Loading...
HomeMy WebLinkAbout1991-1215.Stotesbury et al.92-05-29 ONTARIO EMPLOYES BE LA COURONNE CROWN EMPLOYEE$ DE L 'ONTA RIO GRIEVANCE COMMISSION DE SETTLEMENT Ri[GLEMENT BOARD DES GRIEFS 180 DUNOA$ STREET WEST, SUITE 2100, TORONTO~ ONTARIO. MEG 1Z8 TELEPHONE"TELEPHONE. 180, RUE DUNDAS OUEST, BLIREAU 2100, TORONTO {ONTARIO). tv15G 1Z8 ~CSIt,/IfLE/TELECOPiE : 1215/91, 1524/91, 1543/91, 2081/91 IN THE ~TTER OF AN ~ITI~TION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Stotesbury et al) Grievor - and- The Crown in Right of Ontario (Ministry of ,Community & Social Services) E,mplo][er BEFORE: P. Knopf Vice-Chairperso'.n M. Lyons Member F. Collict Member FOR THE P. Lukasiewicz GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE C. Samaras EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Services HEARING April 13, 1992 DECISION This is a classification grievance involving six people presently classified as Motor Vehicle Operators 1. They work at and out of the Edgar Adult Occupational Centre (the Centre) operated by the Ministry. The Union has filed a number of other grievances dealing with Motor Vehicle Operator l's at other Centres across the Province. The parties have agreed to group those grievances together with these. However, the will of the parties is to have this panel proceed ~o hear the evidence of one representative grievor from the Edgar Centre to determine the situation at that Centre. Thereafter, this panel shall remain seized with the issue of the Motor Vehicle Operators at other Centres to deal with any other cases that need to be resolved which the parties cannot resolve on their own after having received this Award. There is little dispute over the facts of this case. Edgar is a residential site serving approximately 150 trainable developmentally handicapped adults. Some other clients live off the site and attend daily. The duties and t%e responsibilities of the Motor Vehicle Operators can best be described by re~erence to their rotating monthly assignments to a number of vehicles operated at the Centre. (a) Vehicle No. 2 - This is a 15-passenger mini bus. It runs mail in and'out of Battle, on its first and last runs of the day. On the early mail runs, ther~ are usually no passengers. However, an Odd exception may involve taking a client in for an early medical appointment or dropping a client off at the bus station. After 9:00 a.m., the m~ni bus is used for transporting clients to dental or medical appointments, intercity bus drop-offs and pickups, banking, picking up prescription drugs and purchasing. Clients are accompanied by.residential staff for scheduled medical appointments. Drivers assist the staff when clients are groggy or upset from such appointments. Clients being picked up from unaccompanied intercity bus trips are returned to the Centre, often unescorted by residential staff. (b) Vehicle 3 - This is a large van with t~o rear seats removed and-is known as the "maintenance van". It is used to move maintenance men, tools and materials to jobs on site at the Edgar facility and to operate three internal mail runs within the centre daily. The vehicle has a two-way radio and remains on site at all times. If a client has a seizure or a serious behavioural problem requiring removal from the site, this vehicle is summoned to transport the client on an emergency basis. In such a situation, two residential staff will accompany the client, in addition to the driver. Often this is a volatile situation and drivers have been kicked or hurt in the process of getting clients into the van or while driving off site. Probably because of th~s, drivers are required to attend intervention technique or restraint courses when they assume the job. However, the representative grievor, Mr. Tomkins, has never, nor does he know of any situation where motor vehicle operators have filed' incident reports to record their intervention in such behaviour. Mr. Tomkins believes that this is usually left to be done by the rosidential staff when they consider it appropriate. (c) Vehicle 5 - This is a five-ton truck. Its main duty is to take the products produced by the Centre from its sho? to Toronto and then bring the materials from Toront~ back to the Centre for assembly. The drivers usually work on this truck on their own. However, when and ~f a driver wants the help of a client for loading or unloading purposes, he can choose if he wants to bring along an unaccompanied client for assistance. (d) Float Position - This could involve Vehicle No. 6 which is a 40-passenger school bus used to take client groups for recreational or vocational field trips. On all these trips clients are accompanied by. residential staff. However, the driver may be called upon to assist such staff if the need arises. This bus is also used every morning to drive the clients from their residences up to the dining area. This is an approximately three to five-minute drive and 90% of the time the clients are not accompanied by residential staff. This bus is also used to carry groups of patients into Barrie accompanied by residential staff for a series of dental appointments. The floater rotation also involves Vehicle No. 1 which is a seven-passenger mini van used for long trips to London or Woodstock for specialized treatment for clients, such as sex therapy. Clients on these trips are always accompanied by residential staff. However, on these occasions, drivers are