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HomeMy WebLinkAbout1981-0607.Hirst et al.87-07-24IN THE MATTER OF AN ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SE'ITLEHEM BOARD BEFORE: FOR TRECRIEVOR: FOR THE EKPLOYRR: HEARINGS: OPSEU (R. Rirst et al) - And - TRE CROWN IN RIGHT OF ONTARIO (Ministry of Health) M. It. Gorsky Vice-Chairman s. Kaufmen mmher L. Turtle Member M. I. Rotman Counsel Rotmen, Zagdanski L. H. McIntosh Counsel Ministry of the Attorney General September 20 and 21, 1984 February 7, 1986 March 7. 1986 607/81 Griever Employer DECISION & Introduction to the Issue and the Evidence There were, originally, eighteen grievances before this Board. At the outset of the hearing, at the request of the Union, two of the grievances, those of C. Adkin and P. Brooks, were adjourned sine die. -- The grievances of the sixteen remaining employees who filed grievances were the same. They were all classified as Instructors 2, Recreationand Crafts. These employees include Recreationists, and Occupational Therapist Facilitators, (“O.T.F’s”) at the Penetanguishene Mental Health Centre, hereinafter referred to as the "Centre.'! .-The Centre is divided into two divisions. One is the Regional Psychiatric Hospital, hereinafter referred to as the "Hospital" and the other is Oak Ridge. At the time the grievances were filed, six of the Grievors were Recreationists at the Hospital, five were Recreationists at Oak Ridge and five were O.T.F.'s at the Hospital. The Union proceeded to adduce evidence from three of the Grievors. These were Robert Jeffrey, who wasat the time of the grievance a Recreationist working at the Hospital since May of 1976. At the end of February, 1984, he was transferred to Oak Ridge. The Grievor, Robert Hirst, was a Recreationist at Oak Ridge from October 1979 until April 1984, when he was transferred . 2 to the Hospital. The Grievor Ed Maguire, has been an O.T.F. at the Hospital for approximately six years. There was a dispute between the parties'as to whether the Union proceeded with the three grievances on the understanding that the outcome would bind the parties with respect to the other grievances. The Union considered these grievances to be representative of the others and believed that in so proceeding the resolution of the three grievances would have binding effect on the other grievances before this Board. The Employer disputed the representative nature of the grievances proceeded with, but, nevertheless, stated that 'I . . . it is apparent that the resolution of these matters will effectively dispose of the other grievanties." I take it that, whatever the differences between the parties as to the representative nature of the grisvances proceeded with, they are in agreement that the resolution of the three grievances will have binding effect on the other grievances. The Grievors say that their jobs are improperly classified as Instructors 2, Recreation and Crafts. There are two ways in which a grievor in a classification case such as this can demonstrate that his/her position has been improperly classified- the, is to show that his/her I'job measured against the relevant class standard comes within the higher classification which he seeks". "(E)ven if he fails to fit within'the higher class standards," a Grievor may succeed in showing that his/her job is improperly classified where "there are employees performing the same duties in a higher more senior classification." (OPSEU) Brecht v. The Queen in the Right of Ontario (19821, 40 OR (2d) ' 142 at p.145 (Div. Ct.). In this case, the Grievors are not relying on the best fit test but on the second method of establishing that they have been improperly classified and claim that they ought to be classified as Recreation Officers 2, hereinafter referred to as "Recreation Officers". I will elaborate, subsequently, on the meaning of "same duties", referred to in the Brecht case. The thrust of the Union evidence was' that the Centre is "significantly different than other psychiatric hospitals in the Province in that part of it is for persons who are '.criminally insane"'. There was much evidence adduced by the Union, over a hearing that took five days, which endeavored to show 'that this was the case. The essential Union position was that Recreationists, who work in that part of the Centre where some of the patients are criminally insane (Oak Ridge) do substantially the same job as Recreation Officers do in correctional settings. The Union argued was that Recreation Officers have the same - therapeutic function as that of Recreationists and O.T.F.'s and Recreationists and O.T.F.'s have the same security function as -Recreation Officers. In support of its position,the Union adduced evidence of transfers of staff and patients between Oak Ridge and the Hospital to demonstrate that Recreationists perform. substantially the same job at Oak Ridge and the Hospital. If the Union does not succeed on either of its arguments then it must fail. That is: If the Recreation Officers do not have the same therapeutic function as Recreationists and O.T.F.'s, the grievance cannot succeed, even if Recreationists and O.T.F.‘s have the same security function as Recreation Officers. Both parties were in agreement that the job of Recreationist at Oak Ridge is the same job as the job of Recreationist at the Hospital. The parties did not agree, however, with the Employer's submission that the job of Recreationist at Oak Ridge and at the Hospital is the same job as that of a Recreationist at any other Provincial Psychiatric Hospital. The Employer's further position was that the job of Recreationist and that of O.T.F. are different jobs, and it further submitted that neither the job of Recreationist nor that of O.T.F. is the same job as thatperformed by Recreation Officers for the purpose of the second test. The Union submitted that there was no evidence led to show whether or not the job of Recreationist at the Centre was the same job as the job of Recreationist at any other Provincial Psychiatric Hospital and, accordingly, the Board had no knowledge of this allegation. The Union's position also was that the evidence would disclose that, at the Centre, the job of an O.T.F. was substantially similar 'to, and had the same core duties as the job of Recreationist. The Union's position also was that the job of both the Recreationist and the O.T.F. was essentially the same job with the same core duties as that performed by Recreation Officers. 