HomeMy WebLinkAbout1988-0311.Union.91-07-11 ONTARIO EMPLOY~:$ DE LA COURONNE
CROWN EMPLOYEE$ ~ DEL'ONTARIO
GRIEVANCE C,OMMISSION DE
S 'TLEMENT REGLEMENT
BOARD DES GRIEFS
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311/88
IN THE I4ATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEV~NCB 8ETTLEI~NT BOARD
BETWEEN
OPSEU (Union Grievance)
Griever
The Crown in Right of Ontario
(Ministry~ of Correctional Services)
Employer
BEFORE: M. Watters Vice-Chairperson
F. Taylor Member
D. Wallace Member
FOR THE ~A. Ryder
GRIEVER Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
FOR THE J. Benedict
EMPLOYER Manager Staff Relations and Compensation
Ministry of Correctional Services
HEARING September 20, 1988
July 4, 1989
January 31, 1990
Febr%lary 23,.1990
October 9, 1990
January 30, 1991
This proceeding arises from a Union grievance dated March
30, 1988, the material part of which reads:
"The Un,on grieves that the employer is in violation of
Articles 4 and 18 of the collective agreement, but not
exclusively, These violations arise as a result of,
but are not limited to, the employer's failure to staff
the Sault Ste, Marie Jail with the appropriate
trained/classified Correctional Officers.
Settlement Desired
That the Board orders the employer to declare that the
actions as described above are contrary to the
provisions of the collective agreement. Further, that
the employer be ordered to staff the Sault Ste. Marie
Jail in accordance with the collective agreement."
The grievance contains two (2) separate, albeit
intertwined claims. Firstly, the Union asserted that the
unclassified correctional staff at the Sautt Ste. Marie Jail
(hereinafter referred to as 'the Jail') had been improperly
appointed to the unclassified service under section 8 of the
Public Service Act, R.S.O. 1980, Chapter 418, as amended. From
its perspective, the positions occupied should have been filled
pursuant to a postin9 under article 4 of the collective
agreement. Secondly, the Union alleged that the training
provided to the unclassified Correctional Officers was inadequate
and thereby constituted an unreasonable health and safety risk
within the context of article 18.1. By way of an Interim Award
dated November 22, 1988, the Board found that it possessed the
jurisdiction to entertain the grievance on its merits.
On the second day of hearing, the parties agreed to focus
their evidence on the period after April, 1989. In or around
that month a new schedule was implemented at the Jail. The Union
ultimately elected not to present "anecdotal evidence" in support
of the health and safety claim. It premised its case on the'fact
that the lob of a Oorrectional Officer was inherently dangerous
and could not be performed with reasonable safety without
additional training.
Mr. O. Thomsen and Hr. G. Pandzic gave evidence for the
Union. Both are Correctional OHficers at the Jail. As of the
hearing, the former gentleman was the President of the Local.
Hr. Thomsen commenced work at the Jail as an unclassified officer
in February, 1984. He became a member of the classified service
in September, 1985. Hr, Pandzic started at the Jail in 1978. He
acted in an unclassified capacity for approximately two (2) years
prior to his appointment to the classified service.
Mr. J. Lake, Mr. T. Hocking and Mr. J. Whibbs presented
evidence on behalf o~ the Employer. Mr. Lake has been the
-Superintendent at the Jail since 1988, He commenced his
employment there, as an unclassified officer, in 1978. He became
a classified employee in the following year. Mr. Hocking has
served as the Institutional Training Officer (I.T.O.)'at the Jail
since August, 1988. He is responsible for the coordination of
staff training including that given to unclassified officers.
2
Mr. Whibbs is the Regional Personnel Administrator for the
Employer's Eastern Ontario Region.
Evidence in this case was presented over the course of a
number of days of hearings. We have elected against reproducing
all of same in this Award. Rather, we have restricted our
'recitation of the evidence to those facts necessary to support
the Conclusions reached on both aspects of the grievance. Given
.the nature of the Union's ~laim, we have separately addressed the
two (2) issues raised.
The Jail is a maximum security institution which holds adult
males, adult females and young offenders. It primarily serves
the first group of inmates mentioned. The Jail has a capacity
for eighty-seven {87) male inmates, seven (7) female inmates and
eight (8) young offenders. The average male count ranges between
fifty-five (55) and sixty (80) persons. There were approximately
fifteen hundred (1500) adult admissions in 1989. Of this total,
eighty-five (85) to ninety-five percent (95%) involved
individuals who had engaged in property offences. The balance
were individuals who had committed "crimes against the person".
