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HomeMy WebLinkAbout1990-2579.Mates et al.91-11-05 Decision1991 - OPSEU (Mates et al) and Ministry of Health, GSB#1990-2579, (Kaplan) employes DE LA COURONNE DEL 'ONTA RIO DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100. TORONTO, M5G 180, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ONTARIO). M5G (4 326-1388 (4 326-1396 2579/90, 2581/90, 2786/90, 2787/90, 350/91, 431/91, 432/91, 433/91, 536/91, 604/91, 611/91, 612/91, 613/91, 614/91, 615/91, 616/91, 617/91, 620/91, 685/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT B e f o r e THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Mates et al) Grievor and The Crown in Right of Ontario (Ministry of Health) Employer BEFORE : FOR THE GRIEVOR FOR THE EMPLOYER HEARING W. Kaplan I. Thomson F. Collict Vice-Chairperson Member Member C. Dassios Counsel Gowling, Strathy & Henderson Barristers & Solicitors C. Riggs Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors September 30, 1991 October 11, 1991 In troduct ion By a grievance dated December 12, 1990, Dr. Morton E. Mates, a Psychologist 1 at the Queen Street Mental Health Centre in Toronto, grieves that he is improperly classified. Dr. Mates' grievance was consolidated with that of Dr. Nina Apanasiewicz, and the parties agreed that while there were differences in the duties and responsibilities of Dr. Mates and Dr. Apanasiewicz, Dr. Mates would serve as the representative grievor. Before turning to the evidence, it is useful to set out the relevant portions of the Psychologist Class Series. The Preamble to the Series states: The duties of positions allocated to this class series are carried out by Psychologists registered under the Psychologists Registration Act. These entail responsibility for the application of the knowledge, principles and techniques of psychology in the diagnosis, care and rehabilitation of patients, residents, wards, students, inmates and may include counselling of employees. included is the use of complex psychological assessment techniques; interviewing of patients, students or inmates; the development of and participation in psychotherapeutic or behavioural modification programs for individuals or groups and the development and organization of as well as participation in programmes of milieu and behaviour therapy. Planning of and participation in the instruction and counselling of both professional and other staff may also be included. Duties also include responsibility for reviewing the development of new techniques and investigation of their potential usefulness for application in the relevant work environment. Employees in positions allocated to this series are expected to introduce new developments in psychological knowledge and practice and to evaluate their worth. In some positions psychological research may be the prime responsibility. Supervision of Psychometrists may be required of all positions in this class series. 3 The cla s standard fo Psychologist 1 provides: Positions allocated to this class entail complex and responsible psychological duties in a hospital, educational, training, correctional or research setting. Incumbents plan and conduct or supervise individual or group therapy or behavioural modification programs and administer, evaluate and interpret a complete range of psychological tests. They generally function in collaboration with, and provide professional supervision to, members of treatment staff from a number of disciplines. They utilize a wide variety of psychological procedures, both standard and experimental in assessing, describing and measuring dysfunction, disability or impairment; they interpret the disabilities and special needs of patients, students or inmates to institution staff, teachers or parents and plan and apply appropriate techniques of psychotherapy constantly appraising the efficacy of treatment and rehabilitation programs. In Department of Health incumbents of positions allocated to this class are usually responsible for planning and providing the psychological services for a specific unit or clinic and receive supervision from the senior psychologist of the facility or from a Regional Co-ordinator of Psychological Service. In such a setting they develop a psychological service having regard for the specific needs of the patients served and participate with other members of treatment staff in diagnosis, treatment and rehabilitation of patients. In a research setting incumbents plan, develop and conduct responsible and complex applied or basic research projects subject to the approval of a senior psychologist. They orginate new study methods and conduct critical comparative studies of new methods of behavioural evaluation, treatment or rehabilitation, prepare reports and recommend application of such met hods. In the Department of Correctional Services they assess wards, students or inmates providing services as required, working under supervision or a senior psychologist, and advise and train correctional and teaching staff in best methods of achieving desired rehabilitation of wards, students or inmates. They may be required to provide a psychological service, on a part-time 4 basis (e.g. via regular or irregular visits) at facilities other than at the location where they are normally based. QUALI FlCATlONS 1. Registration as a Psychologist in the Province of Ontario. 