Loading...
HomeMy WebLinkAbout1991-2968.Baron et al.95-06-28.~ffi GRIEVANCE COMMISSION DE ,',~ 'fY v' ~'~ '>~o t~'~ ~' ~' SE~LEMENT R~GLEMENT > · ~ ,~ · BOARD DES GRIEFS ~' I80 DUNDAS STREET WES~ SUITE 2100, TORONTO .ON MSG 1Z8 TELEPHONE/T~L~PHON[ : (4t6) 326-1388 180, RUE DUNDAS OU[8[ BUR~U 2~, TORONTO (ON~ M5G lZ8 FAC~IMIL[~7~L~COPIE : (416) 326-1396 OPSEU ~ 92A245-51,~ 92B592-93 IN THE ~TTER OF ~ ~IT~TION THE CR0~ EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV~CE SETTLEMENT BOARD BETWEEN OPSEU (Baron et al)' Grievor - and- The Crown in Right of Ontario (Ministry of' Co,unity & Social Services) Employer BEFORE W.-Kaplan Vice-Chairperson P. Ki~ Member M. O' Toole Member FOR~THE P. Munt-Madill, K. Whitaker GRIEVOR Counsel Ryder; Wright, Blair &. Doyle Barristers & Solicitors FOR THE J. Smith EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Services HEARING January 22, 1993 October 22, 1993 March 17, 28, 1994 May 3, 1994 October 27, 28, 1994 January 26, 1995 Introduction This case concerns nine grievances, all filed by probation officers, and all dating from December 1991, taking issue with caseload assignments on the basis that they are unreasonable, excessive, unfair, and detrimental to health and safety. The grievances proceeded to a hearing in Toronto in January 1993, and the. evidence in these proceedings continued over the course of the following two years. Many of the background facts are not in dispute. The grievors are employed in two separate offices, one in Ajax and one in Oshawa, although for administrative purposes the offices are treated the' same and will be referred to in this award as the Durham Office. They deliver probation services to young offenders. The gravaman of the grievors' complaint is that their caseload, when compared to colleagues performing, the same services in adjacent areas, particularly in the Peterborough Office, is inordinately high, and that their health and well-being have been impaired in the result. The grievors afso take issue with the fact that they are formally required to meet certain Ministry standards but their caseloads are such so as to make some of these requirements impossible to meet. In the result, the union alleges that the employer is in breach of Article 18:1 of the Collective Agreement. For its part, the employer took the position that there had been no Collective Agreement breach, and that none of the grievors has ever been disciplined for failure to meet Ministry standards where workplace demands made doing so impossible. / 3 The Union's Case Evidence of Paul .Peyman Mr. Peyman is a probation officer who has worked in both the Oshawa and Ajax offices. He began work for the employer in 1975, and has worked as a probation officer since 1991. He told the Board about the Caseload Equivalency chart, a form completed at the. end of each month recording thE; various activities performed by individual probation officers. After all the activities are tallied, including forms completed, interviews conducted and travel undertaken, an "average workload per PO" is arrived at. In Mr. Peyman's view, however, this figure was inaccurate because it failed to make appropriate distinctions between probation officers on the basis of their actual caseload. In his view, caseload, or number of clients, is a better method of determining workload. Mr~ Peyman also pointed out that the more clients he was required to see, the less time that he would have available for case and non-case related activities, which were also an important part of his job. Some of the case related activities, such as meetings with other professionals involved with particular clients, obviously assist in bringing a holistic approach to client care. Other activities assist probation officers in their professional development. Various exhibits were introduced into evidence to assist the Board in coming to terms with the extent of the grievors' caseload, and also to provide some basis for comparison o.f that caseload with probation officers in other areas, notably the Peterborough Office. Suffice it to say, and 'this will be set out in more detail throughout this award, that the grievors, at the time of these grievances, had a significantly higher caseload then many of their contemporaries located elsewhere. Mr. Peyman described his duties and respo, nsibitities. Some of his activities, such as .the preparation of the "Pre-Disposition Report," can take as much as fifteen to twenty hours to complete. This important document is ordered and used by the court to assist it in arriving at an appropriate disposition for a particular young offender. According to Mr. Peyman, along with the other grievors,' he has made his concerns about caseload known to management.. As early as May 1990, management was notified of expected increases in population growth in the area covered by the Durham Office, and of the concomitant need for additional probation officer services. As anticipated, demand for probation services increased and management was kept aware of this growth by reviewing monthly reports. Mr. Peyman noted that the employer did meet with some of the grievors to discuss various solutions to the problem. He also observed that white his caseload was growing - at one point it more than doubled - the caseload of probation officers in the adjacent Peterborough Office more or less remained the same. Mr. Peyman also pointed Out that the number of cases assigned precludes him from delivering the kind of services he would tike to his clients. He has tittle opportunity to enjoy collateral contacts with other agencies, parents and schools. He also finds that the sheer number of clients on his caseload precludes him from providing the individual support to clients which he would like to provide. Mr. Peyman needs to spend time with his clients to get to know them, and to better assess them and their needs. He testified that a caseload of 50, which for him is not atypical, puts him under a great deal of stress, particularly as he'invariably becomes concerned that he is unable to perform all aspects of his job, and he concludes that individual ctients are suffering in the result. He told the Board that his caseload prevents him from meeting Ministry standards. 5 The employer was made aware at a meeting in May 1 992 that probation officers such as the grievor were being precluded, because of workload, from meeting some of those standards. The grievor testified that he wa:s told by Mr. Don Bent, a Ministry representative from the Southeastern Region and ~4r. Frank Biassucci, the Program Supervisor from the Peterborough office responsible for the delivery of probation services in Peterborough and Oshawa, that he and his colleagues were required to meet Ministry standards, and would be disciplined for failure to do so. Mr. Peyman testified that he is not only concerned about his inability to do his job - this concerns him on moral, professional and ethical level - he is also very worried that he might be disciplined for reasons entirety out o'f- his control. Often, Mr. Peyman cannot see clients as often as he would like. He told the Board that the excessive workload, and the specter of discipline, was impeding the delivery of a good probation services to his clients. At the time of the grievance, Mr. Peyman was providing a much reduced service to his clients then he was a year or two earlier, tn part, this was the result of an increased caseload; in other part, it was attributable to changes in expectations. The caseload also precludes Mr. Peyman from presenting well to the juvenile justice community of social workers and others, such as those in the legal system. He is so busy trying to juggle his case overload that he is prevented from making the contacts and obtaining the visibility that he needs to' operate well within the system. In Mr. Peyman's opinion, he should have a caseload of approximately 25 to 35 clients, instead of a caseload in the 4Os, 50s and 6Os, as was the situation in 1991 and, to a somewhat lesser extent, 1992. In the past, when he had a proper caseload, Mr. Peyman was able to deliver a high level of' service to his clients, in 1991, Mr. Peyman felt so overwhelmed by the' number of clients he was required to. service that he felt considerable stress and anxiety. He became less patient and tolerant of situations he would have previously accepted in stride, and he became extremely agitated about the unfairness of the situation, particularly when he compared his caseload to that of probation officers in Peterborough. He told the Board that these symptoms have not gone away, and that he continues to confront an excessive caseload, one that has even exceeded past levels. Cross-Examination of Mr. Peyman In cross-examination, Mr. Peyman testified that court-driven functions receive first priority followed by case-related activities such as meetings with clients and collaterals and preparing various documents. Other than those matters which are ordered by the court, it is up to Mr. Peyman to determine the priority assigned to his work. Some young offenders, for obvious reasons, require considerable contact with their probation officers; others, such as those put on probation following a relatively minor offence. require less attention, fewer meetings, and not as much paperwork. Some of Mr. Peyman's responsibilities are mandated by' the employer. Sometimes he cannot, because of the press of his other commitments, attend to these responsibilities. At the meeting in May 1992,' Mr. peyman, 'and others, raised concerns about the caseload. Mr. Peyman did not, however, make any suggestions about ways 'of possibly alleviating his concerns. He testified that specifics were not addressed, but he was advised, in response to his and other expressed concerns about discipline for failure to meet standards, that he would have to change the way he went about doing his work, 'and that this might involve seeing clients less frequently. He agreed with the assertion that with one 7 limited statutory exception, there was nothing stopping a change in the manner of conducting business. Mr, Peyman also agreed that as the standards were ministry generated, they could be changed or modified b,.l the Ministry. Mr. Peyman's supervisor is Mr. David Crowe. Mr. Crowe attended the May 199;~ meeting, and he was aware of the concerns being expressed. Mr. Peyman has never had the occasion to go to Mr. Crowe and advise him that he could not comply .with the standards. Mr. Crowe was, however, aware of certain lapses in the standards. Mr. Peyman's quarterly reporting was not, for example, always up-to-date. Nevertheless, IVlr. Peyman has not been disciplined for this breach, and he is not aware of any of his colleagues receiving discipline for this, or any similar breach. After the grievances were filed, some piecemeal changes were made involving a minor shift in boundaries between the Oshawa and Peterborough offices. It was also possible that the complement of staff increased by one in 1991. l~r. Peyman is of the view that the genera~ problems he described could be best addressed through the hiring of additional staff. Mr. Peyman insisted that his caseload affected his overall well-being, and in his mind, the one was directly relevant to the other. He agreed, however, that he was only absent from work for 2.5 days in 1991 and 3 days in 1992. He did not see a doctor about these absences. He told the Board that while his work day was 36 and 1/4 hours per week, he regularly worked late into the night, and often came in on weekends. Evidence of Carl Baron Mr. Baron is a probation officer at the Oshawa office, and he testified that there were periods between April and December 1991 where, because of his 8 caseload, he felt physically and emotionally drained. During this period he suffered from many. headaches, had difficulties with sleeping and concentrating, experienced memory' loss, anxiety, confusion, fatigue, blurred vision and lightheadedness, and felt generally irritable and frustrated. He would catch himself'grinding his teeth and biting down hard while at work, particularly during periods of pressure. At this time, Mr. Baron was preparing for examinations given as part of the process of raising his probation officer qualifications and status. Nevertheless, he attributed the various concerns enumerated above to the loss of control which he experienced as a result of his rapidly increasing and very difficult caseload. Mr. Baron was asked about Ministry standards, and he identified some of those standards which the pressure of his responsibilities