HomeMy WebLinkAbout1983-0774.Meek.85-04-24GRIEVANCE
;;WbEMENT
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Dr. F. I. Meek)
Before:
For the Crievor:
For the Employer:
Hearings:
The Crown in Right of Ontario .~.
(Ministry of Health)
P. M. Draper Vice-Chairman
M. Perrin Member
A. G. Stapleton Member
J. Miko /.
Grievance Classification Officer
Ontario Public Service Employees Union
B. Itenson
Senior Staff Relations Officer
Staff Relations Branch
Civil Service Commission
July 11, 1984, November 22 and 23, 1984
Crievor
Employer
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The Crievor, Frederick Meek, Ph. D., was reclassified irorn
Psychometrist 2 to Psychologist I as of June I, 1983. In a grievance dated
‘September 30, 1983, he grieves that that reclassification should have occurred as
of June 21, 1982, and that he was therefore improperly classified during the
intervening period.
At the outset of.the hearing the issue of timeliness was raised on behalf
of the Employer, the argument being that the time limits set out in the grievance
procedure contained in the applicable collective agreement are mandatory. In
reply, it was argued for the Griever that this being a classification case, Section 18
(2) of the Crown Employees Collective Bargaining Act is applicable and displaces
the grievance provisions of the collective agreement. For the Employer, it was
submitted in the alternative that the deiay goes to the merits and that the
grievance should be dismissed on that ground. The response for the Griever was
that the Employer was not prejudiced by the delay. The Board reserved its decision
on the issue of timeliness and proceeded to hear the merits.
As to the first ground of objection, the definitive case in point is
Keeling, 45178 in which the Board found that the right granted by Section 18 (2)
cannot be limited or denied .by any provision of the collective agreement. An
application for judicial review of Keeling was dismissed by the Divisional Court,
leave to appeal was denied by the Court of Appeal and the case has been followed
by the Board in a number of later cases, among them Clements, 112/80. In light of
this history and in the circumstances present, we have concluded that we should
exercise jurisdiction in this matter.
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As to the second ground of objection, arbitral precedent is to the effect
that while delay may go to the merits it is not, standing alone, a bar to arbitration,
and that the critical factor is whether or not the delay caused prejudice to the
other party. See Brown and Beatty, Canadian Labour Arbitration, Second Edition,
at p. 102. In our opinion, there has’.been no showing of prejudice to the Employer
attributable to delay by the Griever in filing his grievance and the objection
therefore fails.
For the reasons which follow, we have determined that the grievance
must be dismissed on the merits. Consequently, the issue of the retroactivity of
any remedy, which was also argued, need not be considered.
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The Griever was employed by the Ministry as a Psychometrist 2 at the
St. Thomas Psychiatric Hospital in December, 1979, ,at which time he held a
Master% degree in psychology. He received a doctoral degree in psychology in
June, 1982. In the same month he received a letter from the Ontario Board of
Examiners in Psychology (OBEP), the first paragraph of which reads:
Your application for registration as a psychologist in Ontario was
considered at a meeting of the Board held on June 21, 1982 and was
approved. Your name has now been added to the list of candidates on
the Temporary Register. Further information regarding your period on
the Temporary Register is listed on the enclosed sheet.
The sheet referred to is an OBEP Placement on Temporary Register
form, the first paragraph of which reads:
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Your IWO supervisors during your period of completing the required
post-doctoral experience on the Temporary Register have been
approved. Instructions and Work Appraisal Forms are being sent directly
to thqm at this time. In your case, the approved experience will date
from the time listed below, providing your worksetting is essentially the
same as that outlined in your application. All candidates are required
to maintain their status on the Temporary Register under supervision
until appearing for ‘the oral examination.
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A “&;nary Supervisor’s Agreement prescribed by OBEP was
subsequently entered into by Sidney Sanders, Ph. D., Chief Psychologist at the St.
Thomas Psychiatric Hospital. The text of the agreement reads:
I understand that Dr. Meek is applying for registration as a psychologist
in the Province of Ontario, and 1 acknowledge that a period of
supervision is required for registration. I agree to act in the capacity
of Primary Supervisor during the period designated by the Board.