2. services. Ability to organize, co-ordinate and supervise psychological 3. Personal suitability. The Class Standard for Psychologist 2 provides: Positions allocated to this class entail responsibility for psychological services in a hospital, school, or other institution. Incumbents continually assess developments in psychological practice and originate new methods of study and assessment to ensure provision of optimum techniques and methods in the service provided. They plan and develop training methods for student, patient or inmate rehabilitation and behavioural change programmes and plan and participate in staff training as well as professional supervision for junior professional staff including psychologists, psychometrist and trainees. They may be responsible for the establishment of remotivation and industrial therapy programs and act as consultants in cases of difficult psychological assessment. They may conduct operational research programs and may develop data processing for program evaluation. In Department of Health incumbents of positions allocated to this class are responsible, as department heads for planning, assessing and supervising a small psychological services program. In the Department of Correctional Services, under direction, incumbents of positions allocated to their class are responsible, on a full time basis, for all the psychological services in a single correctional institution, where they plan, organize and implement a wide gamut of psychological services of an evaluative, clinical or remedial nature. The service may require the assistance of a Psychologist and/or Psychometrists and the provision of a part-time service at other facilities is not precluded from 5 positions in this class. QUALI FlCATlONS 1. Registration as a Psychologist in the Province of Ontario. 2. environment, where competence was demonstrated. At least two years acceptable experience in a pertinent 3. services; personal suitability. Ability to organize, co-ordinate and supervise psychological The Evidence Dr. Mates was the only witness to testify in these proceedings. He has a B.A., M.A. and Ph.D. in psychology, and in 1972 he joined the Ministry of Health as a Psychologist 1 in the Whitby outpatient clinic. Subsequently, he worked for six years in the wards at the Queen Street Mental Health Centre (the "Centre"), and for the last six years has worked in the Centre's outpatient program. Dr. Mates is part of an inter-disciplinary team (the "team") consisting of a psychiatrist, a social worker, a head nurse, four other nurses and a recreation therapist. The team works on a program referred to as the Unit Outpatient Program (the "Unit"), which has both a day care and an after-care component. Some patients assigned to the Unit come in for the day and attend various courses and participate in various activities. The after-care component involves patients attending at the Centre, weekly and in some cases monthly, for individual therapy and assistance. Approximately 75 patents are assigned to the Unit, of whom approximately 35 are in day care, with the rest seen on an after-care basis. The typical patient is male, forty years old, has a grade nine education, has little work history, is single and has suffered from a major psychological 6 disorder for approximately fifteen years, and has spent three of those years in and out of hospital, with an average of nine admissions. In general, the outpatients assigned to Dr. Mates' Unit are psychotic, suffering from delusions, hallucinations, and major functional disabilities. Dr. Mates testified that the nominal clinical head of the team is the psychiatrist, Dr. Desanka Krstich, but that Dr. Krstich basically functions as a consultant to the team because she is there only three hours a day. Dr. Mates reports both administratively and clinically to Dr. Christina Dronsejko, who is the Chief Psychologist. The nurses on the team report to the head nurse, and there is also a senior social worker elsewhere in the Centre to whom the social worker on the team reports. The same can be said with respect to the recreation therapist. Dr. Mates testified that his position specification accurately describes his duties and responsibilities, although he assigned different percentages to the different parts than those indicated on the specification. Dr. Mates also indicated that he spent considerable time supervising students, and engaging in advocacy work. More will be said about this below. Dr. Mates' duties include assessing patients referred to the Unit, which he does with a psychiatrist. Assessments involve analyzing patients in terms of their early experiences, development, education, sexual history, work experience, psychiatric history and treatments in an attempt to arrive at a composite picture in order to plan treatment. Each assessment is brought to the team for discussion, at which time a consensual decision is taken as to whether or not to admit the particular patient to the program. A patient admitted to the Unit can be assigned to any team member with the exception of the recreation therapist. Usually, the most difficult patients, meaning the 7 potentially aggressive males, are assigned to Dr. Mates. These patients receive both individual and group therapy. For the last few years Dr. Mates has supervised a psychometrist