OPSEU 82100

LOCAL 110

Articles 4.01 & 4.0

HEADNOTE

WILSON,A. (OPSEU) vs. Fanshawe College (A) Award dated August 2,f 1984 (Delisle)

Re: Inequitable teaching Assignment (Nursing Program)

Assignment was seen as inequitable by grievor because of the nature of the patients in the assigned hospital ward, level of training of students, physical and administrative division (2 wards), and ability to adequately supervise and teach.

Grievance was dismissed. The grievor has multiple duties; to herself, the college, profession, students, hospital and patients. Grievor should be expected to act prudently within the general guidelines and exercising the soundest professional judgment of which she is capable.

Board simply clarified the state of the grievor's accountability but did not find her assignment as inequitable,

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IN THE MATTER OF AN ARBITRATION

BETWEEN: FANSHAWE COLLEGE

EMPLOYER

-AND-

ONTARIO PUBLIC SERVICE EMPLOYEES UNION UNION

AND IN THE MATTER OF 6 CERTAIN GRIEVANCE OF A. WILSON RE INEUU1TABLE TEACHING ASSIGNMENT

BOARD OF ARBITRATION R. J. DELISLE J. MCMANUS F. R. NODDLE

APPEARING FOR THE EMPLOYER W. J. HAYTER D. L. BUSCHE

CHAIRMAN NOMINEE NOMINEE

COUNSEL HUMAN RESOURCES ASSISTANT

APPEARING FOR THE UNION R. ANAND COUNSEL M. N. GRUNWELL LOCAL PRESIDENT A. WILSON GRIEVOR

HEARINGS HELD IN LONDON AND TORONTO, JANUARY 9, FEBRUARY APRIL 5, 1984.

- war on vac wirmiormu. anwrapamummegort

The g • ievor complains that her teaching assignment :was

inequitable. Her complaint was not resolved by the College

Instructional Assignment Committee and accordingly this grievance

was filed. The most relevant provisions of the collective

agreement read:

4.02 (a) Recognizing the unique characteristics of each. College, the diversity of programmes and instructional techniques and the consequent range and variety of indi-vidual assignments, the parties agreed that within three (3) weeks following the publishing of instructional assignments in September, a College instructional Assignment Committee of six (6) persons (three (3) per-sons to be appointed by each party and to include the College President or Senior Administrative Academic Officer) shall meet to: (i) consider the application of Section 4.01 to the instructional assignments across the College; (ii) resolve apparent inequitable instructional assignments; (iii) consider , a claim by an individual that his instructional assignment is inequitable.

The Committee shall in its consideration have regard to such variables affecting assignments as:

(a) nature and number of subjects to be taught; (b) level of teaching and business experience of the faculty and availability of technical and other resource assistance; (c) necessary academic preparation and student contact; (d) examination marking and assessing responsibilities; (e) size of class; (f) instructional mode(s); (g) assignments ancillary to intructional activities; (h) previously assigned schedules; (i) other assignments; (j) necessary excessive travel time between assignments.

4.02 (b) A majo'f'ity decision of the College Instructional Assignment Committee shall be binding upon the parties and the employee(s) concerned and its report • shall be completed within three (3) weeks of the referral.

4.02 (c) If the teacher's complaint is riot resolved by the Committee, he may file a grievance as to the appli-cation of Section 4.01 within ten (10) days of receiving

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••••■ ••••■■•■••••••.....6437. • • ".• ^ .3 WIL1

the Committee's report referred to in paragraph (b) above and refer the 41grievance to arbitration as referred to jr Section 11.03..

The awards-: of other arbitrations deal ing . with this area

appear • to have coined language of "relative inequitabillty" and

"absolute inequitability"; the former refers to complaints that

an employee is being treated unequally when comparud

teaching assignments of others while the latter- term cr.:,coplain

that the work assignment is undue or unfair simply v4ithlrl ltezQlf.

The complaint here is one . of absolute inequitability.

Objcar:tic::n

grievance on thd faill,wL . of thu _.._._..v :a

Committee to resolve the teacher" . s comp. Thin

go to the Committee tmt thc College ca—juL that the Comrditteu

improperly constitute c! since the grievor sat at a Number.

College objected to the grievor sitting in judgment on her.

cause• but the griever refused to give .up - her seat, The College

argues that we should refer this matter back to the Committee and,

direct the same to be constituted without thn grievor. We agree

with the remarks of O'Shea in Fanshawe College and QPSEU (July,

1933) that:

In the absence of any provision it f the collective agreement to the contrary, we find that the College Instructional „Assignment Committee is master of its own rules and procedures... and we have no jurisdiction to interfere with its method of disposing of complaints concerning instructional assignments.

We have no jurisdiction either interfere with its

composition.