I agree’ 10 supervise and appraise Dr. Meek in accordance with the
responsibilities of ~Primary Supervisor as outlined in Section C of the
Directory of Psychologists Registered in the Province of Ontario, and
also. in the Supplementary Directions for Supervisors and Assessors
(OBEP lOA).
Using as a guide the dimension; of the rating scale provided on Work
Appraisal Form I (OBEP 8A), 1 agree to supply the Board with ratings
on the candidate every three months to the end of the supervised
period. Further, I am in a position to, and agree to accept tutorial
responsibility for the quality of the applicant’s work as a Temporary
Registrant and will review the work with the applicant on a regular
basis, at least twice a month, during the period of Temporary
Registration.
I agreed to inform the Board and Dr. Meek immediately of any
circumstance affecting my ability to perform these contractual
obligations.
An OBEP Standby Supervisor’s Agreement to similar effect was entered
into by Eugene Bedumaster, Ph. D.
An OBEP Supervisor’s Work Appraisal form was completed by Dr.
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Sanders quarterly and by Dr. Beaumaster at the end of the period of supervision.
The forms contains the folIowing statement:
This rating is directed toward evaluating the candidate’s maturity of
judgme~nt in the application of relevant psychological knowledge, as
well as the candidate’s readiness to assume responsibility commensurate
with independent service to the public whether in practice, teaching, or
in research.
We note here that these forms are relevant as showing the kinds of
duties being performed by the Griever and the nature of the supervision being
exercised, not as showing the quality of the Grievor’s performance, with which we
are not concerned.
In June, 1983, the Griever received a. .I.etter~ from OBEP, the first
paragraph of which reads:
I am pleased ‘to inform you that at a meeting of the Ontario Board of
Examiners in Psychology held on June 1, 1983, a decision was made to
award you full registration. Your name has therefore been transferred
from the Temporary Register to the- Permanent Register of
Psychologists in this Province.
In the Grievor’s opinion, he has been performing the work of a
psychologist since joining the Ministry in 1979. Irrespective of the va@‘ity of that
view, he may fairly claim to have been doing so between June, 1982, and June,
1983, during the period of supervision prescribed by OBEP for candidates on the
Temporary Register. But the fact is that this was the~only course that could be
followed by the Crievor to acquire the experience and to pass the examinations
established by OBEP as prerequisites to the granting of a certificate of
registration.
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The situation was not brought about at the instance of the timployer but
simply reflected the means adopted to afford the Griever the opportunity to
qualify for the certificate. Viewed in that sense, his performance of the’work of a
psychologist was a function of OBEP practice, not of the Employer’s classification
system. In the unique circumstances present here, it is arguable that the Employer
cannot be said to have classified the Griever improperly or to have failed to apply .
its classification system properly in June, 1982, by accommodating the Griever’s
need to perform a mandatory, qualifying period of supervision. Equally, in .the
circumstances, it might be said that it is not open to the Griever to base a claim
for reclassification on either of the grounds normally available to grievers in
classification cases: similarity of the duties performed to those found.in the class
standard for the.classification sought, or to those performed by a person in that
classification.
Those considerations aside, we are of the view that the case turns on
the question whether or not the Crievor was a psychologist registered in Ontario,
.within the meaning of the Psychologists Registration Act (the Act) on June 21,
1982. The preamble to the psychologist class series states that ‘the duties of
positions allocated to this class series are carried out by Psychologists registered
under the Psychologists Registration Act.” The class standard for positions
, . . classified Psychologist 1 lists as a qualification “Registration as a Psychologist in
the Province of Ontario.” The Position Specification and Class Allocation form for
the position of Psychologist 1 lists as a requirement “Registration as a Psychologist
in Ontario.” Registration is thus established as an essential element of the
psychologist class series.
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A copy of the & is appended hereto. Section 1, clauses (b) and (c)
define the terms “certificate of registratio+and “registered psychologist.”
Section 5 authorizes OBEP to provide for the issuance, renewal,
suspension and cancellation of certificates of registration.
Section 6, subsection (1) sets out the conditions for the granting of a
certificate of registration, which are receiving a relevant doctoral degree, at least
one year of acceptable experience and the passing of examinations. Subsection (2)
sets out the circumstances under which examination of “a candidate for
registration” may be waived.