conducting group therapy in another Unit, and he reviews those sessions with the psychometrist later. He also supervises the work of one psychometrist in his own Unit, and two psychometrists located in satellite offices. There was not a sufficient number of patients considered appropriate for group therapy in the Unit at the time of the grievance, so Dr. Mates conducted individual therapy with his patients, and he estimated that he devoted approximately eight hours a week to this part of his job. When Dr. Mates is supervising a student, he involves that student in the therapeutic program, and then spends time with him or her after each session reviewing what has transpired. Dr. Mates testified about the changes in his duties and responsibilities over the last few years. One of these changes is the growth in size of the Department, and this growth has been accompanied by decentralization. At one time psychologists such as himself were located in an office complex, and patients were brought in for therapy or assessment. Now psychologists and others giving treatment are located in closer proximity to their patients. A related development is that the Chief Psychologist now bears a-greater administrative burden, and is less involved in actual patient care, reducing the degree of functional supervision to a nominal amount. Similarly, the Chief Psychologist no longer assumes as much responsibility as in the past for the supervision of students. As a result, Dr. Mates has taken on more responsibility for their supervision, as well as for the supervision of the psychometrists. Dr. Mates meets with his supervisor once a year, at which time she completes a performance appraisal. Other than this annual event, Dr. Mates does not receive any direct supervision, although he does see his supervisor at bimonthly departmental meetings, and he receives regular 8 memoranda from her. Dr. Mates testified that his position is considered to be a "Department of Health" position. Not only did Dr. Mates testify that decentralization resulted in increased supervisory responsibilities, he also told the Board that it has resulted in significant clinical changes. Deinstitutionalization, meaning the movement of patients to the community, has accompanied decentralization. The goals of deinstitutionalization include community-based care delivery, and creation of linkages between community-based patients and appropriate community caregivers. Dr. Mates testified that deinstitutionalization has required him to assume new advocacy duties for his community-based patients. Dr. Mates told the Board that advocacy is necessary in order to meet his patients' needs. In general, Dr. Mates' after-care patients have five needs: (1) medical/therapeutic, (2) social, (3) recreational/housing, (4) occupational/vocation al, and (5) financial. Dr. Mates becomes involved with patients as part of their discharge planning, as he is responsible for ensuring that these needs are met. This responsibility brings him into regular contact with his patients (a caseload of approximately fifteen), and with individuals and organizations in the community. Dr. Mates gave numerous examples of his role in assisting patients with respect to meeting these needs. For example, he accompanies patients to community centres and tries to help them become involved in activities. He also contacts the appropriate authorities in order to obtain better housing for his patients. Seeing to these five needs involves regular communication with different social service bureaucracies, churches, community groups, hostels, food banks, etc. Dr. Mates may also be required, for example, to testify on behalf of patients in court, or to assist them in obtaining better housing and legal 9 aid. Dr. Mates has become involved in advocating for change within the system, and in this capacity has represented the Centre on the Board of Health. This involved attending monthly meetings, advocating on behalf of his patients and sharing information. In Dr. Mates' opinion, the community orientation has significantly changed his practice. If a patient does not, for instance, show up for an appointment, Dr. Mates will attend at his boarding house to investigate. It is no a longer a case of a patient on a ward being brought to him for treatment. In his interacting with patients, Dr. Mates is often required to make important health care decisions, such as whether a patient threatening suicide should be reinstitutionalized. Dr. Mates estimates that he spends approximately thirty-five percent of his time doing this community work. Dr. Mates testified that nothing in his psychological training taught him how to be a community advocate. Each month, Dr. Mates meets with each of the psychometrists he supervises, and spends approximately two hours with them discussing their caseloads, especially their difficult cases. He also meets and speaks with them on a more casual basis throughout the month. Dr. Mates co-signs the psychometrists' psychiatric test reports after discussing the reports with them. His duties include preparation of annual performance evaluations of the psycho me trists . With respect to the supervision of students, Dr. Mates testified that he generally supervises one student a year, either in the winter or in the summer. These students are usually undergraduate or graduate students in