HomeMy WebLinkAboutTrottier Group 14-08-12BETWEEN
IN THE MATTER OF AN ARBITRATION
TIMMINS AND DISTRICT HOSPITAL
and
(the "Hospital")
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 643
(the "Union")
PHARMACY TECHNICIAN GROUP GRIEVANCE DATED MAY 4, 2011
(2011-0643-003)
Sale Arbitrator: John Stout
APPEARANCES:
For the Hospital:
Geoff Jeffrey, Weaver Simmons LLP
Mike Resetar, Chief Human Resources Officer
Lorna Green, Manager Pharmacy
For the Union:
Michael Fisher, Raven Law
Christine Trottier, Grievor
Denis Chenier, OPSEU Staff Rep. Region 6
HEARING HELD IN TIMMINS, ONTARIO ON JULY 31, 2014
SEP 2 Z-014
S fr.S .,
INTRODUCTION
[1] 1 was appointed by the parties to hear and determine a group grievance
dated May 4, 2011 (2011-0643-003) (the "grievance"). The grievance was filed
by the Union on behalf of employees employed by the Hospital as "pharmacy
technicians" (the "grievors"). According to the Union, the grievance arises from
the Hospital's decision to require all existing pharmacy technicians to register
with the Ontario College of Pharmacists, while only providing partial
compensation for the educational expenses incurred for so doing.
[2] The Hospital takes the position that they did not require the grievors to
register with the Ontario College of Pharmacists and they have no obligation
under the collective agreement to pay for the educational expenses associated
with the registration. Instead, the Hospital asserts that the grievors are required
to register by virtue of the requirements of the Pharmacy Act, 9991 S.O. 1991,
Chapter 36 (as amended).
BACKGROUND FACTS
[3] The parties did not call any oral evidence. Instead, the parties provided
me with a "Statement of Agreed Facts" (with attached exhibits). The Statement of
Agreed Facts is set out below:
1. The parties agree that there are no objections to the jurisdiction
of the arbitrator, Mr. Stout, to hear the matter, that there are no
objections to the form or timeliness of the grievance, that the following
facts are agreed to be accurate for the purpose of this hearing, and
can be relied upon by the arbitrator in making his determination on
this matter.
2. The Timmins and District Hospital ("Hospital") and the Ontario
Public Service Employees Union ("OPSEU") are party to a collective
agreement that includes central and local provisions. (Exhibit #1(a)
and (b))
3. OPSEU is the exclusive bargaining agent for all paramedical
employees at the Hospital, including "pharmacy technicians."
4. Up until recently, pharmacy technicians were not regulated by
the Ontario College of Pharmacists. A pharmacy technician learned the
trade by a combination of education and/or work experience, working
under a pharmacist's instruction,
S. On December 3, 2010, amendments to the Pharmacy Act came
into force that made pharmacy technicians a new class of registrant
with the Ontario College of Pharmacists. According to subsection 10(1)
of the Act, only members of the College can use the formal title
"Pharmacy Technician". The Pharmacy Act is attached as Exhibit #2.
6. As a result, "Pharmacy Technician" became a protected title.
Only those registered with the College can present themselves as
Pharmacy Technicians. Other non -registered dispensary personnel
have to use other designations, like pharmacy assistant.
7. Regulation 202/94 under the Pharmacy Act established a
registration process for individuals already working as pharmacy
technicians to become a regulated pharmacy technician. The steps for
individuals already working in the profession, at the time of the
amendments, are as follows:
(a) Complete an evaluation exam, administered by the
Pharmacy Examining Board of Canada, by January 1,
2012;1
(b) Complete an approved Bridging Education Program,
which consists of four continuing education courses
(about 150 hours in total), by January 1, 2015;
(c) Complete the Pharmacy Technician Qualifying
Examination, administered by the Pharmacy
Examination Board of Canada, and offered twice a year;
(d) Complete the Ontario College of Pharmacists'
Jurisprudence Examination, offered four times a year.
Regulation 202/94 is attached as Exhibit #3.
