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HomeMy WebLinkAboutHuinink 14-08-22IN THE MATTER OF AN ARBITRATION Pursuant to the Labour Relations Act, S.O. 1995 Between: HAMILTON HEALTH SCIENCES CORPORATION (the “Employer”) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 273 (the “Union”) Re: Grievance of Kristi Huinink - Article 17.10 - Shift Change Pay A W A R D PAULA KNOPF - ARBITRATOR APPEARANCES For the Employer For the Union Brent Labord, Counsel Jesse Gutman, Counsel Arlene Papaioannou Debbie Teichgraf Cheryl Malcolmson Mike Anzonvino Marie Misiti Kristi Huinink The hearing of this matter was held in Hamilton on July 13, 2014. 2 This is a claim for compensation for a shift change that was imposed upon the Grievor with less than 48 hours’ notice. This resulted in disruption to the Grievor and her family. The Collective Agreement provides for payment at the rate of 1½ the regular hourly rate if notice is not given 48 hours in advance, although exceptions to the entitlement to this rare are contained in the clause. The Employer has denied the claim, asserting that the facts of this case fit within one of the exceptions. The Collective Agreement provides: 17.10 Changes in Schedules (b) Posted Schedules An employee’s schedule will be posted in a prominent location within a department at least four (4) weeks in advance of the week to which the schedule applies. (c) The Hospital will endeavor to provide as much advance notice as is practicable of a change in the posted schedule referred to in (b) above. Changes to the posted schedule shall be brought to the attention of the employee. Where an employee is not advised within forty-eight (48) hours prior to the actual schedule change, time and one half (1½) of the employee’s regular straight time hourly rate will be paid for all hours worked on the new schedule which differ from her originally scheduled hours. This provision shall not apply where any changes in schedule arises from: (i) the appointment of an employee to a permanent or temporary vacancy, or (ii) any change in schedule requested by an employee, or (iii) any change in schedule resulting from the accommodation of an employee modified work program, or (iv) any addition or deletion of a shift from the posted schedule referred to in (b) above. The parties presented this case largely on the basis of the following “Agreed Statement of Facts and Issue”: The parties agree that Arbitrator Paula Knopf has jurisdiction in this matter. The parties further agree that there are no preliminary issues with respect to this dispute. For the purposes of expediting the resolution of the arbitration in this matter, the parties have mutually agreed to the following facts and statement of issue to be 3 placed before the Arbitrator along with the parties’ legal arguments, to resolve the issue in dispute. The parties agree that these facts are agreed upon solely for the purpose of resolving the dispute in question. A. THE PARTIES 1. Hamilton Health Sciences (“HHS” or the “Hospital”) is an independently governed academic health science organization funded primarily through transfer payments from the Province. HHS is governed by one board, has one management structure and has approximately 1,100 beds. 2. HHS operates a number of locations including: Chedoke Hospital, Hamilton General Hospital, Juravinski General Hospital, McMaster Children’s Hospital, McMaster University Medical Centre, St. Peter’s Hospital, West Lincoln Memorial and the Juravinski Cancer Centre. It provides tertiary, secondary and ambulatory health care services to Hamilton as well as Central South and Central West Ontario. 3. The Ontario Public Service Employees Union (“OPSEU” or the “Union”) represents technologists and technicians in a bargaining unit covering both full- time and part-time employees at HHS. OPSEU members at HHS are represented by OPSEU Local 237. 4. The relevant collective agreement governing labour relations between HHS and the Union [was filed in evidence]. B. GRIEVANCE 5. By grievance dated March 27, 2013, the Grievor, Kristi Huinink, a casual part- time x-ray technologist, alleges a violation of Article 17.10(c) of the collective agreement by having her shift of March 2, 2013 changed from day shift to night shift with less than 48 hours’ notice and was not paid time and one-half her regular rate for all hours worked on the night shift on March 2, 2013. 6. By correspondence dated July 3, 2013, the grievance was denied and the Hospital asserts that Article 17.10(c)(iii) provides an exception in the circumstances. C. MATERIAL FACTS 7. At the Hamilton General site, there is a Diagnostic Imaging Department. 8. The Grievor is a casual part-time x-ray technologist employed at the Hamilton General site. 9. Pursuant to Article 17.10(b) of the collective agreement, employees’ schedules are posted four weeks in advance of the week to which the schedule applies. 