psychology, who are attending at the Centre in order to fulfill their practicum requirements. Generally, these students have particular interests, 10 and Dr. Mates works with them in establishing a program at the Centre. Planning the students' experience includes directing them to relevant educational seminars offered at the Centre. Summer students attend at the Centre five days a week for fourteen weeks. Winter students come two days a week for both winter and spring semesters. As previously noted, the student accompanies Dr. Mates to therapy sessions, following which he discusses the session with the student. Dr. Mates meets formally with his student for a few hours twice a week, and informally on many occasions, at which time he provides instruction and information. Dr. Mates told the Board about his involvement in evaluating the effectiveness of psychotherapeutic activities, and about his role in the development of an evaluation methodology applicable to the satellite programs. Dr. Mates also testified that through his reading he had become aware of Adler Lifestyle Interviewing, and he has incorporated that technique into the program, and arranged educational seminars for other members of the team in the application of the technique. He has also participated in continuing education programs, and regularly follows developments in his field. For example, as a result of attending four seminars on hypnotherapy, Dr. Mates has been able to incorporate this technique into his own practice, as well as give seminars about it to others. Because of his years of experience and expertise, Dr. Mates is regularly called upon to act as a consultant to members of his team and others with respect to difficult cases. As the senior clinician, apart from the psychiatrist, Dr. Mates has a leadership role in the team. Cross-Examination, In cross-examination, Dr. Mates testified that with the exception of his 11 advocacy function, his position specification accurately described his duties and responsibilities. Dr. Mates testified in more detail about the process followed in the assessment of new patients, and the process for determining the treatment new patients would receive. While all the members of the team are professionals, Dr. Mates' views, by virtue of his many years of experience, are received with additional deference. All of the patients in the program are discussed at weekly clinical meetings, which are held separately from the assessment meetings. There are also monthly business meetings. Dr. Mates told the Board that the average length of time that an individual would remain part of the caseload varies. Some patients can be dealt with in six sessions, while others remain part of the caseload forever. Seventy-five percent of the Unit's patients were initially in-patients, while the remainder are referrals from Admission if hospitalization is considered unnecessary. While Dr. Mates is directly responsible for the patients in his caseload, he testified that he also has indirect responsibility for other patients in the Unit, as he is involved in program decisions, sitting in on discussions, and consulting with team members. Dr. Mates' patients are after-care patients, and he explained that they were in a different category than the day care patients because they did not come into the Centre for regularly scheduled events. Instead, his patients come in for appointments, and he also goes out in the community to see them. In addition to providing individual therapy for his patients, Dr. Mates might also see them when they attend at the Centre in order to obtain money, in those cases where the Centre serves as the trustee for their welfare checks. These occasions would provide Dr. Mates with another opportunity to interact with his patients. Dr. Mates testified that his patients all have problems in living, but that 12 those problems vary because his patients have different levels of functioning. It was suggested to Dr. Mates that outpatients have always presented community-based needs, and that in providing for these needs, the essential nature of the psychologist-outpatient relationship had not really changed. Dr. Mates did not agree with this suggestion, and he testified that deinstitutionalization has changed the nature of that relationship. Dr. Mates pointed to other related changes such as the increase in subsidized housing and the rise of community-based advocacy. Dr. Mates was asked whether the only difference between the present and the 1950s was the increase in agencies and options available to outpatients, and he replied that these agencies and options are only available because psychologists and others have raised the needs of this group. It was suggested to Dr. Mates that advocacy has always been considered part of the work of any professional. Dr. Mates agreed with this suggestion in a general sense, but testified that the importance of this role has grown dramatically in the last ten or fifteen years. Dr. Mates emphasized that psychologists no longer, as they once did, simply sit in their offices waiting for patients to be brought in. Now they go out into the community and see to their patients' needs, as well as advocating changes within the system. Dr. Mates agreed that he was an advocate in 1972 when he began work for the Ministry, but testified that he is a better advocate