HomeMy WebLinkAboutTrottier Group 15-03-24BETWEEN
IN THE MATTER OF AN ARBITRATION
TIMMINS AND DISTRICT HOSPITAL
TMJ
(the "Hospital")
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 643
(the "Union")
PHARMACY TECHNICIAN GROUP GRIEVANCE DATED MAY 4, 2011
(2011-0643-003)
Sole Arbitrator: John Stout
APPEARANCES:
For the Hospital:
Geoff Jeffrey, Weaver Simmons LLP
For the Union:
Michael Fisher, Raven Law
HEARING HELD BY WRITTEN SUBMISSIONS ON FEBRUARY 13, 20 AND
27, 2015
AWARD
INTRODUCTION
[1] I was originally appointed by the parties to hear and determine a group
grievance dated May 4, 2011 (2011-0643-003) (the "group grievance"). The
group grievance was filed by the Union on behalf of employees employed by the
Hospital as "pharmacy technicians" (the "grievors").
[2] The group grievance arose after the Hospital :informed employees
working in the pharmacy technician classification that they would be required to
register with the Ontario College of Pharmacists by January 1, 2015. The
Hospital also indicated that they were only going to provide partial compensation
for the associated expenses (educational courses and training) incurred to be
registered.'
[3] A hearing was held on July 31, 2014. The parties submitted a Statement
of Agreed Facts" (with attached exhibits). The parties also provided me with a
number of documents. The parties then argued whether the Hospital violated
article 14.06 of the Collective Agreement by deciding to only provide the grievors
with partial compensation for the expenses incurred in becoming registered with
the Ontario College of Pharmacists .
[4] On August 12, 2014, i issued an award finding that the Hospital violated
article 14.06 of the Collective Agreement by not paying the full costs associated
with the educational courses and training required to be registered with the
Ontario College of Pharmacists. In accordance with the parties' request, I
remained seized with respect to remedy.
1 See exhibit 4, letter from Hospital dated December 17, 2010
[5] Subsequent to issuing my award, the Hospital agreed to compensate
those grievors who took the educational courses and training required to be
registered with the College of Pharmacists.
[6] However, the Hospital maintained their position that those employees
who did not take the required educational courses and training necessary for
registration (the "affected employees") would be placed ori an unpaid leave of
absence. During the unpaid leave of absence, the affected employees would be
permitted to apply for any posted vacancies and would be considered for such
vacancies as internal candidates. If any of the affected employees did not secure
a position within 24 months, then the Hospital would deem such affected
employee to have voluntarily left their employment or such affected employee's
employment would be deemed by the Hospital to be frustrated.2
[7] The Union asserts that the Hospital has violated the Collective
Agreement by threatening to unilaterally place the affected employees on an
involuntary unpaid leave of absence and possibly terminating their employment
after 24 months. Instead, the Union suggests that the Hospital's decision to only
employ registered pharmacy technicians should result in a layoff of the affected
employees, permitting them to exercise their seniority rights.
[8] The affected employees are Natalie Komadina, Billie Jo Hopkins, Helene
Larouche, Lorna Welsey, Kim Blais, Shelly Boucher and Amanda Rickard, Only
Ms. Rickard undert000k any of the required courses. However, Ms. Rickard
eventually dropped out.
[9] All of the affected employees filed grievances, except Ms. Boucher.3
2 See exhibit S, Ietter from Weaver Simmons dated December 12, 2013
3 See exhibits 10 and 11
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[101 1 was contacted by counsel and it was agreed that I would address two
issues arising from my August 12, 2014 award and the individual grievances filed
by the affected employees. Those two issues are as follows:
a) Do the affected employees, who did not obtain the required training to be
certified as pharmacy technicians by December :31, 2014, have any
remedy under the group grievance?
b) Does the December 12, 2013 letter (placing the affected employees on a
"leave of absence" for failing to register as pharmacy technicians) violate
the Collective Agreement as alleged in the individual, grievances?
[111 In the meantime, the Hospital has agreed, on a without prejudice basis,
to retain all affected employees working in an unregistered pharmacy role until I
have issued this award. As a result, no employee is currently out of work. But,
the Hospital has clearly indicated that they will place all affected employees on
an unpaid leave of absence if I find that such conduct does not violate the
Collective Agreement.