4 5 In order to determine whether two or more jobs are the same, within the meaning of the Brecht case, the Board must ascertain and compare the essential or core duties of each job. The Board must then assess the time spent, the emphasis placed upon the duties, the purpose of the job, the setting, the subjects,dealt with and the education and experience required, all of which items are important in making a comparison of the jobs. & Evidence and Arwnt 1. Evidence Called BY the Union Three witnesses were called by the,Union who are classified as Recreation Officer 2, Correctional Services. These were Howard Ferguson, Paul Thompson and Gamy Belog. Mr. Ferguson is' a Recreation Officer 2, Correctional Services, at the Maplehurst Correctional Centre. He testified that his duties were accurately set forth in Exhibit 11, beingthe Position Specification and Class Allocation form relating to himself. Under the "S&nary of Duties'and Responsibities" found in Exhibit 11 it is stated: "90% participates in the development, implementation and operation of the recreation program.” The Maplehurst Correctional Centre is a medium security institution and Mr. Ferguson testified, in referring to the 90% allotment,of his time, that much of his time involved the organization of "general recreationcal) activities", such as sports, games, arts and crafts for the inmates. In his evidence, ,. 6 Mr. Ferguson further stated that he is a Peace Officer and carries keys to the institution and that he is able to act as an escort. He added that he is responsible for responding to alarms and that he might be alone with up to ten inmates and is able to report inmates for misconduct. In Mr. Ferguson's position specification (Exhibit 111, it is provided that a Recreation Officer 2 must preferably' have completed two years of a recognized recreation leadership program at a university or community college and that he/she must have one year's satisfactory experience in a correctional setting. Mr. Ferguson served for one year as a Correctional Officer before becoming a Recreation Officer. He testified that Recreation Officers now receive the Correctional Officer's basic training. Mr. Ferguson also testified that he did.fitness counselling and appraisals. His rationale for his position was that it existed "to channel inmates in proper recreational directions, [and] channel energy in approprate.ways." The Union argued that this underlying purpose was not significantly different from what was being attempted at the Centre by Recreationists and O.T.F's. Mr. Ferguson further testified that he.had "security -awareness due to the nature of the institution." The Union argued that a similar security awareness could be found at the Centre, whether at Oak Ridge or the Hospital. It was Mr. Ferguson's evidence that he was never called away to assist in security matters. His evidence was that security matters were handled by Security Officers and that Recreation Officers plan 7 their activities with knowledge that one of their important responsibilities is related to security awareness even though 95% of their energy is directed to other matters. Although Mr.' Ferguson testified that security training was not a technical requirement of the Recreation Officer position, he stated, as is above noted, that Recreation Officers now receive the Correctional Officers basic training. Mr. Ferguson testified that when a "panic button" is pressed at Maplehurst, he does not hear about it unless it was pressed in the gymnasium. Referring to equipment, Mr. Ferguson testified that he was responsible for counting equipment and if anything was missing.in the inmates' uni+ he had the sole responsibility for performing a search there. In cross-examination, Mr. Ferguson was asked by Counsel for the Employer whether the recreational aspect of the program that he was involved in was intended to be diversionary. Mr. Ferguson answered that this was only partially the case. He went on to testify.that Recreational Officers were involved in teaching skills. In referring to fitness, he concluded that teaching of skills leading to fitness amounted to a form of therapy. Mr. Thompson, who is located at the Quinte Detention Centre, testified that his primary function was to provide sports and leisure activities for inmates in order to aleviate their stress and boredom and to fill up their idle time. He testified that the activities consist mainly of baseball, broomball, soccer and weight lifting. Arts and crafts are run by outside volunteers and not by Recreation Officers. Mr. Thompson, is also a Peace Officer. He carries keys to the institution and can act as an escort for inmates. He is responsible for responding to alarms and can be alone with inmates without other staff being present. His Position Specification was not made an exhibit. Mr. Thompson testified that he had no security training as a Recreation Officer and testified further that Correction Officers go to the Aylmer Police College for a two week security course but that recreation staff do not. In addition to testifying that Recreation Officers at the Quinte Detention Centre provide activities to alleviate stress, tension and boredom, Mr. Thompson added that,his se+ces assist inmates to develop certain skills so that upon release they will have better time management skills. He stated that the philosophy underlying his position is to improve an inmate's outlook and his ability to ,fill his time with more socially .acceptable kinds of leisure behaviour upon his release. The Union argued that this was consistent with the underlying purposes of the activities of Recreationists at the Centre, be it- Oak Ridge or the Hospital. Mr. .Thompson testified that inmates were seen by -psychiatrists and psychologists and some were referred for assessment or treatment. Some of the inmates are sent to psychiatric hospitals, some of whom return to Quinte. Mr. Thompson stated that the primary function of Recreation Officers relates to recreation,while the security aspects of the ’ I . _’ 9 position are inherent,given the nature of the institution. The Union argued that this was the same situation applicable to Recreationists at the Centre, During cross-examination, Mr. Thompson testified that there is'a young offenders section at Quinte with a Recreation Officer being part of the treatment team. In cross-examination, Mr. Thompson stated that he was responsible for the return of equipment and the reporting of missing items to the Shift Supervisor. He stated that he performed no searches, Correctional Officers being responsible for this. It was the position of the Union that the situa,tion was similar at the Centre. Mr. Belog is located at the Secure Treatment Unit of the Syl Apps Youth Centre. Mr. Belog's Position SpecifiCafiOn is found in Exhibit 21. He stated that there is only one other person who holds the same position as he does and indicated that his job was constantly changing. He testified that his principal function has been, and continues to be, the planning and organizing of recreational and leisure activities for the residents. He also coaches sports teams which participate in leagues in the local community. He stated that even though he works in the Secure Treatment Unit, the recreation programs he organizes are not part of the treatment plans developed for the residents. They are general or diversional recreational activities. . 