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HomeMy WebLinkAbout1989-1190.Union.90-11-13- ONTARIO EM,o[.OY~-S DE LA COURONNE i. · CROWN EMPLOYEES DE £ 'ON TARIO GRIEVANCE CQMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M60 1Z8 * SUITE 2100 T£LEPHONE/T~L~PHONE 180, RUE DUNDAS OUEST. TORONTO, (ONTARIO) MSG 1Z8 - BuREAu 2100 (416) 1190/89 Zn tho Hatter of an ~bit=ation Under The Crown Employees Bargaining Act Before The Grievance SettZement Board Between: OPSEU (union Grievance) Grievo~ -and- The:':Crown in Right'of Ontario (Ministry of Community and SOcial Services) -- Employer Before: S. Stewart Vice-Chairperson M. Vorster M~.her D. W&lkinshaw aember For the Griever: R. Wells Counsel Gowling, Strathy and Henderson Barristers and Solicitors For the'EmDloyer~ D. Costen Counsei Human Resources Secretariat The Management Board of Cabinet .; Heart~s;' February 6, 1990 - July 19, 1990 July 26, 1990 July 27, 1990 Augl/St 2, 1990 DECISION This grievance is dated September 27, 1989 and relates to staffing levels at Edgar Adult Occupational Centre "the Centre". The Union alleges that the minimum staffing levels prescribed by the "critical minimums" policy in existence at the Centre result in unsafe working conditions for residential counsellors and, accordingly, that %he Employer has failed to "make reasonable provisions for the health and safety of its employees" in violation of Article 18.1 of the'~ollective Agreement. The Centre is a residential facility for developmentally handicapped adults. It is located in an isolated rural settin9 and it consists of numerous bungalows along with administrative buildings and recreational facilities.. Residents are present at the Centre on a voluntary basi~. The Centre has a vocational/occupational component which engages residents during the day and provides programmes such as relapse prevention therapy for sexual deviants. 'The Centre's goal is to provide its residents with the necessary skills to return to the community. With the exception of the Oakwood/Lynwood residents, the residents of the Centre reside in bungalows which are grouped into administrative areas. The Oakwood/Lynwood building is more like a dormitory than a home and, as detailed below, has a 2 somewhat different function. The Union's specific concerns that were addressed, in this proceeding are the' application of the critical minimums ~olicy with respect to level of staffing at Oakwood/Lynwood at night as it relates to fire safety, the level of staffing at the "high intensity" house during the afternoon shift and the "environmental management unit" house during the afternoon and night shifts. The aspect of the critical minimums policy with which the Union takes issue in these latter two areas is that the minimum level of staffin~ provided for in this policy results in emPl. oyees working alone in the high intensity and the environmental management',houses during .the' shifts referred to. With respect to Oakwoo~./Lynwood the complaint is that' the level of staffing results in no one being present %o answer the designated fire tel_ephone. The institution is .? not consistently at critical minimums. Rather, a summary of staffing levels for 1989. indicates that on average staffing was at a leuel that exceeded the critical minimum well over 50% of the time. There was, however., a considerable variation within this overall average. The nature of the Union's concerns is best understood in %he context of an understanding of the clients that %he Centre serves. While there was some conflicting evidence as. to the extent to which th~ characteristics of %he resident population have changed over the years it was common ground that in addition to developmental handicaPs a number of the residents are "dually diagnosed". That is, they have a psychiatric disorder or behavioural problem such as sexual deviance or pyromania in addition to bein9 developmentally handicapped. According to the evidence of Larry Shields, assistant administrator of program and professional services at the Centre, the percentage of dually diagnosed residents has increased as the population of the Centre has stabilized. WhiLe the Centre used to function as'an assessment and training centre with residents tending to be' discharged after two years, the current situation is that the residents tend to remain at the Centre on a long term basis. Because of lack of availability of other programs as well as the nature of the diagnoses of some of the residents there is difficulty finding a suitable place for them. The number of residents has decreased while the number of residential staff has increased over the years. According to the testimony of Mr. Shields, in 1970 there were 280 clients with 65 or 66 residential staff while, at the present time, there are 166 clients and 130 to 135 residential staff. While if is difficult to summarily characterize the behaviour of the residents, the evidence is clear that they are Often unpredictable and that they are capable of acting in a violent manner. The Board heard evidence with respect to a number of incidents involving situations where residents have acted in a violent manner towards residential counsellors. Ms. J. Storey, who works at the male high intensity house, testified chat one resident who is scheduled to be transferred to the high intensity house has threatened to kill' her on two occasions. The Board was provided with a summary of incidents for the month of May, 1990 in which staff was required to use interventiv~ techniques in order to subdue residents. Interven~ive techniques are approved restraints and in accordance 'with the policy relating to interventive techniques, their, use is restricted to situations "only when a display of aggressive behaviour on the part .of a trainee may result in physical harm to an emPloyee of Centre, another trainee, a visitor to the Centre, to him/herself, or which may result in the destruction of property." 