BACKGROUND FACTS
[121 As indicated earlier, the parties did not call any oral evidence at the July
31, 2014 hearing. Instead, the parties submitted a "Statement of Agreed Facts"
together with a number of agreed documents. I have attached a copy of the
Agreed Statement of Facts together with other relevant facts taken from the
documents as Appendix "A" to this award.
[131 In addition to the facts found in my earlier award, the parties also
stipulated a number of additional facts concerning the affected employees. These
facts were stipulated in email correspondence between counsel, the relevant
portions of which I summarize below:
• Lorna Wesley is 45 years old and her seniority date is May 1, 2000.
• Helene Larouche is 52 years old and her seniority date is July 8, 1996.
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• Kim Blais is 41 years old and her seniority date is March 31', 2004.
• Billie-Jo Hopkins is 52 years old and her seniority date is March 9,1998.
• Natalie Komadina is 57 years old and her seniority date is December 2,1985.
The parties agree that Ms. Komadina has worked in a "lead role" for the past ten
years (three of those years as an "acting lead" and the remaining seven as the
"lead"). Ms. Komadina receives an extra stipend under the collective agreement
for undertaking scheduling and performing other assigned duties as noted below.
In the lead role, Ms. Komadina is responsible for scheduling pharmacy
technicians in advance and providing them with their daily duties.
The pharmacy needs tasks done that only certain technicians are specifically
trained to do. In some case, the technicians who perform these tasks have
specialized training that require recertification. Ms. Komadina has to ensure that
time is given in order for this to occur.
When a technician calls in sick, Ms. Komadina must replace that person or
rearrange the workload for pharmacy technicians on shift to ensure the pharmacy
operates at its full potential.
Ms. Komadina answers any questions the pharmacist, lead nurses or any other
hospital employees have respecting the pharmacy department.
Ms. Komadina is on the Drug and Therapeutics Committee, which includes
managers, the lead pharmacist, lead nurses, and is chaired by a physician.
Ms. Komadina also arranges for reimbursement of approximately $80,000 to
$100,000 monthly for chemotherapy drugs dispensed to TADH patients.
• Amanda Rickard is 35 years old and her seniority date is March 18, 2010,
Ms. Rickard filed a grievance on July 23, 2014, on the assumption that her last
day of work would be December 31, 2014. The grievance was filed after Ms.
Rickard informed the Hospital that she was unable to comply with the direction to
register with the College of Pharmacists.
The Union asserts that the Hospital has not given Ms. Rickard the same formal
notice that it has given the five other affected employees.
On October 31, 2014, Ms. Rickard wrote Lorna Green, Program Manager,
Pharmacy, for an update on her employment status and asking whether she
should secure another job for January 1, 2015. Ms. Rickard asserts that she
never received a response to this correspondence.
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In response, the Hospital disputes the assertions made. The Hospital points out
that Ms. Rickard dropped out of the course required for certification. Therefore,
Ms. Rickard will not be registered by the December 31, 2014 deadline. The
Hospital asserts that Ms. Rickard she should be treated in the same manner as
the other employees who did not take steps to obtain registration by the deadline.
The Hospital maintains that Ms. Green spoke to Ms. Rickard following the
October email and informed Ms. Rickard that nothing had, changed, that the
permanent position was subject to her obtaining registration„ and that she could
not complete registration as a result of having dropped out of the training.
• Shelley Boucher is 43 years old and her seniority date is January 3, 2013.
The Union asserts that Ms. Boucher is unable to become certified with the
College of Pharmacists, but unlike the other affected employees, she has not
received any notice that she will be placed on an unpaid leave of absence on
December 31, 2014.
The Hospital asserts that Ms. Boucher is a casual part-time employee as defined
by article 2,04 of the collective agreement. The Hospital maintains that Ms.
Boucher is not regularly scheduled, and has no right to be scheduled for shifts.
The Hospital states that Ms. Boucher will not be registered by December 31,
2014. Therefore, she will not be scheduled for shifts for which she is not
qualified.
The Hospital agrees that unlike the permanent employees, Ms. Boucher was not
given notice. In the short term, Ms. Boucher will remain, employed by the
Hospital and may bid on other positions in the same manner as the other affected
employees.
