EVANS, PHILP SUCCESSFUL IN DEFENDING A CLASSIFICATION GRIEVANCE

February 16, 2010

Dismissing a classification grievance filed by the Ontario Nurses’ Association, Arbitrator Lorne Slotnick delineates the test for determining whether there has been a substantial change in the job content of an existing classification de facto created a new classification.

According to the Arbitrator, the 2-part test to be applied in vast majority of cases is:

1. Whether the job at issue has itself changed substantially; and,

2. If a substantial change has occurred, whether those changes have created a job that is no longer within the scope of the classification of a particular position set out in the Collective Agreement.

To succeed, a Union challenging the classification must satisfy both parts of the test.

Ultimately, Arbitrator Slotnick concluded, in this case, that the Union fell short of establishing that the position of Palliative Care Nurse, in reality, had changed so substantially that it no longer was part of the Registered Nurse classification.In reaching this conclusion, the Arbitrator gave weight to the following:

1. That the parties have only one (1) job classification – that of a Registered Nurse – for all of the approximate 130 employees in the bargaining unit;

2. At least one (1) position within the classification of Registered Nurse, the Geriatric Nurse, had many similarities to the Palliative Care Nurse;

3. While the Palliative Care Nurse clearly possesses a high level of skill and specialization, this fact alone did not distinguish the job duties of the Palliative Care Nurse from other nurses in the Hospital; and,

4. While there had been some changes to the Palliative Care Nurse position, i.e., its new full-time form, such changes did not qualify “substantial” in the sense that the concept had been interpreted in the case law.

To summarize, while the Arbitrator noted that changes had, in fact, occurred to the Palliative Care Nurse position, the Union had not demonstrated that these amounted to a substantial change in the content of the job, nor did the Union demonstrate that the Palliative Care position was outside of the scope of the one (1) classification of Registered Nurses in the Collective Agreement.The Registered Nurse classification in the Collective Agreement was broad enough to include the Palliative Care Nurse.

If you require any assistance relating to job classifications within your organization, please feel free to contact any member of our Labour Department.

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