The Scope of Review

The College took the position that an assignment could

be viewed as inequitable unless the Board concluded that

asdignment way.. unfair :r unjust in terms of act:.;:-,1

necessary to perform the assigned task. By their arguments,

Board should be concerned with quantitative measurements and r,Y

with nccc o.-dinq ff:,r

find the assignment incquitaule only if there

quantiti.Attv incrdc in h ours ancilli•y c

hours." The College does riot dispute the arbitrabil t

equity of teaching assignments. However, the College does a.','

that cur review is restricted in its scope by sections. 4.01 Cr-e,

4.02. There does not appear to be any specific languace in tHe

Agreement which would call for such a limitation on our review.

The College concedes our ability to gauge equitability following

the faiIure of the College Instructional Assignment Committee to

resolve the matter. This is in accord with the wisdom, with

which we agree, expressed by Weatherill in Centennial College and

OPSEU, (December 10, 1979):

Reading articles 4.01 and 4.02 together, having regard to the general dispositive provision of article 4.01 that "The Colleges will establish teaching schedules", and having regard to the provisions of the grievance procedure set out in article 9, the parties have contem-plated that where, in the exercise of its function of establishing teaching schedules the College proposes one which is felt to be inequitable, a special procedure of "peer considerat ion" must be fc'l lowed. Where that pro-

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cedure results in a majority decision by the College Instructional Assigment Committee, that decision is binding. The Agreement does not, however, deprive the

. teacher of his right to grieve where the matter is not resolved by that procedure. There is, certainly, such a general right by virtue of the provisions of article 9. That right is removed where the procedure called for by article 4.02 leads to a resolution of a complaint. It is not removed otherwise, and article 4.02 (c) serves simply to set out the procedure open to a teacher where his complaint is not resolved by the Committee, imposing a particular time limit on the exercise of his right to grieve. The reference to "the application of Section 4.1p1" must be read as a referance to the College's exercise, or perhaps its failure to exercise its responsibility for 'establishing teaching schedules" pursuant to article 4.01.

Having taken position, it seems to follow natural/

that we can only determine this matter on its merit if we

t'le same criteria which the College instructional

Committee was required to consider under Article 4.02.

see Georgian College and OPSEU (O'Shea, June 25, 1932).

parties have there agreed on certain criteria as appropriate

the determination of equitability. By those criteria, 4.02 (iii)

(a-J>, we must consider not only the number of hours necessary t.D

perform the assigned task but also other matters which might

render t.le task unduly difficult to perform and therefore

inequitable. Accordingly we are not limited in our review as

maintained by the College.

The Decision

The griever is a Teaching_ Master in the Nursing Program at

Fanshawe College. While a Teaching Master has teaching

responsibilities to instruct in theory and in the laboratory as

well as in clinical settings it is her clinical assignment for

the fall semester of 1'931 which has caused this grievance. •i

previous assignments the grievor was responsible for the clinical z

instruction of eight level 1 students. This instruction by the

griever always occurred in a single ward. For the fall seme

the grievor was given responsibility for nine level u(..u.:

but they were divided into two adjoining wards. In her grievance

the grievor complains that such a teaching assignment is

"impossible; unreasonable, irresponsible, •unsafe and

unequitable." She seeks c deelaratien that the a!::,ignmQn% ‘Na-;

Violation of the collective agreement and that the College PI I.; 7.: 7.

cease and desist from the practise oF assigning

to two wards simultaneously. The grievor initially claimcc

compensation for the stress caused by the assignment but this V41:.

abandoned at the hearing.

While there was some evidence of an increase in actual work

performed as the result of the change in assignment the essence

of the grievor's complaint does not reside there. The grievor

complains that because of the nature of the patients in the newly

assigned ward, the level of training of her students, ie.

beginners, the physical and administrative division resulting

from two wards instead of one, her ability to adequately

supervise and effectively teach was impaired and the potential

for harm to the patients increased. As a result the assignment

was seen as inequitable as she perceived herself being exposed ti:

three distinct risks; one, the possibility of disciplinary action

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by her employer for failure to adequately perform; two,

disciplinary action by her profession for providing ins deduate

nursing care; and throe, the possibility of a civil action 'For

negligence brought by a patient. The griever was obviously

concerned and sought advice from the .College in the form Of

statement of accountability . for Teaching Masters who had :

supervise students who were located jr different areas.

T

grievor sought a commitment from the College that such a teacher

would . not be held responsible for errors by students. . who were rio-

directly s3upervied. whe • practisng their The respon-,L•.

from the •College . was a rather skeletal Ilsting of "document

pertaining to the re ,spc. nibilities of nurseF-, .and . nurse-tuacher.