8. Due to the fact that Pharmacy Technicians were now regulated,
the Ontario College of Pharmacists were able to amend the scope of
practice for Pharmacy Technicians. Whereas before pharmacy
technicians were responsible for all technical aspects of filling
prescriptions under the direct supervision of pharmacists, the new
scope of practice for Pharmacy Technicians gives them sole
1 Anyone who did not write or pass this exam by January 1, 2012, and who wants to
proceed to registration has to graduate from a program accredited by the Canadian
Council for the Accreditation of Pharmacy Programs.
3
responsibility over the same technical functions without direct
supervision.
9. The Hospital currently employs 15 pharmacy technicians (16
positions) in the "Pharmacy Technician/Assistant" classification,
included in the "Technician 3" wage group. Four have completed the
registration process. Four others are expected to complete the
registration process by January 1, 2015. And one is expected to
complete the registration sometime after January 1, 2015. Six have
decided not to register.
10. In December, 2009, before the amendments came into force,
the Ontario Hospital Association sent out a circular advising its
members, including Timmins and District Hospital, that, as a result of
the amendments to the Pharmacy Act, they had a choice of three
options:
(a) Move to a Regulated Pharmacy Technician model;
(b) Maintain their current practice (and rename the current
pharmacy technicians to reflect a non -protected title);
(c) Introduce a hybrid model which combines the use of
regulated and non-regulated pharmacy staff.
11. The Hospital has chosen the first option.*
12. On or around December 17, 2010, the Hospital informed its
pharmacy technicians of the new legislation and that it will require all
staff working in the position of Pharmacy Technician to register with
the Ontario College of Pharmacists by January 1, 2015. Pharmacy
technicians were entitled to submit a claim for compensation under the
Hospital's education policy. Pharmacy technicians were directed to
inform themselves of the process and to comply with the established
deadlines and other information available on the College of
Pharmacists website. They were further advised that their "[f]ailure to
take adequate steps to secure certification in a timely fashion could
lead to remedial and/or disciplinary action and ultimately removal from
the position" A copy of the letter of L. Green, Program Manager,
Pharmacy, to C. Trottier, dated December 17, 2012, is enclosed as
Exhibit #4 to the agreed facts.
13. The costs of the registration process are as follows:
(a) Pharmacy Examining Board of Canada Evaluating
Examination: $350;
(b) Pre -registration: $130**;
(c) Four Pharmacy Technician Bridging Program courses:
fees vary from $200 to $400; however, three of the
4
courses may be completed by prior learning
assessment, or challenge exams, which range from $90
to $150;
(d) Jurisprudence Examination: $200;
(e) Pharmacy Examination Board of Canada Qualifying
Examination (combined practical and written exam):
$1,275;
(f) Application for a certificate of registration: $205**;
These costs vary depending upon whether the exams are
challenged and the training provider.
"non -course related costs
14. The Hospital's Education Policy provides for the reimbursement
of 2/3 of approved education expenses. In the case of the Pharmacy
Technicians, this resulted in a reimbursement of approximately
$1,800.00 for each Pharmacy Technician. The Hospital also provided
up to two paid education days if one of the required exams occurred
on a day that the employee was otherwise scheduled to work.
Attached as Exhibit #5 is the Hospital's Education Assistance policy.
15. On May 4, 2011, OPSEU presented a group grievance, on behalf
of the Pharmacy Technicians, pursuant to several sections of the
collective agreement, with respect to the Hospital's decision to require
all existing pharmacy technicians to register with the Ontario College
of Pharmacists and for only providing partial compensation for the
expenses incurred for doing so. The Group Grievance is attached as
Exhibit #6.
16. Article 14.06 of the Collective Agreement provides as follows:
14.06 Education Leave
Where the Hospital directs and the employee agrees to take an
educational course to upgrade or acquire new employment
qualifications such employee shall not lose regular pay because of
necessary absence from work due to participation in such course.
The Hospital shall pay the full cost of such course in advance. The
Employee may apply to the Hospital for a reasonable advance to
cover additional costs associated with the course,
17. On January 16, 2013, OPSEU filed a grievance on behalf of Gail
Renaud, a Pharmacy Technician who completed the registration
process and maintained that her position was improperly
classified. A copy of this grievance is attached as Exhibit #7.