Ms. Komadina, who does the scheduling, advises that Ms. Boucher is routinely
scheduled for five to six shifts in each pay period. This is tf a same number of
shifts as another casual employee who is employed as a registered Pharmacy
Technician. In other words, there is no barrier to her being scheduled for shifts,
as the employer has suggested.
The Hospital maintains that Ms. Boucher, as a casual employee, has no right to
be scheduled to shifts, particularly when she is not qualified. In these
circumstances, the Hospital maintains that they not required to given notice to
Ms. Boucher.
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SUBMISSIONS OF THE PARTIES
1141 The parties provided detailed written submissions together with
supporting authorities. I have considered all the submissions and authorities in
deciding this matter. I shall not repeat the submissions in .this award. Rather, I
shall summarize the positions of the each party and set out the authorities relied
upon in Appendix "B", attached to this award.
[15] The Union submits that this is a "classic layoff situation". The Union
points out that the Hospital made the decision to only employ registered
pharmacy technicians and they plan to place the affected employees on an
involuntary unpaid leave of absence. In this regard, the Union takes the position
that by placing the affected employees on an unpaid leave of absence, the
Hospital will be instigating a break in the affected employees' employment.
[16] The Union argues that the Hospital's conduct will rob the affected
employees of their "hard-earned seniority rights." The Union submits that
limitations on seniority rights cannot be inferred. Instead any limitation of seniority
rights must be clear and unambiguous. In this case, the Union argues that the
Hospital has no right under the Collective Agreement to place the affected
employees on an involuntary unpaid leave of absence and!then extinguish their
employment after 24 months.
[17] The Hospital argues that the affected employees slid not complete the
necessary training required to be registered with the College of Pharmacists.
Therefore, the affected employees are not entitled to any remedy under my
August 12, 2014 award.
118] The Hospital also submits that the affected employees chose not to take
the required educational courses or training necessary for registration with the
College of Pharmacists. In this regard, the Hospital takes `the position that the
affected employees were well aware of the consequences and their failure to
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comply with the Hospital's direction should not adversely affect junior employees.
In other words, the Hospital asserts that the affected employees are the authors
of their own misfortune. =�
[19] The Hospital relies on Arbitrator Brent's award in Sensenbrenner
Hospital and Service Employees International Union, Local 204 (Mercier) [2002]
O.L.A.A. No. 602 ("Sensenbrenner") and other awards that have followed her
decision. The Hospital takes the position that placing the affected employees on
an unpaid leave of absence is permissible under the Collective Agreement and
consistent with what other arbitrators have found to be appropriate in similar
situations.
[20] The Hospital disagrees with the Union's suggestion that the affected
employees should be laid off. The Hospital takes the position that a layoff only
occurs in situations where there is a lack of work. The Hospital maintains that it
would be inappropriate to layoff the affected employees who chose not to follow
the Hospital's direction to become registered with the College of Pharmacists.
[21] The Hospital argues that the affected employees were not deprived of
their seniority rights. Instead, the Hospital takes the position that the affected
employees have been provided the opportunity to exercise; their seniority rights
over a 24 month period.
[22] In reply, the Union disagrees with the Hospital's position and points out
that it was the Hospital who decided that they would only employ registered
pharmacy technicians. In these circumstances, the Union asserts that it was the
Hospital who chose to reorganize its operations resulting in ,a lack of work for the
affected employees.
[23] The Union also takes the position that there is no strict requirement that
there be a reduction in the workforce to trigger a layoff. Instead, the Union argues
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that the involuntary removal of the affected employees falls within the normal
definition of a layoff.
DECISION
a) Do the affected employees, who did not obtain tine required training
to be certified as pharmacy technicians, have any remedy under the
group grievance?
[24] In my view, the affected employees who did,' not undertake any
educational courses or training have no remedy Under the initial group grievance
referred to me. I also fail to see how the initial group grievance and any remedy
arising from my award would have any bearing on the affected employees being
placed on an involuntary unpaid leave of absence and their employment
potentially terminated.