frequently called upon to assist in situations where female staff simply cannot help male clients in washroom situations or where the driver needed to help staff with upset clients. (e) Vehicle 15 - This is a 15-passenger van used to drive clients to work placements in Battle. Job coaches accompany the clients on these trips. These trips also involve purchase pickups from the Vocational Department in Battle. (f) Vehicle 7 - This is an eight-passenger window van used to move supplies and prescription drugs around the Centre from stores to residences. Like Vehicle 3¥ it is also used to be on call for emergency situations. It is also used to dri.velclients unaccompanied from residence to work sites on the Centre. It is also used to drive in the afternoon to take mail, lab specimens and bio-hazardous materials to. Orillia and to the Huronia Regional Centre. On occasions it is used for accompanied clients to be taken for medical appointments. It is also the laundry pick-up and delivery vehicle used for all ~esidences on the site. The driver accomplishes this with the aid of one unaccompanied client whose job is to assist the driver with the laundry. For Vehicles No. 3 and No.7, the policy is that drivers pick up clients on site whenever the weather is bad or they require assistance to get from one spot on sit~ to another. This would typically involve a three to five-minute drive along with the client. However, when the weather is very bad and the roads are icy, this could involve as much as 30 minutes to get from one end of the Centre to the other. Many of the clients require assistance getting in and out of the vehicle because of their special physical needs. The grievors believe at the time of the grievanc~ they were required to have taken the following courses and/or obtained the following licences as part of their job: (a) Intervention or "restraint" technique courses (b) First Aid (c) Defensive Driving (d) Transportation of hazardous goods (e) CPR (f) Propane P3 Iicence (g) Air break licence or endorsement However, they admit that the Employer only expected one of the group to have CPR training and that propane use was being eliminated at all relevant times. Further, no vehicles listed above used air breaks at the time of the grievance. The grievors also referred to their work involving searching ~or missing clients. This involves driving vehicles under the direction of a search master and with at least one residential staff on board to be on the lookout for the client and to take responsibility for the client when s/he %;as found. This also involves picking up or reporting the presence of a dislocated client in Battle. The grievors are not expected to pick up a client alone in Barrie or even on site if they have concerns of behavioural problems. However, the drivers expressed genuine concern over their ability to assess a volatile situation, given that they possess no direct knowledge or background of each of the clients' history. The drivers are forced to rely on their own instincts and the cumulative picture they gain through the "rumour mill" and their experience at the Centre developed with ~he clients over the number of years. The drivers also expressed concern'over their duties through their representative grievor. He explained that they realize that quite a lot of the clients appgar to have sexual problems judging from the number of trips taken to a special facility in London designed to treat this kind of problem. The drivers also feel it ks quite common for female clients to call police to allege abuse or sexual impropriety. It is clear from the,evidence that these grievors do much more than drive the vehicles. They often assist staff in difficult situations with clients. Also, they simply talk and interact with clients whether.they are accompanied or not. As Mr. Tomkins explained on behalf of his colleagues, when he is called uDon to assist a client he does so. "If someone is upset, I try 'to calm them down. I look on counselling as assistance." As he later explained, "we understand clients in the Ministry do have violent tendencies. It's part of our job and we accept that counselling is part of our job - we'd like some more remuneration or ~irection on it .... You can't do the job effectively if you don't communicate with them. You pick them up so much." Mr. Tomkins says, "Quite a lot of the day is spent with you alone with the clients" and this calls upon the drivers to communicate 9;ith the client ia such a way as he believes it amounts to counselling. This time alone with clients and counselling is what the. Union says takes the job outside of its present classification. The job specification for this position is annexed hereto as Appendix "A". Class Standard for Motor Vehicle Operator l is annexed hereto as Appendix "B". The Argument The Union is seeking a Berry order, arguing ,that the Motor Vehicle Operator 1 classification does not properly reflect the duties and responsibilities of the job and that no other Class Standard presently exists that recognizes the degree of contact with clients that these drivers have at Edgar. It was said that the evidence established that "most of the time" the grievors are alone with clients and working one-on-one with them. Because of this, it was said that the drivers are called upon to be both safe drivers and also counsellers by ensuring that the client acts in an appropriate way for their surroundings