R
18. On 25 July, 2013, the parties attempted, with the assistance of
the arbitrator, to mediate a settlement to the grievance. These
efforts, and those that followed in the two months following the
mediation as between counsel, were not successful. A new
hearing date was scheduled for 31 July, 2014.
19. As a result of the ongoing uncertainty with respect to those
employees who had not taken steps, or sufficient steps, to
achieve registration by the deadline, Mr, Jeffery sent a letter to
Mr. Fisher on 12 December, 2013 indicating what steps would
be taken with respect to these employees by the Hospital. A
copy of this letter is attached as Exhibit #8 to these Agreed
Facts.
20. In addition, the Hospital forwarded to the affected employees a
letter indicating what the consequences would be of not meeting
the deadline. A copy of the letter sent to Ms. Blais is attached
as Exhibit #9 and is in the same form as those sent to the
other affected employees. At the time of the letter, there were
still 6 employees remaining who were not proceeding to
registration. These affected employees were Natalie Komadina,
Billie -Jo Hopkins, Helene Larouche, Lorna Wesley, Kim Blais and
Shelley Boucher.
21. Five of the affected employees (other than Ms. Boucher) have
grieved the Hospital's letter. A copy of these grievances are
attached as Exhibit #10. This matter is to be heard by you
following disposition of the group grievance.
22. The Hospital has recently been informed that a seventh
employee, Amanda Rickard, has dropped out of the course and
will accordingly not be registered by the deadline. She filed a
grievance with respect to this issue on 23 July, 2014. This
grievance is attached as Exhibit #11.
All of which is agreed, this 31st day of July, 2014 in the City of
Timmins.
[41 In addition to the Statement of Agreed Facts, I was also provided with the
following documents, which were marked as exhibits:
• The current Job Description for the Position title "pharmacy technician"
approved February 1990 and revised August 1994
• A letter from Mr. Jeffrey dated July 7, 2014 providing a response to the
Union's request for particulars
[5] The current job description does not indicate a requirement that an
employee in the position of pharmacy technician be registered with the College of
Pharmacists. Furthermore, the scope of practice under the current job description
is not the same as provided for under the Pharmacy Act, 1991. In other words,
the employees currently working under this job description work under the
direction of a supervising pharmacist.
[6] Mr. Jeffrey's letter of July 7, 2014 confirms that the Hospital has no
current plans to eliminate the position of pharmacy technician. However, after
December 31, 2014, the position will be subject to the provisions of the
Pharmacy Act, 1991, which precludes the use of the title "pharmacy technician"
by anyone who is not a member of the College of Pharmacists. It will therefore be
a requirement of the position, commencing January 1, 2015, that the grievors be
registered with the College of Pharmacists.
SUBMISSIONS OF THE PARTIES
[7] The Union argues that the Hospital made a conscious decision to move
to a registered pharmacy technician model. The Union points out that the
Hospital had other options, including "grandfathering" the current employees in a
non -registered role (under a new title) working within the current scope of
practice.
(8] The Union emphasizes that the Pharmacy Act, 1991, does not require
the Hospital to employ only registered pharmacy technicians. Rather, the
Pharmacy Act, 1991, prohibits the use of the title of pharmacy technician by
persons not registered with the College of Pharmacists.
[9] According to the Union, the letter issued by the Hospital on December
10, 2010 advises the grievors that they are required by the Hospital to update
their skills and become registered with the College of Pharmacists. The Union
asserts that the December 17, 2010 letter clearly indicates that failure to register
7
could lead to "remedial and/or disciplinary action and ultimately removal from the
position". In this regard, the Union submits that the grievors were compelled to
upgrade their skills and register with the College of Pharmacists. In these
circumstances, the Union argues that article 14.06 is engaged because the
Hospital is requiring the grievors to take educational courses to upgrade and
acquire a new employment qualification for their existing positions.
[10] The Union directed my attention to the wage rates in the central
provisions of the collective agreement. The Union points out that the grievors
were in the Technician 3 wage group, which is applicable to Pharmacy
Technician/Assistant classification. According to the Union, the Hospital is not
compelled to use the title of "pharmacy technician". Rather, it is management
exercising their right to call the grievors by this title and the Hospital could just as
easily comply with the Pharmacy Act 1991, by renaming the existing position,
without any other alteration to the job description.