10 Mr. Belog further testified that he also arranged for external programs such an alcohol and drug abuse program for the residents, which are part of treatment plans. Mr. Belog does not conduct these programs but arranges for such things as the times and places where they will be held. Mr. Belog testified that he spends about 30% of his time in a class room situation teaching life skills but stated that the amount of time devoted to this function was "shrinking". He testified that he had been seconded, at the beginning of 1984,to the Ministry of Education for that purpose. There was some dispute between the parties and a review of my notes indicates that Mr. aelog .had once been a member of a clinical team prior t.o his secondment to the Ministry of Education. He stated that there was some activity directed toward placing Recreation Officers on clinical teams, however there was no evidence to support this. Mr. Belog did testify that Recreation Officers have input and access to the clinical teams and he believed that he would be back on a clinical team after completion of his s'econdment. Mr. Belog confirmed that the Supervisor of Juveniles supervisessecurity in the searching of junveniles for missing -equipment. Mr. aelog, in chief, testified that at one time he had been involved in recreational assessments. During cross-examination he admitted that he had only been so-involved on one occasion. 11 Mr. R. Jeffrey, one of the Grievors, testified that Recreationists operate a recreational program in arts and crafts, sports, etc. He testified that Recreationists take patients on excursions into the community and the Union argued that this corresponds with the testimony of Mr. Thompson, who stated that he took inmates, both minimum and medium security, into the community from Quinte: Mr. Jeffrey testified that Recreationists, whether they were involved with sports in the yard during the summer, or directly involved with patients within the institution, in such activities as arts and crafts and\or where tools were used, were "front line security," but added that this was not their primary function. He stated that because Recreationists were ~working directly with patients they had to be extremely aware of the presence of tools and equipment and that if patients were going to "strike-out", the Recreationists were the closest persons to the patients. The Union argued that while Recreationists at the Centre (Oak Ridge or the Hospital) were not Attendants or Correctional Officers or Security Officers, they were dealing with volatile and unpredictable people and Recreationists, along with other staff, had to be- constantly aware of safety and security for themselves and the other patients. Mr. Jeffrey testified that Recreationists must be aware of, and employ, crisis interventions skills because of the unpredictability of the patients. He testified that a crisis intervention course was offered on a voluntary basis but was 5, . 12 considered important, and Recreationists were encouraged to enrol in the course. Mr. Linehan, an Attendant at Oak Ridge, gave evidence on behalf of the Union. Mr. Linehan stated that there was a maximum level of security maintained at Oak Ridge. He testified that Recreationists were expected to and did respond to certain alarms: 'E.g. "code yellow's". Mr. Linehan further testified that when a Recreationist is with patients, there are two Attendants with him. On a code : yellow, one of these t.wo Attendants always responds, and the Recreationist is left with the patients. He further testified that security requires a ratio ~of ten patients to'one Attendant. He'said that on a diversion the Recreationist is part of that ratio. He further stated that in some cases a Recreationist may be diverted to another area or be expected to assist if the emergency is in his\her area. Mr. Linehan further stated that familiarity with the Crisis Prevention and Intervention Course and Manual is a necessary requirement for everyone including Recreationistswork~ing at Oak Ridge. The Manual teaches, among other things: (1) Restraining of patients; . .(2) 'Defusing of tense situations; (3) Self-defense techniques; and (4) Types of security. There was no evidence as to such requirements within the Ministry of Correctional Services and the Ministry of Community and Social . 13 Services. Mr. Linehan testified that Recreationists, in their areas, are expected to intervene in physical fights before Attendants, as they are closest to the situation. Mr. Linehan also testified that responsibility for recreational tools and equipment lies with both the Recreationist and the Attendant. He further testified that if a tool is missing, both the Recreationists and the Attendant are in serious difficulty with management, as a breach of security has occurred. Robert Hirst, one of the Grievors, testified as to the nature of the daily activities of a Recreationist at both Oak Ridge and the Hospital. He testified that Recreationists could, unilaterally, but only temporarily, remove a patient's privileges, even though these privileges were only granted by the clinical team of which the Recreationist was a member.. I would find on the evidence that the Recreationistcould only halt a particular activity when it was being abused. It was up to the physician who presides over the clinical team to withdraw a patient's privileges. I do not believe Mr. Hirst intended to say that a Recreationist could withdraw privileges other than with respect to a particular activity. The.evidence of Mr. Hirst was that the privileges could only be granted by the clinical team .and the evidence satisfies me that it is ultimately the physician, as the head of the team, who has the final say in the, granting or removing of privileges. In referring to security, Mr. Hirst testified that there was a greater security problem at the Hospital than at Oak Ridge. 14 The Union also called Mr. Joseph Lamontagne as a witness. Mr. Lamontagne is employed by the Ministry of Community and Social Services at the Syl Apps Centre and is a Supervisor of Juveniles in a secure treatment unit. He stated that the Syl ApRs Centre is a maximum security institution for juveniles where the aim of the institution is observation, detention, secure care and secure treatment. The entrance requirement for a juvenile is not the breaking of the law, but certification under the Children Mental Health Act. He testified that Supervisors of Juveniles were sent to the Centre to be trained in the use of equipment, etc. Referring.to the recreational program at the Syl Apps Centre, Mr. Lamontagne testified that the job of security belonged to the Supervisor of Juveniles and not the Recreation Officers. It is the Supervisor of Juveniles who breaks up fights and removes juveniles. Mr. Lamontagne further testified that, at the Syl Apps Centre, recreation is used as part of the treatment plan. He stated that he requests a Recreation Officer to assist in the drawing up ~of a treatment plan and that Recreation Officers also served as resource persons for input as to the best way to modify behavior. Ed Maguire, one of the Grievors, also gave evidence. He is