today. Turning to the matter of supervision, employer counsel explored with Dr. Mates his relationship with his supervisor, and he testified that he has gone to her on occasion seeking advice, and that he also sends her monthly reports listing his patients, committees that he has attended and groups he has contacted, and his educational activities. Moreover, Dr. Mates' supervisor reviews audits conducted on his work on a random basis (approximately twice per year), and from time to time she writes Dr. Mates with suggestions 13 for improvement. Sometimes Dr. Mates and his supervisor meet to discuss audit results. In Dr. Mates' opinion, all this review of his casebooks reveals is record-keeping ability. He testified that there is really no way for someone to supervise his activities other than by accompanying him as he goes about his work. However, Dr. Mates agreed that the type of supervision he receives is the type that is common to his profession. Moreover, he receives less supervision now, as a result of his twenty years of experience, than would someone just entering the field. Dr. Mates was asked in what way his job was not reflected by the class standard, and he testified that the standard envisages a situation where the departments were smaller, and where the Chief Psychologist would be available on a daily basis assigning work to staff. Dr. Mates also referred to his earlier evidence, and suggested that the class standard also envisaged a situation where patients would be brought to offices for treatment, not the community-based system presently in use. Dr. Mates pointed out that deinstitutionalization came into place after the class standard was drafted. Dr. Mates agreed that as long as he has been working for the Ministry his work has focused on the assessment and treatment of individual patients, and that advocacy was part of that. Dr. Mates was asked about his students, and he agreed that every professional has the responsibility to train students in his or her field. However, Dr. Mates told the Board that he is not required to accept students, and that some psychologists do not do so. Dr. Mates testified that discharge planning, in particular ensuring that the five needs were met, was an important part of his job. He distinguished, however, discharge planning for someone whose illness has subsided, from discharge planning for someone who was being discharged into community-based treatment. While the professional hope is that community-based patients 14 will become less dependent, Dr. Mates testified that the opposite often occurs as a result of all the subsidized services available in the community. Patients may become more self-sustaining, but they do not generally become independent. Dr. Mates was asked about the psychometrists he supervised, and he testified that psychometrists have either a B.A. or a M.A., and that the ones he supervised all had M.A.'s Dr. Mates' supervisor also signed the annual performance appraisals of the two psychometrists located at the Centre, while the performance appraisals of the other two were co-signed by the program directors at the satellites. Dr. Mates has clinical, not administrative, responsibility for the four psychometrists. Dr. Mates testified that he volunteers to take the difficult cases, and one reason for this is the new challenges they provide. As is the case with training students, Dr. Mates is not required to take on the difficult cases. Employer counsel also asked Dr. Mates some questions with respect to his research activities, and Dr. Mates described the research in further detail. Basically it involved attending monthly meetings of psychometrists and psychologists in the satellites and talking about the general area of program evaluation and outpatient treatment. The objective was to develop a test package in order to facilitate comparison of treatment. Dr. Mates testified that these activities were part of the initial stage of planning a research program. Dr. Mates testified that the meetings had been going on for some years before he became involved, and that he volunteered to become involved because of his own interests, his involvement in outpatient work, and his commitment to the profession. Dr. Mates no longer serves on any community organization because he is now based in the Centre. 15 Reexamination In reexamination, Dr. Mates testified that he volunteered to become involved in the research project, but that management was aware of what he was doing, and that it provided a benefit to the employer through encouraging interaction and promoting operational research. The same could be said with respect to his community involvement and supervision of students. Dr. Mates testified that he does not think of his Community work as discharge planning, because his work involved ensuring, on a continuing basis, that the five needs of his patients were met. Advocacy was, in his view, an important part of this process. In his words, this was not discharge planning, but part of his treatment responsibilities. Dr. Mates testified that his advocacy work was related to the Centre policies, and he noted the existence of a community advisory board made up of ex-psychiatric patients. The evidence having concluded, the matter proceeded to argument. Union Argument Union counsel made two arguments in support of his submission that this is an