[11] The Union points out that once registered, the grievors shall be qualified
to provide the Hospital with a greater scope of practice (i.e. they can work
independently and not under the supervision of a pharmacist).
[12] The Union acknowledges a number of arbitration awards and one
Divisional Court decision, which have favoured other hospitals in somewhat
similar situations. According to the Union, these awards are distinguishable from
the current situation where the Hospital is requiring employees to register to
maintain their existing positions.
[13] The Union referenced the following awards during their argument:
Thunder Bay Regional Hospital and O.P.S.E.U. (Payment of Course Costs),
(2012) 111 C.L.A.S. 170 (Herlich); Joseph Brant Memorial and C.U.P.E, Local
1065, (2012) 112 C.L.A.S. 84 (Kaplan); Sensenbrenner Hospital and Service
Employees International Union, Local 204 (Mercier) (2002), 115 L.A.C. (4th) 434
(Brent); Wexford Inc. and C.U.P.E., Local 3791, (2001), 96 L.A.C. (41h) 153
(Albertyn).
[14] The Hospital argues that they are not requiring the grievors to be
registered with the College of Pharmacists. Instead, the Hospital asserts that the
Pharmacy Act, 1991 dictates that the grievors be registered. In order to be
registered, the grievors are also required to take certain educational courses. In
these circumstances, the Hospital argues that it is the Pharmacy Act, 1999 and
not the Hospital that requires the additional education courses and qualifications.
[15] The Hospital points out that pharmacy technicians are now required by
legislation to be registered. The Hospital asserts that it is an offence under the
Regulated Health Professions Act, 1991, S.0. 1991 c.8. for the Hospital to permit
a non -registered employee to perform a controlled act.2 The Hospital suggests
that they are compelled by the Regulated Health Professions Act, 1991, to advise
employees that they must fulfill the requirements to be registered. The Hospital
argues that it does not follow that they are actually requiring the grievors to take
the educational courses and register. Instead, the Hospital submits that the
requirement to take the educational courses and register is a legislative
requirement.
[16] The Hospital suggests that the Union is complicating a simple case. The
Hospital argues that consistency in awards is important and I should follow the
earlier awards addressing this issue. The Hospital submits that any difference in
the facts in these earlier awards are so slight that they are nothing but a
"distinction without a difference".
[17] The Hospital also argues that the facts in this situation are closer to the
award of arbitrator Brent in Sensenbrenner Hospital and Service Employees
2 See s. 27 and 42 Regulated Health Professions Act, 1991 prohibiting unauthorized performance of a
controlled act and s. 3 and 4 of the Pharmacy Act, 1991.
L•]
International Union, Local 204 (Mercier), supra, which is an award that relied on
a Divisional Court decision in Hotel Dieu Hospital v. Canadian Union of Public
Employees, Local 1097 [1982] O.J. 226 (O.S.C. Div. Ct.).
[18] The Hospital suggests that they have maintained the "status quo" by not
changing the title of the current position. The Hospital asserts that the Pharmacy
Act, 9991 mandates registration to use the term pharmacy technician and
therefore the grievors are compelled by the legislation to take the educational
courses and register.
[19] The Hospital acknowledges that the grievors would prefer to be
grandfathered. However, the Hospital asserts that it is their right and obligation to
provide the highest level of service to the community that they serve.
DECISION
[20] After carefully considering the evidence and submissions of the parties, I
find that the Hospital has violated article 14.06 of the collective agreement by not
paying the full costs associated with educational courses required for being
registered as a pharmacy technician.
[21] 1 begin by acknowledging that two other prominent and well respected
arbitrators have come to the opposite conclusion in somewhat similar
circumstances. In this regard, it is useful to review these awards and point out
why 1 view both awards as distinguishable.
[22] The first and most relevant award is the Thunder Bay Regional Hospital
and O.P.S.E.U. (Payment of Course Costs), supra, decision of arbitrator Herlich.
Arbitrator Herlich considered the exact same central language that is before me
in a somewhat similar, but not identical situation. The relevant portions of
arbitrator Herlich's award are set out below:
10
25. The employer has not threatened to impose discipline on any of its
employees who fail to pursue upgrading. Indeed, neither has their been a
clear explicit direction issued by the employer. That, however, does not
end the matter....