precluded him from meeting. Standards are directives which must be met, and should be contrasted, Mr. Baron testified, With guidelines, the interpretation of which involves the exercise of some discretion. One case management standard provides that "Where a youn§ person with an existing disposition and Probation Officer, is admitted to detention on subsequent charges, the Probation Officer, when advised of the admission, must provide the detention facility with existing documentation/information relevant to their services (e.9., the Probation Officer's risk assessment)." According to Mr. Baron, he has difficulty meeting this standard because of insufficient time to complete this and all of his other tasks. The same can be said, .in another example, of the standard respecting case management pfans: "A Case Management Plan will be commenced by the Probation Officer within' 30 days of the Y.O.A./P.O.A. disposition, and prior to the first plan' of care meeting following disposition (for yduth in residential care)." Other standards were also reviewed and in each case Mr. Baron testified that the 9 pressure of workload was such that he could not meet the obligations formally imposed on him by the Ministry. Mr. Baron was asked some questions about the employer's system for measuring workload, and like Mr. Peyman, Mr. Baron testified that it was actual caseload that mattered, not some formula arrived at by the Ministry that failed to take into account the actual number of clients that he and the other probation officers were required to see. He also pointed out that there was a real difference in service provided between probation officers with large caseloads and probation officers with more modest caseloads. Mr. Baron considers himself a professional and testified that he does not. consider it appropriate for him to be placed in a position where he cannot. meet the standards, and where he cannot perform all of the important duties associated with the professional delivery of probation Services. Mr. Baron endorsed the Ministry standards. They were, he testified, a good thing. What he objected to was an impossibly high caseload that left him unable to meet many of. these standards and that precluded him from performing essential duties of his position, a number of which he identified and discussed. He also referred to a consultant's report, "Opportunities ~nd New Directions for M.C.S.S. Probation Services: Feedback from the Field and Strategies for Strengthening the System," d~'ted November 19, 1986 (hereafter referred to as "the Simpson Report"). This report states that "in a highly resourced urban area, a range of of 25 to 30 cases was viewed by Probation Officers as tolerable" (at 17). In Mr. Baron's view, he could even tolerate a caseload of 40. The fact of the matter, however, was that he was regularly required to manage caseloads significantly in excess of this amount and this was, he told the Board, intolerable. Cross-Examination of Mr. Baron When Mr. Baron felt confused, discouraged and frustrated in 1991, he did not discuss it his supervisor; he did, however, raise the matter with his colleagues. Mr. Baron agreed that in 199P_, he only 'missed two days of work on account of illness, and testified that he never saw a doctor with respect to his medical condition. Once, complaining of double vision, Mr. Baron saw an optometrist who could find nothing wrong. Mr. Baron testified that he has never been disciplined for not meeting a particular standard, and told the Board that he was able to complete all court-ordered tasks. Some of the tasks which he would have liked to perform, such as attending in court to provide support to a particular young offender and his or her family, and answering the questions of crown and defence counsel, were not required by the standards. The fact that Mr. Baron was not able to perform this type of task was the result of his increased caseload which in turn precluded him from doing all the parts of his job nece?sa.~ to its professional completion. Mr. Baron agreed that at no time did he ever fail to comply with the requirements of governing statutes such as the Young Offenders Act. Mr. Baron acknowledged that some Ministry standards are flexibly applied and that his supervisor, Mr. Crowe, has a good understanding of both the system and the pressures faced by probation officers. If Mr. Baron had a problem he could go to Mr. Crowe with the expectation of being able to work it out. He also agreed that some of his non-compliance with some of the standards was of a relatively trivial nature. Nevertheless, he was concerned by the fact that he might be disciplined in any event. Re-examination of Mr. Baron in re-examination, Mr. Baron testified that he has never been told that he is 11 not responsible to comply with all of the standards, and the impression that he received is that he is to comply with all of them. He noted that if there was an investigation into one of his cases, and it was learned that he had not complied with Ministry requirements, he could face discipline and other problems. For example, if he assessed a young offender as high risk, an¢ established but failed to keep a regu(ar reporting schedule, should something untoward occur he would, more likely than not, be taken to task. He also told the Board that just because he was only away from work fora few days in 199;] did not mean that he was not under a great deal of stress. He testified that if he did not come into work, the work would just pile up, and the strain of catching up with the work, when added to his on-going responsibilities, would dramatically increase his stress. Evidence of Judy Curtis Ms. Curtis began her Ministry career in 1974. In September 1982, she started work as probation officer in Oshawa and served in that capacity until January 1, 1989 when she left the service for approximately 18 months. She was rehired in May 1990, and has been working as a probation officer in Oshawa ever since. When Iqs. Curtis first began her probation officer career she had a caseload of approximately ;].5 to 30 cases. Over the years, Ms. Curtis's caseload has fluctuated and she testified that a caseload in the mid-:~Os did not cause her much anxiety. In earlier years, even when she had a caseload in the 40s, it was manageable because there was much less paperwork to be completed and, in the result, she had sufficient time for all of her other important probation officer functions. The turning point, in terms of forms to be filled out, came after the Young Offenders Act replaced the Juvenile Delinquents Act in 1 983. Prior to ~ 98:3, Ms. Curtis would write two or three Pre-Disposition Reports a year. · Recording was limited to case notes which were subsequently transcribed by secretaries. After the Young Offenders Act came into force, the number of Pre-Disposition Reports which were required increased exponentially, and when that Situation was combined with an ever-increasing caseload, the workload, and the accompanying stress, Ms. Curtis testified, became unmanageable. Moreover, in earlier years Ministry standards were not as strict as they subsequently became.- Accordingly, Ms. Curtis was, even when she had a caseload of 45, able to meet those standards. The same could not be said at the time of the grievances. In Ms. Curtis's opinion, her caseload, in 1991 and 1991, along with. an even higher workload equivalency, was both high and stressful. Between April. 1 991 and December 1991, when her grievance was filed, Ms. Curtis did not feel as if she was properly performing her position as the amount of work made it impossible to keep up with clients and collateral contacts, complete the paperwork, and meet Ministry standards, instead of engaging in strategic planning on behalf of clients, and engaging in activities such as attending, in court to support young offenders and their families, Ms. Curtis found herself reacting to crises, and she began to realize that she was not getting the job done in a way that was satisfactory to her even though she was working more hours than ever before. In addition, it soon became painfUlly clear to Ms. Curtis that wOrkload demands were undermining her position and reputation in the juvenile justice community as she was not able to maintain and foster important collateral contacts as had previously been the case. Management was, she testified, welt aware of her difficulties. Problems at work soon, Ms. Curtis testified, into problems at home. She told the Board that she began to experience difficulties in gettin9 to sleep, 13 and she would often wake up before the alarm went off. Because of stress, Ms. Curtis also began to gain weight, and her menstrual periods became irregular. Her digestion was bad, and she frequently felt physically tired and emotionally exhausted. Ms. Curtis, who had previously exercised regularly, ceased doing so. Eventually, Ms. Curtis was prescribed ulcer medication. At times, Ms. Curtis would leave work feeling panicky and under intense pressure. She noted that her ability to concentrate was impaired and her memory diminished. She began to have headaches. During the relevant time periods, Ns. Curtis regularly had a caseload in the 40s, and a workload equivalency of a much higher amount. During some of this time, Ms. Curtis was experiencing stress in her personal life - her mother was ill - but she "testified that she did not feel that the feelings of panic and exhaustion which she experienced were caused by events at home. It was workplace stress, she testified, that h;d her to take ulcer medication. Overwork, very simply, was causing the real stress in her life, and she testified that this problem has continued. Indeed, since her grievance was first filed, it has increased.. According to Ns. Curtis, the caseload has left her with much less job satisfaction than in the past, and much less opportunity to control the job and do the job. In her view, overwork has had a profound effect on her, and she told the Board that the caseload has impaired her health and safety. The constant stress has been very wearing. The fact that she cannot do the job in the way she would like, and in the manner management expects, weighs heavily on her. Ms. Curtis testified about informal and formal discussions about workload that have taken place. Ms. Curtis and others have suggested that new staff be hired, but that does not appear likely given current budgetary restraints. At one point, a contract employee was hired.. Other means of dealing with the situation have also been explored. But at the end of the day, Ms. Curtis is still expected to meet Ministry standards, and she knows that she might be disciplined for failing to do so. in Ms. Curtis's opinion, given all of the requirements of the position, and the Ministry standards, a caseload of 30 to 3.