an O.T.F. and is also classified as an Instructor 2, Recreation and Crafts. He said that members of the O.T.F. classification were now found at Oak Ridge as well as the Hospital. He also 15 stated that the 0.T.F.s rotate duties and,as a result,he anticipates that 0.T.F.s will regularly rotate between Oak Ridge and the Hospital. He regarded the Occupational Facilitator brief furnished to the Board as being reasonably accurate, although he would have placed more emphasis on the co-operation that exists between the Recreation Department and Occupational Therapy Department. He particularly relied on tab R of the brief. Mr. Maguire also testified that 0.T.F.s had to be security conscious as security was, in his view, an integral part of the O.T.F. job. Mr. Maguire also testified as to the type of activity he was involved in with patients, such as: fitness, life-skills, social skill training (e.g., . assertiveness tralning). He testified that there is Also a diversionary function associated with his position. He also stated that O.T.F's served to improve a patient's functional ability in social settings as well as being involved with a patient's physical wellness. 2. Evidence Called by the Employer, Review of Evidence Called by the Union and Discussion of the Evidence T. Knight, the Director of Recreational, Vocational and Volunteer'services at the Centre, testified on behalf of the Employer. In responding to Mr. Jeffery's suggestion that pecreationists were required to deal with persons who were guilty of criminal behavior &r. Jeffrey had stated that some patients were admitted on Warrants of the Lieutenant-Governor or Warrants of Remand:) Persons admitted on Warrants of the Lieutenant-Gbvernor had been charged with crimes, but found unfit to stand trial or not guilty by reason of insanity, while persons 16 admitted on Warrants of Remand had been charged with crimes and I were awaiting a court-ordered assessment), Mr. Knight testified that there were only a very few patients who had been admitted on Warrants of Remand or Warrants of the Lieutenant-Governor. In cross-examination, Mr. Jeffrey acknowledged that he had never dealt with a patient who had been admitted on a Warrant of the Lieutenant-Governor 'or on a Warrant of Remand except as part of a large group at a special event. Mr. Knight stated that most ,of the patients at the Hospital were "voluntary", were free to come and go and were not dangerous. Mr. Knight testified, on the basis of his experience, that the patient population at the Hospital is 'similar to that of any other Provincial Psychiatric Hospital and that the population was very different from the population found in correctional facilities. The parties agreed that Oak Ridge was not only a. unique section of the Centre but was unique in the province. ft serves patients who are considered to be too unmanageable or too dangerous to themselves or others to be in a regional psychiatric hospital. Notwithstanding this evidence, and while acknowledging its accuracy, Mr. Knight testified that the patient population at Oak Ridge was more like that found in a Provincial Psychiatric Hospital and much less like the inmate population found in a correctional facility.~ The thrust of much of the Union evidence was to the effect that the transfer of patients between Oak Ridge and the Hospital demonstrated that the Hospital had a "dangerous" patient 17 population. Mr. Knight's evidence was that patients who were transferred from the regional hospital to Oak Ridge were ~transferred in the same way and for the same reasons that patients are transferred from any other psychiatric hospital in the Province to Oak Ridge and that is because they are considered dangerous to themselves or others or to be unmanageable. He testified thatpatients were transferred back to the Hospital from Oak Ridge when they were no longer considered to be dangerous to themselves or others or unmanageable. It was his evidence that Oak Ridge served the function in relation to the Hospital as it did for all other Provincial Psychiatric Hospitals. His evidence was that transfers between the Hospital and Oak Ridge did not mean that the Hospital had a "dangerous" patient population. Mr. Knight further testified that, in the nine years that he had been the Director there had been only three reported incidents of patient action involving injury to a Recreationist. Mr. Knight stated that all three reports involved Mr. Jeffery and all occurred while Mr. Jeffery-was at the Hospital and occurred while he was restraining a patient rather than as a result of a patient having struck out at him. In dealing with the functions of Recreationists and Recreation Officers it was the thrust of Mr. Knight's evidence that a Recreation Officer, in correctional institutions, provided diversionary activities within the institution for the purpose of permitting inmates to obtain a release of pent-up energy. He . . 18 viewed the Recreationists at the Centre as being part of a clincial team, primarily offering therapeutic programs in a clinical setting. In dealing with the 0.T.F.s and comparing them with Recreationists, Mr. Knight stated that Recreationists are required to provide recreation to all patients in the facility while 0.T.F.s deal with patients who are referred for specific therapeutic intervention. Mr. Knight added that the Recreation Officers employed by the Ministry of Correctional Services, were Peace Officers while Recreationists and 0.T.F.s were not. In argument, Counsel for the Employer stated that Recreationists spent only approximately 45% of their time organizing or participating in "general recreational activities." One of the Grievors, Mr. Jeffery, testified that he spent an average of only four hours out of each eight hour shift with patients. Only part of that four hours is spent conducting general recreational activities. It was 'also argued on behalf of the Employer that unlike two of the three Recreation Officers, Recreationists conduct arts and crafts sessions. It was .also argued, on behalf of the Employer, that in the case of the O.T.F.'s., with the exception of one or two weeks a year, during which they participated in special events planned for the whole facility, they conducted no general recreational activities. In particular, they conduct none of the sporting activities which take up most of the time of the Recreation Officers. 