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HomeMy WebLinkAboutUnion 06-07-03 . . /' IN THE MATTER OF AN ARBITRATION Iy <, -- ^'" . ''A> "-,,-- ,,~ "-, J ~ ~ "4~"'''''..~ I ''4}' ''''lli;;~~ l CIt. {I I . ~/)"J BETWEEN ~v"'h ~? '~('u ..' ""... <"I-A, . - THE ROYAL OTTAWA HEALTH CARE GROUP '. J'I);. / "eJ... ,~.(.. -"~~~t.:It't .. ',I ("the Employer") AND THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 479 ("the Umon") ARBITRATOR. Michel G Pic her APPEARING FOR THE EMPLOYER. Russell Zmn Counsel Catherme Thomas DIrector-Human Resources APPEARING FOR THE UNION Susan Ballantyne Counsel Marlene Rivier President, Local 479 Hearings m this matter were held m Ottawa on May 28, June 16 and September 22,2003, and January 27, Apn122, September 9, December 6 and December 10,2004 . . 2 AWARD The grievance whIch IS the subject OfthIS arbItratIon alleges that the Employer failed to apply the provIsions of the Human Resources Labour Adjustment Plan for Ottawa-Carleton to a group of employees of the Royal Ottawa HOSpItal who receIved notIces of layoff on October 16, 2002. The Umon maintams that the layoff notIces were a dIrect result of the dIrections of the Health Services Restructurmg CommIssIon (HSRC) whIch oversaw the re-organIzmg of health services wIthm the Provmce of Ontano On that basIs It mamtams that the employees m receIpt of the layoff notIce were entItled to the enhanced early retirement and voluntary resIgnatIon proVISIons found wIthin ArtIcle 11 of the Human Resources Labour Adjustment Plan, mcluding an allowance of three weeks' salary for each year of employment, a benefit winch exceeds the two weeks' salary protection for each year of employment found withm the collectIve agreement. The HospItal mamtams that the layoff notIces were not prompted by any amalgamatIons or program transfers contemplated wIthin the Human Resources Labour Adjustment Plan, that they were in fact prompted by budgetary constramts and that the plan has no applicatIon m the partIcular cIrcumstances givmg nse to the grIevance Certam facts pertment to the grIevance do not appear to be m dIspute. On or about October 16, 2002 some 70 layoff notices were Issued to employees ofthe Royal Ottawa HospItal. Subsequently, as reflected in communiques Issued by the Employer on February 26 and March 6,2003, approxnnately 2/3 of those layoff notices were m fact rescmded. It appears that some 44 layoffs were effectIvely cancelled by the first 3 communicatIOn and a further 12 layoffs were rescmded m the communicatIOn of March 6,2003 Like vIrtually all hospItals m OntarIo, the Employer was the subject of drrectIOns wIth respect to amendmg and restructurmg ItS programs Issued by the Health Services Restructurmg CommIssion. The final drrectIves of the CommiSSIOn Issued to the Board of Directors of the Royal Ottawa Health Care Group were handed down on August 13, 1997 Among other thmgs, the Employer was drrected to assume governance and management of the Brockville PsychiatrIc HospItal pendmg its eventual closure, an event whIch has not yet occurred. It was also drrected to transfer 117 longer term mental health beds and 15 forensIc beds from the Brockville PsychIatrIc HospItal to the Royal Ottawa Health Care Group, an event WhICh had also not yet occurred at the tIme of thIS hearmg. AddItionally, the Hospital was drrected to prepare a plan to operate as the "RegIOnal Referral Center for longer term mental health and proVIde acute and longer term mental health and forensic services." The Employer was also dIrected to convert 16 pediatrIc psychIatry beds to community based out patIent servIces in conjunctIon WIth the Children's HospItal of Eastern Ontario In addItIon, the Employer was drrected to transfer governance of the RehabilitatIOn Centre to the Ottawa HospitaL Paragraph 10 of the drrectives mandated the Employer, m conjunction WIth all Ottawa-Carleton Hospitals, the Ministry of Health and the Brockville Psychiatric HospItal to develop a human resource plan " that wIll address the impact of the Health ServIces Restructuring CommIssIOns' drrectIOns on the HospItal employees." There was also a further directIve from the CommIssion m July of 1998 agam confIrmmg, m part, the oblIgation of the Employer to develop and begm the 4 ImplementatIOn of a plan to serve as the regIOnal referral center for longer term mental health and to provIde acute and longer term mental health and forensIc servIces. Other documents tabled In eVIdence, for example a report of the Commission m