The Jail is staffed by forty-seven (47) Correctional
Officers, thirty-five (35) of whom are members of the classified
service, These latter officers secured their positions pursuant
to the regular competition process. The remaining twelve (12)
3
officers are part of the unclassified service having received
their appointment under section 8 of the Public Service Act.
This group of employees, who work in the Adult Wing for the most
part, labour under renewable contracts of six (6) months
duration. Since April, 1989, all of the Correctional Officers
have worked on a compressed work week schedule, The majority of
the twenty-two (22) weekly shifts are twelve (12) hours in
length. During the course of these proceedings, the Board had an
.opportunity to tour the institution.
ARTICLE 4 GRIEVANCE
The parties agreed as to why unclassified employees are used
at the Jail. Primarily, they are employed to rep3ace classified
Correctional Officers who are absent for any one of a number of
reasons including vacations, holidays, compensating time off,
staff training, short-term sickness, higher level acting
appointments and maintenance duties. Additionally, from time to
time they are used to supplement the normal shift complement.
Generally, the hours of the unc3assified staff are scheduled
about one (1) week in advance. Prior notice may be much shorter
as in the event of a call-in.
The duties of the unclassified officers are similar tolthose
performed by their classified colleagues with some limited
exception. Unclassified staff do not perform hospital duties nor
do they provide medical escorts without other assistance.
4
Additionally, they do not act as either the Senior Admitting-
Discharge Officer or the Shift Supervisor. By and large,
however, the unclassified officers perform the routine tasks of
the General Duty Officer position.
Mr. Thomsen testified that the unclassified officers work
approximately forty (40) hours per week plus additional overtime
as required. It was his evidence that this pattern existed both
before and after the implementation of the new shift schedule.
Indeed, he stated that he regularly worked close to forty (40)
hours per week when he first started as an unclassified officer.
Mr, Pandzic's evidence was to the same effect,
Mr. Lake described the unclassified officers as short term
replacements. He noted that their contracts of employment'
provided that they would work "Up to forty (40) hours per week
irregularly scheduled." He added that the language of the
contract would be amended to read" regularly scheduled" if an
employee was needed to fill in on a regular basis because of a
longer term absence such as a maternity leave. It was Mr. Lake's
evidence that the unclassified Correctiona] Officers work on
average between twenty-four (24) and thirty-two (32) hours each
week, with this figure being somewhat higher in the summer, He
acknowledged, however, that the current complement of
unclassified staff would mostly work about forty (40) hours per
week. Mr. Lake also conceded that many of this group work
5
overtime hours. The records disclosed that overtime for
unclassified staff totalled $t07,720.41 in the period 1989-1990.
The comparable figure for regular and probationary employees was
$295,028.00.
Mr. Thomsen expressed the opinion that the unclassified
officers met a regu]ar and on-going staff need at the Jail. He
believed that it took all forty-seven (47) of the Correctional
Officers to satisfy the regular demands of the institution. Mr.
Lake, in his evidence, candidly acknowledged that, with the
normal rate of absence, the jail could not be run with just the
thirty-five (35) Glassified staff.
Briefly, stated, it was the Union's position that the twelve
(12) unclassified Correctional Officers had been improperly
appointed to the unclassified service under the Public Service
Act. The thrust of the argument was that section 8 of that Act
should not have been utilized to fill positions which, in
substance, met an on-going and indefinite need within the
institution. Counsel asserted that the statutory appointment
should-be limited to instances of temporary employment. Simply
put, the Board was asked to find that the purported appointment
was invalid as the employees in question did not fall within the
three (3) groups identified in section 6 of Regulation 881. More
specifically, it was submitted that the unclassified group were
not captured by the language of section 6 (1) (a) (iv) which
6
refers to those employed on "an irregular or on-call basis." The
Union requested that we order the posting of the twelve (12)
positions after the expiry of each of the existing contracts.