and ensuring the client's safety. In these instances, the grievors have the care, custody and control of the client's mental and physical wellbeing. Further, the grievors work with other staff members and take on a counselling function assisting with difficult or physically incapacitated clients in the situation of dental or medical appointments. The Union stresses the amount of interaction these grievors have with the clients. It was argued that the ~otor Vehicle Operator 1 Class Standard is inappropriate in that it deals with carrying passengers "who are usually accompanied by attendants." It was said that the evidence does not support such a conclusion in this case. It was said that the Standard does not address the obligation to pick up clients in bad weather or in town who are unaccompanied. It was argued that the client contact in this case makes up a significant portion of the job. Thus, we are asked to declare that the grievers are improperly classified and that a ~erry order be granted. Counsel for the Ministry argued that the evidence does not support a finding that there is a substantial difference between the grievers' duties and responsibilities and the Job Standard. It was agreed that the representative griever had said that the drivers were "usually alone" with clients. But it was stressed that this must be viewed in the' light of all his evidence which dealt with the many assignments to vehicles where contact with unaccompanied clients was the exception rather than the rule. I~ was said that the evidence, taken as a whole, does not support a conclusion that the drivers are usually alone with unaccompanied clients. Further, the Board was asked to make a distinction between the conversation and communication that these drivers have with the clients as opposed to any counselling and intervention that trained staff may be required to have with clients. The fact that the drivers were required to take a physical intervention course was said to be indicative of the nature of work and the clients involved in this case. Further, it was stressed that the drivers are never forced to be alone with clients and can request assistance whenever they want. It was said that the Class Standard contemplates that the drivers may somet.imes be alone with clients and thus remains appropriate for this situation. The Decision The grievers rely upon two 'aspects of their work which they say take them beyond the language of the Class Standard for Motor Vehicle Operator 1. The grievers rely on %'lhat they consider to be their counselling work with clients and the fact that they perceive themselves to be driving clients who are usually unaccompanied by attendants. We shall deal first with the counselling aspect of the posit~ono Mr. Tomkins presented himself to the Board as the representative griever. He recounted incidents when he has talked to clients, assisted residential staff and played a significant role in resolving a difficult situation. He also talked about the day-to-day and routine contact he has with the clients whom he drives. He exhibited a care, concern and sensitivity to the needs of these clients. As a representative, he is someone of whom the Ministry should be proud. However, the Board cannot conclude that this kind of contact with clients amounts to counselling. It is true that his interaction with the clients and his experience as well as the role model he presents may be of great value to the clients' progress and stability. However, counselling involves the use of professional techniques and regular contact that ~s quite distinct from the kind of work that the griever described. What the griever described to us must be recognized as humane, sensitive and professional dealing in difficult situations. However, it cannot be considered as counselling. This leaves the question of whether or not these drivers are dealing with clients who are usually accompanied by attendants or not. The Class Standard contemplates the drivers carrying passengers who are "usually accompanied by attendants". Thus, the real crux of this case is the degree of contact these drive'rs have with accompanied and unaccompanied athendants. Despite the able and appropriate presentation of the evidence by both parties, this Board was left without any clear indication of the amount of time actually spent with accompanied or unaccompanied clients. The evidence was given as it is outlined above. While the griever did say that he is usually alone with clients, and this was uncontradicted by any evidence presented by the Employer, that statement must be taken in context of all the evidence presented. The evidence presented shows that the drivers rotate monthly on six types of vehicles. Most of the vehicles involved mixed duties when the drivers may be transporting materials, equipment, clients and staff personnel alone or in various combinations. However, we shall focu's on the evidence which reveals the instances when the drivers are alone with unaccompanied clients, When driving Vehicle No. 2, drivers may take unescorted clients Erom or to the local intercity bus station. Presumably, these are clients who are capable of taking public transportation on their own. There is no evidence as to the frequency of such trips. On Vehicle No. 5, the drivers have the choice oE taking an unaccompanied client with them for deliveries to. and from Toronto of their products. Given that the