'Employees are required to file a report whenever an interventive technique' is employed. There were fifty-nine reports filed for the month of May, 1990, reflecting an average of two incidents a day. A. statistical summary provided to the Board indicates that the monthly average for '1987 was fifty-nine, for 1988 it was fifty-seven and for 1989 it was forty-four. The summary of the reports filed for the month of May 5 refers to incidents of varying levels of aggression, some in which the level of aggression was relatively minor and others in which there is a high level of aggression where residents have physically assaulted staff members. The Union did not take issue with the critical minimums policy as it applies to the assignment of residential counsellors to work with the majority of residents who reside in groups of ten in the bungalows in the various areas of the Centre. The concern of the Union in this proceeding relates to the residential areas of clients who are experiencing particular behavioural problems. The 'first area about which the Union raised concerns is Oakwood/Lynwood. As previously noted, this facility is somewhat different from the other residences and the .concern raised by the Union is of a somewhat different nature than the others. Oakwood/Lynwood is a combined L shaped building. The Oakwood portion of the building is used as an "environmental management unit's· The characteristics of the residents assigned to environmental management units are referred to below, but in essence, these are persons who are prone to outbreaks and require even greater supervision and control. There is an isolation room for residents for whom it is determined that a "time OUt" or temporary seclusion is appropriate. There are two staff offices in Oakwood and these offices are not staffed at night. One of these offices contains a telephone which' is designat'ed as a fire telephone in the Centre's directive regarding fire procedures. The directive of the Centre requires the staff member noticing the fire to telephone the fire number. The person in the O&kwood office who is ~o answer the telephone is responsible for notifying ~he designated office. However, the two residential counsellors who are on duty at night~ are station6d in =he Ly~wood portion' o~ the building and remain there-except when carrying out hourly rounds in pairs. The rounds are carried OUt in bo'th 0akwood and Lynwood. The Lynwood po~'tion "of the '~uildin~ ~is'a two story crisis intervention unit. which is separated from Oakwood by two doors whiC~ are locked at night.'f According to the evidence of Mr. P. Simcoe who regularly works' in this building, the residential cOUnsellors who are assigned tO work a= Oakwood/Lynwood at night are unable to hear the designated .fire telephone ringing. While there is a telephone in the Lynwood office, this is not a dedicated fire line and, as a result, a person attempting to call the Lynwood office to report a fire may find that the line is busy. There is an annunciation panel outside of the Lynwood office which sounds an alarm .and indicates where the fire alarm has been rung. Again, however, the two ? staff members carrying out rounds may not immediately hear the sound and in any event, without direct telephone contact these persons would not be in a position to carry ou~ the procedures to be followed as set out in ~he policy relating to fires that has been established at the Centre. The second area about which the Union raised concerns is what has previously been referred to as the "high intensity" .house. Residents are assigned to the high intensity house when they are experiencing difficulties coping with the regular program. Four residents are assigned to each house. Ms. Storey testified that the residents view their assignment to the high intensity house "as almost a punishment" as their privileges there are restricted. During the evening shift, between 5:00 p.m. and 10:30 p.m. one.counsellor may be assigned to stay in the high intensity house alone with the residents in accordahce with the critical minimums policy. During the night shift Ho one is required to remain in the house but,. rather, residential counsellors periodically carry out rounds of the house in pairs. This is the same way in which the residences of the "~ainstream" clients are supervised at night. Ms. Storey testified that she is afraid to remain in the high intensity house alone and that she has refused to do so. She stated that she has made management aware of her position and as a result she has 8 not been assigned %o work alone. Mr. Shields, who is a member of senior ~nagement, stated that he was unaware that Ms'. Storey had refused to work alone and that it was his view that the ~atter should be treated as a work refusal and dealt with in accordance with the provisions of the Occupational Health and Safety Act. As previously noted, Ms. Storey testified that one client at the Centre has threatened to kill her on two occasions. This client is presently on a waiting list for the high intensity house in which Ms. Storey works. Ms.. Storey state~ that she has brought these thr~ats to the attention of the residen~'s "~rim~ry counsellor' and her.. supervisor however 'she agreed, wfth Mr. ,Costen %hat she has ~' not insisted on an emergency conference with respect to the matter. Ms. Chapados, who h~s' worked in an EMU house, and '.'