The Board was referred to the following authorities in support of
the Union's position: Beresford, 1429/86 {Mitchnick); Miller,
1972/87 (Mitchnick); Beresford/Millev, 1429/86, 1972/87
(Samuels); OPSEU (Beresford/Milley) and The Queen in Right of
Ontario (Ministry of Government Services and the Ministry of
Revenue) unreported decision, Supreme Court of Ontario
(Divisional Court) dated December 6, 1988; OPSEU
(Beresford/Hilley) and The Queen in Right of ONtario (Hinistry of
Government Services and the Ministry of Revenue) unreported
decision, Supreme Court of Ontario (Divisional Court) dated
November 26, 1990; Ryder, 2413/87 (Springate); Blondin, 78/89
(Slone); Wawner, 351,352/89 (Slone); OPSEq (Union G£ievance),
1631/87 (Samuels); Greco-Tarantioo, 405/89 (Samuels); O'Breza,
1101/88 (Fisher).
The Employer advanced three (3) positions on this aspect of
the case. It was first submitted that the unclassified
Correctional Officers, as a matter of policy and practice, had
been properly appointed. More specifically, it was argued that
this group worked "irregularly" within the meaning of section 6
(1)(a)(iv) of Regulation 881. The representative of the Employer
relied on Mr. Thomsen's statement that there "was no real
pattern" to his work while he was an unclassified officer and
that he simply replaced other staff as needed. He also relied on
Mr. Lake's assessment as to the average work week for the
unclassified staff. It was further noted that, while some of
these employees were scheduled one (1) week in advance~ others
could be called in with little'prior notice. The Board was asked
to conclude that these facts rendered the nature of the
employment "irregular" for purposes of the Regulation. In this
regard, it was the submission of the Employer that the number of
hours worked per week did not determine regularity of employment.
For example, it was suggested that an employee working forty (40)
hours per week on an on-call basis could not be treated as
working regularly. Rather, it was asserted that anyone not
working that number of hours each week according to a
predetermined schedule, including regular days off, should be
considered as being irregularly employed. The Employer did not
rely on the other two (2) groups described within the Regulation.
The Employer next submitted that the 8eresford -'Mille¥ line
of cases were wrongly decided and should not be followed. It was
argued that the power to appoint is an exclusive management right
under section 18 {1) of the Crown EmploYees Collective Barqainin~
Aqt, R.S.O. 1980, Chapter 108, as amended. Further, it was
· suggested that insufficient weight had been accorded to section
30 (3) of the Public Secvice Act. That section states that "Any
provision in a collective agreement that is in conflict with a
provision of a regulation ...... prevails over the provision of the
8
\
regulation,", For that reason, we were asked to conclude that thel
Union had placed undue emphasis on Regulation 881. The Employer
also disputed the Union's claim that the power to appoint
unclassified staff should be restricted to temporary
appointments. I% was the Employer's position that such
appointments were more properly categorized as being for a
specified or fixed term. Indeed, its representative suggested
that an appointment of an unclassified employee could be
"terminably permanent."
Lastly, it was submitted that a "vacancy" did not exist in
this case so as to activate article 4 of the collective
agreement. The representative of the Employer argued that a
vacancy was not created as a consequence of management's decision
to have available work performed by unclassified staff. From his
perspective, a vacancy e×~sts only if the Employer has decided to
have the work performed by a civil servant. As this had not been
done in this instance, it was submitted that the Employer's
decision on the mix of employ%es was unreviewable. F~na]ly,
reference was made to Hr. Whibb's evidence. That witness
testified that classified positions are created through an
expansion of complement or by the addition of a new position.
This was described as a "deliberate" process. The Board was
cautioned against creating additional classified positions in an
ad hoc manner. The Employer relied on the following authorities:
Rohrer, 0001/89 (Wi]son); CriDDs; 660/86 (Verity); Simpson,
694/85 (Kennedy); OPSEU (Union), 498/85 (Verity).
9
The relevant statutory and contractual provisions read:
The Public Service Act
8. (1) When a vacancy exists in the classified service,
the deputy minister of the ministry in which the
vacancy exists shall nominate in writing from the list
of eligibles of the Commission a person to fill the
vacancy.
(2) 'The Commission shall appoint the person
nominated under subsection (1) to a position on the
probationary staff of the classified service for not
more than one year at a time. R.$.0. 1980, c. 418,
?. The Commission shall, if requested in writing by
the deputy minister, recommend to the Lieutenant
Governor in Council the appointment of a person on the
probationary staff of the classified service to the
regular Staff of the classified service, and the
recommendation shall be accompanied by the certificate
of qualification and assignment of the Commission.
R.S.O. 1980, c. 418, s.?.