appropriate case for a Berry order. Counsel argued that there has been a change in Dr. Mates' duties and responsibilities as a result of deinstitutionalization. This change has led to Dr. Mates taking on an advocacy role in the community, and it is reflected in the fact that he receives less supervision, but in turn has taken on greater supervisory responsibilities. Counsel also took the position that while the Psychologist 2 class standard did not apply to the grievor, many of Dr. Mates' duties and responsibilities were, in fact, described by it. Counsel referred the Board to a number authorities setting out the legal principles to be applied in classification cases including the Avsec 1589/89 16 (Low) decision, where the Board states that to obtain a Berry order, a grievor must demonstrate that there is a substantial difference between the duties performed and those referred to in the class standard (at 6). See also Beach 81 6/86 (Fisher); Fenske 494/85 (Verity), where the Board stated that "the real issue is whether the quantitative changes to the job are also qualitative changes" (at 14); Beggs 453/88 (Wilson); and Cabeza 909/86 (Epstein). Counsel argued that the evidence in the instant case established that the grievor's core duties and responsibilities had significantly changed over time, so much so that there was now a substantial difference between the job he performed and the one envisaged by the Psychologist 1 class standard. Turning to the Preamble of the class series, counsel suggested that it contemplates psychological practice in a clinical setting, not in a community setting of the kind described by Dr. Mates. Dr. Mates no longer receives the kind of supervision contemplated in the Psychologist 1 class standard, and counsel referred to the evidence supporting this point. Indeed, given the absence of any meaningful supervision or review, the grievor has assumed greater responsibility than envisaged by the standard. While the Psychologist 1 class standard refers to psychologists providing professional supervision to members of the treatment staff, counsel pointed out that it does not refer to the training of students, and here again counsel referred to the uncontradicted evidence establishing that this function took up a great deal of the grievor's time. The biggest change, however, and one not referred to in the class standard, is Dr. Mates' advocacy work on behalf of patients in the community. These duties are not described in the class standard, and counsel suggested that they had, in fact, become core to the position. 17 While at one time psychologists such as Dr. Mates sat in their offices and patients were brought in for conventional types of treatment, this was no longer the case. Very simply, counsel argued that deinstitutionalization has fundamentally changed the way that Dr. Mates goes about his work. Dr. Mates still provides therapy to his patients, but he also provides for their five needs and acts as an advocate on their behalf. This advocate's role is not set out in the class standard, and counsel submitted that it takes up so much of his time that it can be fairly described as meeting the test set out in Avsec and other cases. Counsel also referred to the Psychologist 2 class standard, and while he agreed that it did not apply to the grievor because of its requirement that incumbents be "department heads," he did argue that the description of duties set out in the second paragraph accurately described many of the functions performed by the grievor. For example, the Psychologist 1 class standard did not refer to incumbents planning and developing training methods for students. The grievor spent many hours a week training his students, and it was significant that this activity was described in the Psychologist 2 class standard but not in the Psychologist 1 class standard. Several more examples will further illustrate this point. Counsel referred to the grievor's evidence about learning hypnotherapy and the Adler method, and applying both in his practice, as well as bringing both new methods to the attention of his colleagues. Counsel pointed out that the Psychologist 2 class standard states, inter alia, that "incumbents continually assess developments in psychological practice and originate new methods of study and assessment to ensure provision of optimum techniques and methods in the service provided." Counsel argued that in learning and applying these new methods, this is exactly what Dr. Mates was doing, and he 18 pointed to the absence of any similar language in the Psychologist 1 class standard. Counsel gave a number of other examples illustrating his point that Dr. Mates was doing many duties, such as acting as a consultant and conducting operational research, assigned to the higher class standard. In counsel's submission, the evidence amply supported the argument that while Dr. Mates may not be a Psychologist 2, he had clearly assumed duties and responsibilities beyond those contemplated by the class standard for Psychologist 1. Employer Argument Employer counsel did not take issue with the legal test to be applied, but argued that the union had failed to discharge the burden upon it in that the evidence did not demonstrate that the grievor was performing duties and responsibilities substantially different from those set out in his class standard. In