HomeMy WebLinkAboutUnion 14-08-15
IN THE MATTER OF AN ARBITRATION
BETWEEN:
THE SCARBOROUGH HOSPITAL
(the “Employer”)
-AND-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 581
(the “Union”)
AND IN THE MATTER OF A POLICY GRIEVANCE CONCERNING THE
OFFERING OF EARLY RETIREMENT ALLOWANCES AND VOLUNTARY
EARLY EXITS
ARBITRATOR ROBERT J. HERMAN
APPEARANCES
FOR THE UNION ROBIN LOSTRACCO
VERA TSOTSOS
CANDACE PATTERSON
FOR THE EMPLOYER ROB WEIR
KAREN DOBBIE
ROSE DOWKINS
KIRSTEN CAMPBELL
A HEARING WAS HELD IN TORONTO ON MAY 21, 2014
A W A R D
1. The issue raised in this policy grievance is whether the Employer, the
Scarborough Hospital (the “Hospital”), is required to offer an Early Retirement
Allowance (“ERA”) and a Voluntary Early Exit option (“VEE”) to employees who are
displaced when they are bumped from their positions by employees who earlier received
layoff notices.
2. The facts are set out in an Agreed Statement of Facts;
1. The Scarborough Hospital (the "Hospital") and OPSEU, Local 581 (the
"Union") are parties to a collective agreement covering office and clerical
employees (the "Collective Agreement"). See Appendix A- Collective
Agreement
2. The Hospital is a public Hospital within the meaning of the Ontario Public
Hospitals Act.
3. On or about February 13, 2012, The Hospital gave notice to the Union that
one Full-Time Secretary 4, Capital Projects position was being eliminated.
The Hospital indicated it was giving notice in accordance with Article 14.01
(a) (i) of the Collective Agreement. See Appendix B- Letter from Patricia
Ignagni dated February 13, 2012.
4. Based on section 14.03 of the Collective Agreement, the Hospital made Early
Retirement Allowance offers to two employees holding Secretary 4 positions.
An offer was made to Diane May on or about February 28, 2012 and to Bonita
Chan on or about March 22, 2012. Diane May and Bonita Chan declined to
take Early Retirement packages. See Appendix C- Emails between Fay
Calliste and Vera Tsotsos dated April 17, 2012.
5. Subsequently, based on section 14.04 of the Collective Agreement, Voluntary
Early Exit Offers were sent to ten employees in the Secretary 4 classification
on or about April 24, 2012. No employee accepted those offers.
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6. A notice of layoff was issued to Elaine Lee (Full-Time Secretary 4 in Capital
Projects) on May 7, 2012. See Appendix D- Letter from Rose Dawkins dated
May 7, 2012.
7. Elaine Lee opted to displace Emanuela Di Giuseppe a Full-Time Secretary 4,
Information Services) on May 10, 2012. See Appendix D-
8. Emanuela Di Giuseppe was issued a notice of layoff as required by section
14.02(d) which stated it was issued in accordance with section 14.01 (a) (ii) of
the Collective Agreement on or about May 11, 2012. See Appendix E- Letter
from Rose Dawkins dated May 11, 2012.
9. Emanuela Di Giuseppe, Full-Time Secretary 4, opted to displace Andrea
Hanseler, Full-Time Unit Clerk/Clerk 4, Diagnostic Imaging on May 18,
2012. See Appendix F- Signed back letter.
10. On or about May 24, 2012 the Union emailed Human Resources Business
Partners Rose Dawkins and Melissa Beckette-Batchellor inquiring as to why
offers were not made in the Unit Clerk 4/Clerk 4 category prior to a meeting
being scheduled to issue a Notice of lay-off to Andrea Hanseler.
11. A notice of layoff was issued to Andrea Hanseler as required by section
14.02(d) on or about May 24, 2012. See Appendix G- Letter from Rose
Dawkins dated May 24, 2012.