8. (1) A minister or any public servant who is
designated in writing for the purpose by him may
appoint for a period of not more than one year on the
first appointment and for any period on any subsequent
appointment a person to a position in the unclassified
.service in any Ministry over which he presides.
(2) Any appointment made by a designee under
subsection (1) shall be deemed to have been made by his
minister. R.S.O. 1980, c. 418, s. 8.
9. A person who is appointed to a position in the
public service for a specified period ceases to be a
public servant at the expiration of that period. R.S.O.
1980, c. 418, s.9.
Regulation 881
6. (1) The unclassified service consists of employees
who are employed under individual contracts in which
the terms of employment are set out and is divided into,
(a) Group 1, consisting of employees who are employed,
(i) on a project of a non-recurring kind,
(ii) in a professional or other special capacity,
10
(iii) on a temporary work assignment arranged by the
commission in accordance with its program for
providing temporary help,
(iv) for fewer than fourteen hours per week or fewer
than nine full days in four consecutive weeks or
on an irregular or on-call basis,
(v) during their regular school, college or university
vacation period or under a co-operative
educational training program;
(b) Group 2, consisting of employees who are employed on a
project of a recurring kind,
(i) for fewer than twelve consecutive months and for
fewer than,
(A) 36 1/4 hours per week where the position, ifI
filled by a civil servant, would be
classified as a position requiring 36 1/4
hours of work per week,
(B) 40 hours per week where the position, if
filled by a civil servant, would be
classified as a position requiring 40 hours
of work per week.
(ii) For fewer than eight consecutive weeks per year
where the contract of the employee provides that
the employee is to work either 36 1/4 hours per
week or 40 hours per week;
(c) Group 3 consisting of employees appointed on a
seasonal basis for a period of at least eight
consecutive weeks but less than twelve consecutive
months to an annually recurring position where the
contract provides that the employee is to work either
36 1/4 hours per week or 40 hours per week. O. Reg.
24/86, s. 3 (1), part.
The Crown Emolovees Collective Barqaininq Act
18. (1) Every collective agreement shall be deemed to
provide that it is the exclusive function of the
employer to manage, which function, without limiting
the generality of the foregoing, includes the right to
determine,
tl
(a)' employment, appointment, complement, organization,
assignment, discipline, dismissal, suspension,
work methods and procedures, kinds and locations
of equipment and classification of positions; and
(b) merit system, training and development, appraisal
and superannuation, the governing principles of
which are subject to review by the employer with
the bargaining agent,
and such matters will not be the subject of collective
bargaining nor come within the jurisdiction of a board.
Collective .A~reement
" ARTICLE 4 - POSTING AND FILLING OF VACANCIES OR
NEW POSITIONS · ·
4.1 When a vacancy occurs in the Classified Service
for a bargaining unit position or a new classified
position is created in %he bargaining unit, it
shall be advertised for at least ten (10) working
days prior to the established closing date when
advertised within a ministry, or it shall be
advertised for at least fifteen (15) working days
prior to the established closing date when
advertised service-wide. All applications will be
acknowledged. Where practicable, notice of
vacancies shall be posted on bulletin boards.
4.2 The notice of vacancy shall state, where
applicable, the nature and title of position,
salary, qualifications required, the hours-of-work
schedule as set out in Article 7 (Hours of Work),
and the area in which the position exists. ._
4.3 In filling a vacancy~ the Employer shall give
primary consideration to qualifications and
ability to perform the required duties. Where
qualifications and ability are relatively equal,
length of continuous service shall be a
consideration.
4.4. An applicant who is invited to attend an interview
within the civil service shall be granted time off
with no loss of pay and with no loss of credits to
attend the interview, provided that the time off
does not unduly interfere with operating
requirements.
4.5Relocation expenses shall be paid in accordance
with the provisions of the Employer"s policy,
12
It is now clear that the Grievance Settlement Board has the
authority to review the propriety of appointments to the
unclassified service. The awards in Beresford; Milley; Ryder;
Waqner; O'Breza; and Rohrer provide support for this conclusion.
An application for judicial review of the Beresford - ~illev
decisions was dismissed by the Ontario Oivisional Court in an
unreported decision of Mr. Justice Osler dated December 6, 1988.
In each of the aforementioned cases, the respective panels
assessed the nature of the grievor's employment so as to
determine whether it fell within one of the three (3) groups.
established.by section 6 of Regulation 881. This Board elects to
follow an identical approach.
