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HomeMy WebLinkAbout1981-0603.Aikins et al.83-12-13603181 Between: Before: For the Griever: -1 J. Miko Grievance Officer Ontario Public Service Employees Union For the Employer: R.B. Itenson Senior Staff Relations Officer Civil Service Commission Hearings: September 7 and 13, 1983 OPSEU (K~. Aikins. et al) : and . I IN THE MATTER.OF AN~ARBITRATION Under ‘3 THE CROWN.EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD The’ Crown in Right of Ontario (Ministry of Health) P.M. Draper S.D. Kaufman G.A. Peckham Vice Chairman Member Member Grievor Employer -2- DECISION Grievances have been filed by fifteen employees of the Ministry of Health employed as Recreation Instructors, classified Instructor 2 (Recreation and Crafts). They grieve that their positions are improperly classified and request that they be reclassified Recreation Officer 2 on the ground that the duties they perform are substantially similar to those performed by employees of the Ministry of Correctional Services so classified. The parties have agreed that four of the Grievers, Karen Aikins, Patricia DaIy, Deborah McDonald and James Meek, who are employed at the Queen Street Mental Health Centre, Toronto, and whose grievances are before us, are representatives of the group. The Queen Street Mental Health Centre is a 600 bed psychiatric hospital which also serves an average of 3,000 outpatients. Patients suffer from a variety of mental disorders. Most resident patients are voluntarily in the hospital and some, such as persons being held on Lieutenant-Governor’s warrants for psychiatric treatment, are not. Some are permanently confined, others are hospitalized for only short periods. There are four wards, one of which provides psychogeriatric services to patients age 65 and over. The hospital has a security force to assist in patient emergencies and to safeguard the premises. Instructor 2’s are members of treatment teams which also include psychiatrists, psychologists, occupational therapists, nurses and social workers and which meet regularly to discuss programs for, problems ’ , i. ” -3- with, and progress of patients. Members maintain patient case books for their respective areas of responsibility. Subject to the limitations imposed by the mental , and physical, condition of.Lindividual patients, the recreational activities engaged in ~run >the gamut from arts and crafts to team sports. Instructor, 2’s keep records of patient participation in the various activities. They sign out and assume responsibility for the care and .- safety of patients taken from a ward to, for example, the gymnasium, the swimming. pool, the hospital grounds, or ,off the premises for outings or shopping trips. They see to it that the necessary supplies, materials and ,. equipment used in recreational programs are available. The .two Position Specification, and Class Allocation forms for Instructor 2’s, one for those concerned with arts and crafts and one for those concerned with sports, are appended hereto. They describe the purpose of the positions as being to plan, organize and implement recreation programs for the rehabilitation of psychiatric patients. The skills and knowledge required include the theories and philosophies of therapeutic recreation and recreation techniques for the disabled, leisure counselling, medical terminology, evaluation of patients and assessment of programs. Apart from disputing the, percentage breakdowns, the Grievors concede that the duties and responsibilities are accurately described. The qualifications for the positions as set out in the Recreation and Crafts class standard include at least one year as an Instructor 1, or acceptable experience in recreation work, or acceptable combined formal training and experience. It appears that Instructor 2’s typically have community college diplomas in recreational leadership and have completed such ministry- -4- sponsored courses as remotivation therapy or liie skills. Two Recreation Officer 2’s, employees of the Ministry of Correctional Services, were called to testify on behalf of the Grievors. One, Howard Ferguson, is employed at the Maplehurst Correctional Complex, a medium security institution accommodating some 400 .male, adult inmates, (sixteen years of age and over) divided almost equally between an Adult Training Centre and a Correctional Centre. Inmates of two of the three units in the Adult Training Centre attend classes to obtain credits towards a secondary school diploma. One of the mandatory courses, leisure education, is given by Fergusori. Of the three units in the Correctional Centre, one is a segregation unit which retains inmates in protective custody, who may be from either of the two Centres. The other Recreation Officer 2, Henry Van Oort, is employed at the Toronto West Detention Centre, which accommodates some 540 inmates, male and female, who are before the courts on various criminal charges and some of whom are held in a segregation unit. He formerly worked at Monteith Correctional Centre, a minimum security institution. Recreation Officer 24 are peace officers, as are all officers of correctional institutions. They may be appointed to institutions of any security’classification. Their first responsibility is the custody of inmates and the security of the institution. They are required to respond to alarms and to assist other officers in supervising inmates as, for example, in an emergency. They have authority to report inmates for major misconduct, . ’ -5- .,. ,I which may lead to charges and punishment. They are prohibited from associating with inmates or ex-inmates:” Security