~ would be manageable and would not impair her health and safety. Cross-Examination of Ms. Curtis Ms. Curtis was asked a number of questions in cross-examination. She agreed that she has 19 years of experience in juvenile corrections, and that in April 1991, she was responsible for 46 cases and had a workload equivalency of 58.9. Ms. Curtis agreed that it was her view that she found .it difficult to meet Ministry standards because of this caseload and workload equivalency. And, moreover, that. this caseload and workload equivalency affected the general performance of her position and her status within the juvenile justice community. While Ms. Curtis has not done a survey, she agreed with the suggestion that, for the most part, Pre-Disposition Reports are adopted by the courts. Ms. Curtis also agreed that there is no statutory provision requiring probation officers to attend in court. The probation officer job description does, however, indicate assisting in court as one of the assigned, duties. There is also a .. well-established practice of probation officers being present in court to support young offenders and their families. Probation officers also used to attend at court for probation breaches, in part to assist the young offender, ensure all of the information was before the court and, if requested, make recommendations to the court. There is no longer sufficient time available for Ms. Curtis and other probation officers to engage in this activity. Ms. Curtis was asked about a number of other activities which she used to perform such as community liaison. While the job description clearly 15 indicates that this function is among the assigned duties, there is no Ior~ger sufficient time, for example, to speak to Board of Education groups, and so probation officers such as herself are unlikely to volunteer for requests of this nature. Ms. Curtis has not been disciplined for faifing to perform this task, and is not aware of any disciplinary sanctions that might be imposed for her not doing so. To meet the needs of her job, Ms. Curtis must work through her lunch hours. She agreed, however, that~ she was a schedule 6 employee, and was not subject to maximum hours of work. Ms. Curtis also agreed that at the time of the grievance, when she was experiencing the various ailments described in her evidence in chief, that she was hardly ever absent from work. indeed, in all of 1991, Ms. Curtis was only away for one or two days. Ms. Curtis saw a doctor during this period. Since 1991, Ms. Curtis's general condition has improved. She is not, for example, treating her ulcer with medication. As already noted, in 1991, Ms. Curtis's mother was iii, and there were a number of other home stressors. This situation has generally improved, and she agreed that her home stressors have decreased since 1991. In 1992, Ms. Curtis missed two days from work While Ms. Curtis is receiving treatment for menstrUal and related problems, he doctor has never advised her to take time off work. She does not see a doctor for assistance with sleeplessness or the general lack of energy she earlier described. There have, however, been occasions when Ms. Curtis has not been feeling well,, but would come into work nevertheless. Ms. Curtis has never been disciplined for failing to comply with Ministry standards. Some standards have been relaxed. For example, it is no longer necessary to have personal contact with young offenders who have been assessed as Iow risk. A risk indicator, the Risk/Need Assessment form, has 16 been introduced to assist probation officers in assessing risk. One of the stated purposes of this indicator is 'to assist probation officers in prioritizing their work. Ms. Curtis has used it a few times, but finds its format difficult to roi'low. An EP, C has also recently been established. Re-examination of Ms. Curtis In 're-examination, Ms. Curtis testified that she has not received any training in the use of the risk indicator and, as far as Ms. Curtis is aware, the risk indicator does not alter the standards or provide that she will not .be disciplined for not meeting those standards. The risk indicator is simply a means.of classifying clients and, after certain factors have been assessed, determining the degree of risk a particular young offender presents. Evidence of Tom Collins Mr. Collins, a full-time probation officer at.the Oshawa Office since 1986, testified. When Mr. Collins was first hired he had a caseload of between 20 and 25. He told the Board that he,.was able, with a caseload of this size, to fully and properly perform his probation officer position, although even then he would, on occasion, have to work weekends in order to comply with Ministry standards. For his first few years on the job, Mr. Collins' caseload fluctuated. While it would, at times, reach levels in the Z~0s, Jt would later drop off giving ivlr. Collins an opportunity to catch up, Beginning in 1991, however, the caseload stabilized in the 40s and never again dropped off. Indeed, during some months in 1992, Mr. Collins had a caseload in the 5Os. Between April and December 1991, Mr. Collins began to notice some of the effects of his high caseload. He could recall specifically complaining to one of his acting supervisors, and suggesting that his workload was 17 unmanageable. He told the Board that he began falling behind on various tasks such as the preparation of quarterfy reports, collateral contacts, liaison work and so on. The workload also personally affected Mr. Collins: as he did not feel that he was doing a high quality job. He could not meet with clients as often as in the past, nor could he .take the time to follow through on, or analyze cases, two tasks which are indispensable to proper probation officer work. Indeed, Mr. Collins began to question the ethics of his doing an incomplete job, and he described the various ways in which he was unable to provide " proper probation officer services. He could no longer, for instance, review Pre-Disposition reports with families, and in 'that way use this document as a counselling tool, nor was he available to counsel families when young offenders appeared in court. Mr. Cotlins explained to the Board why collateral contacts were so important but have, because of workload, be-eh greatly reduced. .. Since 1991, Mr. Collins has found it necessary to regularly work evenings and weekends to keep up with the demands of his job. He is aware that between April and December 1991, he was not always in compliance with Ministry standards. At the same time, he knew that he was obligated to meet these standards. During this time period, Mr. Collins felt frustrated and overwhelmed. In Mr. Collins's case, his caseload was even higher than the numbers would suggest because he is responsible for a rural area afld a great deal of travel is accordingly required. Since 1992, Mr. Collins's caseload has been' in the 4Os. He has informally raised his concerns about it to management. He is not aware of any factors from his personal life that could account for the feeling of stress that he felt at work, and therefore attributes that feeling to unmanageable work demands. Mr. Collins continues to get job satisfaction from his position because he continues to do positive things that make an impact. His job satisfaction is not, however, as great as it was when his caseload was manageable. According to Mr. Collins some changes have been introduced such as the risk indicator. This form requires less time to fill out, and so assists him in managing his caseload. For example, if the application of the risk indicator results in a finding of Iow risk, Mr. Collins can, with his supervisor's consent, see the client less frequently than required by the Ministry standards. Mr. Collins told the Board that there has been some change in the level of service over the years, but he has adjusted to the new demands and gotten used to the idea that he can only do so much. He noted that there is a reason for the Ministry standards, they were drafted folfowing a determination of what made sense. And Mr. Collins testified that they still make sense although they are no longer necessarily possibte to meet. While Mr. Collins does not have any statistics on point, he is of the view that the Workload has not just reduced his visibility in the courts and community, but is also resulting in changes in the way that the system treats young offenders. Several examples were given on point, and they clearly indicate that Mr. Collins does not have the time, as he had in the past, to give as much personalized attention to young offenders and their families. He also noted that opportunities for professional development have, in recent years, been greatly reduced. In the summer of 1992, Mr. Collins took some stress tests which he "passed." He Subsequently learned, however, that he had an ulcer and a hiatus hernia. The ulcer has healed; the hernia remains but has not caused any difficulty since the diagnosis. Hr. Collins testified that notwithstanding ail of the Pr0biems which he outlined, he has felt 19 ' supported by his colleagues and by his supervisor. His mental health may even have improved since his grievance .was filed because he has come to accept that there is only so much that he could do within a given period o'1~ time. This involves a recognition that he cannot necessarily meet Ministry standards. He is concerned, however, about this. What happens, he asked, if something occurred and it was learned that he had not seen a client for several months? In Mr. Collins's opinion,, a workload of 2.5 cases in his rural setting would be safe, as that caseload would have an equivalency of 40 or more cases, and in his view, that was the maximum number that should be assigned to a probation officer in .circumstances such as his own. Cross-Examination of Mr. Collins Mr. Curtis agreed in cross-examination that in most cases a young offender appearing in court would be represented by legal counsel. He did not agree that this made his services superfluous, and he noted that just being there and caring could contribute a tot to the young offender and his or her family, Moreover, just because he prepared a Pre-Disposition Report, did not necessarily mean that counsel would consider it. If he was in court, he could answer questions about it and use it as a counselling tool. Mr. Collins has never been disciplined, nor has he ever received a negative performance appraisal for failing to meet Ministry standards. Mr. Collins is not aware of any flexibility in the application of the standards, although he does know that the standards can be modified with the supervisor's consent. While the number of collateral contacts has gone down, Mr, Collins agreed that he has never had a Pre-Disposition Report rejected because of insufficient contacts. All that the Young Offenders Act requires is that he. meet with the young offender and one parent or guardian. He also agreed that there is no legal requirement for him to attend in court. As far as he knows, his Pre-Disposition Reports are heavily relied on by the courts. Since 1991, Mr. Collins has reduced his liaison work and community activity. This has not attracted either discipline or disapproval, and ~r. Collins agreed that since 1991 no such work has been assigned. At one point in 1992, Mr. Collins took ten days off work, and he testified that he did so because of a culmination of factors of which workload was one. While Mr. Collins did not feel that his job performance was what he wouid like it to be during the period in question, he testified that he has not received any formal criticism for the performance of his job, although on one occasion a supervisor informally drew to his attention the fact that he was not seeing a client as 'often as required in a schedule. Mr. Collins replied that it was simply not possible, given the workload, to do everything. Evidence of Dr. Norman Frederick White Dr. White, a psychiatrist and professor at McMaster University's Faculty of Health Sciences testified. Primarily reasearch-oriented, Dr. White is an expert in risk reduction and health promotion. He testified about his credentials, and it is fair to say that Dr. White is an extremely accomplished individual with expertise in behavioural medicine and in the application of muttidisciplinary research to a broad array of contemporary health problems. He told the Board that behaviourai medicine.utilizes models and other methods of the social sciences in its examination of public health concerns. Dr. White is an expert in the environmental aspects of health, and has edited several books on this subject. Stress is one environmental issue arising in the workplace, and it is also one issue with which Dr. White has considerable expertise. According to Dr. White, there have been a number of studies indicating that 21 ' human service workers are particularly vulnerable to stress in the workplace. That term, however, is subject to a number of different definitions. In Dr. White's opinion, it is a composite term denoting biological overload. Stress often results because of a discrepancy between the demands placed on an individual and that individual's ability to respond. Dr. White referred to the considerable literature establishing a link between stress and disease. Stress can also lead to negative behaviour changes such as smoking, increased drinking and decreased physical activity. Obviously, this type of behaviour can cause other illnesses, both mental and physical. Very simply, an increase in workplace stress can, Dr. White testified, lead to disease, in particular, coronary disease. He noted, however, that each individual is different. Some people with excellent time management skills, or other "buffers," can react to workplace stressors better than others. In advance of his testimony in these proceedings, Dr. White prepared a detailed model specifically applicable to the grievors in which he charted how their workplace demands affected them. To prepare this model, Dr. White began by interviewing several informants from among the grievors. He then gathered a focus group for the purpose of discussing matters of common concern. He then prepared his model, following which he conducted a literature review. He completed his study by reinterviewing a number of the informants. This process, which Dr. White