The more problematic question in these cases has been one of
remedy. The Board in Beresford - Nilley, chaired by Hr, Samuels,
awarded compensation for the abrupt termination of employment.
The entitlement was calculated by reference to the Employment
Standards Act. The Board felt that it Tacked the authority to
order the Employer to appoint the g-rievors to the classified
service~ This reluctance was premised on its perception that the
Employer had the exclusive right to appoint. The Board in Wa~ner
was also reluctant to order the appointment of the grievor to the
cTassified service° It was unwilling to by-pass the competition
process as it believed that to do so would conflict with the
dictates of the collective agreement. The Board did not wish to
compound the Employer's error in a way that would permit the
13
grievor "to jump the queue" over others in the bargaining unit.
The Board, therefore, elected to order a posting if the Employer
subsequently decided to refill the position,
WhiTe the Board's hesitancy in the above-cited cases was
well founded, it is now' clear that the Grievance Settlement Board
does have the remedial power to order the appointment of an
employee to the classified service in appropriate cases. The
following endorsement was made by the Divisional Court in the
judicial review application Of the remedy award in Beres~ord-
Mille¥:
"The Board determined that it did not have the
authority to turn the grievors into classified
employees because appointment is within the exclusive
domain of the employer pursuant to Section 18 (1) of
CECBA. Mr. Stevenson concedes, in tight of Anderson,
that this statement must now be regarded as incorrect
and that the 8card does have the ultimate remedial
power to appoint and employ to the classified service
if it considers that remedy appropriate for a
particular employee.
Notwithstanding the able argument of Mr. Riggs, we
agree with this position insofar as it effects
employees covered by the collective agreement.
The Board however made it clear from its findings that
whatever its remedial jurisdiction it did not consider
· these grievors appropriate for the exercise of such a
drastic remedy.
To the extent there was error it was not material to
the outcome of the grievances, The Board, based on its
findings about the situation of these grievors,
fashioned its own remedy and we cannot say that it was
patently unreasonable in the exercise of that
jurisdiction."
14
In our judgment, the comments of the Court provide a complete
answer to the jurisdiction related arguments made by the
Employer. It is to be noted that the Union does not ask for an
order that particular individuals be appointed to the classified
service' Rather, it requests a series of postings. This remedy
would appear t~ be available after the award in Wagner. An
application for judicial review of that decision was withdrawn by
the Employer.
Turning to the facts of this case, we are satisfied that the
unclassified Correctional Officers at the Jail are required to
meet the on-going and regular needs of the institution. In
fulfilling this role, they work close to forty (40) hours each
week. Such hours are scheduled in advance although call-in hours
are also worked. In addition, these employees work a
considerable amount of overtime. While on the job, they perform
substantially the same duties as the classified officers. All of
these conditions have existed for a considerable period of time.
The nature of their employment did not change with the
implementation of the new schedule in April, 1989. Given these
facts, we are unable to find that the unclassified Correctional
Officers are employed on an irregular or on-call basis for
purposes of section § {i)(a)(iv) of Regulation 881 of the Public
Service Act. Zn our judgment, employee~ who regularly work
approximately forty {40) hours per week over a lengthy period of
time cannot be considered as engaging in irregular employment.
Similarly, we do not think that the employees perform irregular
work simply by virtue of the fact they may not work a regular
schedule. In this regard, the Board rejects the arguments
advanced by the Employer as to the meaning to be given the word
"irregular." The evidence before us does not suggest that the
employees in question work primarily on-call so as to be captured
by the Regulation. Lastly, we do not consider that the fdrm o?
the employment contracts entered into by the' unc]assi?ied sta?f
is determinative. The Board has given greater weight to the
actual circumstances surrounding the employment.
Our conclusion on this part of the case is consistent with
the Ryder award. The grievor, in that instance, had worked on a
series of contracts over a two and one-half (2 1/2) year period.
During that time, he worked at or cloSe to forty (40) hours per
week. There, as here, unclassified staff were used to off-set
on-going absenteeism on the part of classified officers. The
Board reached the following conclusion:
" On the evidence it is clear that the number of
classified correctional officers employed at the
Hamilton-Wentworth Detention Centre is not adequate to
meet the Centre's staffing needs. The employer has
responded to this situation by regularly utilizing
unclassified staff, The grievor was regularly employed
as a correctional o~ficer for some two and a half
years, His employment was clearly not of the type
contemplated by section 6 of Regulation 881.