19 . It was further argued that most of the time of Recreationists and virtually all of the time of O.T.F.'s was taken up with the tasks required of them as members of clinical teams. The clinical teams included psychiatrists, psychologists, nurses and social workers. As a member of a clinical team, a Recreationist and.a O.T.F. complete assessments on patients referred to them. They attend clinical team meetings where treatment plans are developed. In addition to general retreat programs, a Recreationist conducts a therapeutic recreation ,ional program which is an aspect of the treatment plan developed. The O.T.F. implements the occupational therapy recommended by the clinical team. The programs run by the 0.T.F.s are set out in detail in schedules D to K of the Brief with respect to the Occupational Therapy Department. The Recreationist and the O.T.F. periodically monitor their,respective programs in order to measure their effectiveness. They prepare and submit to the clinical team regular progress notes on patients involved in their programs. They also report back to the clinical team with respect to the results of their programs. The evidence disclosed that none of the Recreation Officers was a regular member of a clinical team and none performed the functions of members of a clinical team as above described. There was some evidence from the Union, relying upon the evidence of Paul Thompson, given in cross-examination, that there was a Recreation Officer in the Young Offenders Unit of the 20 Quinte Detention Centre who was part of a treatment team. The Union argued that this represented evidence that there were Recreation Officers who had a therapeutic function similar to that of the Recreationists and 0.T.F.s. The position of the Employer was that there was no evidence concerning the actual duties, time spent on the duties, the purpose of the job or the' education and.experience necessary for the job of Recreation Officer in the Young Offenders Unit in the Quinte Detention Centre. And, in fact, that there was no e,vidence at all about the nature of the job. I found Mr. Thompson's evidence to be very weak in that he appeared to be saying that he believed that aPecreation Officer was part of the treatment team. Even if this were the case, the evidence concerning his duties was also weak and I find that thisevidence has little cogency in support of the Union argument that Recreation Officers have a significant therapeutic function. I would have expected, if this were the case, that the Union would have produced such a Recreation Officer and adduced such evidence from him/her.~ ,The actual functioning of the Grievers as Recreationists appears to be in'keeping with the purpose of the job as set out in Exhibit 3, being the preamble to Instructors, Recreation and Crafts class series, under "Definitions". That is: "To use recreation and crafts primarily to assist in the partial or complete rehabilitation of mentally disabled patients." The purpose of the job of the 0.T.F.s is,"to plan, support and implement specific Occupational Therapy programs under the 21 overall supervision of the Chief Occupational Therapist". ( See Exhibit a - Position Specification for O.T.F.) This'is in keeping with their actual functioning as stated in evidence. In their evidence, the Recreation Officers called on behalf of.the Union confirmed that the purpose of.their job was to contribute to the security of the institution by diverting the inmates and alleviating their stress and boredom. Howard Ferguson testified that the purpose of his job was to "channel the energies" of the inmates. He identified his program as acting as a "safety valve for the institution". In the cross- examination of Paul Thompson, Mr. Thompson identified the purpose of the recreation program as ~being possibly "rehabilitative" in the sense that it may teach the inmates how better to use their leisure time, but he identified that function as anincidental one and a "limited one". The primary aim of the program, in actioh, is not therapeutic or rehabilitative of a specific illness or condition, as in the case of the Recreationists and the 0.T.F.s. It is consistent with the purpose of the job of Recreation Officer, "to participate in the development and implementation of a balanced institutional recreation program". (See exhibits 10 through 14.) Union Counsel submitted that- there was a distinct therapeutic aspect to the recreation programs conducted by the Recreation Officers and that they represented rehabilitative therapy programs and where "an integral part of the professional treatment program." He quoted from Exhibit 4, the preamble to the Recreation Officer Correctional Services Class Series. The quotation was, in fact, from p.2 of the preamble under the heading "special programme". It was only at institutions "designated" as "special program institutions" that the "recreation programme must be designed for special rehabilitative therapy as an integral part of the professional treatment programme." There was no evidence of the kind of treatment provided in or the nature of the conditions sought to be rehabilitative in these "special programmes institutions" or how they compared to what was done,at the Centre. As only a few correctional institutions are designated as "special programme institutions" and none of these were.described in evidence, on the evidence I could not find special rehabilitative therapy was a significant purpose of the job of a.Recreation Officer either in accordance with the class standards,or as the job was actually performed. On the evidence I would conclude that the purpose of the job of Recreation Officer, as it is provided for in the class standards and as it manifests itself in performance, is essentially to create diversional recreational activities for persons in correctional institutions or institutions having -that purpose. Therapeutic effects are secondary and subordinate to the main purpose and function of Recreation Officers. The Recreationists' responsibilites, both as found in the class standards and in actual practice are to conduct recreation of a specific therapeutic nature. While the O.T.F.'s may provide certain recreational activities, they are a .lmost always carr ied I L3 out in the context of furnishing specific occupational therapy. The Union, in its written brief (last paragraph p.51, did not dispute that the aim of the programs of the Recreationists and of the 0.T.F.s were therapeutic. I do not find that the Union has demonstrated that the programs of the Recreation Officers have the "identical" therapeutic purpose nor do I find that any therapeutic purpose within the Recreational Officer program is functionally or substantially similar to that of the Recreationists or the 0.T.F.s. As noted above, this is enough to' defeat the grievances. Because the matter was fully argued, I will.deal with the balance of the submissions made on behalf of the Grievors. In addition to arguing that Recreation~ists, 0.T.F.s and Recreation Officers have functionally similar therapeutic functions, Union Counsel argued that they have the same responsibility for security which,if not identical,was functionaily the same. The factors relied upon in support of this argument were the nature of the subject populations and the security measures taken in the job settings. The Union argued that Recreationists, 0.T.F.s and Recreation Officers all work with the same sort of subjects. The Employer denied that this was the case. The evidence discloses that Recreationists and 0.T.F.s work with patients who are mentally ill. Recreation Officers work with inmates who