[25] Certainly some of my factual findings would be relevant to the affected
employees situation. However, I do not see how I could even address their
situation as a remedial matter arising from my earlier award. In my opinion, the
only jurisdiction I have to address the affected employees predicament arises
from their individual grievances, which the parties have, referred to me for
resolution.
b) Does the December 12, 2013 letter (placing the ;affected employees
on a "leave of absence" for failing to register as pharmacy
technicians) violate the Collective Agreement° as alleged in the
individual grievances? F:
[26] After carefully considering the evidence and submissions of the parties, 1
agree with the Union and find that the Hospital's plan, as stated in the December
12, 2013 letter, to place the affected employees on an involuntary unpaid leave
of absence for failing to register as pharmacy technicians violates the Collective
Agreement.
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[271 In my opinion, there is no provision under the C011ective Agreement that
would permit the Hospital to place the affected employees on an involuntary
unpaid leave of absence. Certainly the Hospital has management rights as
provided for under Appendix B of the Collective Agreement. However, no where
in the management rights clause does it state that an employee may be placed
on an involuntary unpaid leave of absence. 1=urthermore";1 management rights
cannot be examined in isolation. Rather, the exercise of management rights
needs to be examined in the context of the Collective Agreement as a whole and
having regard to the fact that those rights are explicitly subject to the other terms
of the Collective Agreement.
[281 The parties have addressed various leaves of absence under article 14
of the Collective Agreement. There is no provision under article 14 providing the
Hospital with authority to place an employee on an involuntary unpaid leave of
absence.
[291 1 find, for reasons elaborated upon below, that if the Hospital wishes to
follow through with their plan to only employ registered pharmacy technicians,
then they should layoff the affected employees and provide them with the
opportunity to exercise their seniority rights.
[301 Generally, there are four ways to terminate an employee's employment
under a collective agreement. Those four ways are as follow:
• Termination for just cause.
• Voluntary cessation (resignation or retirement).
• Non -culpable Termination (frustration).
• Seniority rights being extinguished (after layoff or under a
deemed termination clause).
[311 The Hospital initially asserted in their December 17, 2010 letter that they
would have just cause to discipline the affected employees who did not obtain
registration with the College of Pharmacists.
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[32] On December 12, 2013, the Hospital abandoned their initial position and
told the affected employees that they would not be disciplined. Instead, the
Hospital informed the affected employees that they wodld be placed on an
unpaid leave of absence for 24 months. The Hospital also? advised the affected
employees that at the end of this 24 month period those affected employees who
do not secure alternative positions will be deemed by the Hospital to have
voluntarily resigned their employment or their employment will be frustrated.
[33] The evidence is clear that none of the affected employees have
requested any leave of absence. It also cannot be said that the affected
employees are voluntarily accepting a leave of absence. Instead, the unpaid
leave of absence is being forced upon the affected employees. In other words,
the Hospital has notified the affected employees that they will be removed from
the workplace because they will no longer be qualified to perform the pharmacy
work in the manner that the Hospital wants it performed (i.e. by registered
pharmacy technicians).
[34] There is no evidence before me that the affected employees have either
the subjective or objective intent to voluntarily leave their employment (by
resignation or retirement). The evidence is in fact to the contrarv, the affected
employees have challenged the Hospital's plan by filing grievances. In these
circumstances, I find that the affected employees have not indicated their
agreement to voluntarily ended their employment.
[35] The Hospital alternatively suggests that the affected employees
employment will be deemed to be "frustrated" at the end of the leave of absence.
In my opinion, that cannot be the case.
[36] An employment relationship may come to an end for non -culpable
conduct (frustration). Non -culpable termination occurs in :situations where an
employee, for reasons beyond their own control, can no longer fulfill the
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reasonable expectations of their employment. Such circumstances involve the
following situations:
.7
• An employee can no longer fulfill their obligation to attend work
(innocent absenteeism), or
• An employee can no longer fulfill the reasonable expectations of
their employment (incompetence);or
• An employee if they have a disability that cannot be
accommodated in the workplace to the point of undue hardship
(incapacity).
[37] In all of these situations, the employment relationship is ended
(frustrated) because there is no work available that the employee can perform.
Furthermore, the reason why no work is available is not the fault of either the
employee or the employer. Instead, some external force is responsible for
frustrating the employment relationship.