12. There were originally no permanent vacancies for Ms. Hanseler to choose
from. She elected to bump another employee, but she was the least senior
employee in the same or lower or identical paying classification.
13. On or about June 1, 2012 an email was sent from Vera Tsotsos to Rose
Dawkins, Melissa Beckett-Batchellor and Patricia Ignagni informing the
Hospital of the Union's intention to file a policy grievance. See Appendix H-
Email from Vera Tsotsos dated June 1, 2012.
14. On or about June 7, 2012, the Union filed a Policy Grievance alleging that
the Hospital had violated Article 14.03 and 14.04 and any other relevant
articles in the collective agreement or legislation by failing to offer Early
Retirement Allowances and Voluntary Early Exit Offers in the FT Clerk/Unit
Clerk 4 classifications. See Appendix I- Policy Grievance dated June 7, 2012.
15. On or about June 18, 2012 a grievance meeting was held.
16. On or about June 18, 2012 Andrea Hanseler's layoff was rescinded because
Emanuela Di Giuseppe accepted a new Full Time Unit Clerk 4 position in the
Gain Clinic. See Appendix J- Letter from Rose Dawkins dated June 18, 2012
17. On or about June 21, 2012, the Hospital denied the grievance on the basis
that there was no violation of the Collective Agreement. Ms. Beckett-
Batchellor stated in the denial that the Hospital had met its obligation by
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offering packages within the Secretary 4 classification. See Appendix K-
Email from Melissa Beckette-Batchellor dated June 21, 2012.
18. On or about June 27, 2012 the Union referred the grievance to arbitration.
See Appendix L- Letter from John McHenry dated June 27, 2012.
19. On or about July 11, 2012 Elaine Lee received confirmation of transfer to the
Secretary 4 position in the Information Services and Telecommunication
Department. See Appendix M- Letter from Rose Dawkins dated July 11, 2012
20. On or about August 1, 2012 Emanuela Di Giuseppe received confirmation of
transfer to the Unit Clerk 4 position in the Gain Clinic. See Appendix N-
Letter from Rose Dawkins dated August 1, 2012.
3. The relevant provisions of the Collective Agreement read:
ARTICLE 14-JOB SECURITY
14.01 Notice and Redeployment Committee
(a) In the event of a proposed layoff at the Hospital of a permanent or
long-term nature or the elimination of a position within the
bargaining unit, the Hospital shall:
(i) provide the Union with no less than five (5) months' written
notice of the proposed layoff or elimination of position; and
(ii) provide to the affected employee(s), if any, who will be laid off
with no less than five (5) months’ written notice of layoff, or pay
in lieu thereof.
Note: Where a proposed layoff results in the subsequent displacement of
any member(s) of the bargaining unit, the original notice to the Union
provided in (i) above shall be considered notice to the Union of any
subsequent layoff.
(b) A layoff shall not include a reassignment of an employee from her or his
classification or area of assignment who would otherwise be entitled to
notice of layoff provided:
(i) the reassignment of the employee is to an appropriate permanent
job with the employer having regard to the employee's skills,
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abilities, qualifications and training or training requirements;
(ii) the reassignment of the employee does not result in a reduction of
the employees wage rate or hours of work;
(iii) the job to which the employee is reassigned is located at the
employee's original work site or at a nearby site in terms of
relative accessibility for the employee;
(iv) the job to which the employee is reassigned is on the same or
substantially similar shift or shift rotation; and where more than
one employee is to be reassigned in accordance with this
provision, the reassigned employees shall be entitled to select
from the available appropriate vacancies to which they are being
reassigned in order of seniority provided no such selection causes
or would cause a layoff or bumping.
The Hospital bears the onus of demonstrating that the foregoing
conditions have been met in the event of a dispute. The Hospital shall
also reasonably accommodate any reassigned employee who may
experience a personal hardship arising from being reassigned in
accordance with this provision.