explained in some detail, contains checks and balances and is, he told the Board, standard social science methodology. There were some limitations to this approach, and Dr. White noted them. He testified, for instance, that he did not examine medical records, nor was he making a direct causal connection between the grievors' work and the manifestation of disease. A finding of risk of disease, Dr. White testified, was different from-a finding of a particular disease. For example, it is well established that second hand smoke can lead to lung cancer. Similarly, workplace stressors can lead to illnesses associated with stress. The issue is not, according to Dr. White, whether any of the grievors have actually become sick as a result of their increased workload, but whether they are at an increased risk because of it. In his evidence, Dr. White took the Board through the model which he had earlier prepared. Suffice it to say that this model is extremely comprehensive. Dr. White's evidence in this respect has been carefully considered .although it is not repeated here in detail. Rather, the model, and his testimony, can be summarized by saying that because of an increased workload, the grievors are placed under greater pressure and are left unable to fully and professionally perform all aspects of their job. As the grievors' workload increases, they must work harder' but they have less time per case, less time to spend assisting young offenders in court, and tess time for community liaison and professional development. In the result, ;they experience an overriding and somewhat generalized loss of control. Instead of directing events, the grievors must respond to them. All of this, in turn, leads to a loss of professional status, role conflict, a reduction in the quality of services, and various negative effects such as a rise in tension and stress with a concomitant loss in the intrinsic rewards of a job .well done. More mistakes are made, and this further erodes any sense of professional accomplishment, tn the meantime, instead of being assisted by positive buffers, such as knowledge that the Ministry is behind them, the grievors are placed under the gun because they know that they must meet formal Ministry standards - which their workload precludes. This is then aggravated by the fact that they are subject to discipline for ' failing to meet those same standards. The results of this state of affairs were numerous and included a generally unhappy workplace and poor employee morale. Moreover, the grievors' ability to withstand stress decreased with a resulting increase to the grievors (and Dr. White testified that some of the grievors experienced some of these symptoms and that some of them experienced all of them) in insomnia, interpersonal strain, smoking, bad eating habits, depression, fatigue, sexual dysfunction, drinking, and physical inactivity. Dr. White also testified that these results could lead to others involving pathophysiological change, physical disease, including increased risk of coronary heart disease, and mentat disorder. Dr. White noted that the grievors became probation officers because of personality attributes, particularly the abitity to emphasize with clients. When their job demands precluded them from meeting the needs of the client group, and Dr. White gave numerous examples from his study indicating this to be the case, it was only understandable that there could and would be serious health-related consequences to the 9rie¥ors in the result. Dr. White noted that individuals are often assisted by positive buffers; the satisfaction gained from a job well-done is a good example on point. This was, he testified, denied the 9rievors because they are unable to do their jobs. Very simply, their workload makes it impossible. According to Dr. White, it was not possible to infer anything from the fact that in 1992 the grievors, by and large, were hardly ever away from work for reason of illness. Neither his model, nor the conclusions which he reached, were changed as a result of that. Dr. White observed that the value systems of different occupational groups may result in members of those groups refusing to admit that they under stress, or are suffering from it. Therefore, attendance at work was not necessarily a retiable indicator' of whether a certain employee was suffering from stress and was therefore susceptible to the difficulties which he had earlier identified. Having conducted his study, and based on his years of experience in the ~. field, Dr. White opined that the grievors' caseload constituted a risk to their health and safety, and that the increase in stress was posing a real and substantial risk. Virtually all of the factors known to create occupational stress were present in the gdevors' workplace - and a number of other studies were referred to substantiating this conclusion. The evidence also established, 'Dr. White stated, that the grievors' were suffering in the result. Dr. White was of the opinion that a 'number of changes would have to be made to reduce the level of workplace stress, and he suggested that the first change that should be made was a reduction in caseload. That change, which would give the grievors' more control, and would, among other things, lead to greater professional development and job satisfaction, was, he opined, an important first step. But it was' just that. Other changes would undoubtedly also be required, and he referred to his model to make the point that there were many contributing factors to the occupational stress which he had identified; the model could, accordingly, be used as a guide in the reduction of that occUpational stress. Cross-Examination of~ Dr. White In cross-examination, Dr. White testified that the object of his exer. cise was to conduct a risk assessment. This led him to conclude that there was a causal agent or condition in the workplace that was, in turn, creating a risk to the grievors' health. This conclusion was confirmed by the presence of various symptoms which he had earlier enumerated. Dr. White was not saying, for example, that these symptoms were necessarily being 25 experienced by the grievors for the first time. What he was saying was that his study led him to conclude that there was a marked increase in these symptoms, and that increase was contemporaneous with the increase in workload. Dr. White agreed that the link between stress and heart disease was extremely well-documented in the literature. He was asked whether, during the course of his study, any of the grievors informed him that they were suffering from hypertension or any other symptom indicating the beginning of a cardiovascular problem. He testified that he did not look specifically for that information; rather, what he sought was information consistent with that condition. It was not necessary for him, in this regard, to review any medical records, for high blood pressure for example. The fact of thE; matter was that he did not need evidence of hypertension to find that there were stressors in the workplace. What he needed, and what he found, were conditions resulting in an occupational health and safety threat. He also found evidence that those conditions and results were not hypothetical; they were, he testified, real, Dr. White was looking for risk, not disease. Dr. White acknowledged that workplace stress was not the only type of stress that could lead to the symptoms he identified. He agreed that there were circumstances where conditions at home could have effects even more devastating on an individual than those associated with work. He did not, however, ask any of the grievors about their home lives. He assumed thai: they must have some stresses at home, and he agreed that there is always some stress in an individual's life. In this particular case, the distresses suffered by the grievors in the occupational realm were such so as to lead Dr. White to conclude that they were being required to work at well beyond any "optimum" stress level. Dr. White was asked how he could identify 26 workplace stress as a risk when he was not familiar with stressors outside of the workplace, and he testified that he could do so aS a result of the methodology which he followed. Moreover, he pointed out that the grievors were relatively sophisticated in matters of this kind, and he believes that they would have brought non-workplace stressors to his attention had they thought it necessary and appropriate to do so. Dr. White added that he asked about the impact of the workplace stress outside of work, and' in this context would have expected to hear about other sources of stress, His job, he pointed out, was to isolate job stress and assess the potency of the risk created thereby, and he testified that this process was distinct from anything else that may have been going on. By way of example, Dr. White noted that workers exposed to asbestos are at a much higher risk of developing lung cancer if they are also smokers, it is difficult, in these circumstances, to assess blame for the disease. Nevertheless, that does not alter the fact that' asbestos has been independently established as a source of lung disease. The same could therefore be said for .the various risks that he identified as a result of his study of this particular ..wor.kplace. With respect to his earlier evidence that stress was created as a result of conditions precluding the grievors from meeting personal and professional standards, Dr. White agreed that if those standards were changed, that could have the effect of eliminating this stressor and thus reducing any risk. He told the Board that it would be best, however, if the grievors were actually and actively involved in the process of determining what the applicable standards should be, and that their concerns should be addressed in a process that engendered trust between the parties. 27 Re-examination of Dr. White In re-examination, Dr. White was asked to explain why he had not felt it was necessary to ask the gdevors about home stressors, and he testifiect that his focus was on workplace risk factors. Moreover, he noted that during the course of his study there was a complete absence of any leads that would suggest inquiries of this kind. He knew that the grievors were, as a group, very much aware of the impact of home life on an individual, ;~nd it was therefore highly improbable, had there been relevant home life stressors, that they would have not, at some point during the course of his investigation, been brought to his attention. Had all of the symptoms which he found existed prior to the increase in workload, Dr. White would have conducted his study differently. The preexistence of some of the symptoms in some of the grievors did not affect his conclusions especially since virtually all of the symptoms which he identified are likely to happen to everyone at some point in their lives. Dr. White pointed out that he was not acting as a physician collecting symptoms for the purpose of making a diagnosis. It was not, therefore, necessary for him to take a medical history. What he was doing was studying the workplace in order to. identify risk factors. These factors were identified, as were results of the exposure. The Employer's Case Evidence of Dale Elliot Ms. Elliot is a'Program Analyst with the Ministry and is responsible for programs and services for young offenders. She has held that position since 1989; her career with the Ministry began in 1974 as a probation officer. As a result of her work, Ms. Elliot is familiar with the Simpson Report As earlier noted, that report states "that in a highly resourced urban area, a range of 25 to 30 cases was vieWed' by Probation Officers as tolerable" (at. 17). Ms. Elliot was responsible for .r..eviewing this report for the Ministry, but she did not conclude from this assertion that this was an appropriate Caseload for probation officers. Rather, what she concluded was that probation officers considered such a,, caseload to be tolerable. What the Ministry. concluded from the report considered as a whole was that a large number of factors needed to be addressed, including the development of a coherent and shared mission statement outlining expectations and goals in the delivery of probation services to young offenders. In 1990, as a result of extensive consultations, a mission statement was promulgated. According to Ms. Elliot, the Ministry. has never set a standard caseload level for probation officers, in part, this was because of the. uncertainty resulting from the transition to the regime introduced by passage of the Young Offenders Act. It was necessary to look at the impact of changing legislation on the roles and workload.of probation officers. Ms. Elliot noted that the Ministry has no means of controlling intake into the system as the number of young offenders given probation is determined by the courts. There is,. Ms. Elliot testified, considerable workload variance across the province, and because of this variance, again occasioned by factors beyond Ministry control, a system of workload 'equivalency was developed. A figure of 42 cases, based on this system was established in one region as something of a benchmark, but Ms. Eiliot told the Board that the matter of a standard has not been finally determined. This, in part, results from the. fact that admissions to Young Offender services have been annually increasing across the province. The delivery of Ministry services is decentralized, and Ms. Elliot testified that if a pocket of high workload equivalency is identified a number of 29 different options may be pursued. Additional unclassified staff might be hired on contract. Existing staff might be redeployed. Probation officers. might be transferred between offices. There has been an effort made to identify better business practices and introduce better management techniques. The advent of the risk indicator is an example of a tool that was developed by the Ministry with the intention of assisting probation officers in better managin9 their workloads by providing, as appropriate, different levels of services. Cross-Examination of Ms. Elliot In Ms. ElliotIs opinion, there was nothing in the Simpson Report that indicated that a caseload of ?