is the. primary consideration in the adoption of recreational prdgrams and in the range of recreational activititis. The ‘movements of inmates are strictly controlled and security Pickets are posted during sport events. Equipment that might be used as a weapon or a tool is carefully accounted for. Checks are made for contraband and searched of’ inmates are conducted. Recreational activities take place’ within the rules and regulations of the institutibn and vary actiording to the particular type of institution. They may be as limited as a walk in the yard or as unconfined as a canoe outing. Recreation Officer 2% are responsible for the repair and maintenance of equipment and the condition of recreational facilities; for example, the gymnasium, rink, baseball diamond. imong the duties and responsibilities set out in the two Position Specification and Class Allocation forms for the positions held by Ferguson and’Van Oort, which are appended hereto, are.that the incumbent must exercise constant alertness and vigilance to ensure the custody and control of inmates. The skills and knowledge required include completion of a related university or community college course and at least one year’s experience in a’ correctional setting. Both men have completed such a course and have served for more than a year as Coirectional Officers before becoming Recreation Officers, for which they .received training in self-defence and ycriminal psychology. As noted, it is not technically necessary for Recreation Officers to have served as Correctional Officers. However, we are told that that is normally the fact. ~,~,. -6- The case for the Crievors is based on the contention tnat the work performed by them is sufficiently similar to that performed by Recreation Officer 2’s to warrant the reclassification of their positions to the Recreation Officer 2 classification. It is not argued that the Crievors are not performing the work specified for their positions, or that they are - performing more or different work than that so specified. There is no suggestion that the Grievors are doing anything materially different than Instructor 2’1 have always done, or that their work has been progressively changed or enlarged so as to bring it closer to that of Recreation Officer 2’s. Rather, the argument goes that the variations in recreational work performed between Instructor 2 positions, which the Employer has placed in the same class series, are no greater than the variations in recreational work performed between those positions and Recreation Officer positions, which have been placed in a different class series; that the common, or core, element is recreational activity; and that the differences in settings (psychiatric hospital versus correctional institution) and subjects (psychiatric patients versus inmates detained in custody) are not relevant. It is submitted for the Employer that the Crievors must first show ‘that their positions are improperly classified according to the applicable class standard; that only if that is established should the Board proceed to a comparison of the work performed by the Grievors with that performed by Recreation Officer 2’s; and that, in any event, the work of the respective positions is clearly dissimilar because of the different contexts in which each is performed. -7- To begin with, we’are of the opinion that the judgement of the .Divisional Court in Re Ontario Public Service Employees Union and Ministry of Community and Social Services, unreported, December 21, 1982, and the Board’s decision in Brecht, 171/81, which followed, put firmly and finally to rest the notion that a classification grievance cannot succeed on proof only that a’grievor performs work virtually the .same as that performed by employees in a different classification. As well, it seems to us to follow from Bred that the fact that the work to be compared is that of positions found in different class series does not place any different onus on a grievor than would generally apply. That being said, it remains true that, as noted in Montague, 110/78, n... the concern is with the proper application of the employer’s classification system.“; and as stated in Edwards and Moloney, 11/78, the Board must be cautious where there is an extensive overlap of duties, that classification decisions do not “... interfere with the overall aims of the classification system.” In McCourt, 198178, the Board found that “When the Union rests its case on a comparison with duties of another job...tbe duties of the two jots must be virtually The same.” Whatever the term used by the Board in earlier classification cases, “substantially parallel”, “substantially similar”, “virtually identical” or “virtually the same”, what is to be determined is whether or not the work being performed by a grievor is the same in its distinctive and essential elements as that being performed by employees in the classification sought. I -8- In Edwards and Maloney, the Board stated: It is particularly difficult to design classifications for jobs involving paraprofessionafs...and particularly with regard to those providing services to other people, as in the weffare and medical fields, it is often difficult to draw bright fines between different levels of jobs.” Continuing, the Board stated that “The tasks performed by individuals in different classifications may appear very similar, yet it must be kept in mind that the dassifications have been designed for a purpose - whether to reflect different emphases with regard to similar tasks, or to reflect greater discretion or responsibility by those in one of the cfassifications, or to reflect