counsel's submission, the primary distinction between the two class standards at issue in this case was the emphasis on managerial functions in the Psychologist 2 class standard. Carefully examined, counsel argued that the facts indicated that Dr. Mates was practising as a professional psychologist, fulfilling professional responsibilities with a group of clients on a one-on-one basis. He did not have, in that result, the managerial responsibilities envisaged by the Psychologist 2 class standard. In this regard, counsel took issue with the union's characterization of many of the grievor's duties and responsibilities as being described in the Psychologist 2 class standard, and pointed out, for example, that while the grievor may have introduced two new psychological methods, he could not be said to be "continually" assessing developments in the field. This was, in counsel's submission, the kind of job that a manager performed for the benefit of the 19 psychological community generally, not a job being performed by the grievor. Similarly, while the grievor did act as a "consultant'' to other members of his team, this was simply the normal job performed by any professional, not the kind of managerial consulting envisaged by the Psychologist 2 class standard. Simply put, counsel argued that the grievor's duties and responsibilities could not be described by the Psychologist 2 class standard, given the managerial focus of that standard. In counsel's view, the suggestion that the grievor was performing functions described by the Psychologist 2 class standard was without merit. Counsel also made the point that in assessing the work performed by the grievor, it was necessary to distinguish his obvious personal and professional qualities from the job he was called upon to perform. In that regard, counsel argued that while there may have been some changes in the work the grievor was called upon to perform, that work could still be fairly said to come with the Psychologist 1 class standard. While there has been decentralization and deinstitutionalizati on, the Psychologist 1 standard continued to apply because it described the basic responsibilities of a working psychologist, and these were the grievor's basic responsibilities. In counsel's view, the evidence established that the grievor was primarily engaged in the assessment and treatment of patients. Whether this work was done in the wards or in the community did not, in counsel's submission, change the fundamental thrust of the job. Counsel pointed out that the class standard indicated that Psychologist 1's were responsible for the "needs of patients," and argued that this included Dr. Mates meeting the five needs of his commun ity-based patients. In counsel's view, an advocacy function is central to the responsibility of any professional, and what it means is advancing the interests of the patients. 20 Counsel argued that this was true when the class standard was written, and that it remains true today. Moreover, while there may not be a reference to students in the Psychologist 1 class standard, counsel argued that it is the responsibility of any professional to assist in the training of new members of the profession, and that in any event, in the instant case, it was purely voluntary. Dr. Mates did not have to take on students; he chose to do so. Likewise, the grievor was not required to serve on community boards; he chose to do so. In closing, counsel argued that the union had failed to discharge the burden before it, and asked the Board to dismiss the grievance. Union Reply In reply, counsel noted that Dr. Mates' position specification referred to the training of students, and counsel again referred to the evidence before the Board that the grievor spends considerable time in planning the students' time at the Centre, and in training them. Counsel noted that the Centre received a benefit from Dr. Mates taking on this responsibility, as it received a benefit from his community work. Advocacy has, in counsel's view, grown over the years, to the point where it has become an integral part of the job. It was not a voluntary matter, and it did require a different knowledge and skill base, as well as the assumption of significant new responsibilities, than those traditionally associated with the position. Decision Having carefully considered the evidence and arguments of the parties we have come to the conclusion that this grievance must be upheld. In our view the evidence establishes that Dr. Mates' duties and responsibilities have changed to such an extent that they are no longer accurately described by the Psychologist 1 class standard. 