_5 to 30 was optimal. She did not agree with- the suggestion that the author of that report must have concluded this to be so for Ms. Elliot took the position that all that the report did was record views expressed by probation officers. The fact that these views were not rejected did not suggest to her that they had been implicitly endorsed by the author of the Ministry-commissioned report. Ms. Elliot noted that the author of the report was a consultant who had never worked a caseload nor even spent a day with a probation officer. There was no possible way for that individual to know what constituted a proper caseload. Moreover, the wording of the section of the report relied on 'by the union suggested to Ms. Elliot that the report was merely recording the observations of some probation officers. Ms. Elliot contrasted this with a finding supported by reasons. Ms. Elliot did not dispute the suggestion that those probation officers who described a caseload of 25 to 30 as tolerable were telling the truth, and that this assessment undoubtedly reflected their experience and views. However, Ms. Elliot rejected the suggestion that this assertion was .anything more than a particular opinion at a certain time and place. She noted that the study was conducted during a period of transition, and that further changes in the delivery of probation services have subsequently occurred. Many variables should also be considered. A caseload of 40 clients living in training schools was, Ms. Elliot testified, much different than a mixed caseload of that number. Caseload figures were, in Ms. Elliot's opinion, a simplistic measurement tool and one that was subject to many deficiencies. Ms. Elliot atso pointed out that she had served as both a probation officer and as a supervisor of probation officers. She was, therefore, well acquainted with the delivery of probation services and, in her oPinion it would be "tolerable" to have a caseload significantly in excess of 25 or 30. While the Ministry has no ability to directly control intake, it does have the ability to indirectly control it. Probation officers can influence judicial outcomes through their Pre-Disposition Reports. However, if the courts put a young offender on probation, there is nothing that the Ministry can do but provide that person with appropriate probatioi~ services a difficult task, Ms. Elliot testified, in a period of diminishing resources. Ms. Elliot did not accept the assertion that a workload equivalency of 42 was reasonable or appropriate, and she rejected the suggestion that it had been adopted by the Ministry as some kind of standard. All that the 42. figure constituted, in Ms, Elliot's view,' was the professional opinion of some professional staff of an appropriate workload. She noted that the figure was arrived at several years ago, and suggested that intervening events undoubtedly changed at least some of the assumptions underlying it. According to Ms. Elliot, in the absence of sufficient funds to obtain more resources and to hire additional probation officers, the Ministry, and 31 regional offices, must redeploy what resources already exist. Only Management Board, she testified can approve the hiring of new staff, a most unlikely situation in this instance given that the Ministry was required to respond to reduction targets in the prevailing climate of economic restraint. The Ministry has not, accordingly, applied for new staff; rather it has attempted to manage with its current resources. The message from Management Board has been clear: manage from within. While there are procedures to allocate monies within a program or Ministry, Ms. Elliot is not aware of those procedures being followed to reduce the workload of the grievors in this particular case. The development of the risk indicator was, however, one strategy that the Ministry pursued in its effort to manage from within. This system-was under development for a number of years, and was implemented on July 1, " 1994. The level of risk determines the type of probation services received. Young offenders assessed at low risk receive much less supervision than those assessed at higher risk. The risk indicator does not replace professional judgment, and Ms. Elliot testified that probation officers must still carefully assess young offenders. They were expected to do so on an on-going basis. Given that this system has only recently been introduced, Ms. Elliot suggested that it was too early to tell what differences it would make to the delivery of probation services or to the workload of probation officers. Evidence of David Crowe Mr. Crowe, the grievors' supervisor, testified. He has 29 years of service with the Ministry, and has been in charge of the Durham Office since 1991. Mr. Crowe has been aware for some time of workload concerns among probation officers, and on February 6, 1992, he wrote a memorandum to 32 ' probation officers in which he attempted to address some of these concerns. As a result of his concerns, and because of his initiative, one of the boundaries was changed allowing a probation officer in Port Hope to pick up half a caseload. This change was in effect between April 1 993 and April 1994. In addition, in ApriJ 1994, or perhaps some time earlier, a probation officer from Peterborough was transferred to the Oshawa office expanding the complement there, and also reducing the caseload of existing employees. E~ecause of these and other measures, Mr. Crowe testified that there was-a narrowing in the workload equivalency of Probation Officers in the Durham Office as compared to the Peterborough Office. For example, in 1991/92, probation officers in the Durham Office had an average workload equivalency of 56.6, while those in the Peterborough Office had an average workload equivalency of 47.5. By 1993-94, the figures were 65.9 and 61.8 respectively. While it was too early to reach any ~t~'~r'inite conclusions about the impact of the risk indicator, Mr. Crowe testified that it has decreased workload from an administrative or paperwork point of view. Probation officers no longer need to write the long narratives required in the past. Mr. Crowe was asked a number of questions about the standards probation officers were required to meet. in his view, the standards establish broad guidelines and articulate established practices. According to Mr. Crowe, if a probation officer is unable to meet one of the standards, he is is more than willing to discuss the situation with the employee concerned, and then deal with it on an individual basis. I~r. Crowe referred to several standards and explained his flexible approach. For instance, he testified that a particular standard may require that certain actions "commence" within thirty days. In appropriate circumstances, he will give that word a broad 33 interpretation so as to ensure that individual probation officers have sufficient time with which to comp{y. He has never disciplined a probation officer for non-compliance where workload precluded meeting a Ministry standard. Cross-Examination of Mr. Crowe Mr. Crowe was asked a number of questions in cross-examination. In his view, the workload of the grievors has. decreased somewhat as a result of the various measures he had earlier outlined. A reduction of approximately five cases per probation officer was significant, Mr. Crowe testified. Mr. Crowe did agree that the risk indicator sought much of the same information that probation officers were previously required to furnish, What had changed was that less'documentation was now required and the information being furnished was more succinct. The amount of investigation time,, however, has probably remained the same. Over the years, Mr. Crowe has attempted to increase staff complement in.- his office and .to obtain equalization within the region. He took many steps to secu~:e 'new employees - several of which he described in detail - and did so because of his realization that the workload in the Durham Office was too high. Mr. crowe testified that everyone involved in the delivery of probation services, including himself, feels pressure, but he was reluctant to isolate workload as the only cause. While Mr. Crowe did not dispute any of the evidence that the grievors who testified felt considerable stress because of overwork, he noted that this stress had not manifested itself in excessive absenteeism. In Mr. Crowe's view, the stress associated with the job was.likely to continue. The population served by the Durham Office was increasing 34 ' annually, and as it did so too, inevitably, would be the number of young offenders put on probation. Mr. Crowe has no short- or medium-term expectations of any increase in complement. That message had been delivered loud and clear. His job, therefore, was to cope, and to assist probation officers in doing so. Mr. Crowe emphasized that he has never disciplined anyone for failing to meet Ministry standards; nor has he ever told anyone that they may be subject to discipline for failing to do so. Mr. Crowe agreed that some standards could not be met because of workload,. and strictly speaking employees could be disciplined in the result. However, Mr. Crowe suggested that there was a big difference between willful defiance of a standard and a probation officer who was genuinely unable 'to meet a standard because of the other requirements of his or her job. The probation officers in the Durham Office were, in Mr. Crowe's opinion, professionals, and they were treated as such. Evidence of Frank 13iassucci Mr. Biassucci, a Program Supervisor .with the Ministry with years of experience in probation services, testified. In May 1992, Mr. Biassucci attended a meeting called to discuss implementation of some new standards the Ministry had recently developed. Compliance with these standards was among the issues discussed and, in response to a question, Mr. Biassucci stated that the Ministry expected the standards to be complied with. He also told the probation officers in attendance at this meeting that he expected that normal managerial practices would apply in cases of non-compliance, and what he meant by that was that the circumstances would be considered and the reasonabfeness of any non-compliance examined. As far as Mr. Biassucci is aware, no probation officer has been disciplined for non-compliance. 