the higher qualifications demanded of those in the more senior classification.” And in Montague, the Board expressed the view that classification of position does not turn on the fact that an employee performs a given duty, and that the positions of employees performing many similar tasks are placed in different classifications because of such factors as degree of complexity or .of independent judgement required in performing the task. We have concluded that the work of the Grievors is not substantially similar to that of the employees in the classification they seek, by reason ,of the fact that the custodial duties performed by Recreation Officer 2’s, alone and with other officers, are an integral and inseparable part of the work they perform. To adapt a statement found in Rounding, 18/75, there are skills and duties required of Recreation Officer 2’s which the Grievors do not perform. However, in view of the main thrust of the submission made for the Crievors, we believe it would be inappropriate to rest our decision entirely on that finding. -9- As we understand it, the proposition.advanced comes down to the claim that recreational work is8 recreational work whenever, wherever and for whomever it is performed and properly belongs in one class series.. This seems to us to constitute too simplistic a basis for the comparison of work to have validity in a classification context. Jobs in broad occupational categories are commonly differentiated by qualifications, purpose, complexity, responsibility, organizational structure and other criteria. Such criteria, together with the actual tasks assigned, define the nature of the work performed, which is the issue to be settled. In its first decision in IBrecht, that is, prior to the judicial review of the case by the Divisional Court, the Board, in comparing the work being performed by employees in the two classifications in question, considered, “...areas of documentation, programming, type of juvenile Supervised, reporting relationship, security, staffing and organizational structure...“; an approach, incidentally, which the court did not appear to question. Finally, comparison is not a precise exercise mechanically performed; it is a process of analysis and evaluation requiring that facts be weighed and judgements made. A recent Board decision, McLean, et al, 499/82 bakmanj, is also in point. The Grievers act in support of medical and paramedical hospital staff in the treatment of psychiatric patients. The recreational work they perform is to provide therapeutic recreation as one of the curative or palliative measures prescribed or approved by the treatment team. - 10 - The recreational work of Recreation Officer 2’s is performed with persons who are in confinement after having been charged with, or convicted of, crimes. The recreational programs they administer have as their primary purpose the correction of anti-social attitudes and behaviour by directing the interests and energies of inmates to leisure activities. We are satisfied, on the evidence, that the Grievors have failed to establish that their positions should be reclassified Recreation Officer 2, and we so find. The grievances are dismissed. Before leaving the case, we call attention to the role of the Board in resolving classification disputes. To paraphrase the cautionary comments made in a number of earlier classification cases, whetheror not the wage or salary values attached to the positions in question should be different than they are is not a relevant consideration. DATED at Consecon, Ontario this 14th day of December, 1983. P. Draper Vice Chairman Ilbw “I dissent” (Dissent attached) S.D. Kaufman Member G.A. Peckham ,Member DISSENT - I have read the reasons of the Vice-Chairman provided to me by December 13, 1983, and I must, with respect, dissent on a number of points and with the final conclusion of the majority. The evidence with respect to a security force at Queen Street Mental Health Centre came from Mr.' Dale Heinrich, Director of Vocational and Recreational services at Queen Street Mental Health Centre. In his evidence-in-chief, Mr. Heinrich advised this Board that there is a security force at Queen Street Mental Health Centre and that the security force's role was to assure that unauthorized persons did not enter the premises and to deal with out-of-control patients. On cross-examination, Mr. Heinrich advised the Board that he did not know the classification of the security force, that the security force were not present on the wards, and that he under- stood that they would come if they were called. The Board also heard that about one-quarter of the wards at Queen Street Mental Health Centre are locked, and that the Grievors work on all the wards. The Board was not advised as to the propor- tion of involuntary admissions in the patient population. On cross-examination, Mr. Heinrich also stated that he had minimal direct involvement with Recreational Instructors, i.e. the Grievors, as he saw most of them only once a week at a staff~meeting. His evidence caused at least this Board member some concern that he was not entirely familiar with the day-to-day role and duties of the Instructor 2 (Recreation and Crafts) and (Sports), or with those of the security forces. -2- On cross-examination, Mr. Heinrich advised the Board that a call of "Code 99" is heard on the Public Address System at Queen Street Mental Health Centre when there is an emergency or an out- break of violent behaviour and that a call of "Code 99" is heard on an average of once a day. He told the Board that the clinical staff, including the Grievors, must appear on the scene and deal