28. Thus, in the cases we have focused on, it is possible to distinguish
between circumstances where taking (or not taking) the training,
upgrading or course in question will have an impact on the employee's
existing position from those where the effect is likely to be felt in relation to
some possible future position. I accept this as an important distinction in
the treatment of cases such as the one at hand. And while there may be
some diversity of adjudicative views on the point, I also accept that a
factual context of compulsion which operates "within the terms of an
employee's existing job" may amount to an employer direction within the
meaning of the language like that found in the instant collective
agreement.
29. Cases involving an employee's very job security in his/her existing
position are to be distinguished from those involving upgrading or seeking
additional qualifications for the purpose of securing a promotion or other
assignment to a new position. Such a distinction is consistent with the
principle that, absent any other collective agreement right or obligation,
the responsibility for upgrading and training for the purposes of future job
applications or promotions is that of the employee.
30. ...fihe employer in this case has determined to eliminate, or at least
entirely vacate, the classification of Pharmacy Technician/Assistant. I also
accept the employer's assertion that the process will culminate in the
creation of a new classification, which will be an as yet unnamed
classification of regulated Pharmacy Technician (within the meaning of the
relevant legislation).
31. It is not difficult to understand why the incumbents may be of the
view that their job security will be best served by undergoing the
upgrading and, indeed, feel compelled to pursue that upgrading. It does
not necessarily follow, however, that the employer is therefore directing
them to complete it. There are undoubtedly job security concerns at play,
but so long as their current positions continue to exist there is no reason to
believe the current incumbents cannot and will not continue to occupy
them. But the employer, as it is entitled to do, has determined to,
ultimately, discontinue those positions. Thus, any entirely understandable
perceived compulsion on the incumbents' part to do the upgrading is in
11
relation to the new, not to their existing classifications. Thus, while the fit
may not be perfectly airtight, the present facts much more closely
resemble those involving training to qualify for promotion than some newly
imposed "requirement" to be met in order to maintain an existing position.
[23] The second award is arbitrator Kaplan's decision in Joseph Brant
Memorial and C.U.P.E, .Local 1065, supra. After reviewing the decision of
arbitrator Herlich in Thunder Bay Regional Hospital and O.P. S.E. U. (Payment of
Course Costs), supra, arbitrator Kaplan came to a similar conclusion based on
somewhat different language but identical facts. The relevant portion of arbitrator
Kaplans' award is set out below:
19. Having carefully considered the evidence and arguments of the
parties, we are of the view that the employer is not required to pay the full
amount of the bridging costs associated with receiving accreditation as a
Pharmacy Technician. It is not required to do so because the affected
employees are not required to take any courses by the employer. To be
sure, they are required to take the courses and obtain the accreditation if
they wish to become Pharmacy Technicians, but that is entirely up to
them. The employer is entitled to discontinue positions — which may or
may not be the end result in this case — and the parties have, in their
collective agreement, set out employee and union rights when the
employer chooses to do so.
20. It is quite clear that with College regulation and the enhanced
scope of practice that the job has changed. Employees are not being
required to take courses to maintain their existing positions. As Arbitrator
Albertyn observed: "Only when, within an employee's existing job, the
Employer requests, asks, commands, or compels an employee to
undertake a course of study is the Employer liable ... (at 161, Wexford,
emphasis not ours). In this case, the addition of more responsible duties
and regulation by the College of Pharmacy makes the reclassification of
the position inevitable. But that is a different matter for another day. What
is to be decided in this case is whether the employer has required the
affected employees to take the courses and obtain registration and the
answer to these questions is that it has not. While the employer's May
26th memorandum might have detailed different employee options,
including not taking the courses and posting to ensure employment
continuity in the event of positron elimination, it having not done so it
hardly a basis for concluding a collective agreement breach.
21. As just noted, no employee has been ordered or compelled or
required to take the courses. The employees who are doing so have made
12
that decision because it will provide them with the necessary qualifications
and accreditation to become regulated Pharmacy Technicians when the
employer fully implements that model. That job will be a new job with, self-
evidently, an expanded scope of practice. The interest in affected
individuals in obtaining these new positions is self-evident, but it is not, to
repeat, required by the employer as it would have to be to fall within that
part of Article 12.08 under review in this case.