35 Cross-Examination of Mr. Biassucci In cross-examination, Mr. Biassucci agreed that he did not recall exactly what was said at the May ] 992_ meeting he earlier described. He could, however, recall the discussion and the content of the remarks. And he agreed that he said. that supervisors would continue to exercise discretion in deciding whether to impose disciplinary sanctions for non-compliance. All probation officers were told to comply with the standards; no one was given any asSurance that they would not be disciplined if they failed to comply. The evidence having been completed, the case turned to argument. Union' Argument In the union's view, the issue to be determined in this case was whether Article 1 8.1 of the Collective Agreement had been breached. Article 18.t provides: "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 possibte in the prevention of accidents and in the reasonable promotion of safety and health of all employees." In the union's view, this provision had been infringed. Counsel noted that workload and caseload has been a concern in the Durham Office for many' years; indeed, it had been raised on numerous occasions. long before the instant grievances were filed. The 1986 Simpson Report illustrated this concern and also, in the union's View, established a benchmark for a reasonable caseload. Nevertheless, counsel argued, by the time the grievances were filed at the end of 1991, management had 36 permitted caseload to increase, so much so that the grievors were required to work in an atmosphere of excessive stress. The fact of the matter was that because of.' the nature of their job, any increase in workload considerably increased the grievors' work-related stress, and counsel referred at some length to Dr. White's model and his evidence in this respect. Counsel noted that Dr. White testified that this increased stress raised potentially serious health consequences to the grievors. And given that Dr. White established that this increased stress, and the resulting increased risk, was directly related to the workload demands, the union took the position that Article 18.1 had been breached. Even l~r. Crowe, union counsel pointed out, acknowledged that the grievors were required to work under a lot of pressure in an atmosphere of considerable stress. In the meantime, the grievors, as committed professionals, were struggling to perform their jobs in a professional manner. They were, nevertheless, subject to discipline for failing to meet I~inistry standards. It was hardly fair, counsel argued, to establish standards but then make it impossible for the grievors to comply because of the press of other commitments. There was a solution to the problem, and that solution was an increase in staffing. The employer has, however, refused to add to the complement, and counsel noted that t~s. F_liiot made it clear that there was no money available to increase employee ranks. While Mr. Crowe made some efforts to ameliorate the situation, the union took the position that relative to the size of the problem the efforts which were made were relatively insignificant. It was true enough, in this respect, that the risk indicator was developed, but, counsel pointed out, it was far too early to tell what impact, if any, it had, or would have, on the volume of probation officer 37 work. Looked at in the overall, counsel argued that the Ministry has not properly responded to the evidence led by the union establishing the existence of a real and substantial risk to the health and safety of some of its employees. The only explanation that was ever provided, counsel noted, was in the evidence of Ms. Elliot during which she indicated that money to increase staffing was not available, and was unlikely to become available in the future. However, that excuse, and that is how the union characterized it, was just that~ The employer was the Crown, and it could, if it wished, make the funds available to hire additional employees and, in that way, comply with Article 18.1. There was really no doubt, in the union's submission, that the caseloads imposed on the grievors were too high. Counsel noted that many years ago it was established in the Simpson Report that a caseload in the 30s was excessive, and counsel noted that there was nothing in the Simpson Report indicating any disagreement with the information provided by. probation officers as~-ito what constituted an excessive amount. In the aftermath of the Simpson Report; caseloads, however, Continued to grow and all of the grievors had, at the time of their grievances, and since, caseloads weJl in excess of this already established excessive amount. Referring to the evidence of the grievors who testified, counsel noted the many similarities in their testimony about how the excessive caseload was causing stress. Even though the grievors brought their concerns to the attention of management, no real steps had been taken to deal with them. Counsel spent some time discussing Or. White's evidence. Suffice it to say that Dr. White was an expert and, counsel pointed out that he opined based :38 on his study of these grievors and this workplace that the excessive caseloads presented a real and substantial threat to their safety and health.. Counsel noted that this expert opinion was confirmed to some extent by the grievors' own evidence with respect to the manifestations of the stress in their personal lives. The conclusion was inescapable, counsel suggested, that the excessive caseloads were compromising the grievors' health and safety. The conclusion that this stress caused a health and safety risk must, counsel emphasized, be put in its proper context. The union was not saying that an increased workload will, in every case, lead, for example, to coronary heart disease. What it was saying was that in this case, given who the grievors were, and given the nature of their jobs, that a threat to health and safety had not been hypothetically established, it had been proven. And, counsel observed, even though it was unnecessary for the purposes of Article 1 8.1 to establish a health and safety breach, the fact that one had been proven made the breach of this provision all the more serious. Counsel also pointed out that the employer did not call any evidence challenging Dr. White's expert assertions, and therefore took the position that the Board had no basis upon which to refuse to accept Dr. White's evidence and the conclusions that he reached. In marked contrast, counsel suggested that the evidence of. Ms. Elliot wa.,; hardly reliable. Counsel noted that Ms. Elliot would not accept the conclusions of the Simpson Report, and even had difficulty accepting the generally established benchmark of an appropriate caseload of 42.. The fact that the Ministry, which was one branch of government, never even bothered to ask another branch for additional resources to deal with an urgent and pressing problem was, counsel suggested, highly questionable, as was the reason Ms. Elliot provided for the Ministry's failure to do so. In addition, while the employer may not control the number of young offenders direct,~d -' :39 * to probation services, it could control the 'manner in which those services were delivered. There was therefore no basis to find in this case that the employer was meeting its Collective Agreement obligation of making "reasonable provision" for the health and safety of its employees. Nor was there any reason to find that the employer was cooperating to the "fullest extent possible in the...reasonable promotion of safety and health of all employees." The introduction of the risk indicator was, counsel suggested, a piecemeal and unproven response to a very serious situation, and one with continuing averse consequences for the grievors. In the union's view, and counsel pointed out that' Mr. Crowe agreed that the workload was at the very least one of the causes of the grievors' stress, an increase in complement could turn the situation around. In the meantime, the grievors were ... susceptible to discipline for circumstances beyond their control. ...- Turning to the case law, counsel referred to a number of authorities including Stockwe(I 1764/87 (Wilson) and Watts/King 1367/90 (Kaplan). It is provided in these and other cases that to establish a breach under Article 18.1 the union must prove that the employer has not made reasonable provisions for the health and safety of its employees and, in the result, that the employees have been placed in jeopardy. Actual harm need not be established; the union can succeed simply by showing the potential of harm. The authorities also establish that 'the obligation to take reasonable precautions for the safety and health of employees does. not require the employer to take every precaution. What is reasonable depends on the circumstances of particular cases, and counsel argued that in this particular case management's response to the grie¥0rs' concerns hardly met the requirements of this test. indeed, counsel again pointed out that the employer failed to explain or justify its failure to take action given the uncontradicted evidence with respect to the effect of the increased 40 workload on the health and safety of these employees. In the union's view, once it established an increased risk to health and safety, the employer wa.s required by the jurisprudence to explain the necessity of that increased risk. No explanation was ever given as to why increased funds could not be obtained in order to reduce the excessive workload of these probation officers. Indeed, the evidence established that the employer, insofar as senior management was concerned, was not even willing to acknowledge the connection between the excessive workload demands imposed on the grievors and the increased risk to their safety and health. This situation, counsel concluded, cried out for a remedy, and counsel asked that the grievances be a~lowed and a declaration issued that the employer. was in breach of Article 18.1. Counsel suggested that the parties be directed to construct a remedy for that breach, and that the Board remain seized with respect to that matter should the parties prove unabfe to agree. Employer Argument Employer counsel began his submissions by referring to the nine identical grievances filed in this case. In each case, the grievance takes issue with the distribution of work suggesting that this distribution is detrimental to health. The remedy sought is also identical in every case: equalization of workload. In the employer's submission, the evidence established that the apparent inequalities in workload between the Peterborough and Durham Offices had been corrected. Accordingly, the employer had taken steps to deal with this matter and, on this basis alone, counsel asked that the grievances be dismissed. In this regard, counsel referred to Hr. Crowe's evidence about the steps he had taken, and in doing so rejected the union's assertion that these steps 41 were of a minimal and inconsequential nature. As already noted, in 1991-92, the Peterborough Office had a workload equivalency of 47.5, while the Durham Office was ranked at 56.6. In 1993-94, the respective figures were 61.8 and 65.9. This difference, counsel suggested', was inconsequential and fully answered the grievances before the Board. Giving those grievances a.broader reading, however, counsel argued that there was absolutely no evidence that various medical complaints raised by two or three of the nine grievors were linked in any way to their caseloads. The Ministry did not deny that the grievors who testified about various medical problems were, in fact, suffering from those problems. What the employer took issue with was the attempt to link those problems with caseload. There was simply no evidence before the Board establishing that the problems identified were caused by conditions at work. To establish this fact it was incumbent on the union, counsel argued, to lead direct medical evidence, including case histories, proving that the conditions complained of were connected in some way to events in the office. No such evidence,' Counsel pointed out, had been introduced. The caseloads began to increase in the early 1990s. Accordingly, medical charts could have and should have been introduced demonstrating the onset of the symptoms with the increased caseloads. Instead, the only evidence the union led was the evidence of several grievors who, not surprisingly, made a link between their symptoms and the amount of work. tt was true enough that two of the grievors, for example, had suffered from ulcers. In both cases, however, the ulcers healed. How, Counsel asked, could that be if the stressful conditions remained? Moreover, counsel noted that in at least one case, the grievor testified that there were other stressful circumstances in her life other than the conditions at work. The 42 inference was irresistible that more than one factor led to the stress that was being felt by the grievors who testified in this case, The absence of medical evidence made resolving issues of this kind even more problematic. It was possible, counsel suggested, that the. ulcers, for example, had some other