with such behaviour as best as possible. Mr. Heinrich advised us _ that he was speaking of a patient's acting out, aggressive behaviour, possibly swinging out at a staff person. Mr. Heinrich confirmed that there were wards at Queen Street Mental Health Centre that housed patients who were a danger to themselves and others, and who attacked one another and that all staff must watch out for this and count items like scissors and matches when programmes are concluded, and as well, keep track of keys to the units. These were part of the Grievors' duties. None of this is mentioned in the Vice-Chairman's award. Mr. Heinrich would not go so far as to say that patients were searched by staff or the Grievors for these items. We heard from the grievors directly, that responding to Code 99 calls and maintaining the security of locked wards by escorting patients to and from recreational activity areas or by carrying out recreational activities on the wards if the patients were elderly and infirm and needed to remain locked in, were an essential and integral part of their duties. Mr. Heinrich told the Board that the Mental Health Centre . . - 3 - expected its nurses to perform more of the escort duties, and that that was an ongoing issue at the Queen Street Mental Health Centre. Mr. Heinrich implied to this Board that administration was experiencing some resistance from the nurses regarding escort duties. However, it is clear from the Grievors' evidence that escort duties were ones that they carried out,'without resistance. *Mr. Heinrich told the Board that some patients held under Lieutenant-Governor warrants were placed on a secure unit, but that otherscould go into the community, and that he knew that on one occasion the,Ministry of Correctional Services provided a guard for such a patient. (Sports) integrate security duties with their day-to-day recreational duties, notwithstanding that security duties are not included in their Position Specification and Class Allocation Forms and that they did not directly take issue with their Position Specifications. The Grievors' own evidence as to their security duties contradicted their stated satisfaction with their Position Specifications. It appears that the Grievors' security duties are as all-pervasive as those of Recreation Officers in Correctional Institutions. It appears that responding to Code 99 calls, escort duty, the maintenance of locked wards, counting equipment, etc., is as important and all-pervasive an aspect of the duties of the Grievors as "the constant alertness and vigilance" expected to be exercised by Recreation -Officers in Correctional Institutions "to ensure the custody and control of inmates". It appears that Instructors 2 (Recreation and Crafts) and ,. . -4- With respect, I cannot agree with the Vice-Chairman's characterization of the Union's argument (page 6, Award) that "the difference in settings and subjects are not relevant". The thrust of the Union's argument was that the setting and subjects, while relevant, were only two of the elements the Board must consider when determining, according to the tests in Beals & Cain (G.S.B. 30/79) and Brecht, whether the duties, or the "essential core" of the duties of the Grievors are "sub- stantially similar" to the duties or "essential core" of the duties of the Recreation Officers in the Correctional Institutions, as they have the higher classification. Setting and subjects are important elements, and the Union recognized them as such and dealt with them as such. In my respectful opinion, the Employer did not discharge the onus raised by the Union's evidence. As well, I cannot agree with the Vice-Chairman's reduction of the Union's position to the proposition "that recreational work is recreational work whenever, wherever, and for whomever it is performed". The Union was not putting that proposition forward in this case. Rather, was asking this Board to determine, on the evidence, whether the essential core of the duties of Instructors 2 (Recreation & Craft) and (Sports) at Queen Street Mental Health Centre were the same, or substantially similar to the essential core of the duties of Recreation Officers in Correctional Institu- tions. .-. - 5 - I have some difficulty with the final paragraph of the majority's. Award. At no time in these proceedings did the Un,ion put forward to this Board that the difference in the wage or salary values attached to the positions was relevant. This is an issue which.usually underlies each classification grievance, but this .Board was not asked to decide this grievance by taking this matter into account. If'the majority relied on this as one of its reasons for its award, it was, in my respectful opinion, misdirecting itself. In my opinion, McLean et. al.(G.S.B. 499/82 :) is distinguish- able on its facts. In my opinion, the majority of this Board has failed to make the determination required oft it, as a result of improperly characterizing the Union's argument-and because it has not dealt at all with the evidence regarding the Recreation Instructors' security duties; In my respectful view, the majority of this Board has mis- directed itself with respect to the issue it had to decide, and has not compared the Grievors' duties to those of the Recreation Officer 2. I would have allowed this Grievance, and found that the Grievors are doing the essential core of the duties of Recreation Officers 2,, and directed that they be so classified and compensated for salaries and benefits accordingly, from June 3, 1981, the date of the earliest grievance. - 6 - DATED at Toronto, this 13th day of December, 1983 ;.,~&I;~+ sI . . Employee Nominee