. . . .
14.02 Layoff and Recall
In the event of a layoff, the Hospital shall layoff employees in the reverse order
of seniority within their classification, providing that those employees who
remain on the Job have the qualifications and ability to perform the work.
An employee in receipt of notice of layoff pursuant to 14.01 (a) (ii) may:
(a) accept the layoff; or
(b) opt to receive a separation allowance as outlined in Article 14.06; or
(c) opt to retire, if eligible under the terms of the Hospitals of Ontario
Pension Plan (HOOPP) as outlined in Article 14.03 or
(d) displace another employee who has lesser bargaining unit seniority in the
same or a lower or an identical-paying classification in the bargaining unit if the
employee originally subject to layoff has the ability to meet the normal
requirements of the Job. An employee so displaced shall be deemed to have
been laid off and shall be entitled to notice in accordance with Article 14.01.
An employee who chooses to exercise the right to displace another employee
with lesser seniority shall advise the Hospital of his or her intention to do so and
the position claimed within seven (7) days after receiving the notice of layoff.
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An employee who displaces an employee in a lower paying classification will be
placed on the same step on the grid in the new position as she held in the
position from which she was laid off.
Note: For purposes of the operation of clause (d), an identical-paying
classification shall include any classification where the straight-time hourly
wage rate at the level of service corresponding to that of the laid off employee is
within 1% of the laid off employee's straight time hourly wage rate.
. . . .
14.03 Early Retirement Allowance
Prior to issuing notice of lay off in any classification(s), the Hospital will
offer early retirement allowance to a sufficient number of employees eligible
for early retirement under HOOPP within the classification(s) in order of
seniority, to the extent that the maximum number of employees within a
classification who elect early retirement is equivalent to the number of
employees within the classification(s) who would otherwise receive notice of
lay off.
The Hospital will meet with the Union prior to offering early retirement as
outlined above. Unless otherwise agreed between the Hospital and the Union, an
employee who elects an early retirement option shall receive, following
completion of the last day of work, a retirement allowance of two weeks salary
for each year of service, plus a prorated amount for any additional partial year of
service, to a maximum ceiling of 52 weeks salary.
14.04 Voluntary Early Exit
If after making offers of early retirement, individual layoff notices are still
required, prior to issuing those notices the Hospital will offer a voluntary
early exit option in accordance with the following conditions:
1. The Hospital will first make offers in the classification within department(s)
where layoffs would otherwise occur. If more employee [sic] than are required
are interested, the Hospital will make its decision based on seniority.
2. If there are not sufficient employees in the department affected accept [sic] the
offer, the Hospital will then extend the offer to employees in the same
classification in other departments. If more employees than are required are
interested, the Hospital will make its decision based on seniority.
3. In no case will the Hospital approve an employee's request under (1) and (2)
above for a voluntary early exit option, if the employees remaining are not
qualified to perform the available work.
4. The number of voluntary early exit options the Hospital approves will not
exceed the number of employees in that classification who would otherwise
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be laid off. The last day of employment for an employee who accepts a
voluntary early exit option will be at the Hospital's discretion and will be no
earlier than thirty (30) calendar days immediately following the employee's
written acceptance of the offer.
An employee who elects a voluntary early exit option shall receive, following
completion of the last day of work, a separation allowance of two (2) weeks' for
each year of service, to a maximum of fifty-two (52) weeks pay.
(emphasis added)
4. The Union submits that before issuing Hanseler a notice of layoff (cf. paragraph
9 in the Agreed Statement of Facts), the Hospital was required to have offered an ERA
and a VEE to her classification of Unit Clerk 4. The Union notes that Article 14.03
states that before issuing a notice of layoff “in any classification”, the Hospital is
required to offer an ERA to employees within the classification, and that Article 14.04
states that the Hospital is required also to offer a VEE if individual notices of layoff
would still be required. It submits, therefore, that the Hospital must offer the ERA,
and if a layoff would still result, the VEE as well, before the issuance of a notice of
layoff to any employee who is displaced because s/he is bumped by another employee.