22. The fact that the employer, as it is legitimately entitled to do, has
decided to change its model in offering certain pharmacy services does
not constitute a requirement that employees obtain the requisite
certification. Most important of all, any employee who chooses not to take
the courses and obtain registration retains all of their other rights under
the collective agreement. Accordingly, and for the foregoing reasons, we
conclude that there is no obligation on the employer to pay the full amount
of the bridging costs associated with receiving accreditation as a
Pharmacy Technician.
[241 1 do not in anyway disagree with either arbitrator's conclusion based on
the facts that were before them. However, the facts before me are not identical to
the facts in those two cases. The facts before me are that the grievors are being
required to take the educational courses to become registered as pharmacy
technicians for their existing positions.
1251 The Hospital's December 17, 2010 letter clearly states that the "Hospital
will require all employees working in the position of Pharmacy Technician to take
steps toward registration as required by the College to be fully registered by the
College by 1 January, 2015." The Hospital acknowledged in their letter that
certification would "increase" the grievor's qualifications. The Hospital also
advised the grievors that "failure to take adequate steps to secure certification in
a timely fashion could lead to remedial and/or disciplinary action and ultimately
removal from the position".
[261 In the matter before me, the Hospital is requiring the grievors acquire
registration to maintain their existing positions. This is quite different from the
situations before arbitrators Herlich and Kaplan, where the hospitals in those two
cases were vacating the existing classification and creating a new classification.
13
[27] The fact that the grievors are being required to acquire registration for
their existing jobs is precisely the distinction in the case law pointed out by
arbitrator Herlich in paragraphs 27 and 28 of his award. Arbitrator Kaplan also
accepts this distinction at paragraph 20 of his award, relying on Wexford Inc. and
C. U. P. E., Local 3 79 1, supra.
[28] In my view, the Hospital had a choice to make in this matter, which was
the same choice confronting the hospitals in the matters before arbitrators
Herlich and Kaplan. The choice was clearly set out in the December 2009
circular sent out by the Ontario Hospital Association.
[29] The Hospital could have maintained their current practice and renamed
the current non -registered pharmacy technicians to reflect a non -protected title.3
The Hospital could have also introduced a hybrid model combining regulated and
non-regulated pharmacy staff. In both situations, the grievors could have
continued to work in their existing positions performing exactly the same duties
they are currently performing.
[30] The Union suggests that the Hospital grandfather the existing
employees. I take this suggestion to mean that the Hospital could have
implemented a hybrid model, which would allow the grievors to remain in their
current role but with a different title such as pharmacy assistant. This option was
definitely available to the Hospital and would not in anyway run contrary to the
collective agreement.
[31] The Hospital could have also chosen to do what the hospitals in Joseph
Brant Memorial and C.U.P.E, Local 1065, supra, and Thunder Bay Regional
3 Nothing prevents the Hospital from renaming the grievors' position as a pharmacy assistant, which
is what occurred in the Joseph Brant and C.U.P.E 1065, supra, situation [see paragraph 13 of the
agreed facts set out in paragraph 2 of arbitrator Kaplan's award.]
4 The grievors could remain being paid at the Technician 3 wage rate but be renamed pharmacy
assistants.
14
Hospital and O.P,S.E.U. (Payment of Course Costs), supra, chose to do. That is
move to a regulated pharmacy technician model by creating a new classification.
[32] In this case, the Hospital chose none of the above options. Instead, the
Hospital chose to keep the name of the current position (pharmacy technician),
which is in the pharmacy technician/assistant classification included in the
Technician 3 wage group. This has the effect of moving to a regulated pharmacy
technician model. It also compels the existing employees to register with the
College of Pharmacists, which permits them to have an expanded scope of
practice.
[33] The Hospital has the right, pursuant to management rights in Appendix
"B", to make the choice of which model it wishes to adopt. The Hospital has
decided that they only want to employ registered pharmacy technicians with a
wider scope of practice. The Hospital made this decision because they say that
they want to maintain the highest standards to serve their community. I do not
question the Hospital's motives or the reasonableness of their decision. The
Union, quite rightly acknowledged during argument that they could not point to
any violation of the collective agreement for the Hospital's refusal to grandfather
the grievors.