4 10. The schedules for the weeks of Saturday, February 23, 2013 to Friday, March 1, 2013 (week 9) and Saturday, March 2, 2013 to Friday, March 8, 2013 (week 10) were each posted four weeks in advance. 11. (a) Pursuant to the posted schedules, the Grievor was scheduled to work 8:30 a.m. to 4:30 p.m. on both Saturday, March 2, 2013 and Sunday, March 3, 2013 (i.e. day shift). (b) Pursuant to the posted schedules, Ms. A1, also a casual part-time x-ray technologist, was scheduled to work midnight to 8:00 a.m. on both Saturday, March 2, 2013 and Sunday, March 3, 2013 (i.e. night shift). 12. Ms. A suffered a workplace injury compensable under the Workplace Safety Insurance Act in February, 2013 resulting in physical restrictions. At a joint return to work meeting between the parties on February 27, 2013, it was agreed that Ms. A’s restrictions precluded her from working the night shift for which she was scheduled for March 2 and 3, 2013, due to the likely requirement which is inherent to the night shift to lift/position/transfer patients. The joint return to work meeting concluded that the employee could be accommodated as an x-ray technologist by working day or evening shift as the level of staffing was higher and assistance for positioning/transfers was available. [sic] 13. As part of the return to work plan accommodation as set out above, on February 27, 2013 a written request was made to all x-ray technologists scheduled to work days or evenings on March 2 and/or 3, 2013 for a volunteer to switch shifts with Ms. A to accommodate her restrictions. The request for volunteers also stated that, in the absence of a volunteer, the accommodation switch of shifts would be assigned to one of the staff. 14. As a result of there being no volunteers to switch shifts, by written notice dated February 28, 2013, at 11:22 a.m., the Hospital changed the Grievor’s scheduled shifts from day shifts to night shifts for March 2 and 3, 2014, and changed Ms. A’s scheduled shifts from nights to days for March 2 and 3, 2013 to implement the modified work plan accommodation. 15. There is no dispute that the selection of the Grievor, as opposed to other staff, was made in good faith and for legitimate business reasons. 16. Both the Grievor and Ms. A worked the 7.5 hour changed shifts and neither received 48 hours’ advance notice of their changed schedule for their respective shifts worked on March 2, 2013. Both employees were paid straight time for all hours worked on March 2, 2013. 1 Her name has been redacted for purposes of privacy protection. 5 D. ISSUE 17. The parties agree that the sole issue to be decided by the Arbitrator is whether the Hospital violated Article 17.10(c) by not paying the Grievor time and a half for her hours worked on March 2, 2013. The Union does not assert that the accommodated employee is entitled to time and a half under Article 17.10(c). These agreed facts were supplemented by the evidence of the Grievor. She explained that because she received only 36 hours’ notice of the change from her scheduled day shift to the night shift, this had a disruptive effect upon her and her family. To protect her privacy, I shall not recount the details of her family’s complicated schedule. However, there was no challenge to her evidence that detailed the ways her carefully arranged family life was negatively affected. As a result, she lost the opportunity to rest as much as she would have liked before both the March 2 and 3 shifts. Nonetheless, she worked both shifts and fulfilled her duties. The Submissions of the Parties The Submissions of the Union The Union did not contest the Employer’s right to change the Grievor’s shift on short notice or the fact that the change was triggered by the need to accommodate another employee. However, the Union asserted that the Grievor is entitled to be compensated for the disruption of her personal time pursuant to Article 17.10(c) because she was not given 48 hours’ notice of the change to her schedule for March 2. To support the concept of compensation in the event of a shift change, the Union relied upon Katoen Natie Canada and U.F.C.W. Local 175, 54974 (ON LA) (Grey) (April 2, 2004); St. Clair Chemical Ltd. and Oil, Chemical and Atomic Workers, Local 9-14, (1973) 5 L.A.C. (2d) 50 (H.D. Brown); Prince Rupert Regional Hospital (Health Labour Relations Association) and H.E.U., (1993) 31 C.L.A.S. 144, 1993 CLB 13081 (Kelleher). The Union also argued that Article 17.10 contains positive language requiring the Employer to give employees as much notice as practical be of a shift change. The Union stressed that the Employer was aware of the need to replace the injured employee on February 27, 2014 and could or should have assigned someone to that shift rather than letting 11 hours elapse waiting