cause. The fact of the matter is that without medical evidence the Board could not conclude that caseload was the culprit. Employer counsel did not take issue with the hypothesis that increased workload could result in an increased risk to safety and health. What counsel objected to was the self-serving evidence of some of the grievors which, considered alone, failed to establish that the ailments they described were connected in any way with conditions at work. Counsel noted that Dr. White, in preparing his model, did not speak to the grievors as a physician; rather, he spoke to them as a social scientist conducting research, and that research did not include a review of their prior medical histories. While various tools were used to .identify and locate causes of stress, counsel noted that almost everyone will, at some time or another, experience stress, and that it was incumbent on the union, in the employer's submission, to establish a direct causal link. And, in this regard, counsel noted that many of the symptoms listed by Or. White in his model are experienced by virtually everyone at one point or another. It was simply inadequate, counsel argued, to identify a condition and then claim that it was connected to some stressor at work. The fact of the matter is that at the end of the day, in the employer's view, there was no evidence establishing any link between conditions at work and an increase in risk 'to safety and health. Moreover, there was no evidence whatsoever indicating that the conditions at work could or would lead to some future increased health and safety risk. One of the reasons for the absence of this evidence, in the employer's view, was the manner in which Dr. White went about his research.. He did not conduct medical research. Rather, he conducted a social science study, and obtained all of his information from interested parties. After obtaining anecdotal evidence-. (and medical complaints unaccompanied by a review of medical files was, counsel argued, just that), Dr. White added it all up and came to some broad conclusions that an increase in health and safety risk to all of the grievors had been created by conditions at work. it was also 'important to note that many of Dr. White's findings were based on the grievors' reports about how they used to do their work. They used to spend a great deal of time in court. That changed because of workload demands. But the existence of that change led Dr. White to conclude, among other things,~ that that change resulted in the grievors losing status in the community and, ultimately to find that their stress had increased and that a health and safety risk had been establi~'tied. It simply did not make sense, in the employer's view, to attribute much weight to a model that led to this type of conclusion following a change in the manner in which probation services were delivered. The model was, very simply, a house of cards and it fell apart as soon as one of the cards was removed. There was no doubt but that the grievors' caseload had increased, but at the same time, changes were made to the manner in which work was performed. The grievors may no longer enjoy as many collateral contacts as in the past, however, they continued to have such 'contacts as were required, for example, 'in'order to complete the Pre-Disposition Reports. Other changes had taken place, but these changes had the effect of reducing parts of the grievors' work so that there would be more time available for the increased number of. cases. Other steps, such as the' development of the risk indicator, were taken to reallocate resources and to make more time 44 available for work, and to also change the manner in which young offenders were served. Counsel conceded that one of the stressors identified in this case was tile requirement of compliance with lVtinistry standards and the prospect of discipline should those standards not be met. It would be absurd, counsel argued, for management to guarantee that no one will ever be disciplined for failing to meet those standards. There may, counsel noted, be situations where non-compliance was not the result of workload and where discipline would appropriately be applied. What the employer had done, and counsel referred to Mr. Crowe's evidence on point, was indicate that appropriate flexibility would be applied with respect to compliance with the standards. This evidence was confirmed, counsel noted, by Mr. Biassucci. Ultimately, counsel argued that notwithstanding Dr. White's expert evidence, the necessary causal link between conditions at work and a threat to health and safety had not been established. None of the work practices had changed; what had changed was the number of cases and the emphasis placed on certain aspects of the services to be provided, rvlanagement is fully entitled to adjust the emphasis to be placed by the grievors on certain of their duties and responsibilities. Given that fact, and given the absence of any probative evidence establishing a link between the nature and extent of the work being performed, and some present or future threat to safety and health, counsel asked that the grievances be dismissed. Union Reply In reply, union counsel emphasized that there was expert evidence in this case, and that evidence established a link between conditions at work ancl a real and future threat to the safety and health of this group of employees. On this basis alone, counsel argued that the grievances must succeed. Counsel pointed out that the employer had an opportunity to challenge Dr. White's methodology and conclusions, and suggested that employer counsel had failed to do so and was bound to accepl~ the conclusions that Dr. White reached. Moreover, counsel observed that Dr. White testified about likely future events caused by stress. These events may.. or may not occur; the fact of the matter, however, was that his opinion about them was based on the inquiry he made and was wholly consistent with the literature on point, all of which were explored' in some detail in these proceedings. Dr. White was a clinical psychiatrist and it was completely inappropriate, in the union's view, to characterize his evidence as "social science." Counsel also took issue with the employer's suggestion that it would be absurd for the grievors to seek assurances that they would not be disciplined for failing to meet the Ministry standards. Obviously, those assurances would have to be made in context, and the context in this case was a failure to meet standards occasioned by a high caseload. 'And counsel noted that the stress that the grievors testified to resulted, in part, from the specter of discipline for matters truly beyond their control. In conclusion, counsel again asked that the grievances be allowed. Decision Having carefully considered the evidence and arguments of the parties, we have concluded that the grievances should be allowed in part. Without a doubt, the evidence establishes that l~he grievors have been required to manage heavy caseloads for a considerable period of time. The evidence further establishes that the grievors work in a very stressful job. No 'doubt the increase in caseload has increased the level of stress. 46 However, for the reasons that follow, and subject to the very limited exception set out below, we are not of the view that Article 1 8.1 has been breached. Management is entitled to change the grievors' duties and responsibilities. In this case, one of the results of that change is that the grievors no longer enjoy the same number of collateral contacts as in the past. Moreover, they no longer have as many opportunities for professional development as previously. These and other developments have obviously changed the manner in which probation services are delivered and this job is performed. These changes are a direct result of the increase in client numbers, and the direction from management to refocus efforts away from some of the tasks previously performed in order to provide basic service for an increasing number of clients in a time of governmental economic restraint. It is true enough that this refocusing of the Position has, as was evidenced in the testimony of several of the grievors, resulted in a significant toss of job satisfaction and has also undermined employee morale. It is completely understandable why the grievors - and those who testified impressed us with their professionalism and their commitment to assisting young offenders - would also be unhappy about their loss of status in the juvenile justice community, not mention some of the other implications of the reorientation of their duties and responsibilities. This is not, however, a basis for a finding that Article 1 8.7 of the Collective Agreement has been infringed. We did hear evidence indicating that several of the grievors began to associate various disorders with the increased caseload. We have no reason to doubt the legitimacy of the various symptoms that were described, but we are nevertheless cautious about reaching conclusions with respect to them and their relationship to an alleged breach of Article 18.1. First, the evidence was unsupported by any medical documentation. Those grievors who testified in this regard, particularly Mr. Baron, Ms. Curtis and Collins, could have, had they wished, introduced medica~ records ,in'dicatJng that the onset of the various symptoms which they described was contemporaneous with the increase in caseload. No such evidence was introduced. Indeed, no corroborating medical evidence whatsoever was presented to the Board. The absence of such evidence concerns us, particula, rly given the severity .and duration of the symptoms as described by two of the grievors. In addi'~iSn, a number of other factors affect the weight to be given to this evidence. There is no reason to believe that the stressors at work were the only stressors being experienced by the different grievors at the time that their symptoms arose. Ms. Curtis, for example, testified that one of main stressors in her life was the serious illness of her mother. There is no doubt but that the conditions at work caused Ms. Curtis stress; nevertheless, we are somewhat reluctant to find, for example, that her caseload was the main cause of the many symptoms which she described. While Mr. Collins tool< a considerable time off of work in 1992, in an6ther example, he quite candidly acknowledged that he did so because of a culmination of factors of which workload was but one. Had there been supporting' medical documentation establishing a link. between caseload and the onset of these various symptoms, this evidence would be somewhat more compelling. In the absence of any such evidence, and given the inevitable existence of other stressors in all of the grievors' lives - in everyone's life for that matter, as Dr. White freely acknowledged, we simply cannot find that the caseload itself was responsible for the 48 conditions three of the nine grievers described. It should also be noted that the attendance records of all of the grievers do not, with one exception, indicate the existence of any attendance problems.' Indeed, if anything, they indicate that this group of employees is remarkably heafthy. Again, however, these excellent records may simply reflect the commitment and professionalism of the grievers. Whatever this evidence may stand for, it certainly does not add any further support to the c~aim that overwork has led to such stressful conditions so as to constitute a' breach of Article 18.1. The fact that a number of the grievers did not testify at all about their experience with stress in the workplace simply buttresses the general conclusions we have reached. Having said all of that, it is appropriate to make some comments about Dr. White's evidence. It should be noted at the outset that Dr. White was obviously a very impressive and knowledgeable witness with much to say about how workplace conditions might result in the eventual onset of certain conditions. Nevertheless, considered as a whole we have some concerns about his methodology and, ultimately, about the conclusions he eventually reached. Or. White did not, for example, question the grievers about other stressors that may have caused the circumstances they described. He testified that he thought, because of {heir background and experience, that should such other stressors exist, those grievers who reported symptoms to him would have also reported the presence of these other circumstances. It is far from clear whether Dr. White interviewed even griever. What is clear is that virtually everyone faces stressors caused by personal circumstances. It is hardly sufficient, it seems to us, to simply catalogue certain symptoms and attribute them to conditions at work without conducting a thorough investigation.aimed at determining what other stressors might be present in an individual's life. After that process was completed, an expert, like Or. White, 'might be in a position to attribute certain symptoms to certain occupational events or conditions. In the absence of following through on' that process, which, one would think would also involve a search for and review of any corroborating evidence such as medical files, it is hardly fair to attribute all the symptoms complained of to conditions at work to an entire group of employees. 