have been convicted of crimes serious enough for them to have been incarcerated for the protection of the public. On the evidence I must find that inmates of correctional 24 facilities are not mentally ill. As already noted, the evidence is insufficient to support the evidence given by Mr. Jeffery that Recreationists had to deal, in a significant way, with persons who were guilty of criminal behaviour. The Grievors testified with respect to patient aggression. This would appear to be an attempt to establish that there was a considerable element of danger from the patient population at the Centre. As noted, the only testimony supporting the Grievors, directly on the point,was from Mr. Jeffery. Mr. Hirst did not give evidence in-chief as to any incidents involving patients. In cross-examination he stated that he had been involved in incidents with Patients; and that he had reported them to Attendant staff and not to Mr. Knight. As noted, from the evidence of Mr. Knight, the incidents he was aware of involved restraining,a patient rather than a case of a patient who had struck out at Mr. Jeffery. In the absence of better evidence, I am unable to equate the element of danger that existed at the Centre as being the same or functionally the same as at a correctional institution. It is interesting to note that in the Caruna case 27182 (at tab 2 of the Rmploye.r's Submissions) it was found that there was .a higher incidenceof aggression in the Geriatric Ward than in the Forensic Wards; Geriatric patients being more unpredicable than those 'in the Forensic Wards. The evidence of the Union witnesses supported this finding and it is difficult to find that there was a higher risk of injury at Oak Ridge than at the Hospital and . 25 that working at the Hospital created any higher degree of risk than working at any other Provincial Psychiatric Hospital. On the evidence, I would find that the inmates of correctional facilities create a risk for those working with them and that there is a risk to those working with patients in psychiatric hospitals. Yet there is a differences in the risk. Accepting the argument of the Union that those working with inmates in correctional facilities are at risk because such inmates contain in their numbers dangerous offenders, the nature of the risk at psychiatric facilities is because of the unpredictablility of patient behaviour. However, on the evidence, such risk as exists at psychiatric facilities is no different at the Centre, including Oak Ridge, than at other Provincial Psychiatric facilities. The difficulty in deciding cases such as this one arises from the confusion which exists ,because of the seeming similarity of the activities being compared. In the broad sense, the work of a Recreation Officer has some therapeutic purpose. I cannot agree, however, that this makes the therpeutic elements in the postions of the Grievors and those with whom they were compared functionally equivalent. The evidence was all in the other direction. There is a difference between utilizing sports activities as a basis for releasing pent-up tensions, which I find to be the fundamental purpose of the Recreation Officer job and the therapeutic purposes inherent in the Recreationist job and in the function of the O.T.F. job. I cannot, therefore, 26 accept the argument of Counsel for the Union that they are the same or functionally the same, in part, because they have a therapeutic purpose. It was suggested by Counsel for the Union that it is ironic that Counsel for the Employer should submit that activities intended simply for diversionary purposes be rated and rewarded at a higher level than activities which have behind them a complex, calculated and therapeutic role. This Board does not * have the obligation to rate the jobs for pay purposes. Counsel for the Union has asked us to compare the actual functioning of the jobs and does not reply on the "best fit" criteria. Having compared the actual functioning of the jobs, in part in the light of their purposes, we cannot conclude that the therapeutic functions are sufficiently similar so as to support the argument made on behalf of the Grievors. Counsel for the Union also adduced evidence with respect to the population served by the Syl Apps Youth Centre. The Syl Apps Youth Centre is a training school and is administered by the Ministry of Community and Social Services. Prior to 1978, training schools were administered by the Ministry of Correctional Services. The evidence indicated that training schools for juveniles were essentially the same as correctional facilities for adults. That is, they were for persons who had broken the law. Counsel for the Employer noted that they were not hospitals for the mentally ill and this was supported by the evidence given in cross-examination by Mr. Lamontagne, when he L was recalled. This would appear to serve as the basis for 27 classifying persons who conducted recreational programs in juvenile correctional facilities as Recreation Officers, Corrections. Given the actual purpose and function of the Syl Apps Youth Centre,I cannot find any significance in the fact that it'is under the Ministry of Community and Social Services. In this regard, I again refer to the evidence of Mr. Lamontagne, who was an employee of Ministry and Community and Social Services at the Syl Apps Centre where he was Supervisor of Juveniles in a Secure Treatment Unit. Mr. Lamontagne stated that the Syl Apps Centre is a maximum security institution for juveniles, where the aim is observation, detention, secure care and secure treatment. His evidence was that the Syl Apps Youth Centre is unique among juvenile correctional facilities and is divided into two sections. In addition to its general correctional ,setting, it has a Secure Treatment Unit. The juveniles in the general correctional setting are there because of criminal behaviour and are not mentally ill. I am satisfied from the evidence of Mr. Lamontagne that only some of the juveniles in the Secure Treatment Unithave committed crimes and that they have apparently been committed under the Children's Mental Health Act as dangerous to themselves or others. The -adolescents in the Secure Treatment Unit may be: "... anti- social, severely disturbed, aggressive, hostile, violent and [their] behaviour is unpredictable [and] constitutes a possible risk of assault ore injury .., ." (See Exhibit 20 - Position Specification of General LWties S\lpervisor in a Secure Treatment 28 Unit). Mr. Belog's Position Specification confirms that the residents may "exhibit violent, aggressive behaviour." (Exhibit 21, at p.2 under "Skills and Knowledge, continued"). There is a certain attraction in finding greater similarity than, indeed, exists between the Centre and the Secure Treatment Unit at Syl Apps. The populations served by the Regional Hospital and that served by Syl Apps are very different. The . patients at the Hospital are there because they are mentally ill and not because of criminal behaviour. It would appear