21 We reach this decision for a number of reasons. First, we find that a large part of Dr. Mates' time is spent in community-based work, which is not described in his class standard. While it is true enough that this work involves meeting the "needs" of his patients, we are satisfied from the evidence we heard that the manner in which Dr. Mates goes about meeting these needs is not the manner envisaged by the class standard, and more particularly requires Dr. Mates to employ advocacy skills of a kind and character well beyond those traditionally associated with the grievor's position and this class standard. Moreover, meeting these needs in a community-based setting, where Dr. Mates acts without significant supervision, has resulted in the assumption by him of new responsibilities for patient care that go beyond those contemplated in the Psychologist 1 class standard. In our view, Dr. Mates has taken on significant new responsibilities with the result that he is doing a different kind of job; certainly it is one requiring more independent judgement and decision-making then the class standard would seem to suggest. We also find that the responsibility Dr. Mates takes for the training of students is significant, both in time requirements and in importance, and that this responsibility is not reflected in the class standard. While Dr. Mates is not forced to take on students, he does so with the clear support and encouragement of the Centre, and it must therefore be described as an integral part of his position. To a lesser extent, the same can be said with respect to his research activities. As the Psychologist 2 class standard does not, in its own words, apply to the grievor, it is not necessary to make any findings with respect to whether or not portions of that standard accurately describe the grievor's duties and 22 responsibilities. Our finding, simply put, is that the grievor's class standard does not accurately or adequately describe the grievor's duties and responsibilities. This is a case of a job evolving to such an extent, because of fundamental practice changes within a profession, that the class standard no longer fits; It is on this basis that the grievance is upheld. In the result, the employer is ordered to reclassify Dr. Mates and Dr. Apanasiewicz within ninety days of this award, or as mutually agreed upon by the partieis Reclassification shall be retroactive to twenty days prior to the date of Dr. Mates' grievance. We remain seized with respect to the implementation of this award. of November 1991. William Kaplan Vice-Chairperson I. Thomson Member Colliot See Addendum Attached. F. Colliot Member ADDENDUM GSB #2579/90 and #2581/90 (MATES/APAUSIEWICZ) This Member is in agreement with this award to the effect that the grievors' present class standard of Psychologist 1 does not accurately describe their duties and responsibilities as at the date of filing of the subject grievances. As an addendum to the above, however, and it is recognized that the following comments have no bearing or impact on the issue associated with this award, this Member would refer the parties to the following matters which must be given important consideration in 1. 2. 3. the contemplation of any new class standard for the grievors. In evidence, Dr. Mates stated that his supervision of psychometrists was clinical as opposed to administrative. Hence, that "supervision" was largely technical/professional in nature and geared more to the professional assessment needs of a client as opposed to the supervision of a subordinate. Dr. Mates also stated that the supervision of students was not a part of the job; but that he preferred to have a student assigned to him. If the supervision of a student is not a requirement of any new class standard, it should not be a part of that class standard. With reference to the grievors' core duties as related to the present class standard, it was the Union's argument that, "The biggest change (in core duties), however, and one not referred to in the class standard, is Dr. Mates' advocacy work on behalf of patients in the community. (p. 16 of award) 2 In testimony, Dr. Mates estimated that he spent up to 35% of his time doing community work (see page 9 of award). Clearly, a different knowledge and skill base is required to "advocate", press toward, or deal with the five needs of his clients as expressed by Dr. Mates, as follows: 1. medical/therapeutic 2. social 3. recreational/housing 4 . occupational/vocational 5. financial However, the qu alitative level of these skill and knowledge requirements to distribute welfare dollars, to deal with housing authorities and staff, churches, community groups, hostels, food banks, and social service bureaucracies on behalf of clients (page 8 of award), is surely well below the professional qualifications and requirements necessary for the accreditation of, for example, Dr.-Mates, who has a B.A., M.A. and Ph.D. in Psychology. The point to be made is that a Social Worker, Recreational or Vocational Rehabilitation Counsellor, etc., at a lower responsibility and professional level could readily take on these responsibilities set out above, including the "advocacy of changes or improvements in the social "system"; and thereby release the psychologist to perform the assessment, treatment and therapeutic duties, etc., associated with the profession. The advocacy function currently engaged in by the grievors obviously is part of the rehabilitative activity necessary to try to make their clients more self-sustaining within the community. However, from a qualitative viewpoint, the rehabilitative and community support activities described by the grievor is evidence are far less professionally demanding than are the usual demands made upon the professional psychologist, regardless of whether he 3 is operating within an i n s t i t u t i o n o r within t h e community context described by D r . Mates. In summary, the above matters should be taken i n t o c o n s i d e r a t i o n when developing a new class standard f o r t h e g r i e v o r s .