In the Faculty Handbook at Fanshawe College, D. Furlong,

,.f the School of Nursing at Victoria CampuS, Set out in a general

way the rights and responsibiltims of student • and faculty.

members. When the griever inquired of D. Furlong how whe was to

carry out her responsibilities •on two wards the response she

recieved was, "You're a mature adult, you don't need directions

to the bathroom." This was obviously an unfortunate response as

the griever. was clearly exhibiting . concern. A thorough

discussion • at that stage might have avoided the necessity of

these .proceedings.

A good deal of evidence was led .concerning the details of

the griever 's duties and how her effectivenesd was impaired by

the two ward assignment. In our view however it is not necessary

to review the same in detail here. The College admits the charge

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in ci rcumstances prevented the grievor from carrying out her

teaching assignment jr the same way that she had earlier done

insists the assignment was never the less fair and

The College maintains that it was up to the grievor to make the

necessary adjustments and to provide as good a learning

experience as she could in the new situation. The College notr

that it has never complained about the grievor's performance and

regards the grievance therefore as premature. The Collge regards

the risks to which the grievor sees herself exposed as

mispercieved. The C,.:11ege argues that the employer, t;.)e

profession and the law of torts Ask only that the grievor z:w.t

reasonably and that reasonableness depends on all

circumstances in which ore finds oneself. The College arge.'s

that one can expect no more from an individual and the g•iaysr

should know that. The College argues that the grievor was, in

effect, asking the College to guarantee that the Teaching Master

would never be held responsible for errors by students in their

charge but not directly supervised and such a guarantee was seen

by the College as impossible. For the College, student nurSe

negligence and instructor negligence are not inextricably linked.

Reviewing the evidence we find the College argument compelling

and accordingly we dismiss the grievance.

The two ward assignment, fragmenting the grievor's students

produced difficulties. The wards, though adjoining, were

separated by doors. Each ward had its own nursing team and the

griever would therefore have to liaise with two teams rather than

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one. The newly assigned ward had acute care patients which made

the selection of appropriate tasks for beginning student!, mors

difficult. With two wards the grievor did not feel as close to

her students as before and her ability to assess the students'

performance was impaired. There was evidence of three particular

incidents when student nurses made errors and the grievor

concerned that her divided attention may have somehow contributed

to the same. The grievor testified that she would feel liable if

a student made an error even though the student had been properly

instructed. ;3[1 ,3110 would have. been more on top of

situation with one ward but allowed that the incidents could also

lave occured with a single ward assignment. Shp testified th':

"Given the circumstances I did the best I could but -studr,nt::

didn't get as much benifit as they should." She did

however that it was for the College to control the quality of t;1:72

education. The grievor testified that "I worked as prudently as

I could consistent with the principles of responsibility outlined

in the documents listed by the College." The grievor allowed

that even with a one ward assignmentshe could not be looking

over the shoulder of each student nurse practising her skill but

that she needed to exercise her judgment of which tasks, on which

patient, she could delegate to which particular student. The

grievor noted that with two wards she had to adjust but that

proceeding cautiously she believed she did a competent job and no

complaints were recieved. She agreed that a two ward assignment

was not unusual and that a number of teaching masters had been

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similarly assigned. The' grievor aqrced that it .was the hospital

that determined how many student nurses would be •ermittet a

ward as it was the hospital and the hospital staff that was

primarily responsible for patient safety.

Agnes Pearce, Had Nurse on Ward 8 East worked with the

rievor during the two ward assignment. She noted that the::,

were some difficulties as at times the grievor would not ho

available to supervise a student and the regular staff would have

to perform the task preViously assigned to the student.

swit incident student cr ptr while tht Eriever was

the other ward but agreed it could have occurred*even if

griever was in Ward 8 7ast. She testified that it was the

that was responsible for patient care noting that the stof

looked after patients week-ends, nights and vacations

students were not there. She testified she had no concern dvtr

the grievor's competence and saw her performing an acceptable

Job.

Annabelle Sells, Nursing Administrative Assistant at

Victoria Hospital described the staffing procedures. For the

fall term the College had requested nine student places in Ward 8

East but the Hospital assigned only five. This was necessary

according to Ms. Sells in order to accommodate some Registered

Nursing Assistant Students in 8 East. There were R. N. A.

Students in 8 Centre and if they were divided between 8 Centre

and 3 Middlesex their teacher would need to go back and forth

through 8 East to supervise the two groups. • Accordingly the

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Hospital decided it would be better to put thee',),(t0a four

Fanshawe students in 8 Middlesex which ad_3oined J aSt4, She

testified that there have been two ward assignment• the

hospital for at least seven years. While the Hotpital •s

responsible for patient safety she was not concerned ) ,, 7ega . - -ding

the safety of this particular assignment.