[38] In this matter, there is no evidence that the affected employees can't
perform any other work for the Hospital. The only thing I can say about the
affected employees is that they cannot perform work in a manner that the
Hospital requires (i.e. as a registered pharmacy technician). However, the
affected employees can perform non -registered pharmacy work, if such work was
made available by the Hospital. The affected employees may also be able to
perform other work, if they were provided the opportunity. In these
circumstances, I find that the employment relationship has not been frustrated by
some external force.
[39] As stated earlier, there is nothing in this Collective Agreement that
permits the Hospital to unilaterally place an employee on an involuntary unpaid
leave of absence. Instead, it is my view that the Hospital, either has to either
layoff the affected employees or suspend/terminate them for: just cause.
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[40] At this point I must note that I disagree with the Hospital's assertion that
the affected employees are solely responsible for their predicament. Certainly the
affected employees could have just taken the necessary educational courses and
training. However, their decision must be looked at in the context of the Hospital
having other options and the Hospital's failure to comply with their obligation
under article 14.06 of the Collective Agreement to reimburse the affected
employees for the associated costs.
i.
[41] As indicated earlier, the Hospital abandoned their;original position that
they had just cause to discipline or terminate the affected employees. Therefore,
I agree with the Union that the only way the Hospital can :interrupt the affected
employees employment is to lay them off.
[42] The Collective Agreement does not specifically define the term "layoff'.
Therefore, it is useful to examine the term and how it is generally used in labour
relations.
[43] In Canada Safeway Ltd. v. R.W.D.S.U, Local 454 (1998), 160 D.L.R. (4th)
1 (S.C.C.) at paragraphs 71-73 the majority of the Supreme Court of Canada
found that the term "layoff', as used in labour law refers to the denial of work to
an employee. The term layoff is also used to describe an interruption of an
employee's work short of termination and where a hope or, expectation of future
work remains.
[44] In St. Joseph's Healthcare Hamilton and ONA (2009), 99 CLAS 105 at
paragraph 50 Arbitrator Burkett indicated that a layoff involves a reduction in
hours or an involuntary removal from the active workforce.
[45] In this situation, the Hospital has reorganized their operations so that
they will only employ registered pharmacy technicians. The Hospital has the right
to make such decisions, but as I stated in my earlier award, they must live with
the consequences.
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[461 The consequences of the Hospital's decision to only have registered
pharmacy technicians is that the affected employees can no longer perform work
in the pharmacy. The affected employees are thus being denied work and
involuntarily removed from the workforce. At the same time, there is a hope or
expectation that the affected employees may find suitable' alternative work with
the Hospital. In order to find suitable alternative work, the affected employees
need to utilize their seniority rights.
L
J
[471 In my opinion, the normal meaning of layoff is consistent with how the
term is utilized under this Collective Agreement. In particular, article 12.01
contemplates that employees may be laid off when the Hospital makes a
"technological change", which will significantly change the status of employees in
the bargaining unit.
[481 i do not see how the current situation is any different. In both the case of
a technological change and the current situation, it is the Hospital who makes the
decision to have work performed in a different manner, which adversely affects
employees by resulting in an involuntarily removal from the active workforce.
[49] The Hospital has recognized the affected employees' will need to
exercise their seniority rights to obtain suitable alternative employment. In the
December 12, 2013 letter, the Hospital advised the affected employees that they
may bid on job postings. At the same time, the Hospital 7 has also limited the
affected employees seniority rights by not laying them off and taking the position
that they will be terminated if they do not find a position within 24 months. In my
opinion, the Hospital's position adversely affects employees' seniority rights
under the Collective Agreement.
[50] Article 10.09 of the Collective Agreement addresses the issue of loss of
seniority.
10.09 Loss of Service and Seniorit
14
An employee shall lose all service and seniority and shall be deemed to
have terminated if he:
(a) leaves of his own accord;
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(b) is discharged and the discharge is not reversed through
the grievance or arbitration procedure;
(c) has been laid off without recall pursuant to article 11.07
for twenty-four months.
f
(d) is absent from scheduled work for a period of there (3)
or more consecutive work days, `without notifying the
Hospital of such absence and providing a reason
satisfactory to the Hospital;
(e) fails to return to work (subject to the provisions of (d)
upon termination of an authorized leave of absence
without satisfactory reason or utilizes a leave of absence,
without permission, for purposes other than for which the
leave was granted;
(f) fails upon being notified of a recall to signify his intention
to return within five (5) calendar. days after he has
received the notice of recall mailed by registered mail to
the last known address according to the records of the
Hospital and fails to report within ten (10) calendar days
after he has received the notice of recall or such further
period of time as may be agreed upon by the parties.