for a volunteer to step forward. The 6 Union pointed out that if the Employer had assigned the Grievor to the shift as soon as the need to fill it had been recognized, the Grievor would have had adequate notice of her shift change and could have made arrangements to minimize the disruption to herself and her family. The Union also criticized the Employer for only canvassing other casual employees for volunteers, rather than soliciting volunteers who were full-time or part-time employees. Because of this, the Union argued that the Employer failed in its responsibility to give “as much notice as is practicable” of the shift change. The Union also submitted that the exception to compensation in Article 17.10(iii) only applies to the employee who is being accommodated, not the other employee, like the Grievor, who is impacted by that accommodation. The Union described this as the “domino effect” of an accommodation and argued that the clause should not be read to disentitle such employees from the benefit of compensation. The Union stressed that nothing in the Collective Agreement should be interpreted to wipe out the specific benefit of a premium for short notice just because of an accommodation for another employee. In support of this the Union referred to Overwaitea Food Group and U.F.C.W., Local 1518, (1996) 55 L.A.C. (4th) 300 (Bird). The Union also stressed that Article 17 be read “as a whole” and that it would require clear and specific language to impose exceptions to compensation for short notice of a shift change. By way of remedy, the Union requested a ruling indicating that Article 17.10(c)(iii) exempts only the accommodated employee from the entitlement to extra pay in the event of a shift change designed to facilitate the accommodation. In the alternative, the Union asked for an award recognizing that the Grievor is entitled to be compensated at the rate of 1½ times her regular rate because she was not given sufficient notice of the change in her March 2 nd shift because the Employer could have made better efforts to find a volunteer and/or could have actually scheduled her with 48 hours’ notice. The Submissions of the Employer The Employer stressed that Article 17 allows the Employer to change employees’ schedules on short notice, but provides a different rate of pay only if the notice is less 7 than 48 hours and does not fall within the “exceptions to the exception” in Article 17.10(c). Turning specifically to Article 17.10(c)(iii), the Employer argued that this “exception” removes the entitlement to extra pay if the shift change is the result of or has been triggered by an “accommodation of an employee modified work program.” The Employer asserts that this is what happened in this case. The Employer stressed that this case arose in the context of a workplace injury requiring accommodation of another employee that triggered the immediate need to change the shift schedule. It was submitted that the Employer implemented a “very prudent labour relations approach” to the situation by canvassing the casual staff for volunteers before imposing a shift change on the Grievor and by giving employees sufficient time to see if anyone would “step up” to fill the required shifts. Further, it was said that the Employer’s actions were consistent with its management right “to schedule work to be performed” (Article 29), as well as being in accordance with the responsibility it shares with the Union and employees to accommodate disabilities, prevent discrimination and facilitate the return to work of disabled employees, pursuant to their obligations under the Human Rights Code and Articles 3.02, 3.04 and Memorandum of Agreement August 15, 2012. In light of this, the Employer argued that the provisions that trigger premiums for the failure to provide 48 hours’ notice of a shift change should be construed narrowly. Conversely, it was said that Article 17.10(c)(iii) should be read very broadly to allow that “any change . . . resulting from the accommodation of an employee modified work program” applies to anyone affected by the change, not just the employee being accommodated. The Employer submitted that if the parties had intended Article 17.10(c)(iii) to apply only to the accommodated employee, they could have signaled this by using the word “such employee” as they have done in other provisions of the Collective Agreement or making that intention more clear. However, the Employer argued that the “plain” meaning of the clause is that the parties created an exception from entitlement to the premium rate when someone’s schedule is changed on short notice because of the accommodation of another employee. This was said to be consistent with the purpose of Article 17.10(c)(iii) and the parties’ obligations under the Human Rights Code . It was also suggested that any other reading could