August of 1997, gIve more elaboration as to the intentIOns of the CommissIOn. Promment among those IS the Intention to ShIft the Royal Ottawa Health Care Group away from provIdmg acute mental health services, towards providmg only chromc mental health servIces and forensic servIces. That report recommends that only the crisis unit of the Royal Ottawa Health Care Group preserve its nine bed unit for short term acute treatment. That general ShIft IS also reflected in the following dIrection of the HSRC contamed m the document of August, 1997 The Royal Ottawa Health Care Group to be the Regional Referral Center for Long-Term Mental Health Care and assume governance of all long- term mental health (in patient and out patient) servIces In Ottawa (except those located at HopItal Montfort) CHEO to assume responsibilIty for pediatric mental health servIces including an addItional 13 pediatrIc beds for a complement of 25 beds. The ShIft m emphasis at the Royal Ottawa HospItal is also reflected m a document entitled "FunctIOnal Program" Issued by the HospItal m December of 1999 The mtroductIon to that report speaks to the reconfigured Royal Ottawa HospItal as "a specialized mental health facility" Further along it states "In accordance with the HSRC report, the ROH will proVIde specialty longer term mental health beds and ForensIc servIces, as well as retam 8 crIsis beds," The report also notes that acute mental health treatment and acute mental health beds are to be provided, m accordance WIth the HSRC recommendatIOns, by the Ottawa HospItal, the Queensway Carleton Hospital and 5 I'HopItal Montfort, in addition to the 8 cnSIS beds at the ROH. The same report speaks to what It calls. "longer term (TertIary ISpecIalty) mental health treatment" It states that the resIdence populatIOn of the region " will receIve their specIalty longer term mental health treatment in Ottawa-Carleton, provIded by I'HopItal Montfort and the Royal Ottawa Hospital." A further paragraph elaborates the meaning of specialty care It reads as follows. "Specialty Care" (referred to prevIOusly as Tertiary Care) mvolves the proviSIOn of diagnostic and therapeutic health care through highly specialIzed programs that require skIlled professionals. ThIS level of care is usually associated with technIques or procedures that need to be centralIzed wIthin a regional or sub-regIOnal area by reason of limIted volume, lImIted skills or extraordmary cost of servIces. ThIS care always reqUIred referral from mtensIve level sources. In mental health, speCialty care is proVIded to persons wIth serious, complex, and/or rare mental disorders who, by reason of specialIzed staff or facilIty needs, cannot be managed by the resources avaIlable at the frontlme or intenSIve levels of care. SpeCialty mental health care mcludes special mtensive acute care assessment and short term treatment programs and both short term (episodIC) and long term rehabilitative care for severe chrOnIC cases. It excludes long term care that does not requIre dally access to speCial clmIcal resources that are available only withm the specialty care programs. It mcludes outpatient, outreach and consultative servIces. SpeCIalty care programs are almost always affilIated with UnIversity health SCIences centres The new trends of care delIvery m a specialIzed, longer-term psychiatrIc hospItal use a treatment approach that mcludes a range of speCIalIzed mterventions to achieve a change in severe dysfunctional behavIOurs. These cntIcal interventions are Implemented wIthm a psychosocIal rehabilitation milieu. Also tabled m eVIdence IS an emaIl whIch quotes a notice addressed to all phYSICIans who refer patients to the Royal Ottawa HospItal. That communIcation, dated February 19,2000 states, in part: In accordance WIth the dIrective of the Health ServIces Restructurmg CommIssion, The Royal Ottawa HospItal (ROH) has begun ItS conversIOn 6 as the RegIOn's major provIder of acute and general psychIatnc servIces to that of a specialIzed, tertiary mental health care facility The record mdIcates that, contemporaneous with the restructuring drrectIves, was the Employer's own perceptIOn of Itself as an mstitutIOn mdependently evolvmg mto a "center of excellence" A report prepared on August 20, 2001 IS entItled "Becommg a Center of Excellence" It speaks to the new agenda whereby the ROH would" strIve to be a centre of excellence m tertiary and specialIzed clmIcal treatment, research and education by ensurmg the promotIOn of a "best practIce" envrronment. in