Section 9, subsection (1) provides that OBEP “shall” keep a register in
which the names of persons granted certificates of registration are to be entered.
Section 10, subsection (I) provides that OBEP “may” keep a temporary
register in which the names of persons who have obtained a relevant doctorate but
have not completed the other conditions set out in Section 6, subsection (1) are to
be entered, Subsection (4) provides for the removal from the temporary register of
the name of any person not complying with applicable “conditions, limitations and
restrictions.”
Section 11 (as it pertains to the present case) permits a person to
represent .himself to be a psychologist if “he is a person employed by the
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Government of Ontario or whose name is entered in the temporary register.”
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The combined effect of the definitions found in Section 1 of the &,
we believe, is that a registered psychologist is a person who is granted a certificate
of registration as a registered psychologist under the Act. The keeping of a -
temporary register under Section 10 and the exceptions created by Section 11 ,we
take to be designed 10 give official recognition to a person who has obtained a
doctoral degree, so as to enable him to act as a psychologist under supervision
while completing the remaining conditions for obtaining-. a certificate of
registration.
The OBEP letter of June, 1982, acknowledging the Griever’s application.
for registration, conveys to uj that he has been accepted as a candidate for
registration. The purport of the OBEP material relating to the Griever’s period of
supervision is clearly that he is not a registered psychologist but is in the process
of attaining that status. The OBEP letter of June, 1983, to the Griever is the first
notice from OBEP that he has been awarded registration and that his name has
been entered in the “Permanent Register of Psychologists in this Province.”
We find, on the evidence before us, that the Griever was not a
registered psychologist prior to June 1, 1983. It follows that he was not improperly
classified Psychometrist 1 prior to that date.
The grievance is dismissed.
Dated at Consecon, Chtario, this 24th day of APril , 1985.
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P. M. Draper, Vice-Chairman
(Dissent to follow)
M. Perrin, Member
A. C. Stapleton, Member
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Sec. 5 Cc) PSYCHOLOGISTS RECISTIUTION Chap. 404
719
CHAPTER 404
Psychologists Registration Act
I. In this Act,
(a) “Bqard” means the Ontario Board of Examiners
in Psychology appointed under this Act:
(b) “cktificate of registration” means a certificate of
registration as a re&ered psychologist; i
(c) “registered psychologist” means a person \vho is
registered under this Act. R.S.O. 1970. c. 372. 5. 1.
z.-(l) The board known as the Ontario Board of ~;;t~Dved
Examiners in Psychology is continued and shall be corn-
posed of five registered psychologists appointed by the
Lieutenant Governor in Council, and the Lieutenant Gover-
nor in Council may fill sny vacancies in the membership
of thp Board.
(2) At least two of the members of the Board shall be Qukaflo.
and at least two members shall not be principally engaged ~.
as members of the teaching staff of a university. R.S.O.
1970, c. 372. s. 2.
3. The member of the Board from. time to time are a ~orporanca
corporation. R.S.O. 1970, c. 372, s. 3.
4. A majority of the members of the JT+rd is a quorum. Quown
R.S.O. 1970. c. 372, s.. 4.
6. Subject to the approval of the Lieutenant Govern~r~~~‘*“~~
in Council, the Board may make regulations,
(a) fixing the term of office and remuneration of the
members of the Board and providing for the
payment of necessary expenses of the Board in
the conduct of its business;
(b) prescribing the powers of the Board and the
procedure of the Board at its meetings:
(c) providing for the issuance and rene\~al of certifi-
cates of registration and fixing the fee; payable
therefor;
.
(I) gowrning the suspension or cancellatiw of certifi-
cates of registration, the causes and procedure
therefor ;
(/) prtxribing the duties and remuneration of ex-
aminers and other persons employed hy the Board;
(g) generally for carrying out the intent and purpose
of this Act. R.S.O. 1970. c. 372, s. 5.
gamtlon o.--(i) The Board shall grant a certificate of registration
re,arra!o~ to any person who furnishes evidence satisfactory to the
Board that he,
(a) has received a doctoral degree based upon a pro-
gram of studiej whose content was primarily psy-
cholqical from an educational institution approved
by the Board;
(b) has had at least one year of experience accept-
able to the Board; and
(c) has passed the examinations required by the B&d.