result in 8 discrimination against disabled employees. Essentially, the Employer argued that this clause should be read to ensure that there is no cost to the Employer of an accommodation and that employees should be prepared to accept the burden of facilitating the needs of others in the bargaining unit. The Employer pointed to the following cases, urging their interpretative approaches: Clean Harbors Canada Inc. and C.E.P., (2012) 216 L.A.C. (4th) 276 (Knopf); Bayer Rubber Inc. and C.E.P. Local 914 (Hannaford), (1997) 65 L.A.C. (4th) 262 (Watters). Finally, while acknowledging that the Grievor’s family and personal life was impacted by the short notice of the shift change, it was stressed that she is a casual employee and any difficulty she encountered has no legal impact on the interpretation or application of the Collective Agreement. Reference was made to Thunder Bay Regional Hospital and O.N.A. (Kirk) [2004] O.L.A.A. 144 (Randall). The Employer therefore asked that the grievance be dismissed. The Union’s Reply Submissions Acknowledging that the Grievor is a casual employee, it was stressed that she is still entitled to the protections and benefits of Article 17.10. The Union maintained that the Employer is obligated to pay the consequences of its failure to give her at least 48 hours’ notice of the shift change. Further, while the Union accepted that it and bargaining unit members share responsibilities with respect to accommodation of injured workers, it also stressed that this does not override the rights under Article 17.10. The Decision It is helpful to begin by clarifying what is not in dispute. It is agreed that this Collective Agreement allows this Employer to change scheduled shifts, even on short notice. Further, the parties have agreed that the Grievor’s shift was changed as a result of a joint back to work protocol crafted for another employee on February 27 and designed to take effect on her next scheduled shift of March 2. This meant that the Employer had 9 to staff the accommodated employee’s shift with another employee. The Employer first tried to do this by calling for volunteers. When no one stepped up to fill that shift, the Employer exercised its right to select and schedule the Grievor to fill the need, thereby altering her schedule from the day to the night shift. The Union quite properly acknowledged that this was a valid and bona fide exercise of management rights under this Collective Agreement. Further, it should also be noted that while the Employer stressed that the Grievor is a casual employee who, by definition, is employed on a “relief or replacement basis” and can be called in “as circumstances demand,” (Article 2.04), the parties also agreed that casual employees are entitled to the rights and entitlements that are created in Article 17.10. Therefore, the casual nature of her employment status has no negative impact on her rights in this case. Next, it is important to focus upon the real issue in this case and avoid allowing these facts to have implications beyond their own purview. There is no question that the Employer and the Union share an obligation under the Human Rights Code and the Collective Agreement to facilitate the accommodation of injured workers and that this may also involve obligations on bargaining unit members to shoulder some of the burden. However, nothing in the facts of this case or the interpretation of Article 17.10 should be read to imply that there should never be financial burden on an employer for an accommodation or that an employee must forgo a contractual benefit in order to implement an accommodation. There is no rule of interpretation that presumes that an accommodation should have no financial impact. Similarly, there are situations where employees are negatively impacted by accommodations of their colleagues, such as the need to undertake greater duties, alterations to their schedules, to name but a few examples. However, I must reject this Employer’s suggestion that the Union’s position in this case could result in discrimination against injured workers or that the contract should be interpreted to ensure that accommodations must be achieved without cost to the Employer. Both propositions go beyond the reach of this case and are not supported by this contract or any arbitral authority. 