Accordingly, we find that the grievor did not come
within any of the groups referred to in the Regulation
as constituting the unclassified service."
(page 12)
We consider that this logic is equally applicable to the present
dispute as the situation at the Jail is virtually
indistinguishable from that found in Ryder vis a vis the use of
unclassified staff.
In Rohrer, the Board had to determine if the 9rievor had
been properly appointed under section 6(1)(a)(iv) of the
Regulation, This required that they address the question as to
whether the grievor worked irregularly within the meaning of that
provision. The Board noted from the facts that the work pattern
was "totally random," In that case, the grievor worked thirty-
six (36) hours or more per week for thirty-two (32) out of ninety
(90) weeks; twenty four (24) hours or more for fifty-seven (57)
out of ninety (90) weeks; and less than fourteen (14) hours for
fifteen (15) weeks. The Board held that this pattern was
irregular. In our judgment, the facts in Rohrer are
distinguishable from the present dispute as we are not here
confronted with a dramatic fluctuation in weekly hours worked.
In contrast, the unclassified officers at the Jail have worked
close to forty (40) hours on a regular basis for a significant
period of time. In this respect, the case is similar to Carson,
88/88 (Springate). There, unclassified employees who generally
worked a relatively full week over a five (5) year period were
considered to fall outside of section 6 (1)(a)(iv). The Board
arrived at that conclusion despite the fact that the affected
employees were not scheduled to work on a regular basis.
t7
For the reasons stated, this Board finds that the
unclassified Correctional Officers at the Jail do not fall within
the parameters of section 6(1)(a)(iv) of the Regulation. 8imply
put, we conclude that the on-going and permanent positions should
have been filled by members of the classified service pursuant to
a competition. We'accordingly order that the positions be posted
under article 4 as the contra=ts expire. This will serve to
remedy the Employer's initial failure to use that. article which
.resulted as a consequence of the improper appointment. The Board
is satisfied that this type of relief is appropriate in the
context of a Union grievance,
The Board notes that our Award is'consistent with article
3.15.1 of the collective agreement which reads:
OONVERSION OF UNCLASSIFIED
POSITIONS TO CLASSIFIED POSITIONS
Effective April 1, 1991, where the same work
has been performed by an employee in the
Unclassified Service for a period of at least
two (2) consecutive years, and where the
ministry has determined that there is a
continuing need for that work to be performed
on a full-time basis, the ministry shall
establish a position within' the Classified
Service to perform'that work, and shall post
a vacancy in accordance with Article 4
(Posting and Filling of Vacancies or New
Positions),
This provision was negotiated subsequent to the filing of the
present grievance, The parties did not make any in-depth
submissions as to what effect should be given to the article,
18
ARTICLE 18 GRIEVANCE
Unclassified Correctional Officers receive an initial week
of Phase 1 training which is largely classroom based. OuFing
this period, they are exposed to the following topics: report
writing; WHMIS; Admitting-Discharge procedures; finger printing;
inmate photography; inmate suicide; transporting of inmates;
security; strip search; frisk search; M.S.A. equipment; locking-
unlocking of cells; search of cell blocks and inmate areas;
handcuffing; key security; communicable diseases; institutional
layout; working conditions and programs; collective agreement;
uniform issue; deportment; standing orders; emergencies; and
Correctional Officer duties. The officers are tested on this
material during the week. They are required to pass the tests in
order to move on in the training process.
In-class training is supplemented by a further week of on
the job orientation. During this period, the unclassified
officers are assigned to an experienced officer to become better
acquainted with the different posts within the Jail. These
assignments encompass both the day and night shifts. The new
officer is also given some exposure to the control module and the
Admitting-Discharge Area. At the end of this second week, the
unclassified officers are given regular responsibilities in the
Jai~. When assigning same, the Shift Supervisor is called upon
to assess the competency level of the unclassified staff to
ensure that they are able to effectively perform the required
19
duties. The unclassified office~s subsequently receive Phase 3
and Phase 5 training at the jail. Much of this serves as a
refresher course on areas previously covered. Each phase lasts
between one (1) and two (2) days.