[511 It is well accepted that provisions that terminate an employee's seniority
rights, such as those found in article 10.09, are strictly construed, see Re United
Electrical Workers, Local 592 and Tung -Sol of Canada Ltd. (1964), 15 L.A.C.
161 (Reville).
S'
[521 In my view, placing an employee on an involuntary unpaid leave of
absence does not fall within any of the conditions provided for in article 10.09.
Therefore, the affected employees seniority rights may not be extinguished after
being on an involuntary unpaid leave of absence for 24 months.
15
M
[531 1 disagree with Hospital's position that their proposed action to remove
the affected employees from the workplace and place them on an involuntary
unpaid leave of absence is consistent with what other arbitrators have done in
similar circumstances. a
RI,
1
[541 The Hospital's entire argument is based upon the Sensenbrenner award,
and awards that follow the reasoning of Arbitrator Brent. I do not take issue with
the reasoning of Arbitrator Brent or those that follow her. Rather, it is my view
that all those awards are distinguishable from the matter before me.
[551 Sensenbrenner concerned a requirement under the Ambulance Act that
paramedics be certified as emergency medical care assistants. 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 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
informed of the consequences of non -certification -by the Hospital and
assisted by the Hospital in arranging attendance at the course, he 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.
[56] As I indicated in my August 12, 2014 award the Hospital in this case had
9 P d
a choice and they chose to undertake a regulated pharmacy technician model.
The Hospital could have made a different choice that would not have adversely
impacted the affected employees employment.
[571 The CUPS 2794,1 and Corporation of the County of Essex, unreported
award dated February 10, 2010 (Hunter) ("County of Essex') is similarly
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distinguishable. County of Essex involved the discharge of a probationary
employee who had been denied entrance to the United States because of earlier
criminal convictions. The work in question involved taking patients across the
border into the United States. Ultimately the employee was reinstated after
having the United States re-evaluate their position and permit him entry. The
arbitrator followed Sensenbrenner finding that the time absent from work should
be changed from a disciplinary suspension to an unpaid leave of absence. The
arbitrator based his reasoning on the fact that the lack of work was caused by a
third party, the United States. r.
[581 In this case, the lack of work is not caused by a thifd parry. The Hospital
had a choice and could have retained the affected employees in a non -registered
role.
[59] The Hospital also relies on British Columbia Public School Employers'
Association and British Columbia Teachers' Federation, unreported award dated
January 5, 2011 (Taylor Q.C.). This case is also distinguishable based on the
facts.
[601 In British Columbia Public School Employers' Association, supra, the
issue involved the employment of non -registered teachers. Arbitrator Taylor
found that the employer did not have any choice in terms of employing non-
registered school teachers. Arbitrator Taylor also specifically found that the
employer "took all reasonable steps to keep the grievors .lemployed..." That is
distinguishable from the case at hand where the Hospital has a choice and could
retain the affected employees in a non -registered role.
[611 It is also significant that Arbitrator Taylor distinguishes the award of
National Sea Products Ltd. and C.A_W. (1990)16 L.A.C: (4th) 65, where an
employee was terminated when he could not perform in a new job he was placed
in during an employer restructuring. In that case, the arbitrator found that there
17
was other work that the grievor could perform, but it was not currently available.
In those circumstances, the arbitrator in National Sea Products Ltd. and C.A.W.
found that the grievor should be laid off and allowed to exercise his seniority
rights. In my view, the affected employees situation is similar to the grievor in
National Sea Products Ltd and CAW (i.e. the lack of work was caused by the
employers decision to reorganize the workplace).