(2) The Board in its discretion may waive -examination
of’ a candidate for registration if the candidate holds a
diploma granted by the American Board of Examine& in
Professional Psychology or has been certified or registered
by the examining board of another province, state or
co~ntry ichose standards are considered by the Board to be
at least the equivalent of the standards established by this
Act. R.S.O. 1970. c. 372. s. 6.
POWel
to rerme 7. The Board after a hearing may refuse to grant a
rcpls~ratton certificate of registration to any persoK’%ho is Sound by
the Board io be liable to have his certificate suspended or
cancelled for any of the causes mentioned in the regulations.
R.S.O. 1970, c. 372. s. 7.
s.--(l) If the Board refuses or neglects to register a
person. refuses or ne+cts to renew the re&ration of a
person or suspends or cancels the registration of a person,
the person aggrieved may, within three months from the
day on which notice thereof was served, apply to the
Divisional Court 1vhic-h upon due caux shown may make an order
directing the Board to make the registration. renew the registry-
tion, remo\-c the suspension or withdraw the cancellation, as the
Sec. I1 (3) PSYCHOLCICISTS itEClSTRAT,clN Chap. 404 721
case may be, C,I may make such other order as is warranwd by the
faclr.
(2) Evey such order is final and conclusive and shall beldcm
acted upon forthwith by the Board. R.S.O. 1970. c. 372,
5. 8.
9.-(l) The Board shall keep a register in which shall be:;:;:;,
entered the name of every person who has been granted
a Certificate of registration.. .
(2) The register shall bc- open to inspection by anyJ~;$;;;~:
person upon reasonable notice to the Board. R.S.O. 1970,
c. 372. s. 9.
IO.-(l) The Board may keep a register to be known as~;$~~w:,r~
the “temporary register”, in which shall be entered the name
of every person who has received a degree within the
meaning of section 6 but *ho has not met all. the other
requirements specified in section 6.
(2) The temporary regibtcr shall be open to inspection by’nrPrct’on
any person upon reasonable notice to the Board.
(3) Upon granting registration in the temporary register. the C$:;z;;f
Board may fix the fee payable by the person so registered
and the conditions, limitations and restrictions applicable
to such person.
(4) Upon any person 50 registered ceasing to c~rnply~;~~$
with the .condj!jons. Iimitations 01 restrictions applicable
to such person, the Board may remove the name of the
person irom the temporary r+ster. R.S.O. 19i0,~c. 3i2, 5. 10.
1 I.-(I) Xo person shall ,represent himself to be a Prohlbltlon
psychologist unless he holds a certificate of registration.
(2) A person represents himself to be a psychologist ld*m . when he holds himself out to the public by any title.
designation or description incorporating the words “psy-
chological”, “psychologist” or “ps).cholo& and under such
title, designation or description offers to render or renders
services of any kind to one or mcxe persons for a, fee or
other remuneration.
(3) This section ‘does not apply to a legally qualified E=wlon*
medical practitioner or to a person in the course of his
employment by the Government of Canada, the Covern-
ment of Ontario or a university, or to a person registered
in the temporary register under section 10. R.S.O. 1970,
c. 372. s. Il.
i 722 Chap. 4M PSICH~KJCLSTS REG~~TR\TIOS sec. 12 ~’
nc.tmenr 0,mcnr.l 12. h’o person who holds a certificate of registration
dlrorders shall treat an)- person for any type of mental disorder fork
a fee or other remuneration,except on the requesi-0%~ ii-’
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association with a legally. qualified medical practitioner.
R.S.O. 1970, c. 372. 5. 12.
FYLCLICL 0, mcdklna not 13. Nothing in this Act authorizes a person who holds
.urhorhd a certificate of registration, to engage in any manner in the
practice of medicine, surge+ or midwifery. R.S.O. 1970,
c. 372. s. 13.
14.-(l) E\-ev person who contravenes any of the ,proe
visions of this Act is guilty of an offence andon convjction is liable toa
fine of not more than 5100 for the tirst offence and not more than $5~
for an) subiequent ofience.
DIIPOJILIOC, 0, flnor (2) The fines recovered for offences under this Act shall
be paid to the Board. R.S.O. 1970. c. 372, s. 14.
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