Edith Davis, Campus Administrator at Victoria 1 •ilpu,

formerly a Teaching Master at Fanshawe College, testified that

with a two ward assignment, requiring more time for travel and

consultation -wth tw,:: nursing: stations, a tezcher mst ad%ust

brovide as mach teaching als the is capable of handling. She

nt(Ed the numerous other two ward asbignments at the•

She tet.ified that the Teaehing Master rev,ponsible to

the necessary teachin experience and also responsible enl.s;aru

that a student is not given a task that could not be safely e.

Donna Wells, Dean Health Sciences at Seneca College,

President '(3E1-83) of the Council of the College of Nurses,

former Teaching Master and Head Nurse who has also served on the

Complaint Committee of the College of Nurses testified to her

opinion of a Teaching Master's responsibilities. According to

Ms. Wells the_ Teaching Master is.to provide a good learning

experience. She must Use her professional nursing judgment

regarding the patient's condition and the student's capacity

before approaching the staff nurse; it is the staff nurse's

responsibility for the safety of the patient that makes it her

final decision as to whether the suggested match is suitable.

Teachers and Students are guests in the Hospital whose staff are

responsible for patient safety. She testified that a change from

a one ward to a two ward assignment would not affect patient 4

risk:

The teacher'p obligation is to provide suitable learning experiences for her students. This is done collaboration with staff who are responsible for patient care and who could not be a party to an assignment that would put the patient at risk. The teacher must control the situation and direct the student to ensure the student waits if necessary. A teacher cannot be over the student's shoulder all the time and therefore all teachers are uncomfortable when absent from their• student. All teachers suffer the tension of responsibility of determining when a student is able to prI)ceed independently. The learning e gperiendo in ward' a,:ign , ■ ;c nt may be lits than n one mrrd but i:oes not make it an invalid learnini, vxperlunce...

The teacher is not obliged to take arty responsibility fr patient care; she has the responsibllity teaching, for providing suitable match-ups between student and patient. Supervision, involves delegation, knowing what to delegate...

An assignment is only unreasonable if the teacher cannot control the learning experience...

I don't equate supervision with teaching. I would leave then alone with acute care patients but subject to my clear direction respecting what they can and cannot .do without my presence and subject also to staff's prime responsibility. Supervision frequently inhibits learning...

A teacher cannot accept responsibility for a student going beyond the parameters of the game plan. Learning involves risk. Though the teacher is aware of the risk her function, is to provide the learning experience.

We have quoted at length from the testimony of Donna Wells.

The College Instructional Assignment Committee was unable to

resolve the complaint. We are an outside tribunal lacking

expertise but called on to make a decision on alleged inequities

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in a teaching assignment. Donna. Wells supplied that expertise.

Her views are of course not binding on the Complaints Committ=

of the College of Nurses, on Fanshawe College nor on the courts

but her testimony was not impaired on cross-examination and is

accepted by us as the best evidence before us of a Teaching

Master's responsibilities.

Assignment of Teaching Masters is a collaborative effort

between the College and the Hospital with the Hospital having the •

final say on how many students can be placed. The Hospital must

make certain E;djustu.cnt serve the need of student,:.i

rom Fanshawe anC from othr places Nell. Thu 2.7,11er

may hove to adjwzt plan to fit within the- Hopital'',

Gcheme, The Teaching Master may need to adjuGt her teachin

accommodate the situation presented to her. Az long as the

teacher can "control the learnino experience" we cannot say the

assignment is ineqUitable. The grievor's evidence was that she

was able to control that experience and believed that she had

performed competently. No-one from the College nor the Hospital

complained. We appreciate the concern which she exhibited over

the risks perceived by her but we conclude that they were

misperceived. There is a limit to how particular the College can

be in giving instruction to its Teaching Masters. The Teaching

Master does owe multiple duties: to herself, to the College, to

her profession, to the student, to the hospital and to the

patient. All one can ask is that she act prudently within the

the soundest general . guidelines announced, exercising

Del isle, Chairman

I concur/ I dissent

F. R. Noddle, Nominee

professional judgment of . which she ici • capable. It is hoped that

this hearing has clarified for the grievor the state of hcr

accountability and will minimize the stress that goes with hor

demanding task.

The grievance is dismissed.

J. McManuq , Nomince

I coneVr/....I.Tt.rmyryltv°

AC . 1: 177011INTial e10,1.01.1311ErneWIT

FANSHAWE COLLEGE AND OPSEU

GRIEVANCE OF A. WILSON

OPSEU #82100

ADDENDUM

I respect the apprehension that gave rise to this

grievance. From the award, Mrs. Wilson will now know that

there is a limit to the extent of her accountability.

In future, when a Teaching Master expresses to Management

some genuinely felt concern. I hope that the College will avoid

responding in a fashion that can be so easily interpreted as

supercilious. The statement ."You're a mature adult, you

don't need direction to the bathroom." was indeed unfortunate.

As the award points out, a thorough discussion at that stage might

have avoided the necessity of these proceedings.

z