research m the causes, treatments and preventIOn of mental Illness [sparked by] activities m our InstItute For Mental Health Research and m partnershIp with academic mstItutIons m the private sector" The Employer's 200212003 HospItal Busmess Planning Brief likewIse speaks to the shift m emphasIs whereby the HospItal strives to become a center of excellence, notmg m part that m accordance wIth the HSRC report, the ROH IS to provIde specIalty longer term mental health and forensIc services, while retainmg 8 cnSIS beds and ongomg responsibilIty for the AddIctIons Program. A further document entItled "The Redevelopment ofthe Royal Ottawa Hospital", updated September 15th, 2003 contams, m part, the followmg statement: The ROH, once an acute care hospital IS now a specIalIzed tertiary mental health care facility Among the employees who receIved notices of layoff on October 16, 2002 there were psychometrIsts, recreatIOnal therapIsts, psychologIcal associates, socIal workers, addictions counselors and occupatIOnal therapIsts. The fundamental posItion argued by counsel for the Umon IS that the layoffs which are the subject OfthIS grIevance were m 7 fact occasIOned by the ShIft in the Employer's mandate from the HSRC to become a speciahzed or tertIary mental health care facility She submIts that the staffmg decIsions which led to the layoff notices of October 16, 2002 were a direct result of those adjustments, and that under the terms of the Human Resources Labour Adjustment Plan, the employees adversely affected are entitled to the enhanced severance protectIons m that Plan. She argues that the HSRC directions towards specializatIOn resulted m significant staffing decIsIons bemg made m five areas m the HospItal. First she addresses the Substance Abuse and Concurrent DIsorders Program, noting that the evidence estabhshes that the Hospital changed Its admIssIon cntena m the area of addIctions treatment Whereas previously a person who was an "ordmary" alcohohc wIth no other comphcatmg mental conditIOn would be aillmtted, after the implementatIOn of the HSRC recommendation the Hospital adjusted ItS addICtions program to treat only persons who suffer substance abuse and also have other concurrent dIsorders. The eVIdence of Ms. Ehzabeth Hall, an addIctIOns counselor at the HospItal's Meadow Creek faCIlity since 1990, speaks to the change m the addIctions program. With the advent ofthe more specIahzed role of the Employer, she explams that the facihty has now shIfted its emphasIs to treatmg only those who have suffered from substance abuse along WIth a concurrent disorder, for example a phYSIcal problem which mIght mterfere with their recovery or a DSM Axis I major mental illness, or possibly a DSM Axis II personahty disorder She relates that the patients now seen are more typically m later stages and m a more severe condItion than would have been treated m the past Accordmg to her eVIdence the typIcal chent from the 1990 era would no longer be admitted to the Meadow Creek facihty, and would simply be referred to a private . 8 counselor or to an orgamsm such as AlcoholIcs Anonymous. According to her eVIdence, in 1996 and 1997 the complement of employees at Meadow Creek mcluded one social worker, six addictions counselors on days and evenmgs WIth one additional addictions counselor on mghts. There were, m addItion, 0.8 full time equivalent casual addIctIOn counselors working weekends as well as one regIstered nurse on days and one full tune recreologIst. Followmg the HSRC restructuring directives of 1997 and 1998, the facilIty was adjusted to one socIal worker and six addiction counselors on days. The mght addictions counselor IS now replaced by a registered practIcal nurse who IS from another bargammg umt. A position of one semor addictions counselor has been removed and, m addition to the regIstered nurse workmg on days, an RPN works mghts mstead of an addictions counselor Ms. Hall's testunony also discloses that the Assessment StabIlIzatIOn Umt at the ROH campus, also referred as the "detox unit", was adjusted. She relates that two full- time addIctions counselors received layoff notices and were compelled to exerCIse theIr seniOrIty to bump mto other positions. After the removal of two addIctions counselors m the ASU, a regIstered nurse was hIred, m her VIew, to deal WIth the greater complexIty of clIents bemg handled. Counsel for the Umon points to the partIcular circumstances of addIctions counselor Ken Sparling. In October 2002 he received a