The Union asserts that this very issue has previously been determined by a board of
arbitration, on virtually the same language, in St. Peter’s Hospital v. Canadian Union of
Public Employees, Local 778 (Early Retirement Grievance) [1998] O.L.A.A. No. 867
(Kaplan), and its companion decision (dated November 3, 1998, unreported). The
Union also refers to Hamilton Health Sciences and O.P.S.E.U, Local 273 (Layoffs)
(2011) 106 C.L.A.S. 103 (Fisher), and Temiskaming Hospital and C.U.P.E., Local 904
(1995) 41 C.L.A.S. 352. With respect to remedial relief, the Union does not seek
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damages, but only a declaration that the Hospital breached the Collective Agreement.
5. The Hospital argues that once the first notice of layoff was issued (after ERA’s
and VEE’s were first offered to the employees who might otherwise be laid off), the
Hospital had no further obligation to offer ERA’s to employees in different
classifications. The Hospital notes that the last part of the first paragraph of Article
14.03 states that the maximum number of employees who elect early retirement is
equivalent to the number of employees in the classification “who would otherwise
receive notice of lay-off”. Upon being displaced, the Hospital argues, Di Giuseppe and
Hanseler were “deemed to have been laid off”, as stipulated by Article 14.02 (d), and
were as of that point in time, therefore, already laid off. While Article 14.03 indicates
that “prior to issuing notice of lay off in any classification”, the Hospital will offer
ERA’s to employees in the classification, the Hospital submits that since the displaced
employee is immediately deemed “to have been laid off”, and since a notice of layoff
was previously issued to the first employee who would be laid off, there was no
obligation to offer the ERA to the displaced (“deemed to have been laid off”) employee,
nor any opportunity to do so. It maintains that it is not intended in these circumstances
that Articles 14.03 and 14.04 require that displaced employees first be offered the ERA
and VEE before being laid off. The Hospital relies on the decision in Sudbury
Regional Hospital v. Canadian Union of Public Employees, Local 1623 (Whissell
Grievance) [2007] O.L.A.A. No. 439 (Albertyn), where the arbitration board concluded
that the phrase “deemed to have been laid off” meant that the bumped employee was
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laid off as of when they were displaced. The Hospital argues that the layoffs of Di
Giuseppe and/or Hanseler therefore occurred when they were displaced and deemed laid
off, and not when they subsequently received notices of layoff, so that there was no
opportunity to offer ERA’s or VEE’s prior to their layoffs. It follows, asserts the
Hospital, that the Collective Agreement does not require the Hospital to have done so,
and the grievance should be dismissed.
Decision
6. The purpose of first offering ERA’s and VEE’s to employees is to explore
options that, if agreed to by an employee, would avoid the necessity of an employee
being laid off. For this reason, the Collective Agreement requires that the offers must
be made prior to the giving of a notice of layoff to an individual employee, even though
the Union might already have been notified of the layoff or elimination of a position.
7. When the Hospital decided to eliminate one full-time position in the bargaining
unit, it therefore gave notice to the Union pursuant to Article 14.01 (a) (i). Then, as
required by Article 14.03, prior to giving a notice of layoff to individual employees
pursuant to Article 14.01 (a) (ii), the Hospital offered ERA’s to employees in the same
classification. When these offers were declined, it then made VEE offers to the
appropriate employees, as required by Article 14.04. It was only after both the ERA
and VEE offers were all declined that the Hospital, on May 7, 2012, issued a notice of
layoff to Elaine Lee, pursuant to Article 14.01 (a) (ii). The parties are agreed that the
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Hospital acted as required by the Collective Agreement in all these respects.