[34] The Hospital asserts they are maintaining the "status quo". Quite frankly,
I find this assertion somewhat disingenuous. The reality is that the Hospital, by
maintaining the title of the position, has effectively increased the qualifications
(needing to obtain the educational courses and registration) and increased the
responsibilities of the position (no longer requiring direction from a supervising
pharmacist). The status quo was been altered when the Hospital chose not to
change the title of the grievors' position or create a new registered pharmacy
technician classification in response to the new legislative requirements. In my
view, altering the status quo is not limited to actions made by any one parry.
Altering the status quo can also occur when a party takes no action in response
to some outside force. That is precisely what occurred in this case.
is
[35] One might speculate that the Hospital's choice could trigger a re-
classification, such as occurred in Joseph Brant Memorial and C.U.P.E, Local
1065, supra, and Thunder Bay Regional Hospital and O.P.S.E.U. (Payment of
Course Costs), supra. However, in this case, the Hospital has chosen not to re-
classify the position.
[36] 1 acknowledge that a grievance has been filed by the Union challenging
the current classification of an employee who has completed the additional
educational requirements and become registered with the College of
Pharmacists. However, that grievance remains outstanding and has not been
decided. Instead, the parties have proceeded to have this grievance resolved
prior to litigating the subsequent classification grievance. It would be improper for
me to speculate on the outcome of this other grievance, In addition, there is no
evidence before me that a new classification will be bargained during the current
round of bargaining.
[37] in these circumstances, the evidence is clear that the Hospital has
directed the grievors to take the educational courses needed in order to be
registered with the College of Pharmacists so that they may remain in their
existing positions. This fact makes this situation distinguishable from the matters
before arbitrators Herlich and Kaplan,
[38] 1 now turn to consider the Divisional Court decision relied upon by the
Hospital. In Hotel Dieu Hospital v. Canadian Union of Public Employees, Local
1097, supra, the Divisional Court quashed an award of a Board of Arbitration.
The award involved a grievance alleging that a hospital violated a collective
agreement by not providing an ambulance driver attendant with a paid leave of
absence to take an emergency medical care examination.
[39] The Divisional Court's decision in Hotel Dieu Hospital v. Canadian Union
of Public Employees, Local 1097, supra, is clearly distinguishable based on the
facts and the language in the collective agreement.
16
[401 In Hotel Dieu Hospital v. Canadian Union of Public Employees, Local
1097, supra, the employee in question was required by subsection 9(2) of the
Ambulance Act, R.S.O. 1970, c.20 to pass an emergency medical care
examination. The employee took the examination and then requested payment
for the day of work he took off to write the examination.
[411 The applicable collective agreement language provided as follows:
"10.09 Education Leave
If required by the Employer, an employee shall be entitled to a leave of
absence with pay and without loss of seniority and benefits to write
examinations to upgrade his employment qualifications".
[421 The Board of Arbitration found as a fact that the employer did not require
the employee to take the examination in the sense that it did not request or
demand he do so. The Board instead found ambiguity in the language and
considered the obligation of the employer under legislative regulations, which
indicated that it would be unlawful to employ the employee if he failed to pass the
examination.
[431 The Divisional Court found the Board's decision to be unreasonable,
stating the following at paragraph 8:
"in our opinion, the language of Article 10.09 does not reasonably bear
this interpretation. It is essentially a clear and simple provision to be
applied where the hospital directs employees to take an examination
including one under s. 9(2) of the regulations if the employer so
directs. It is to have effect where the initiative is taken by the hospital
and not by the employee." (emphasis added).
[441 Thus the error of the Board of Arbitration was finding a violation of the
collective agreement in a situation where the Board found that the employer did
not direct or require the employee to take the examination.
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[45] The situation in Hotel Dieu Hospital v. Canadian Union of Public
Employees, Local 9097, supra, is completely different from the matter before me.