notice of layoff from his position in the ASU He was then offered a severance package which mcluded two weeks' pay for every year of servIce, a total of twenty-two weeks. Accordmg to Mr Sparlmg's evidence he declmed It, although he would have accepted a severance package Ifhe had been gIven the enhanced benefit of three weeks for every year of servIce m addItion to a 9 fifteen hundred dollar payment, which would have been his entitlement under the Human Resources Labour Adjustment Plan. Mr Sparlmg confirms the eVIdence of Ms. Hall to the effect that the patient load has become more complex, presumably m hIS case referrmg to the ASU He relates that over time, and m partIcular around the year 2002, the patient mix began to mclude some persons wIth senous concurrent dIsorders, a development which Mr Sparlmg described as addmg stress to the Job Counsel for the Union submits that the evidence confirms that the directive of the HSRC, mandatmg greater sophIstication m the Employer services, resultmg m the change m admIsSIons cntena to mclude concurrent dIsorders in the substance abuse program, caused the layoff of 2 addIctions counselors and the hrring of an RN Counsel maintams that in that circumstance one employee, Mr Ken Sparlmg was ill fact adversely affected and was offered the mcorrect retrrement package. Although he retrred later, counsel submIts that he should be entitled to the enhanced value of the separatIOn provisions of the Human Resources Labour Adjustment Plan. The second aspect of layoffs whIch contributed to the grIevance IS the adjustment to the AnxIety Program. In that program a psychologICal aSSOCIate received notIce of layoff. The incumbent ill that posItion, Local Union preSIdent Marlene Rlvier, was in fact replaced by a psychologist. That is to say a person with a master's degree was replaced by one wIth a doctoral degree Counsel for the UnIOn submIts that that decision was made ill furtherance ofthe speCIalIzation mandate handed down by the HSRC As It happens Ms. RivIer was able to displace another employee, MaggIe Letterman. Ms. Letterman elected early retrrement m accordance wIth the terms of a letter of 10 understandmg made on March 17,2003 No further claIm IS therefore made on her behalf or on behalf of Ms. RIvIer It furthers appears, m accordance wIth Ms. RIvIer's testnnony, that two regIstered nurses m the AnxIety Program also receIved layoff notices, albeIt in another bargammg umt. Ms. RIvier also stated her belIef that the department added to ItS manpower qualIficatIOn by the hiring of an addItIonal psychologist as well as an RN WIth a master's degree in psychology The third area exammed by counsel for the Umon IS the Mood Disorders Program. As noted in the evidence of Ms. RivIer, as with the Anxiety Disorders Program, and to some extent the Substance Abuse and Concurrent DIsorders Program, the pattern of manpower adjustment reflects the layoff of staff at the lower end and their replacement wIth more highly educated and more hIghly qualIfied persons. The eVIdence establIshes that in the Mood Disorders Program one psychometrist was laid off. As she was at her maximum of 52 weeks as severance entitlement, her only clann IS for the fifteen hundred dollar lump sump payment. Counsel pomts, however, to the fact that m the Mood Disorders Program the ratio of master's qualified persons, such as psychometrIsts, to doctorate qualified persons, such as psychologIsts, shifted from 1 0 to 25 before the changes to the functIonal plan projection of 44 to 5.55 It also appears that a recreatIonal therapIst was gIven layoff notIce m the Mood DIsorders Program. Havmg been placed elsewhere, that employee has not been considered as adversely affected. The fourth area addressed IS a five storey bmldmg dedicated to general psychIatry servIces, referred to as "WhItney", where It appears that two notIces of layoff were gIven, one on WhItney 5 and the other on WhItney 4 In the end, the elImmatIOn of a smgle position of semor occupatIonal therapIst resulted m a layoff. The mcumbent m that 11 posItion, Godwin IfedIa, took early retirement. The Umon claIms that had the Plan apphed, that employee would have receIved fourteen more weeks of severance in addItion to the fifteen hundred dollar benefit. In the fifth and fmal area of concern, counsel for the Umon submits that three persons were adversely affected by the adjustments m the PedIatncs Program. Social worker Gale Cosgrove, speech and language therapIst Margery Button and psychometnst