8. Three days later, Lee opted to displace Emanuela Di Giuseppe, who in turn was
given a notice of layoff dated May 11, 2012. It appears that Di Giuseppe had
previously been offered the ERA and VEE (cf. paragraphs 4 and 5 of the Agreed
Statement of Facts). In any event, on May 18, 2012, Di Giuseppe elected to displace
another employee, Andrea Hanseler. A notice of layoff was issued to Hanseler on May
24, 2012. Hanseler was not first offered an ERA or VEE before being issued a notice
of layoff.
9. Article 14.03 states that “Prior to issuing notice of lay off in any
classification(s), the Hospital will offer early retirement allowance . . .” No exceptions
are noted in this Article for layoffs that occur because an employee is displaced by
another employee who has previously received notice of layoff. Since the Article says
nothing about any exception in the circumstances here in issue, the words used in
Article 14.03 would seem to apply to the giving of notice of layoff to a displaced
employee. Even though Hanseler was in a different classification than the employees
who were earlier offered ERA’s and VEE’s, and who subsequently received notices of
layoff, Article 14.03 would appear to nevertheless require that she be offered the ERA
and VEE prior to being given notice of layoff.
10. The other provisions referred to by the parties support this interpretation.
Article 14.02 is entitled “Layoff and Recall”. The first paragraph states that layoff shall
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be in reverse order of seniority within the classification, providing the remaining
employees have the qualifications and ability to perform the job. The second paragraph
sets out options for “an employee in receipt of notice of layoff pursuant to Article 14.01
(a) (ii)”; that is, the options that follow apply to employees and are available to
employees after they receive their notice of layoff under Article 14.01 (a) (ii). The
notices of layoff given by the Hospital to Lee, Di Giuseppe, and Hanseler all reflect this,
for they set out the options listed in Article 14.02.
11. Once an employee receives a notice of layoff pursuant to Article 14.01 (a) (ii),
Article 14.02 (d) stipulates that the employee can then displace another employee. This
Article also states that an employee so displaced “shall be entitled to notice in
accordance with Article 14.01”. Accordingly, even though the displaced employee is
“deemed to have been laid off”, as is stated in Article 14.02 (d), the same Article also
states that s/he is entitled to notice of layoff pursuant to Article 14.01, notice that
Hanseler was given on May 24, 2012, four days after she was “deemed” laid off
pursuant to Article 14.02 (d).
12. Article 14.01 (a) (ii) is the part of Article 14.01that describes the notice of layoff
required to be given to individual employees, and it states that the Hospital shall provide
any employee “who will be laid off with no less than five (5) months’ written notice of
layoff”. The notice of layoff must therefore provide at least five months’ notice, and
the five months begins to run from the date of issuance of the notice of layoff. Apart
from the explicit wording of Article 14.01 (a) (ii) to this effect, it would make little
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sense to treat the date when an employee is displaced (i.e. the date when they are
deemed to have been laid off) as starting the clock for calculating the required five
months’ notice of layoff under Article 14.01 (a) (ii). If that were so, then a displaced
employee would almost always receive actual notice of layoff of less than the required
five months, perhaps considerably less, a result not only inconsistent with the wording
of Article 14.01 (a) (ii) but a result that would undermine the purpose of giving such
notice to the affected employee.
13. To repeat, a displaced employee, “deemed to have been laid off” pursuant to
Article 14.02 (d), is still entitled to notice of layoff pursuant to Article 14.01 (a) (ii).
Returning to Article 14.03, the first part of the first sentence requires that offers of ERA
be made “Prior to issuing the notice of lay off in any classification(s)”; that is, prior to
the giving of the notice of layoff under Article 14.01 (a) (ii). Hanseler received a notice
of layoff pursuant to Article 14.01 (a) (ii), and Article 14.03 therefore requires that she
be offered the ERA first.