~- '' m MS' Storey, acknowledged that they have taken groups ofI' residents out on her own and agreed with Mr. Consten that such outings were undertaken voluntarily. Ms. Storey explained, however, that she is not fearful in these circumstances as the residents are well behaved in these situations because they enjoy the outings and do. not wish to jeopardizeItheir ability to be able to go on them. The third area of concern of the Union is the EMU or the environmental management unit, again a house which has 9 been designated to deal with clients with particular characteristics. Residential counsellors may be required to work alone in the EMU house during the night shift in accordance with the critical minimums policy. The houses contain ten residents. Ms. Storey, who formerly worked in an EMU house testified that when the first EMU house was established, staff members were assured by a supervisor that residential counsellors would never be required to work alone in an EMU house. Her evidence in this regard was uncontradicted. The Board was provided with a summary of what is ~escribed as the "offences and behaviour" of EMU residents. A large number of'these residents have a history of assaults, including assaults with weapons and sexual assaults. Residential counsellors who work at. nignts in EMU house carry out rounds of the houses alone. They are periodically visited by a supervisor. While there is no prohibition against residential counsellors who are assigned to patrol the other houses from patrolling the EMU ho0se the evidence established that this is not the practice. Aside from concerns about the possibility of an assault by a resident arising in situations where a residential counsellor is working alone, the Union submits that employees who are working alone make them more vulnerable to unfounded allegations of sexual assault. It 10 was the Union's position that these circumstances jeopardized the health and safety of residential counsellors by virtue of the stress that such ,allegations created. According to the evidence of Mr. Shields, over the past three and one-half years there have been thirty- two occasions where allegations of sexual assault have been made by residents against residential counsellors. All but : tWO of these allegations have been unsubstantiated. The Centre has established a number of procedures and methods which allow staff to obtain information about residents and' develop p~ans to deal with inappropriate behaviour. A behavioural standards review co~ttee which meets monthly reviews the use of interventive techniques and instances where residents' have been placed in seclusion because of~ inappropriate behaviour. A residentia/ advisory. committee which meets bi-weekly deals with general matters relating to the program offered to the residents. A limit setting committee meets once weekly and assesses matters such as whether the resident is assigned to the most appropriate area of the Centre. This committee can recommend greater supervision of residents. These committees provide an opportunity for concerns with respect to particular residents to be raised. As well, residents are assessed for an eight week period upon their arrival at the Centre and a review of each resident is carrried out 11 annually. If a residential counsellor has immediate concerns about a particular resident an emergency conference may be requested. Cards contained in a resident's file and a log book alert residential counsellors to particular behavioural problems of the residents. Since the beginning of 1990 a "walkie talkie" system has been in operation at the Centre. 'This system allows a residential counsellor to contact and communicate with other persons who are in possession of these units. The units are carried by the residential counsellors around their waists. In order to make use of the unit it is necessary for the residential counsellor to have his or her hands free to undo the velcro closure to remove the unit from the case in which it is obtained and then depress the button to speak into the unit. This system replaced a pager system which did not allow 'for direct two way communication. The Centre provides training to residential counsellors with respect to the use of the prescribed interventive techniques referred to above. The initial course is two days in length. As well, employees are required to take a yearly refresher course and practice sessions are to be carried out one hour per month. An .~ 12 annual seminar on fire safety is conducted and the Centre provides seminars on matters such as dealing with behavioural problems and crisis intervention. We will address the matter of the fire telephone first. While, as Mr, Costen submitted, the fact that no one is in the Oakwood office to.answer the telephone is not a matter which is mandated by the critical ~inimums policy, we agree with Mr. Wells that this situation arises directly as a result of the staffing level provided for by the critical. minimums policy and thus is a matter that~ relates directly to the substance of the grievance before us. The directives of the Centre regarding the report.ing of fires contemplate a certain prescribed manner of action when a fire is discovered. The directives do not contemplate the regularl~ occuring 's'i%uation wh~re there ~is-norone pre?.ent~ to answer the fire telephone. It is clearly forseeable. .that this situation may result in important time being lost in