Arbitrator rejects job classification grievance

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When do changes to a job description amount to a new classification and a higher rate of pay for a unionized employee? This was the issue before an Ontario arbitrator in Ottawa Hospital v. OPSEU (September 15, 2003), a case successfully argued by J.D. Sharp of our firm.

The case involved a union claim that the job of Diet Technicians had evolved sufficiently since the mid-1990s to trigger a major increase in compensation. The collective agreement contemplated that negotiations for increased compensation would occur when the duties in a job classification had been “substantially changed”. The employer acknowledged that there had been some evolution in the nature of the job, but not enough to justify the increase in pay demanded by the union.

ROUNDS, CHARTING, COLD-PLATING AND COMPUTERS

The union asserted that the inclusion of Diet Technicians on rounds for patients in long-term care, and consequent charting duties, constituted a significant change. In the past, it asserted, Diet Technicians had assessed dietary needs solely based on consulting patient charts. Also, they had now taken on the task of “cold plating”, or ensuring that dietary changes were manually made to food carts before they left the kitchen. Finally, the union pointed to new responsibilities associated with computerization, such as the inputting of patient data, and submitted that all these factors met the threshold of substantial change.

The employer argued that the changes were not as great as the union asserted. It pointed to the fact that some Diet Technicians had been charting since the early 1990s, and that they went on rounds only in two wards. With respect to cold plating, the employer noted evidence that, both before and after this change, Diet Technicians were responsible for ensuring that food served to patients met their dietary requirements. The union’s witness had also conceded that computerization did not always make the job more difficult, but in fact, facilitated some of the work done by Diet Technicians. Taken together, the employer claimed, these changes did not amount to a substantial change.

MODIFICATION IN METHOD, BUT NO SUBSTANTIAL CHANGE

In dismissing the union’s grievance, the arbitrator stated that the union had not met the onus of establishing a substantial change in the job being performed. The fact that some new duties were being performed, and that there was some modification in the way other duties were carried out, did not trigger a reclassification:

    “It is well established in the authorities that the mere addition of a new duty, or a change in an existing duty, does not necessarily result in a new job classification. … The introduction of new technology or a new method of performing the existing work does not, in and of itself, lead to the conclusion that the employee’s job has substantially changed. In this case, the evidence … leads me to the conclusion that while there have been some limited modifications to the method in which the job is performed, the job itself has not changed and certainly has not changed sufficiently by any objective measure to meet the clear collective agreement requirements that there be a substantive change.”

The arbitrator also pointed out that attendance at rounds was essentially a change in the way Diet Technicians obtained patient information. The fact that this change had been introduced to improve patient care, and that it resulted in more direct patient contact by the Diet Technicians participating in the rounds, did not support the conclusion that it amounted to a substantial change in their duties.

Similarly, the arbitrator characterized the other changes (cold plating, computerization and charting) as not affecting the core features of the position. Having found that the Diet Technician job remained essentially the same, the arbitrator dismissed the union’s grievance.

For further information, please contact J.D. Sharp at (613) 940-2739.