Ann-Mane BourgeOIS all receIved notices of layoff and all three left the servIce of the employer Counsel for the Umon stresses that the notices of layoff m pediatrics were the consequence of the HSRC dIrective to transfer the under 16 program to the Children's HospItal of Eastern Ontario Under the Plan, Ms. Cosgrove would have been entitled to a further fifteen hundred dollar payment, whIle Ms. Button and Ms. BourgeOIS would receIve sIxteen weeks and eIghteen weeks, respectively, in addition to the fifteen hundred dollar payment. It does not, however, appear dIsputed that all three ofthose mdIvIduals receIved notice that theIr layoffs have been rescmded. The notice of October 16, 2002, advIsed them that they would be laId off effective March 16, 2003 In fact on February 27,2003 they were notified that their layoffwas rescmded. As noted above, however, all three chose nevertheless to leave the employment of the Hospital. The Employer adduced eVIdence which It submits sustams ItS case It maintams that the layoff notices of October 16, 2002, were in no way prompted by any amalgamation or transfer of servIces such as to attract the hIgher benefits of the Human Resources Labour Adjustment Plan. It argues that the layoff notices were occasIOned by senous budgetary constramts whIch compelled the Employer to make corresponding manpower adjustments at the time. Accordmg to its counsel, it IS only when addItional 12 fundmg was forthcommg from the Province that the Employer was able to rescmd a substantial number of the layoff notices. The facts, accordmg to the Employer, do not trigger the apphcatIOn of the Human Resources Labour Adjustment Plan. The HospItal's eVIdence was gIven prmcIpally through RIta Notarandrea, the Chief Operating Officer at the Carlmg A venue Campus of the Royal Ottawa HospItal. She was directly involved m the deCISIons respecting the layoff notices issued in October of 2002. Ms. Notarandrea states that before 1996 the Royal Ottawa Hospital functIOned as an acute care specialty hospItal m the area of mental health. The average length of stay for a patIent was 14 days. As an acute care specialty hospItal, ROH was able to prOVIde speCialty programs by reason of its own body of treatmg experts, WIth diagnostic expertIse in mood disorders, schizophrenia and forensics. She explams that the Hospital contmues to mamtam all of those functions. The Employer's WItness states, however, that WIth the advent of changes the RehabihtatIon Centre, preVIously in the ROH, was transferred to the Ottawa Hospital, thereby removmg the Employer's involvement in longer term emergency servIces. She notes that addItionally the Employer asswned the management of the Brockville PSYChiatrIC Hospital. Ms. Notarandrea explams that the move of the emergency servIces came after the HRSC directives, but was not done m consequence of those directives. Rather, she explains, it was a matter a oflocal management deciSIOn saId to have ongmated with psychiatrIsts in the teachmg faculty at the UmversIty of Ottawa. She also relates that an arrangement was pursued whereby the ChIldren's HospItal of Eastern OntarIO would, as of 1997, handle all children under the age of 16 while the 13 Royal Ottawa HospItal would deal wIth cases of patients over 15 That adjustment involved the transfer of eIght chIld care beds to CHEO, leavmg eight child care beds wIth the Employer In fact the actual transfer of beds occurred m September of2003 It does not appear dIsputed that staff was transferred with the work at that time, and the Human Resources Labour Adjustment Plan was duly applIed, as was the case wIth the transfer of the Rehab Centre According to Ms. Notorandrea, the ROH has not yet received the longer term beds WhICh are planned for, beds whIch currently are still located in the Brockville PsychiatrIc Hospital. To explam the ShIft in mental health care servIces mandated by the Provmce of OntarIO the Employer's witness refers the ArbItrator to a provincial government document entitled "Making it Happen" It appears that that document IS based on a general trend towards moving away from m-patIent beds to community based servIces. It describes three levels of care pnmary care, generally being at the level of a family phYSICIan, mtenslve or acute care, at the level of a psychIatrIc department of a general hospItal and, finally, speCIalIZed long term care whIch refers to the care to be obtained from a speCIalized or tertiary psychIatrIc hospItaL She acknowledges that the move of the ROH