The employer, a children’s aid society, regularly exceeded the maximum workload it had negotiated with the union. The reasons were outside the employer’s control. The workload agreement with the union, however, permitted grievances about the way in which limits were established and not about the limits being exceeded.
When their caseloads exceeded the “ideal range” identified in their workload agreement, frontline child welfare workers grieved.
The union and the employer agreed that a determination on the meaning and effect of their Workload Agreement was necessary before the merits of the individual grievances could be addressed.
The employer was a Children’s Aid Society. Its mandate, powers and statutory responsibilities are set out in the Child and Family Services Act, R.S.O. 1990, C. 11.
The Society must act on information or allegations that a child may be in need of protection. It is understood by the parties that there is no way to control either the number or the complexity of the cases that must be addressed at any given time.
The Society cannot refuse to respond to the needs of its community. The workers cannot refuse to work.
Within these constraints, the employer and the union adopted a Workload Agreement to address their mutual concerns about workload issues.
The goal of the agreement was to maintain an equitable and reasonable distribution of workload. To that end, the agreement identified an “ideal range” for the caseloads of the different classifications of workers.
A variety of factors were also listed to assist with assessing the complexity and difficulty of cases in order to weigh the effect of these factors on caseload.
Three-tiered process
A three-tiered process was also outlined to address and review workload issues.
The Agreement said: “Although employees cannot refuse cases, it is recognized that employees may grieve the process outlined in this Letter of Agreement should the caseload exceed the top end of the targets by 1. It is understood and agreed that this Letter of Agreement and any of its terms is not deemed to constitute in any way either directly or indirectly a right of refusal to work.”
When their caseloads exceeded the ideal range, a number of workers grieved.
The union acknowledged the three-tiered process that had been devised to manage and keep workload within the limits of the “ideal ranges” identified in the Agreement. The union said that the workers were entitled to grieve when those ranges were exceeded — even by one, as per the Agreement.
The Agreement plainly said as much and the “purposive” meaning of the “Workload Agreement” itself underscored that intent, the union said. Obviously, the point of the agreement was to fetter management’s right to allocate work and to provide workers access to grievance and arbitration procedures when caseloads exceeded the identified targets.
For workers who do not have the right to refuse work, this was the only means of redress available, the union said.
The employer said the Workload Agreement did not alter or alleviate its statutory obligations. Given its inability to control the intake of cases — or even the availability of workers due to illness, vacation and leaves — the employer did not and could not negotiate a “cap” on worker caseloads as implied by the union.
The Workload Agreement gave workers the right to grieve that the process put in place to manage workload had either been ignored or violated, the employer said.
Contrary to the union’s analysis, it was the very purpose of the Agreement to make use of the workload review measures as set out in the Agreement and to address workload problems when they exceeded the ideal ranges, the employer said. This was preferable to sending such complaints to an Arbitrator every time the ideal caseload was exceeded.
The employer’s interpretation was correct, the Arbitrator said.
Given the broad purpose of the Agreement and the reference to how the grievance procedure was to be triggered, the union’s expectations were understandable, the Arbitrator said.
Employees may grieve the process
However, the Arbitrator said, the Agreement actually said, “employees may grieve the process outlined in this Letter of Agreement should the caseload exceed the top end of the targets by 1.”
The plain and ordinary meaning of the words is clear, the Arbitrator said
“[T]he grievance must be about the ‘process,’ not the mere fact that the target has been exceeded. Exceeding the target or ‘ideal range’ may be the trigger or precondition for a successful grievance, but the Agreement says that the employee may grieve the ‘process,’ not that the grievance will be about the workload per se.”
If a worker could grieve every time his or her caseload exceeded the ideal range, there would be no purpose to the Workload Review process, the Arbitrator said.
Taken as a whole, the Agreement signaled an understanding that “overall workload can be affected by forces beyond the Employer’s control, that individuals’ caseloads will exceed the targeted ranges from time to time and that the parties have put in place a three-tiered ‘process’ to deal with those realities,” the Arbitrator said.
“Read as a whole, the document cannot be interpreted as meaning that exceeding a targeted range by one violates the Collective Agreement or the Workload Agreement.”
Reference: Kawartha-Haliburton Children’s Aid Society and Ontario Public Service Employees Union, Local 334. Paula Knopf — Sole Arbitrator. Frances R. Gallop for the Employer. Jane Letton for the Union. October 14, 2010. 13 pp.