choice of whether or not a client will be taken along is solely within the hands of the driver~, this cannot be considered as a job duty or responsibility. On Vehicle No. 6, the drivers will fill the bus with clients to take them from'their, residences to breakfast. Ninety percent of the time the clients are unaccompanied; however this amounts to a three-minute drive for .the meal. On Vehicles 3 and 7, the drivers will pick clients UP and take them from their residence to the work site or whenever it apDears that the client needs assistance in travelling around the site. In these cases, the clients are unaccompanied. On Vehicle No. 7, the driver does the laundry duty with the assistance of an unaccompanied client daily. Reviewing all these instances or situations where the drivers are unaccompanied with clients ~reveals that loc Vehicles ~os. 3 and 7, the drivers will be taking clients who are usually unaccompanied by attendants for very short runs, usually 3 - 5 minutes around the site. For Vehicle No. 6, it amounts to one very short part of the day as a ~;hole. For Vehicle No. 2 there is ~o evidence of the frequency. Ail this evidence must then be viewed in the context of the.other duties and responsibilities of the drivers. Given the number of other vehicles for which they are responsible and the fact that their daily duty on those vehicles involves situations where they are driving clients who are usually accompanied by attendants, the evidence leads to the inescapable conclusion that these drivers are transporting clients who are usually accompanied by attendants except when they are assigned to Vehicles No. 3 and No. 7. In order for the Union to succeed, it must satisfy us that there is a substantial difference between the duties they perform and the duties re~erred to in the Class Standard. We do not have evidence of the percentage of time spent on each vehicle or what percentage of that time would amount to time spent with unaccompanied clients. But given the mix of duties assumed by these drivers with regard to all the vehicles on the site, the evidence, taken as a whole, convinces us that they are usually driving clients who are accompanied by residential attendants. For this reason, the grievance must fail. However, we feel compelled to make some further comments. The Class Standard which applies to these grievors covers all motor vehicle operators in the government service whose "prime function" is the operation of a motor vehicle. The Class Standard is typically broad a~d covers transportation of goods such as mail, office equipment and furniture or passengers. The passengers are stated to include residents or inmates from instit~]tion'al facilities to be taken to hospitals or to other institutional or recreational outings. It is not difficult for this panel to see why the grievors perceive an enormous difference between the delivery of goods and equipment and the driving of clients from facilities such as Edgar. T,he physical dangers facing the drivers, the humanity and sensitivity they need to maintain to do their job professionally and well, and the emotional strains created by su'ch situations make 'this Board wonder why a job classification system w0u'ld group drivers such as these together with those ~ho transport inert material. The government service has the benefits of the assistance these drivers offer residential staff, especially in crisis situatior~s. While we recognize that we have no jurisdiction to cause a distinction to be made within the classification, we suggest that the parties give serious consideration to our remarks. However, in the result, the grievance must be dismissed. DATED at Toronto, Ontario, this29th day of May, 1992. Paula Kn~pe rson ,.yons - Me,_er ' '.~¢t - ¢ · Po.ltlon gpecJflcatlon ~ Clasa Al~ocauon. CSC 615o " ~o~[ ~o ~c~ ol to~m for ~pta~n I I flee~ o~ IS tranS~ort4ng staff a~ ct4~ tO var4~ Statf~ t~1~f~ aarrte, Gr<~14s, t~ Toronto, ~ , p~cX~g up e~d deTt~rla~ e~ ~ freight, Othe~ I~els, loading a~d u~Toadtflg ~argo ~h4~Jes is ~4red% .... · '"' ' · .. / ~ttnu~ on reveree se see . ve~{cla Ope~at6~ 1 '/ 1?201 / ~-03A / .01 P~sft{on requtres the perfor~a~a of rout~M maintenance and the keep4ng of records relative :a maintenance, costs, pick-ups Bnd del{verteL inetructtone for completing form CSC-6150 Out4e~ and rela~ed tasks (con ~d) ~.. ., 3) C5~) Per~orm= etheP ~eleted aut(e~ such knowledge oF and o~ePmting gf t~-H~y radio, responsible fO~ the p~oper, uIeef ~ eover~ant.~ed(~'_~ar~; Skills and knowledge r,quJred to pe~foPm~tJ6 ~ ~'1 '~{n~ ~e~elTM record. Oood wrt~tan t~d Comnuntcat-ton sktlls. ~phyatca31y eapab3e ~ loadt~ and vn?eadtng treks .ft~ MB~ cargo,' ~tltW 'n~d'Nt!'llngnass' to 'Stte~ Ftrst At~, appl!ce=te. Kn~?edg~ of Crtsts Nsn~ment/Z~te~ent~ve Technique procedures and re'laced ~o~4c~es, Ab{l~ty to ~ork ~tth and/or aroun~ a populat4on of ~evelopmenta~ly delayed adu I t~. APPENDIX SERIF-~: Motor Ven~,¢J.e ~racor' . CLAS~ STANDARD: CLASS COOE: 17201 Charac=eris=ic Duties.: .: ~lanCs and cons~.ruc~on ~at~r/Als, stock an~ autx~ot, tv~ par=s,.~ab .sgec/mens v~c!e( ~~ ~he s~e~ of v~tcles, ~s~g~s ~ A m~ of a C~ass "Go ~o Drip's ~c~ce as ~s~ E or F ~cences ~y be r~~. A w~k~q ~iedge of ~e NOT~: ~cc.Lucle~ frc~ ~his group are _Dosi~-ion~ lnvclving the operation of heavy duty vehicles, such as highway ~ai~Ce~ance and equipment. Su.c..h positions are covered by other classification series. November 1,'1981