towards becoming a speCIalIzed psychIatrIc mstitution IS conSIstent WIth the mandate gIven to the Employer by the HSRC She stresses, however, that "We are not there yet" Ms. Notorandrea explains that concurrently WIth the HospItal's new mandate, but entIrely mdependent of It, the deCISIon was made to convert the Employer's facilIty into a "Center of Excellence" ThIS was conSIstent WIth the HospItal's already eXlstmg relationship with the Umverslty of Ottawa as a teachmg hospItal and was manifested 14 princIpally by a deliberate strategy to enhance the level of expertise and the qualificatIOns of staff for the ROH to become a noted leader m specialty care in mental health and long term psychiatrIc care Ms. Notorandrea distingUIshes between the transfer of beds from the Royal Ottawa HospItal to the Children's Hospital of Eastern OntarIo and the planned transfer of beds from Brockville Psychiatric Hospital to the ROH. She notes that when the actual bed transfer occurred WIth respect to CHEO in September of2003, the Human Resources Labour Adjustment Plan was duly applied. In contrast, she notes, the ROH has not yet receIved the projected transfer of long term beds from the Brockville PsychIatric HOSpItal, and correspondently there has not yet been any reason to apply the Human Resources Labour Adjustment Plan in that regard. In her VIew the HSRC directives are based on bed numbers and the movement of beds from one mstItution to another, while the plans ofthe ROH for enhancing the qualIty of ItS own servIces go beyond mere bed numbers. She stresses that the move towards bemg a "centre for excellence" is somethmg beyond the mandate of the HSRC, which deals WIth the amalgamation and consolIdatIOn of bed locatIons m the varIOUS hospitals affected. She further emphasizes that the deCISIons concerning the layoffs m 2002 were predIcated on what was then an accumulated deficit of some 9 million dollars, a significant constraint which compelled senous deCISIons WIth respect to staffing. She also notes that when addItIonal funding dId come, mItially m the amount of some 3 mIllion dollars, the layoffs were rescmded for WhItney 4, a General Psychology ward. Although some 2/3 of the layoff notIces were revoked, the remainmg layoff notIces affectmg the Psycho-sOCIal RehabilitatIon Program 15 on WhItney 5 and the Mood, Anxiety and Substance Abuse and Concurrent DIsorder programs remamed in place Subsequently, on March 6, 2003, the layoff notIces for WhItney 5, covermg some nine full-tIme and three part-tIme staffwere revoked. As a result, ultimately, the layoffs remaining scheduled for March 16, 2003 affected SIX full- time and two part-time staff. Counsel for the Umon argues that the Union's positIOn should succeed based on the application ArtIcle 301 of the Human Resources Labour Adjustment Plan for Ottawa-Carleton. It reads as follows. Where the Health ServIces Restructuring CommiSSIOn has not specIfically ordered a transfer of program and/or servIce, but the result IS the same, e.g. movement of Traumatic Bram Injury from Sisters of Chanty HOSpItal to the Rehab Centre, and movement of pSYChiatrIC beds from Royal Ottawa Health Care Group to other SItes, that movement wIll be conSIdered as a program transfer In essence, counsel for the Umon submIts that when the HSRC directed the Royal Ottawa HospItal to ShIft ItS mandate to become a specialIzed or tertiary mental health facility, any consequences of that change became a "result" withm the meaning of article 3 01 of the Plan. In other words, counsel submIts, Ifthe HSRC has dIrected the Employer to change ItS mandate, and that change has had negatIve effects on employees through consequent staffmg changes, the deCISIon is one whIch falls WIthin the scope and protectIOn of the Human Resources Labour Adjustment Plan. In that circumstance, . 16 employees affected by the change are entitled to the enhanced severance protection found within the Plan. Accordmg to counsel the dIrectives of the HSRC rmpacted five areas of the Hospital's operations. Firstly, the Substance Abuse and Concurrent DIsorder Program saw layoff notIces Issued to two addIctions counselors and the hIrmg of an RN because of greater complexIty in patIent needs. That, she argues, is a direct result of the enhanced mandate of the ROH as a specialty or tertIary care mstitutlOn. In that context she notes that Mr Sparling should therefore be entitled to the benefits ofthe Plan. Secondly she notes that wIthm the Anxiety Program a psychologIcal aSSOCIate