10 Therefore, the only issue is whether the Grievor is entitled to extra compensation under these circumstances. The answer to this lies in the wording of the Collective Agreement. Article 17 obligates the Employer to “endeavor to provide as much advance notice as practicable of a change in the posted schedule.” The key here is that while the Employer can change the schedule, it has promised to try to give as much notice “as is practicable.” The only stipulated consequence for short notice is that if an employee is not notified of the change within 48 hours, s/he is entitled to be paid at 1½ times his/her regular rate of pay. As stated in Overwaitea Foods, supra, the Employer has the right to change the employee’s schedule, by giving less than 48 hours’ notice, but there is a “price attached to short notice.” In the case of the Grievor, whether the Employer could or should have given her more notice than the 36 hours she did receive, the fact remains that she did not get 48 hours’ notice of her shift change. If there were no exceptions to the short-notice premium rate, the Grievor would be entitled to the extra pay. However, Article 17.10(c) must be read as a whole. It lists four exceptions to the concept of extra pay for short notice, stating that “this provision” does not apply to any changes in schedules under the circumstances listed in sub-paragraphs (i)-(iv). One of those exceptions is where there is “any change in schedule resulting from the accommodation of an employee modified work program.” The Union had argued that this applies only to the accommodated employee’s change in schedule. That argument cannot be accepted. First, the words must be given their plain and ordinary meaning. Inferences can only be drawn where there is supporting language to ground the proposition. This clause does not say ‘any change in the accommodated employee’s schedule.’ Nor does it say “such employee’s schedule,” or of “the employee’s modified work program.” Any of those wordings would support the notion that the exception applies only to the accommodated employee. Instead, sub-paragraph (iii) simply states that the right to the premium rate does not apply to circumstances that include any 11 change in schedule “resulting from the accommodation of an employee modified work program.” This must refer to changes in any employee’s schedule resulting from the accommodation. Two basic principles of contract interpretation are that the contract must be read as a whole and that its terms are presumed to be consistent. These principles were accepted by both parties in this case. Applying them to Article 17.10, one might look to the exceptions to see if they only applied to shift changes triggered by the employee requesting the premium rate. If that were the case, then the Union’s reading of sub- paragraph (iii) would be consistent with such a pattern. However, the other three exceptions in 17.10(c) refer to changes beyond those requested by an employee. The Employer could trigger the additions or deletion of a shift or appointments to temporary or permanent vacancies. Therefore, it cannot be said that the only exceptions to the payment of the short-notice premiums are those brought about by the employee seeking or needing the change of shift. Instead, it must be concluded that this Collective Agreement has created several exceptions to the entitlement to the short- notice premium, one of which is exempting the situations where the shift change has resulted from the accommodation of an employee. This reading is consistent with the Collective Agreement’s commitment to the facilitation of accommodations. It does create an imposition upon the employee who gets short notice because his/her personal life may be negatively affected and s/he will not receive the extra compensation that would be payable if the shift change had been triggered for any reason other than the listed exceptions in Article 17.10 (c) (i-iv). But for the inclusion of Article 17.10 (c) (iii) in this Collective Agreement, the Grievor’s case would have succeeded. In Overwaitea Food Group, supra, it was stressed that “the duty to accommodate is not an eraser with which an employer can rub out inconvenient provisions of a collective agreement”, (p. 311). Therefore, without Article 17.10 (c) (iii) the Employer could not draw upon the employee’s obligation to facilitate a co-worker’s need for accommodation as a justification for the denial of the short-notice premium. However, the inclusion of sub-paragraph (iii) must be given effect and 12 recognized as the parties’ agreement to exempt the short-notice premium in circumstances that fit within its language. In the case of the Grievor, her scheduled shift was changed with less than 48 hours’ notice. However, this was as a result of the accommodation of an employee modified work program. Under these circumstances, despite the personal difficulties the Grievor faced because of the short notice, she falls squarely within the exception listed in Article 17.10(c)(iii). While it may be true that the Employer could have given her better notice of the shift change, the failure to do so does not trigger any contractual right to greater pay for the shift she had to work. As a result, the grievance must be dismissed. Dated at Toronto this 22nd day of August, 2014. ____________________________ Paula Knopf - Arbitrator