Much of the training received in Phases 1, 3 and. 5 ~s
delivered by Mr. Hocking, %he I.T.O, Such training is also
provided to the classified officers. In addition, these latter
officers receive Phases 2 and 4 which are taught at the Hamilton
Staff Training Centre. Phase 2 runs for three (3) weeks.and
covers the following subjects: correctional process; use of
force; role of the Correctional Officer; custody; communication;
inmate management; emergencies; first aid; C.P.R.; and control
techniques. A lengthy manual is provided to those being trained.
Phase 4, which is of two (2) weeks duration, 'canvasses the areas
of report writing; institutional programs; drugs; hostages;
assertiveness training; fines; control techniques; restraints;
human rights; criminal thinking; evidence; courtroom decorum; and
young offenders. Both of the these Phases contain an evaluation
component. The Employer's failure to offer this additional
training to the unclassif.ied staff led to the filing of the
instant grievance.
Mr. Lake described the process for selecting unclassified
Correctional Officers. Initially, about twenty (20) names are
pulled from the applications on file. These individuals are
2O
given a series of tests which are marked by the I.T.O. The field
is then narrowed to between five (5) and eight (8) candidates,
This group is subsequently interviewed by the Deputy Assistant
Superintendent and the I,T.O, A further screening is performed
which reduces the eligible candidates, The remaining persons,
numbering between two (2) and five (5), are interviewed by the
Superintendent and a final decision is ultimately made. The
successful candidates are then given the Phase 1, 3 and 5
training described above.
The number of unclassified staff on duty varies from shift
to shift. While this number will fluctuate, the records filed
with us disclose that fifty percent (50%) of a given shift could
be staffed by unclassified officers. The Board was informed that
this would occur more frequently during the night shift when
inmate movement is substantially reduced,
Mr. Thomsen testified that the use of "untrained" staff
within the Jail adversely affected health and safety in a number
of respects, Firstly, he asserted such use created stress
amongst the classified staff in that they could not Confidently
rely on their unclassified colleagues to make correct decisions,
especially in emergency situations. In his opinion, this
undermined the effectiveness of the team approach which is
!
employed in respect of certain posts. Secondlyj, it was suggested
security could be jeopardized as a consequence of the
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unclassified staff failing to recognize that a particular order
might represent a ."short cut". Mr, Thomsen further stated that
such an officer might be reluctant to discuss an order with %heir
supervisor in view of their precarious employment status, It was
his perception that unclassified officers were more inclined to
adopt "short cuts" in the performance of their duties, Thirdly,
Mr. Thomsen indicated that unclassified staff were regu]ar]y
paired together, He described this as a situation of "the blind
leading the blind." Lastly, he suggested that the unclassified
officers might not possess the requisite training or experience
to consistently enforce the rules of the institution. In his
estimation, this could reduce both safety and morale within the
Jail. It could further serve to increase the incidence of
confrontations with inmates, Hr, Pandzic supplemented this view
by stating that' the Phase 2 and 4 training made him a better
Correctional Officer as it enhanced his ability to effectively
interact with inmates and other staff.
Hr. Lake generally disputed Mr, Thomsen's assertions, He
su99ested that both classified and unclassified officers might
act inconsistently or take shortcuts, He added that this might
not always be '"a negative thing". Hr, Lake noted that other
staff and systems were in place to assist in the resolution of
conflict with inmates. He testified that Correctional Officers
are infrequently injured as a result of such encounters. He
believed that the last serious injury occurred approximately
three (3) years ago.
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It was the position of the Union that the differential
training described above created an unreasonable health and
safety risk at the Jail. The Board was urged to find that both
categories of officers should receive Phase 1 to 5 training.
Counsel noted that successful completion of these Phases is
required before an officer can progress to the ¢orcectional
Officer 2 level. He suggested there was no reason why similar
training should be withheld from the unclassified staff.
Extensive reference was made to the concerns raised by Mr.
?homsen.
In response, it was the position of the Employer that
reasonable provision had been made for the officers' health and
safety at the Jail. It was submitted that sufficient training
was provided to the unclassified officers to allow them to
perform the duties assigned. The Employer representative
emphasized that "deliberate" decisions are made by the Shift
Supervisors when they assign unclassified staff to particular
posts.I More specifically, that supervisor has to be assured that
the officer can undertake the responsibilities of the assignment.
He also noted that certain types of assignments are not given to
officers who are in the process of being trained. It was further
submitted that the Union had not advanced any firm evidence to
demonstrate the inadequacy of the training. The Empioyer
categorized Mr. Thomsen's evidence as speculative and self
· serving. Similarly, it was argued that a causal relationship had
not been established between the lack of training and some real
risk at the Jail. In this regard, the Employer representative
noted that the atmosphere at the institution had changed for the
better. He suggested that this was reflected'by the dramatic
decline in inmate misconducts over the period here in question.