14. The end of the first sentence of Article 14.03 also is consistent with this
interpretation, for it states that the requirement to offer the ERA before issuing a notice
of layoff applies to employees “who would otherwise receive notice of lay off”. A
displaced employee, such as Hanseler, would “otherwise receive a notice of lay off”,
and indeed, did receive a notice of layoff (as the Hospital was required to provide)
approximately four days after she was displaced. There is nothing in this wording, or
elsewhere in the provisions in issue, that indicate that the requirement to offer the ERA
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and VEE (if the ERA offers are declined) does not apply to displaced employees who,
though deemed laid off by virtue of being displaced, must still be issued notices of lay
off pursuant to Article 14.01. To the contrary, the relevant language supports the
interpretation that the offers under Articles 14.03 and 14.04 must still be made to such
employees prior to the issuance of notices of layoff to them.
15. This interpretation is also consistent with the decision in St. Peter’s Hospital
(above). The issue before that board of arbitration was the same as here, whether the
hospital in question was required to “offer early retirement notices to employees in a
classification not initially targeted for layoff but who may subsequently be given notice
of layoff because an employee elects to displace or “bump” an employee in a different
classification”. The language of the collective agreement in issue there was nearly the
same (if not identical). That board of arbitration similarly concluded that the collective
agreement required that ERA and VEE offers be made to displaced employees who
would otherwise be laid off prior to giving them notice of layoff. For the reasons
expressed above, I agree with the analysis and conclusion in that decision.
16. The Hospital relies upon what it asserts is a contrary decision in Sudbury
Regional Hospital (above). In that case, the board of arbitration was asked to determine
whether a hospital had the right to reassign an employee who was displaced, instead of
issuing the employee a notice of layoff in accordance with what would be Article 14.01
under the Collective Agreement before us. In concluding that the hospital in that case
had breached the collective agreement by reassigning a displaced employee rather than
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by giving her notice of layoff, the majority of the board stated that when an employee is
“deemed to have been laid off”, under what is the equivalent of Article 14.02 (d) in the
Collective Agreement here in issue, the layoff has already occurred. The Hospital here
argues that since a displaced employee is deemed laid off and therefore laid off as of
when they are displaced, it follows that offers of ERA and VEE cannot be made prior to
the layoff, and it follows, therefore, that it was not intended that the collective
agreement requires the Hospital to make such offers.
17. That decision is not, however, persuasive with respect to the matter here in issue.
First, the issue before that arbitration board was different. That board was not asked to
consider whether the ERA and VEE must be offered to a displaced employee before
issuing notice of layoff, and was not asked to consider the meaning and impact of what
is Article 14.03 in the Collective Agreement here in issue. Second, even if an affected
employee is “laid off” as of the time of displacement because they are “deemed to have
been laid off”, the Collective Agreement requires that the ERA and VEE must be
offered prior to the giving of notice of layoff under Article 14.01 (a) (ii), not prior to
when an employee is deemed to have been laid off. As noted, Article 14.03 states that
“Prior to issuing notice of lay off in any classification(s), the Hospital will offer early
retirement allowance”, and Article 14.02 (d) states that a displaced employee “shall be
entitled to notice in accordance with Article 14.01”, the same type of notice of lay off
that the initial employee who was to be laid off received. The fact that the Collective
Agreement deems the employee to be laid off as of when they are displaced does not
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nullify the requirement to nevertheless give notice of layoff to the affected employee,
nor, therefore, the requirement under Articles 14.03 and 14.04 to offer the affected
employee the ERA and the VEE prior to when notice of layoff is given.
18. In the result, I am satisfied that the Hospital breached the Collective Agreement
though its failure to apply Articles 14.03 and 14.04 prior to issuing a notice of lay off to
Hanseler, and I so declare.
19. Although it appears there are no other remedial issues, in case I am mistaken, I
remain seized for any matters arising from the grievance or this Award, including any
remedial issues.
Dated at Toronto, this 15th day of August, 2014
Robert J. Herman - Arbitrator