that most of-the inmates at Syl Apps are there because of criminal behaviour and there was no evidence to demonstrate that they are mentally ill. While the juveniles in the Secure Treatment Unit ,of Syl Apps may not have committed crimes, they are considered "dangerous" and are not at liberty to leave the facility. The patients at the Hospital are mostly "voluntary" and unalike the residents of the Secure Treatment Unit are free to come and go. I would find that the Recreationists and 0.T.F.s employed at psychiatric hospitals including the Hospital, deal with a quite . different population from Recreation Officers, whether the latter are employed in adult correctional facilities, juvenile correctional facilities or in the Secure Treatment Unit of the Syl Apps Youth Centre. ,. An essential'part of the Union's ,argument was that the population that is served by Oak Ridge and by the Secure Treatment Unit of Syl Apps are both considered "dangerous" and therefore the population served by the Recreationists and ‘4. * 29. Recreation Officers are the same. A significant feature of this case is the fact that both Oak Ridge and the Secure Treatment Unit of the Syl Apps Youth Centre are unique facilities. The evidence was clear that all other Recreationists at the Hospital anh at the other Provincial Psychiatric Hospitals deal with very different persons from Recreation Officers both at adult and juvenile correctional facilities. Patients of psychiatric hospitals'are typically mentally ill but not dangerous or criminal in the sense that the inmates,at correctional facilities are dangerous or criminal. Inmates at correctional facilities are typically dangerous, are criminals but are not mentally ill. Patients at Oak Ridge are atypically mentally ill and dangerous. Residents of the Secure Treatment Unit at Syl Apps are ,atypically dangerous and may be mentally ill. The Union compares the population served by these two atypical programs and draws the conclusion that the two classifications as a whole serve identical populations. The evidence does not disclose that this is the'case. It follows, as a corollary to the first point, that the comparison between the population df Oak Ridge and that of the Secure Treatment Unit of Syl Apps does not assist the Union with respect to those Recreationists who work at the Hospital. The evidence also disclosed that until 1994, O.T.F.'s did not work at Oak Ridge. The Union's argument depends upon the similarity of the population at Oak Ridge to that of the Secure Treatment Unit of Syl Apps to support its argument that persons served by the Grievors are the same as those served by the 30 Recreation Officers. In doing so, I find the Union must rely on the Oak Ridge population as I find that the population served by the Regional Hospital is quite different from both that of the typical adult or juvenile correctional facility and that of the Secure Treatment Unit of Syl Apps. The evidence discloses that the 0.T.F.s did not work at Oak Ridge at the relevant time and the Union would be unable to show thatthere is any similarity between the population served by the 0.T.F.s and the population served by the Recreation Officers at any correctional facility, including the Secure Treatment Unit of the Syl Apps Youth Centre. The Grievors also endeavored to demonstrate that they had a functionally similar responsibility for security measures at the Centre as did Recreation.Officers where they worked. Evidence given by the Grievors emphasized that they took a Crisis Intervention Course which taught them a number of verbal and physical techniques for defusing potentially dangerous situations. The Union sought to rely.upon the introduction of the Crisis Prevention and Intervention Manual in support Of its position that patients are dangerous and that Recreationist are at risk from patient aggression. (See Exhibit 19, p.3 and the Union's Submission at p.3 and 4 and Tab 2.) There was no - evidence led by the Union to link the "man hours lost" referred to in the introduction to the Manual, to the Recreation Staff. Mr. Knight's evidence was that there had been only three reports of injury to a Recreationists in nine years, and this evidence was not disputed. , 31 In his evidence, Mr. Knight testified that the taking of the Crisis Intervention Course does not give a person any more. responsibility for security than taking a C.P.R. course requires a person to respond to "Code Blue," that is, a medical emergency. There was no dispute that there are certain risks that exist in a psychiatric setting, but the evidence does not satisfy me that the risk is the same as that found in facilities where Recreation Officers are located and function. In examining the Manuals of Procedure, for, both the Recreation Department and .the Occupational Therapy Department, and after having heard the evidence, I cannot find that the Manuals impose any special responsibility for security upon the Recreationists or on the O.T.F.'s. The evidence disclosed that there are many persons on the staff who must be familiar with security procedures, such as clerical staff, but this does not make such staff responsible for security. Exhibit 18, being Tab 3 of the Union's Submissions, is entitled "Security Procedure For Maximum Security Setting At Penetanguishene." Exhibit 18 was introduced into evidence by Mr. Linehan, who testified that it represents a list of the security procedures at Oak Ridge only and that all the items listed, with the exception of one or twd, were.matters attended to by the Security staff at Oak Ridge and not by the Recreationists or the 0.T.F.s. On all of the evidence I am satisfied that while all employees at Oak Ridge would have a strong awareness of Security, security was, by acknowledgment of the .Grievors, not their primary function. As above noted I cannot find that there was a greater need for security at the Hospital than at any other Provincial Psychiatric Hospital. In cross-examination Mr. Hirst, acknowledged this to be the case. I am also influenced by the fact that extra security at Oak Ridge is provided not by the Recreation or Occupational Therapy staff but by Security staff, consisting of Nursing Attendants and Industrial Officers and by the.nature of the physical setting. I am also influenced by the fact that Mr. Linehan and Mr. Knight agreed that Security staff are always present in programs run by the Recreation staff and, at the present time, by 0.T.F.s at Oak Ridge. I 'am unable to find Recreation staff and 0.T.F.s are counted in the calculation of the security ratio of patients to staff. When there is an emergency and some security staff are diverted from the area, the ratio of patients to staff simply increases. I am also influenced by the fact that the only persons to carry keys at Oak Ridge are Security staff and only Security staff serve as escorts. The evidence also disclosed that there are "panic buttons" throughout Oak Ridge and only Security staff have the responsibility for responding to these alarms. Recreationists and O.T.F.