Reference was also made to the "deliberate and sophisticated"
process used to select unclassified staff. It was stated that
this ]ed to the hiring of more qualified officers. Lastly, we
were informed that both classified and unclassified Correctional
~Officers must meet certain performance criteria. Failure to
satisfy the expected standard could lead to the terminatiom of
employment. The following authorities were relied on by the
Employer: OPSEU (Union GrievanCe), 6g, 70/8~ (Samuels); Brlek et
al., 1466, 2193, 2194, 2196, 2197, 2212, 22~3, 2364/87
(Dissanayake); OPSEU (Union Grievance), 82§/88 (Kates); ~
Kennedy. Klonowski, 1102, 1147, 1837/87 (Ratushny); Haynes,
1246/89 (Kirkwood); QPSEU and OaklaDds Regional Centre,
unreported (K~opf, March 1989); ~e ~teel Co. of Canada Ltd. and
United Steelworkers. Local 1005 (1975), 8 L.A.C. (2d) 375
(Palmer).
Article 18.1 of the collective agreement reads:
The Employer shall continue to make
reasonable provisions for the safety and
health of its employees during the hours of
their employment. It is agreed that both the
Employer and the Union shall co-operate to
the fullest extent possible in. the Drevemtion
of accidents and in the reasonable promotion
of safety and health of all employees.
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It is unnecessary to refer to all of the authorities
provided by the Employer. A series of principles flow from these
awards in respect of the interpretation to be given to article
18.1 of the collective agreement, It is clear that the party
alleging a breach has the burden of proo¢. In this .instance, the
Union is there¢ore required to establish a causal connection
between the differential training and a health and safety risk at
the Jail. Further, article 18.1 does not impose a standard of
absolute perfection. Rather, it simply obligates the Employer to
make reasonable provision for the safety and health of its
employees during the hours of their employment. As stated in
OPSEU (Union Grievance), 69, 70/84, "There is no obligation to
guarantee an employee's safety against every possible risk, no
matter how remote the possibility that it will occur. The
collective agreement and the legislation contemplate 'reasonable'
precaution" (pages 6-7). It has been recognized that in the
correctional context, the Employer can always take steps to
provide a safer and more secure facility. The Employer is not
required to do so, however, unless failure to take action would
contravene article 18.1.
The Board recognizes that all Jai]s are by definition
potentially dangerous places of employment. This fact was
acknowledged by both the Union and the Employer during the Course
of the hearing. While it may, therefore, be desirable to provide
as much training as possible, our task here has been to determine
25
whether the failure to extend Phase 2 and 4 training to the
unclassified officers creates a health and safety risk within the
context of article 18.1. After considering all of the evidence
presented, we are satisfied that the Employer has made the
reasonable provision required by the collective agreement. More
specifically, the Board has not been persuaded that a sufficient
link has been established between the training, or lack thereof,
and the likelihood of health and safety risks arising as a
consequence. We agree that Mr. Thomsen's evidence, while honest
opinion, was speculative at best. He was unab%e to point to any
specific problems which had occurred as a result of the
differential training. As noted earlier, the Union did not elect
to tender any anecdotal evidence in support of its position. The
evidence of Mr. Thomsen vis a vis stress, short cuts and
inconsistency constituted mere assertions of what might occur.
We have not been convinced, in view of all of the evidence, as to
the reasonable likelihood of adverse health and safety
consequences. In this regard, we Dote the existence of other
support systems within the Jail that are available to both
unclassified and classified staff.
For alt of the above reasons, the health and safety aspect
of the grievance is dismissed. Notwithstanding our decision, we
would urge the Employer to consider whether more self-defence and
restraint training should be inserted into the unclassified
program,
26
In ~ummary, the grievance ie allowed in part to the extent
that we order the positions filled by the twelve (12)
unclassified employees be posted under article ~ after the expiry
of each of the respective contracts. The Board will retain
jurisdiction in the event difficulties arise in the
implementation of this Award.
Dated at Toronto , Ontario thia llth day of July ,1991.
M.V. Watter$, Vice-Chairperson
/~ ~ F. Taylor, M~er
O. Wallace, Member
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