[621 The final award relied upon by the Hospital is Health Sciences Assn. of
Alberta v. Alberta Health Services (Regulated Pharmacy Technician Grievance
[2014] A.G.A.A. No. 4 (Jones), which is a similar situation involving regulated
pharmacy technicians. However, this case is also distinguishable because it
involved the Alberta legislation and the arbitrator found that the Alberta
legislation required the grievors to register. This is much different from the matter
before me where the Hospital had a choice.
[631 In the matter before me, the Hospital had a choice as to how it could
comply with the legislative requirements of the Pharmacy Act, 9999. Instead of
renaming the pharmacy technician position or implementing a hybrid model, the
Hospital chose to direct the affected employees to take the educational courses
and training required to be registered with the College of Pharmacists. Once
registered, the affected employees would be entitled to,.a broader scope of
practice.
[641 The December 17, 2010 letter was clearly a directjon and an order that
set out particular consequences, which included discipline;: I acknowledge that
the Hospital clarified that the affected employees would not be disciplined in a
letter dated December 12, 2013. However, the Hospital also clarified that the
affected employees would not be laid off and permitted to exercise their seniority
rights. Instead, the affected employees would be found to be no longer "qualified"
for their current positions and placed on an unpaid leave of absence for 24
months and thereafter deemed to be no longer employed.
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[65] It was the Hospital's choice to maintain the current title of the existing
position as a "pharmacy technician" under the Technician 31 wage group, while at
the same time moving to a registered model with greater qualifications and a
broader scope of practice.
[66] The Hospital could have made a different choice: As indicated in my
earlier award, 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 consequen6es of its' choice and
may not breach their obligations under the Collective Agreement.
[67] 1 acknowledge that the affected employees did not or could not take the
required education courses or training required to be registered with the College
of Physicians. However, they are not solely responsible for their predicament.
One also cannot forget that all of the employees remain qualified to perform the
same work they previously performed, they just can't be referred to as "pharmacy
technicians." In this situation, it was the Hospital's initial decision, which gave rise
to the lack of work. The affected employees choice to not pursue the registration
was a contributing factor, but not he driving force. ,'
[68] This situation is much different from all the cases relied upon by the
Hospital because it was the Hospital's decision to only employ registered
Pharmacy Technicians, which adversely affected the affected employees'
employment status. This is not a situation where the.' affected employees
employment was premised on being registered with the College of Pharmacists.
This is also not a situation where the affected employees have temporarily lost
their qualifications. Rather, this is a situation where the Hospital had a choice and
they chose to reorganize their pharmacy department to only employ registered
pharmacy technicians.
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[69] Accordingly, having regard to the provisions of the Collective Agreement,
I find that the Hospital's plan to place the affected employees on an involuntary
unpaid leave of absence and then deeming their employment to end after 24
months would violate the Collective Agreement.
[70] This brings me to one last point that needs to addressed. The Union
asserts in their submissions that the Hospital has not complied with article 11 of
the Collective Agreement. In my mind, resolution of this issue is premature.
[71] 1 note that the Hospital has only provided notice to the affected
employees that they will be removed from the active workforce. The Hospital has
quite reasonably retained the affected employees working in a non-regulated role
until this award is issued. The Hospital may reassess their decision in light of this
award. It may well be that the Hospital will not remove the affected employees
from the workforce. Therefore, it would be premature to make any determination
until after the Hospital has had an opportunity to review my award with their
counsel and decide how they wish to proceed.
[72] Needless to say, if the Hospital does decide to layoff the affected
employees, then they will need to do so in a manner that complies with their
obligations under the Collective Agreement.
[73] 1 remain seized with respect to any issue that arises from the individual
grievances including remedy. I
Dated at Toronto this 24th day of March 2015
John Stout - Arbitrator
20
Appendix "A"
Agreed Statement of Facts and other relevant facts
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 werenot 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.
5. 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;4
4 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.
21
}I
(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 202194 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 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 th6i Hospital's education
policy. Pharmacy technicians were directed to inform themselves of the
22
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
Examination: $350;
(b) Pre -registration: $130**;
Board of Canada Evaluating
(c) Four Pharmacy Technician Bridging Program courses: fees
vary from $200 to $400; however, three of the courses may
be completed by prior learning assessment, or challenge
exams, which range from $90 to $150;
rl
(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:
23
94.06 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.
i
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.
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 Exhibiit #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.