‘s are responsible for insuring that tools and equipment are returned to the proper places but it is the ultimate responsibility of Security staff to fill out daily 33 reports with respect to such tools and equipment and to submit the reports to the Head of the Security staff. Conclusion Upon review of all of the evidence,1 am unable to find that the essential duties of the jobs of Recreation Officers, Recreationistsand 0.T.F.s are the same or functionally the same. The recreational activities conducted by Recreation Officers are essentially diversionary in nature. This cannot be compared to recreational activities of the Recreationists which are primarily related to the effecting of specific therapeutic purposes. These purposes relate to the variety of mental illness suffered by the patient population. As far as O.T..F.s are concerned, I accept Mr. Knight's evaluation of their functioning. Such therapeutic function as is involved in the Recreation Officers' work'is unlike that in which Recreationists and 0.T.F.s are involved. The difference disclosed by the evidence is not subtle but real and substantial. The same can be said for the security responsibilities of Recreationists and O.T.F.s, when compared to that of Recreation Officers. Recreation Officers have a substantial and inherent security responsibility. Recreationists and O.T.F.'s, while they must be aware of security problems within their institution, do not have a security responsibility which is functionally similar to that of Recreation Officers. The grievance must fail on the ground that the Union has failed to prove that the core duties of the Recreational Instructors, including 0.T.F.s at the Centre, inclusive Of Oak . .‘,, i j : 34 Ridge are identical or substantially similar to those of Recreation Officers, when those duties were compared. In the result, and for the above reasons, the grievances are denied. DATED AT London, Ontario this 24th day of July, 1987. H. R. Gorsky Vice Chairman "I dissent" (see attached) S. Kaufman Member L. Turtle Wember DISSEXT In this case, the Grievors sought to establish that their positions should be classified as Recreation Officer 2. The Union argued that the Grievors' essential core duties, or the central core of their duties were substantially similar to the duties of Recrea- tion Officer 2. The Ministry disagreed. The award of the majority states, at page 4: If the Recreation Officers do not have the same therapeutic function as Recreationists and O.T.F.'s the grievance cannot succeed, even if Recreationists and O.T.F.'s have the same security function as Recreation Officers.(underscoring mine) At page 5, the award of the majority states: 'In order to determine whether two or more jobs are the same, within the meaning of the Brecht case, the Board must ascertain and compare the essential or core duties of eaCh job. The Board must then assess the time spent, the emphasis placed upon the duties, the purpose of the job; the setting, the subjects dealt with and.the education and experience required, all of which .items are important in making a comparison of the jobs, The award of the majority states, in conclusion, at page 33: Upon review of all of the evidence, I am unable to find that the essential duties of the jobs of Recreation Officers, Recreationists and 0.T.F.s are the same or functionally the same. The recrea- tional activities conducted by Recreation Officers are essentially diversionary in nature. This can- not be compared to recreational activities of the Recreationists which are primarily related to the effecting of specific therapeutic purposes. These purposes relate to the variety of mental illness suffered by the patient population. As far as 0.T.F.s are concerned, I accept Mr. Knight’s eval- uation of their functioning. Such therapeutic function as is involved in the Recreation Officers’ work is unlike that in which Recrenrionists and 0.T.F.s are involved. The difference disclosed b!.' the evidence is not subtle but real and substantial. The same can be said for the security responsihi! j Ii’.:- of Recrentionists and 0.T.F.s. when compared tc rh:i~ nf Recreation Officers. Rec?cnt ion Officers h;Ivl, :I Sill,.Sf ant i:11 :~nd inh~r~nl sccuri: :: rr:sponsibi 1 i 1 y. Recreationists and O.T.F.s, while they must be aware of security problems wiZhin their institu- tion, do not have a security responsibility which is functionally similar to that of Recreation Officers. The grievance must fail on the ground that the Union has failed to prove that the core duties of the Recreational Instructors, including 0.T.F.s at the Centre, inclusive of Oak Ridge are identical or substantially similar to those of Recreation Officers, when those duties were compared. With the greatest respect to my fellow board members, I am having difficulty in determining the precise test that their award required the drievors to meet. For that reason, I am unable to concur. Further, in determining classification grievances, this Board generally follows Brecht (cited in the award of the majcrity) and the tests used and approved in that case. The test in Brecht is, generally stated, whether the essential.core duties, rather than the purported function of those duties,'of the job sought to be reclassified, are substantially similar to the essential or core duties of the position to which it is being compared. The actual duties of the Grievors and the amount of time spent on them are then compared to the duties and the amount of time spent on them by persons in the classification being sought. The Reasons of the majority in this case impose a further requirement, beyond Brecht ----' that the function of the Grievers' duties be the same as the function of the duties of Recreation Officers 2. That, in my opinion, incorrectly imposes a far too narrow tesE. It requires that the underlying purpose and philosophy of the jobs being compared bc the same. no:withsf.ancling ihnt the essential ?r cortf dut: i:,s pcrfornl6~d !i\ the ~wnpl~.! in ! tl:)scr ;,c>si c ir-),:s m:1!' b+ :iuli- st.:8nti:tl Iy sirnil , The requirement of "functional similarity" by the majorit! imposed a threshold test upon the Grievors, beyond which they could not progress. The function of the Greivors' duties in this case is therapeutic and the function of the Recreation Officers' duties is to provide a "safety valve" to enhance security. The additional criterion of "function" made the similarity or difference of the core duties of then jobs under consideration in this grievance irre- levant. In effect, it made the test in Brecht irrelevant. I strongly doubt that the test imposed on the Grievers was the correct one and a fair one, and for this further reason I am unable to concur. In a number of significant areas, my appreciation of the evidence and the weight I would have given to it, differed from that of the majority, and for this third reason I am unable to concur. Dated at Toronto this 24th day of JULY, 1987. S. D. i(aufma Employee Nominee