In the matter before me, the Hospital directed the grievors to take the educational
courses and obtain registration in order to remain in their existing positions. In
addition, the Hospital in this matter could have avoided the necessity of the
grievors taking the educational courses by continuing to employ the grievors in
their existing positions and simply renaming the position to comply with the
legislation.
[46] Similarly, the Sensenbrenner Hospital and Service Employees
International Union, Local 204 (Mercier), supra, award of arbitrator Brent is also
distinguishable based on the facts.
[47] The Sensenbrenner Hospital and Service Employees International
Union, Local 204 (Mercier), supra, case, concerned a requirement under the
Ambulance Act requiring that paramedics be certified as emergency medical care
assistants. The language of the collective agreement was somewhat similar, but
not exactly the same as the matter before me. The applicable language stated as
follows:
"Where employees are required by the Hospital to take courses to
upgrade or acquire new employment qualifications, the Hospital shall pay
the full costs associated with the courses."
[48] The Ambulance Act prohibited the employment of an employee if they
did not hold the qualification of an emergency medical care assistant. The
hospital in the Sensenbrenner Hospital and Service Employees International
Union, Local 204 (Mercier), supra, case did not have any option and it was the
legislation that required the employee to take the course. Arbitrator Brent made
the following finding at page 444:
"The facts remain, though, that the requirements were those of the
legislation and not those of the Hospital; and the grievor, although
Os
informed of the consequences of non -certification by the Hospital and
assisted by the Hospital in arranging attendance at the course, was not
directed or ordered by the Hospital to obtain his certification. In our view,
in order for Article 15.02(c) 'to apply there must be Hospital initiative
tantamount to a direction or order before it can be concluded that
"employees are required by the Hospital'. Such was not the case here.
This grievance is dismissed."
[49] In the matter before me, the Hospital had a choice as to how it could
comply with the legislative requirements. Instead of renaming the position, the
Hospital chose to direct the grievors to take the courses and become registered
with the College of Pharmacists. The December 17, 2010 letter was clearly a
direction and an order that set out particular consequences, which included
discipline.
[50] 1 acknowledge that the Hospital clarified that the grievors would not be
disciplined in a letter dated December 12, 2013. At the same time, the Hospital
also clarified that the grievors would not be laid off and permitted to exercise their
seniority rights. Instead, the grievors would be found to be no longer "qualified"
for their positions and placed on an unpaid leave of absence for 24 months and
thereafter deemed to be no longer employed. In my view, the Hospital took the
initiative to increase the qualifications and scope of the work required by the
grievors in their existing positions.
[51] In this situation, I find as a fact that the Hospital also directed the
employees to take the courses to become registered with the College of
Pharmacists.
[52] It was the Hospital's choice to maintain the current title of the existing
position as a "pharmacy technician" under the Technician 3 wage group, while at
the same time moving to a registered model with greater qualifications and a
broader scope of practice. This choice by the Hospital has the consequences of
requiring the grievors to take the educational courses and become registered
with the College of Pharmacists.
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[53] The Hospital could have made a different choice, like the other hospitals
in the matters before arbitrators Herlich and Kaplan. As indicated earlier, the
Hospital is entitled to make the choice that it made pursuant to management
rights. I cannot criticize the Hospital for wanting to provide the highest level of
service by employing only registered pharmacy technicians. However, the
Hospital also has to live with the consequences of its' choice. In this case, the
consequences are that the Hospital is required under article 14.06 of the
collective agreement to pay for the educational courses they require the grievors
to take in order to acquire the new qualification of being registered with the
College of Pharmacists.
[54] 1 agree with the Hospital's submission that consistency in decisions is
very important. Consistency is particularly important when interpreting "central
language" in the hospital sector. However, consistency in decision making does
not mean an arbitrator should overlook relevant facts that make earlier decisions
distinguishable.
[55] Furthermore, in my view this award is consistent with reasoning found in
all the awards provided to me by the parties. The outcome is only different
because the facts in this matter are distinctly different and make those other
decisions distinguishable.
[56] Accordingly, for all the above noted reasons, I find that the Hospital has
violated article 14.06 of the collective agreement. In accordance with the parties'
request, 1 remain seized with respect to the remedy.
Dated at Toronto this 12th day of August, 2014.
John Stout - Arbitrator
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