24
All of which is agreed, this 31't day of July, 2014 in the City of Timmins.
Y
In addition to the Statement of Agreed Facts, I was also provided with the
following documents, which were marked as exhibits: r
• 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
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 durrent 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.
Mr. Jeffrey's letter of July 7, 2014 confirms that the Hospital .ihas no current pians
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 6 registered with the
College of Pharmacists.
25
Appendix "B"
Authorities relied upon by the Parties
A. Union Authorities:
Legislation
a
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act,
1982, s 1, 2(d)
Jurisprudence
1. Aro Canada Ltd v IAM, Local 1817 (1975), 10 LAC (2i) 81
2. Artcraft Engravers Ltd v GCIU, Local 517 (1990), 12 LAC (4th) 363
3. Battlefords & District Co-operative Ltd v RWDSU, Local 544, [1998]
1 SCR 1118
4. Canada Safeway Ltd v RWDSU, Local 454, [1998] 1 SCR 1079
5. Canadian Broadcasting Corporation v National Assn of Broadcast
Employees and Technicians, [1986] CLAD No. 73
6. Dresden Industrial Co v UFCW, Locals 175 & 633 (2014), 126 LAC (4th)
61
7. Health Services & Support -Facilities Subsector Bargaining Assn v British
Columbia, 2007 SCC 27
8. Jamesway Incubator Co v GMP, Local 908 (2003), 119 LAC (4th)
369
9. Joseph Brant Memorial and CUPS, Local 9065 (2012), 112 CLAS 84
10. Kingston General Hospital v CUPS, Local 1974 (2002), 112 LAC (4th) 104
11. Leisureworld Caregiving Centres v SEW, Local 1 (2010), 199 LAC
(4th) 202
12. LIUNA, Local 183 v York Condominium Corp No 281'(2012), 220 LAC
(4th) 417
13. Prince Rupert Fishermen's Co-operative Assn v UFAW (1985), 19
LAC (3d) 129
26
14. Queensway -Carleton Hospital and AAHPO (Hodgins) (1999), 56
CLAS 297
15. Quinte Health Care v ONA (2011), 105 CLAS 221
16. Teamsters, Local 938 v Lakeport Beverages (2005), 143 LAC (4th)
149
17. Timmins and District Hospital and OPSEU, Local 643(2014), 245 LAC
(4th) 203
18. Tung Sol of Canada Ltd (1964), 15 LAC 161
19. Winchester Western (Canada) Ltd v IAM, Local 778 (1977), 15 LAC
(2d) 50
B. Employer Authorities:
1. Chapter 7, Section 7;3510 1ncompetencelincapacity,"Brown & Beatty
Canadian Labour Arbitration
2. Chapter 6, Section 6:2200 Layoff, Brown & Beatty Canadian Labour
Arbitration
3. Toronto (City) v. Toronto Civic Employees Union, 2004 CarswellOnt
9946, 135 L.A.C. (4th) 140, 79 C.L.A.S. 520
4. Sensenbrenner Hospital, Kapuskasing v. Service Employees International
Union, [2002] O.L,A.A. No. 602
5. CUPE 2794.9 and Corporation of the County of Essex, unreported award
dated February 10, 2010 (Hunter)
6. British Columbia Public School Employers' Association and British
Columbia Teachers' Federation, unreported award dated January 5, 2011
(Taylor Q.C.)
7. Health Sciences Assn. of Alberta v. Alberta Health Services, [2014]
A.G.A.A. No. 4
8. Retail, Wholesale and Department Store Union v. Canada Safeway Ltd.,
1998, 160 D.L.R. (4th)
9. Securicor— Universal ATM v. Teamsters, 2006 CarswellOnt 8755, 154
L.A.C. (4t) 347, 87 C. L.A. S. 215
27
10. I.B.E. W. v. Devonian Electrical Services Ltd., 1971 CarswellAlta 151
[1971] A.G.A.A. No. 1, 23 L.A.C. 358
11. Blouin Drywall Contractors Ltd. v. C.J.A., 1975 CarswellOnt 827 [1975]
O.J. No. 31, 57 D.L.R. (3d) 199, 75 C.L.L.C. 14,295, 8 O.R. (2d) 103, 9
L.A.C. (2d) 26