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HomeMy WebLinkAbout1991-0089.Lanoue et al.92-01-09 ONTARIO EMP~. 0 Y~$ OE LA COURONNE CROWN EMPLOYEES DE L'ONTARtO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, 5iUtTE 2100, TORONTO, ONTARiO. M5G ?Z8 TELEPHONE/T~L~PHONE: (476I 325-t388 180, RUE DUNDAS GUEST, BUREAU 2100, TORONTO (ONTARIO}. fvf5G 1Z8 FACSIMILE/T~L~COPIE : 1476) 325-r396 89/91, 90/91, 91/91, 92/91, 106/91, 107/91 ZN THE MATTER OF /%N ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BETWEEN OPSEU (Lanoue et al) Grievor - a~d - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE: H. Waisglass Vice-Chairperson G. Maj esky Member R. Scott Member FOR THE R. Wells GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE M. Quick EMPLOYER Counsel Legal Services Branch Ministry of Health HEARING September 27, 1991 3 Regulation 14. Section 7(3) of the said Regulation established much more rigorous and extensive prequatification requirements for employment than thor ~ich was required of the grondfathered employees under Section 7(2). Effective August 1,1975,those who commenced full-time employment must possess the format EMCA certifications. Those grondfathered by the Regulations were not required to obtain the EMCA certification. There was nothing however to prevent the grandfothered employees to obtain the certificate voluntarily by taking the required courses that were offered by community colleges on part- time and full-t~me bases. Some grandfathered Driver Attendants obtained the EMCA certification and therefore become eligible under the previous guidelines to toke the Heart Aid Cours'e to qualify them to perform defibrillation. The grievors ~ere grondfothered Driver Attendants ~ho hod not completed the requirements for certification. Under the previous guidelines the grievors were denied the right to toke the course because they did not possess that qualification. The relevance of the "guidelines" is described in the Kennedy decision: "The Heart Aid 100 course referred to in the grievonc'es is a course that is given by supervising hospitals pursuant to guidelines issued by the College of Physicians and Surgeons purportedly-under the authority of the Health Disciplines Act, R.S,O. 1980, c,196. The course involves appropriate training of persons other than members of the medical profession in the use of an automatic defibrillotor. The use of that equipment by Driver Attendants comes within ~hot is described as advanced l~fe support skills and ks ~n substance the type of medical act customarily performed by a phystcian. Pursuant to Section 50(k) of the Health Disciplines Act, physicians' regulations can be issued authorizing persons other than physicians to perform specified acts in'the practice o~ medicine under certo~n conditions. ~e were advised by counsel that in fact no regulations existed tn this oreo, but rather there were guidelines ~ssued by the College of Physicians and Surgeons dealing With the type of persons generally referred to as Paramedics ~herein, under the supervision of o hospital, training can be given and the acts performed. The Heart Aid 1000 course administered and supervised by a hospital qualifies a Driver Attendant to perform defibrillation. To be eligible to toke that course, it is'a requirement of the supervising hospital ' pursuant to the guidelines that any candidate possess the basic E~CA qualification. The Gr~evors were den~ed the r~ght to toke the course because they d~d not possess that qu~£~coti'on .... " (Emphasis ours) 4 As hod been argued successfully tn the earlier heorin!~s before KenneCy, tn support of the preliminary objection, Emptoyer's Coun~el claims that the grievance does not raise any matter covered by the collective agreement, nor any matter on which the employees have a right to grieve pursuant to Section 18 (2) Of the Crown Emptoyees Collective Borgaintng Act. The issue rclised by the grievance retotes to training ~h~ch is an exctustYe function of the Employer by the specific provisions of Section 18 {1)(b) and therefore can not come within the jurisdiction of the Grievance Settlement Board. Furthe,,it was argued that the current grievances raise again the issue of discrimination which hed already been decided by Kennedy. On the preliminary object,on, Counsel for the Union argued that there is stgnificont difference in the circumstance of the current grievance which was not present when Kennedy heard the previous grtewnces of these same grievers. The current grievance otteges discrimination based on age, perticutorty a violation of Article A.1 of the Collecttve Agreement which tnctudes age as one of the prohibited grounds for discrimination. That Article was not 'Ln the Collective Agreement at the ttme of the 1988 grievances. Thus, the issues in these grievances ore not exactty the some os tn the grievances decided by Kennedy. In the g~ievances at hand there is an altegation of a violation of Article A.1, which is an issue that was not before Kennedy. That Artlcle, he claimed, was not in the Collective Agreement at that time. This was not denied by {ourse1 for the Employer. She replied, however, that there is nothing in the grievance itself nor in ~ts circumstances to suggest that the grievers are victims of age discrimination. The ~oard dec~ded to defer making a decision on the preliminary objection and to proceed with the hearing of evidence on the allegation that the grievers had been discriminated against on the grounds of age. Only one witness was coiled, Clyde FIinn, one of the grievers. The parties agreed that hls grievance is deemed to be representative for all oF the grievances involved tn these proceedings. There is nothing tn the griever's evidence to support the allegation of discrimination. He testified that he hod been employed with the Ottawo- Corleton Ambulance Service os on Ambulance Attendant ~or over 20 years. He is now 44 years of age. ~hen grondfathered in 1975, he was about 29 years aid. He did not know ~f the people hired after he was grondfathered were older or younger than that. He did not soy that he hod been d~scr~mtn~ted against because of his age by the oct of grond~othertng. (That act in fact discriminated tn his favour in that he was not required to obtain tf:e EMCA quottftcotions which was required of those who were not grondfothered.) He confirmed that nothing prevented him from taking