8ut this, of. course, iS what Dr. White's model did. Likewise, Dr. White opined that the stress in this workplace would lead to an increased risk of disease, particularly heart disease. It seems.to us"that for the model, and his opinion, to be more than academic he might have at least conducted some tests to indicate whether there was any evidence which suggested the onset, or was at least consistent with the arrival of such disease. Dr. White did not conduct any such tests; he insisted that he did not have to for his job was to assess .risk, and in his view, the presence of risk was clear and established, in our view, however, it is not sufficient to establish risk simply on the basis of the self-serving evidence of one's client group, particularly where the job is intrinsically stressful, where some important questions went unasked, where all relevant records were not reviewed, and where the means exist to medically test for supporting evidence, but where those tests were not conducted. Simply put, we accept the assertion that workplace stress could, in some circumstances, constitute a breach of Article 18.1 of the Collective Agreement. However, before making that finding, it is our view that all available evidence should be examined, and all relevant leads pursued. That did not occur in this case. 50 Dr. White did give evidence in an effort to explain this concern. He testified, for example, that his model, and ultimately, his opinion, was predicated on an examination of medical records. Rather, his opinion wa.,; based on his analysis of the job which, in turn, led him to conclude that there was link between the demands of this workplace and some of the long-term effects of occupational stress such as cardiovascular disease. The evidence is incontrovertible that certain occupations carry with them the greater risk of specific occupational diseases. The link between a job, workplace stress and the eventual onset of specific diseases is, however, somewhat problematic given that. all jobs are stressful, and the very nature of this job makes it more stressful than most. Moreover, it is, as noted above, quite difficult to identify the cause of stress given, as was the case with Ms. Curtis, for example, the inevitable presence of multiple stressors in an individual's life. In this case, notwithstanding Dr. White's evidence, we can only conclude that the union failed to establish a link between the symptoms described by several of the grievors and conditions at work, and to further establish that the stress did present a threat to occupational safety and health, or demonstrated"some failure to make reasonable provision for the safety and health of this entire group of employees, subject, of course, to the exception set out below. It is again worth mentioning that only four of the nine grievors testified in these proceedings. While Dr. White opined that the link was established to his satisfaction we cannot, given our concerns about, his methodology and the facts as found by us in this case, accept this view. The evidence simply does not support the conclusion that the health and safety of the grievors, and we note again that nine individual grievances were filed in this proceeding, has, by the employer's actions, been unreasonably jeopardized. Nor is there sufficient: 51 evidence, subject to the limited exception set out below, establishing that the employer has faited to make reasonable provisions for the safety and health of its employees. In this regard, some comment should be mad(~'about the various assertions in evidence as to what constitutes an appropriate caseload. We should start by saying that we do not find that the statement in the Simpson Report is anything other than a record of the observations of some:-probation"officers and that those observations were tied to a particular time and place. They certainly do not indicate any "official" or "agreed" understanding as to a "proper" caseload. What the evidence establishes is that there is no benchmark. If probation officers are expected to perform certain duties and tasks the appropriate caseload will be quite different than if they are expected to perform other duties and tasks. It all depends on the nature of the job. Certainly, at some point a caseload may become incapable of being performed at even the most basic level. In such a case, excessive workplace demands may lead to stress causing, or raising the prospect of causing, a reat risk to the health and safety of a group of employees, in such a case, proven with appropriate and persuasive evidence, we would be prepared to find a breach of Article 18.1, and to direct or devise an appropriate remedy to deal with that breach. In other cases,' such as this one, some workplace demands will cause unnecessary stress and will, in that way, be inconsistent With the employer's obligation to make reasonable provision for the safety and health of its employees. In this case, the evidence ' establishes that the numbers of clients has increased, but that other expectations placed on the grievors had 52 commensurately decreased. The wisdom of this decision in terms of assisting young offenders does not concern us. As noted above, management is entitled to decide how the work will be done, and there is nothing in its refocusing of assignments, which is' consistent with the cutbacks generally in government, that strikes us as unfair or contrary to any provision of the Collective Agreement. Obviously, reorientations of this kind may take some getting used to, and may, as we see here, demoralize employees who were used to performing their jobs at the highest professional levels. But that does not mean that changes of this type cannot be made. That is a decision for management to make. Nevertheless, the eVidence establishes that the grievors are formally required to meet certain standards in the delivery of services to young offenders, but that the increase in caseload may, on occasion, make it impossible to meet those standards. In such a result, the 9rievors may be subject to discipline. In these proceedings, the grievors who testified made their respect for their immediate supervisor, Mr. Crowe, quite clear. There is no reason to believe that Mr. Crowe has, or would, arbitrarily impose discipline for the failure to meet a standard where the cause was caseload. Indeed, all of the evidence is to the exact opposite effect. However, the grievors should not have to depend on the integrity and good will of a particular supervisor. No employee should be in a position where he or she is formally required to do certain things but, as a result of the work assigned to that individual, is unable to do so and may be disciplined in the result. This is an added, unnecessary, and completely unjustifiable occupational pressure. In considering this matter, some thought was given to issuing an order directing the employer to rewrite the standards so as to eliminate the specter of discipline in the circumstances as described. The problem, 53 however, with such an order is that several of the grievors agreed in their evidence that the standards were appropriate. Moreover, there is no evidence whatsoever that any employee has, or would be, disciplined for failing to meet a particular standard because of workload. The situation is, to date, hypothetical. This is not to say that the grievors' concern about discipline is unimportant - their concern is both real and understandable. The problem has not yet arisen, however. Accordingly, in our view, it is. sufficient to now observe, as l~r. Crowe made more than clear in his evidence, that discipline imposed in those circumstances would hardly be just. .. Still, the prospect of discipline exists, and the evidence established that the concern about discipline in these circumstances is genuine. This situation is unnecessarily stressful, and 'is thus sufficient, in the particular circumstances of this case, to constitute a breach of Article 18.1 of the Collective Agreement. One way of remedying this' limited' breach and'alleviating the concern of the grievors, and thereby reducing an obvious and unnecessary cause of stress, is to direct that the.grievors' job descriptions be rewritten so as to accurately set out the duties and responsibilities that the grievors are in fact expected to perform. The expectations of the. employer will thus be made c~ear, and the grievors 'will work with the confidence of knowing that they are doing their job. Accordingly, we direct the employer to prepare a new job description within a reasonable period of time. To this extent, therefore, the g~ievances are allowed. in conclusion, one final observation is in order, it is easy to un. derstand the frustration felt by the grievors in this case. Undoubtedly, on.e of the causes of this ;f~st~ation was management's failure to make clear at an early 54 stage its position with respect to discipline for failure to meet Ministry standards. Another reason, undoubtedly, is the fact that the grievors' workload was extremely high, especially when compared to that of employees in the neighboring Peterborough Office. Management has taken some positive steps, the advent of the risk indicator is an example on point, although its long term significance remains to be assessed. More could, however, be done. The recent establishment of an ERC bodes well and will undoubtedly facilitate communication between the parties - parties, we note, who are jointly committed to delivering the best probation services they can even in a period of increasing demand accompanied by economic restraint. Accordingly, and for the foregoing reasons, the grievances are allowed in part. We remain seized with respect to the implementation of this award. DATED at Toronto this 28th day of June 1995. William Kaplan Vice-Chairperson Member M. C~'Toole Member ? ~ GSB 2968/91, 2976/9t - OPSEU (Baron et al) and Ministry. of Community and Social Services ADDEND~ OF UNION NOMINEE I do not agree with the ~air'~ finding that Dr. Whitens expert report is flawed to the extent that it's conclusions are incorrect. Dr. ~ite is an eminently qualified exper~ in his field and in the methodology to use in a study su~ as the one he presented to us. No tangible contrary evidence was before us fo challenge~and refute this. Dr. ~iters detailed study finds that there has been significant stress from the escalating work load and this has i~eased the'detriment to the probatio~ officers' health and safety. Accepting this. what is a reasonable response required by the employer under Article 18 of the 'Collective Agreement? ~e probation, officer job inherently has a' significant degree of stress. ~e issue for us to decide is whether 'the additional risk imposed by the increased ~tress due to the rising work load is unnecessary and violates the emploYer's obligation to make reasonable provisions for the health and safety of these.probation officers. ~is is a difficult question in an era when job responsibilities are being changed in the midst of major government cutbacks' and that which was no,al before is no longer so. Although ~he question m~'be difficult, this should not be a deterencD from taking whatever steps are possible and reasonable to reduce or eliminate stressors... Ih this case,the remedy proposed is to attempt this by more clearly redefining~the duties expected to be p~rfo~ed and thus reduce the'worry and stress over any perceived failure to carry out one's expected professional job. In order to accomplish"the intent of the remedy proposed, it is expected that anew'job description'should give substantial weight to input from the probation officers themselves regarding perfo~ance of essential duties and possible elimination of stressors. In the circumstances of this case, I join my colleagues on the Panel in the remedy ordered. Peter Klym