critical circumstances or that the' notification of the designated office might not take place immediately. The purpose of notification is clearly to ensure that the appropriate steps 'ca~ be taken to minimize danger to both staff and residents. Given the obvious potential for harm inherent in the case of a fire it is our conclusion that the current circumstances are not circumstances in which reasonable provision for health and safety have been made. The remaining two aspects of the Union's complaint are similar. In dealing with these aspects of the grievance we will first address Mr. Costen's argument with respect to the implications of the findings of the inspector following the refusal of employees to work alone. Mr. Costen referred to the decision of this Board in OPSEU & Ministry of Correctional Services 1252/85 (Joliffe) which dealt with the issue of this Board's jurisdiction to deal with a health and safety grievance. It was Mr. Costen's submission Ghat since, in accordance with that decision, the Board derives its jurisdiction to deal with a health and safety complain~ from the provisions of the Health and Safety Act it should be loath to disturb a finding made pursuant to the provisions of this Act which, in this case, was a finding that the work refusal based on an assignment to work alone was not in violation of the Act. Mr. Costen further submitted that even if this Board were to conclude that this decision was not determinative of the issue the Employer is nevertheless entitled to rely on this decision and argued that the defence of "officially induced error" is available to the Employer. With respect to the finding of the inspector, it is, our conclusion that this finding is of no assistance with respect to' the task of this Board. The Inspector disposed 14 of the complaint on the basis that the circumstances of the rehabilitation counsellors do not fall within the specific provisions of the regulations prescribing the circumstances in which persons ~erforming certain functions are prohibited from working alone. We will not address the validity of this conclusion as a matter of law. We cannot accept, however that this decision has any sort of precedential value for the purposes of this Board. Whether or not the analysis in Ministry of Correctional Services, (Joliffe) supra, is correct (and we note in this regard that a more recent decision of this Board adopts a different approach to the jurisdicational issue, determining tha=..the Board's jurisdication is not based on the 'provisions of the Occupa_tional. Health and Safety Act, (OPSEU {Brick et al) & Ministry of Cor-rectiona.1 Services (Dissayanake) 1466/87) this Board has an independent jurisdiction under the Collective Agreement to determine 'whether a violation of the Collective Agreement has been established. As this Board previously concluded' in 0PSEU (Ethier) & Ministry of Health 959/87 (Wright), action taken under the Occupational Health and Safety Act is not an impediment to the Board's jurisdiction under Article 18.1 of the Collective Agreement. While a decision made under that Act may be of some persuasive value, as previously indicated, it is not of precedential value. The Board is called upon in this instance to determine whether 15 "reasonable provisions for the health and safety" have been made in certain circumstances where 'employees are required to work alone. Aside from the question of its validity as a matter of law, given the narrow basis for the decision of the investigator, we do not find it to be of any persuasive value in determining the issue which we must decide. Mr. Costen referred to the cas.e of Cancoil Thermal Corporation, (i986) 27 C.C.C. (3d) 295 (Ontario Court of Appeal) in support of his position that the finding of the inspector u~der the Occupational Health and Safety Act with respect to the work refusal allows the employer the defence of "officially induced error". This decision deals with a prosecution under the Provincial Offences Ac_t of charges laid pursuant to the Occupational Health and Safety Act.' We cannot accept this argument. The question is not the determination of quasi-criminal liability in this proceeding but, rather, a determination of whether the provisions for health and safety for the residential counsellors who are required to work alone are reasonable provisions. The logical implication of this argument is that even if reasonable provisions for the health and safety of residential counsellors are not being made, the Board should not so find because the Employer has been misled by a responsible official with respect to the matter. While such a finding may be appropriate in the case of a quasi-criminal conviction, it is our view that if we were to adopt such an approach in the context of this proceeding it would be to decline our obligation to determine the merits of this grievance. Accordingly, it is to the merits of the grievance that we now turn. can it be said that the Employer has made reasonable provisions for the health and safety of the residential counsellors when it requires them to work alone in the high intensity house and in the' environmental management unit? Mr. Costen submitted %hat we should not allow the fact' that the persons who carry out rounds in pairs in the other residence-do not a%tend environmental management'unit to afl&ct' our view o.f this matter, noting that the policy With respect to rounds does not preclude them from doing so. We ,cannot agree with this submission. We are obliged to deal with the-circumstances as they exist, rather on %he basis of how they might .exist. As the circumstances currently exist, employees are required to work alone with clients who are unpredictable and potentially violent. They are checked on only periodically by their supervisors. As Mr. Costen has emphasized, the ratio of residential counsellors to residents 'at the Centre has increased considerably over the years. As well, the current walkie- 17 talkie system is clearly superior to the communication system that existed previously, The issue, of course, is not relative improvement but, rather, whether objectively 'reasonable provisions for the health and safety of residential employees have been made. Clearly, the committees which exist and the programs that have been established have some value in protecting the health and safety of the Centre's employees. However, after a careful consideration of all relevant factors, it is our conclusion that in the present circumstances in which the residential counsellors~.are required to work alone in the environmental and high intensity houses, reasonable provisions for the health and safety of these employees has not. been made. As has been noted in a number of decisions of this Board, Article 18.1 of the Collective Agreement does not require' the Employer to protect its employees against every possible risk, no matter how remote. However, considering the unpredictability of the residents and their potential for violence, the possibility of an attack against a residential counsellor working alone in circumstances where that employee would be unable to use the walkie-talkie to communicate his or her need for assistance and would be unable to escape is clearly forseeable. In our view, it cannot be characterized as a remote possibility. The sheer number of occasions in which residential counsellors are required to use interventive techniques is striking and clearly reflects a situation where the residential counsellors are vulnerable to physical attacks. While the vulnerability of persons working alone at night appears to be recognized by the Centre in that its policy relating to rounds prescribes that rounds .are to be carried out in pairs, the manner in which that policy is applied does not result in rounds being conducted in pairs in the environmental management unit. However, it is in this area that residents are more likely to be problematic and thus more Likely that residential counsellors assigned to this area are more likely to be at risk. Given the nature of the clients in the high intensity house and considering the evidence of Ms. Storey regarding the imminent arrival of a resident who has threatened to kil1 her on two occasions, we accept the Union's submission that the current circumstances in which residential counsellors may be required to work alone in the high intensity house in the evening are not circumstances in which reasonable provisions for the health and safety have been made. While, as Mr. Costen has pointed out, the evidence did not establish an instance in which an employee has been injured while working alone in the high intensity house or the environmental management unit, we agree with Mr. Wells that the lack of such instances is not fatal to the Union's case. As was recognized by this Board in Ministry o.f Correctional Services (Joliffe), supra, the Union is not 19 required to prove actual or real harm in order to establish that reasonable provisions for the health and safety of- employees have not been made. Mr. Costen submitted that the Union's concerns as referred to in the evidence of J. Storey have been accomodated as she has not been scheduled to work alone. We cannot accept this submission. An individual arrangement with one employee to accomodate that person's particular concerns does not fulfil the Employer's obligations'to all of its employees under Article 18.1 of the Collective Agreement. Moreover, given the evidence of Mr. Shields, it is not clear that this assurance to this particular employee still exists. We have not addressed the Union's submission with respect to the vulnerability to unfounded accusations of sexual assault of residential counsellors who work alone. In our view, the union has established its case with respect to the current circumstances in which residential counsellors are required to work alone solely on the basis of the potential for assaults by the residents. Accordingly, for the foregoi~]g reasons, it is our conclusion that the Union has established a violation of Article 18~1 ~f the Collective Agreement in that the 20 Employer has not made reasonable provisions for the health and safety of =he rehabilitation counsellors with respect to the three instances referred to. We Wish to make it clear, however, that while the Board.has found a violation of Article 18.1, this finding should not be construed as suggesting any conclusion with respect to the appropriate level of staffing in any of the three areas dealt with. We note that the problem relating to the fire telephone would certainly appear to be a matter which could be resolved with the application of the appropriate technology without the necessity of any increase in staffing. As requested, we direct the parties to meet to discuss to the resolution of the health and safety matters arising out of current application of the critical minimums policy at the Centre. We retain jurisdiction to deal with the appropriate resolution of this matter in the event that the Parties are unsuccessful in doing so. Dated a~ Toronto. this~13th day of November 1990. S. L. Stewart - Vice-Chairperson M; ,~ter ~ Member D. ~'Walk~./ashaw- - Membor ~- ' ~'