receIved a notice of layoff to be replaced by a psychologist, a more highly qualified indIVIdual. Counsel submIts that because that decisIon was m furtherance of the greater speCIalIzation mandated by the HSRC, the mdivIdual ultimately displaced, Ms. MaggIe Letterman, should have the benefit of the Plan. ThIrdly, m Mood DIsorder, where one psychometnst was laId off, and fourthly in WhItney-General Psychiatry, where an occupational therapist took early retirement, the Plan should also have applied. As her fifth example, Counsel pomts to the PedIatncs where three mdIviduals, a SOCIal worker, a speech therapist and a psychometnst all left theIr employment after they received notIces of layoff. Counsel submIts that those notices were a consequence of the HSRC directive to move the under 16 program to CHEO Counsel acknowledges that in respect of the one person laId off from WhItney 4 and the others laid off from PedIatncs, the notices of layoff were all rescinded. She nevertheless submIts that as all of the employees m fact left, they should be entItled to the benefit of the Plan. 17 With respect to the Addictions Program, counsel emphasizes the eVIdence of Ms. ElIZabeth Hall, to the effect that at one tIme "ordmary" alcoholIcs with no further complIcatmg illnesses or condItIOns were treated m the addIctions program. Now such patIents are referred to community agenCIes or organisms such as AlcoholIcs Anonymous for their care. She submIts that her eVIdence establIshes that m fact Jobs were changed and reduced by reason of the directIves of the HSRC to offer only the higher and more specialized program of services for patients wIth problems of addIction and substance abuse She submits that there has, m effect, been a transfer of services from the HospItal to the communIty and pnvate physICIanS by the implementatIOn of the dIrectIves of the HSRC, a circumstance which she submIts falls squarely wlthm the scope artIcle 3 01 of the Human Resources Labour Adjustment Plan. She pomts the Arbitrator to the evidence which expressly referrers to changmg the staff mix in a plan document issued by the Employer on June 25, 2002 In her submIssIOn the addItIon of an RN pOSItIon at Meadow Creek can only be explamed by the HSRC mandate to move to a greater speCIalIzatIOn. The same, she submits, IS apparent from the upgradmg of pOSItions in the AnxIety Program and the Mood Program. She likeWIse submIts that the move away from general psychIatry towards becoming a tertIary care hospItal would be conSIstent with the elImmation of the pOSItion on WhItney 4 Counsel for the Union maintams that the layoffs were not, as the Employer suggests, prompted only by budgetary constramts. Moreover, she argues, even If the ArbItrator should fmd that budgetary and manpower cuts had to be made, the chOIce of pOSItIons whIch were elIminated was matenally driven by the ShIftS m the Hospital's 18 servIce mandate, thereby brmgmg the process wIthm article 3 01 of the Human Resources Labour Adjustment Plan for Ottawa-Carleton. Counsel for the Employer argues a dIstmctly different VIew He stresses that the HSRC directives were Issued m 1997 and 1998, some four years before the layoff notices. He maintams that the hIghlIght ofthose directives mvolved the ROH talong over the management of Brockville Psychiatric Hospital, and the eventual closure of Brockville and the transfer of beds from Brockville PSYChiatrIC HospItal to the ROH. He stresses that nothmg has happened WIth respect to that proposed initiative. He notes that no beds were transferred into or out of the Royal Ottawa HospItal up to March of 2003, the effective date of the layoffs. Counsel next addresses the dIrective of the HSRC mandatmg that the Royal Ottawa HospItal serve as a regIOnal referral centre for longer term mental care and also to prOVIde acute and long term servIces based on a total of 160 beds. That count breaks down as follows 8 acute care CrISIS beds, 109 longer term beds (to be transferred from BrockvIlle Psychiatric HospItal) and 15 forenSICS beds, also to be transferred from the Brockville PsychIatrIC HospItal. That total of 132 beds would, when added to the 28 forenSIC beds at the ROH, ultimately reach a total of 160 Counsel stresses that none of the beds to be transferred from the Brockville PSYChiatrIC Hospital have yet materialized. Counsel submits that the directives of the HSRC do not speak to the Addictions and Concurrent DIsorders Program (24 beds) or four youth beds WhICh, when added to the 160 