation that Mr. Cherniuk purposefully waited until there were no openings for Psychometrists before terminating the grievor's job. If the arievor had wished to review at arbitration this asoect of her treatment. she should have filed another grievanc;. See Re Williamson and Liquor Control Board of Ontario (1980), G.8.E #107/80, at pp. 7-8 (Carter); Re Whittle and Ministry of Health (1981), G.S.B. #271/80, at pp. 9-19 (Jolliffe). 15 determination, regard must be had to the substantive, as opposed to the formal, effect of management's action. Re O'Keefe and Ministry of Correctional. Services (1981) G.S.B. #111/32, at p. 8 (Draper). hn objective assessment of the substance of management's action in this case cannot help but lead to the conclusion that the .reassignment in question was not intended as punishment. At the time, the positions' of all Behaviour Therapy Technicians in the Psychology Department were being transferred to S.C.B.S. The grievor voluntarily refused assignment to one of these positions. She requested to remain at liuronia. while the reassignment did involve a significant reduction in duties of a professional calibre, it cannot be said that it was a reassignment to an R.C. 2 position. The grievor became but one member of a team comprised of ,four Behaviour Therapy Technicians holding at least the same classification as she did. There was no loss in pay. She was not red-circled. While it is true that as the programme at 0 Cottage wound down, only the grievor and Debbie Leach were left'as Behaviour Therapy Technicians, the undeniable fact is that the grievor was not singled out. Her experiences in 0 Cottage, including the run- ins with Mrs. Sowieta, were equally shared by Debbie Leach. On the evidence, Ms. Leach did not play any part in the opposition to the transfer to S.C.B.S. initiated by Ms. Jacobsen and Dr. Gilman. Even on the post-grievance evidence, Ms. Leach shared the same ultimate fate as the grievor. Yet not one shred of evidence even hinted at a reason why management might also wish to punish Ms. Leach. We have no doubt that the grievor, Ms. Jacobsen, subjectively believed that she was being punished for having spoken out. While we understand how this impression came about, and how it must have been fortified in the course of the encounters between herself and Mrs. Sowieta, we must base our decision upon the .objective facts and those objective facts indicate otherwise. It must be concluded that the reassignment of the grievor to 0 Cottage was not disciplinary in nature. Accordingly, we do not have jurisdiction to entertain the merits of the grievance leading to the present proceeding. The preliminary objection of the Ministry must 'be allowed and the grievance must be dismissed. DATED at London, Ontario, this 12th day of August, 1991. A--- _-... __.... ._-- ,- --_. -. .- - .-- -..-.-.~.-..--- 17 /kd.l 4uL G. Nabi, Union Member E. J Orsini, Employer Member