the E~CA courses. In fact, he had voluntarily enrolted in the port-time E~CA Program at Algonquin College and he hod completed the course requirements and almost oll of the S requirements, but he did not complete the program and' did not pursue the certificate. That was his own voluntary decision not to complete the requirements. He explained: "I didn't see any value in dealing with it. I didn't need it to. help me in my performonce." He did not say that the Employer did anything to discourage or prevent him from obtaining the certificate. Later, he learned that the certificate was required to toke the Heart Aid Course, to be eligible for the $900 annual allowance. When asked in cross-examination if he felt he had been treated unfairly on the basis of age, his response was clearly no. It was abundantly clear from Mr. Flinn's evidence that he was not a victim of discrimination. The oct of grondfothering was in itself not unfairly discriminatory. In fact, it mode o distinction in favour of those, like him, who were hired before August l, 1975. Nor was there any evidence that the rules regarding the EMCA requirement to toke the Heart Aid Course was applied in on unfair or discriminatory basis. Nor was there any suggestion that any distinctions based on age were involved in the decisions on who could or could not toke the Course. Counsel for the Union argued that the grondfathering rute was on its face o neutral rule but that its application to the determination of eligibility For the defibrillation training resulted in adverse effect discrimination. In order to support his reasoning on adverse effect discrimination, Counsel referred us to Re Ontario Human Rights et aZ. And Simp$ons-Seors Ltd. 23 tLR (4th),321. However, we have not found his case references opplicoble to this case because we hove not Found any evidence at all to suggest %hot there was any discrimination based on age, nor were any distinctions mode based on age, intentionally or otherwise, in the selection of Ambulance Attendants For training. The qualification requirements to toke the course mode no distinctions based on age, directly or otherwise. The evidence clearly shows that it was not because they were grondfathered that they were not permitted to take the Heart Aid Course. It was because they did not hove the EMCA certificate. Other employees who also hod been grondfothered, and who subsequently hod obtained the certificate voluntarily, hod been permitted to take thot~Course. Counsel for the Union cleverly asserted that the grievances concerned adverse effect discrimination. However, in the circumstances of this case we hove found no evidence from which the inference can be drawn that the grievances concerned adverse effect discrimination. There is no evidence to suggest that any a§e distinctions were made in the selection decisions for training. In any event, os Vice-Chairperson Kennedy points out in his decision on the 1988 grievance on the same matter: 6 "We would Further note that the porticul0,~ course in question is not under the control and supervision of the Employer, and its entrance requirements cmd evaluation are not controlled by the Employer. Ail those aspects are under the control of the base hospital and ore subject to the guidelines of the Cottage of Physicians and Surgeons, neither of which organizations is likely to be impressed by any order of this Board. Accordingly, apart from the issue of jurisdiction, there would appear to be no practica! basis upon which to grant the retief requested." The argument of Union's Counse! is essentially that there is implicit age discrimination in the rule that grondfathered employees are not permitted to toke the test. We can not accept this proposition merely on its face. The part~es to coltective bargaining customarily make distinctions regarding employee rights and/or benefits which are based upon length or dote of service or seniority; to wit: promotion and layoff procedures, wage progressions, end the duration and allocation of paid vocation periods. The parties who make such distinctions do not automatically, nor implicitly, nor ~nwttt~ngly create unfair and unacceptable discriminations based upon age. To accept the argument advanced by Un~on's Counsel, that the very application of the grondfathering rule [which distinguishes between Ambulance Attendants on the basks of the August,197S,service date] by itself involves adverse effect discrimination, would hove serious ~mplicotions for the foundations of collective bargaining upon which the parties hove established a system for' the equitable dtstributton of r~ghts and benefits among the employees. In any event, the essence of equity is not equal treatment, which w'ould treat everyone the same even when they arc not the some. ]:n th~s case, it ts not on act of ~nequitable discrimination to make disttnctions between employees regardin§ eligibility for training ~ich ts based upon objective criteria of their quatificotions to receive such trointng. We accept the preliminary ob~ections made by Employer's Counsel that these grievances have already been decided by a previous decision of thts Board [Kennedy, F'ile 22/88] and that th~s Board does not have jurisdiction. We hove no reason to disagree w~th the Kennedy decision. There are no grounds ~n these grievances to support on allegation of discrtmtnotion based on sex, and therefore we Find no v~olotion of the Collective Agreement. The remaining allegations of the grievance are essentially the s~me as those which were before the Kennedy poneI and which it hod decided. For the foregoing reasons, we confirm the declsion made by a previous panel of this Board on virtually the some grievances which hod been submitted earlier, in 1988, and we conclude that we ~re without jurisdiction. The grievances ~re therefore dismissed. Our decision tn this matter ts an affirmation of the dedsion of the 'Chairperson O.B. Shime tn the Brake case [cited above]. The purpose of the Brake award is to discourage decided issues from going to odjudicotton repeatedly, which could effect o reduction i~ the backtog of cases waiting for hearings and tn the costliness of the process. DATED AT NAIv[ILTON, ONTARTO, qth January i002. , ,.,- ., / , THIS . __OAY OF ' '~~".~.,x-,:_~__.EL.2_.x. 7' ]_~_/'. (._.,"C-~C~.,......~ / /- ~'z-.---~ Harry 3. WtsglaS/sL./~ice Chair .... . 5. Scott, Employer Member