beds, ultrmately account for the projected total of 188 What the dIrectives do, accordmg to counsel, IS speak to the transfer of the RehabilItation Center, something done in February of2002. He notes that paragraph 10 19 of the directives reqUITes the Royal Ottawa HospItal and other participatmg hospItals and UnIons to develop the Human Resource Labour Adjustment Plan for Ottawa-Carleton. In that context, he submits, it would reqUITe clear and uneqUlvocallanguage to establIsh that the Plan could be said to address any decision or mItIative, including its consequences, taken outSIde the scope of the directIves of the HSRC Counsel submits that there IS no evidence that there has been any change in the nature of the beds currently existmg at the Royal Ottawa Hospital Health Care Group, and that none of ItS beds has yet become a longer term bed as directed by the CommissIOn. He stresses the language of ArtIcle 101, under the heading "purposes" of the Plan whIch expressly states that its objective IS to " address the Impact of the restructuring on the Hospitals and union-related employees." Counsel mamtains that the concept of "transfer" of beds or servIces or employees IS at the heart of what the Plan IS about and that the eVIdence must dIsclose the partIcipatIOn of at least two hospItals to demonstrate there has been either an amalgamation or a program transfer WIthin the meanmg of the Plan. In his submIsSIon, the notion of a deemed transfer or movement contemplated under ArtIcle 3 01 must, nevertheless, mvolve some movement of a program or service from one hospital to another He submits that nowhere can It be seen that the movement of a program or service from one hospItal to another has occasioned the layoffs which are the subject of thIS grIevance Nor, he argues, can the notion of a movement withm the same hospItal trIgger the protections of the Plan. He emphasizes that the evidence does not dIsclose the movement of any work, servIces or employees on the one hand, or of any hospItal beds on the other hand. He further argues that even If it can be saId that there 20 has been a dIrective from the HSRC mandatmg a greater specialty, the means by whIch the Royal Ottawa HospItal might move towards that kInd of specIalized work is not somethmg which falls wIthin the Human Resources Labour Adjustment Plan. Counsel argues that the language of the Plan Itself amply supports the HospItal's posItIOn. He pomts, for example, to ArtIcle 4 01 of the Plan WhICh speaks to "the receIving or resultant hospital" AddItionally he underscores ArtIcle 4 06 (a) WhICh speaks of" any movement of employees or work" Like wise he notes sub paragraph C WhICh speaks of" the resulting program" and the rIghts of "each employee wIthm the transferrmg servIces or program" Counsel for the HospItal mamtams that nothing in the Plan purports to deal wIth what he describes as any general layoff scenarIO He also notes that the provIsIons of Article 10 0 (g) of the Plan specIfically prohibit an Arbitrator from addmg to, modIfying or deletmg any part of the Plan or the applIcable collective agreements. Counsel for the Hospital stresses that, as the Umon would have It, the dIrective of the HSRC to make the Royal Ottawa Health Care Group into a specialty hospital would bring any changes related to that mandate under the Human Resources Labour Adjustment Plan, a positIOn strenuously dIsputed by the Hospital. He notes that there IS a dIstmction between specIalIzed or longer term care and specialty programs. The latter flow not from the mandate of the Commission towards specialized care, but from the HospItal's own deCISIon to move in the dIrection of becommg a centre of excellence Counsel emphasizes the evidence WhICh he says confirms that the proxnnate cause of the layoff notices WhICh Issued m October of2002 was the cumulative defiCIt faced by the Employer at that time He notes the data tabled in eVIdence WhICh mdIcate 21 that the ROH Health Care Group faced a total projected deficIt of some 9 037 million dollars. It is m that context that the 70 layoff notIces were Issued m October of 2002, and not by reason of any directIve of the HSRC or the implementatIon of any amalgamatIOn or transfer of services. Although that monetary shortfall was largely made up, albeIt not completely, by subsequent fundmg, the fact remams that SIX full-time and two part-tune employees were nevertheless laId offby reason of what the Hospital then VIewed as its critIcal budgetary exigenCIes. With respect to the claun ofMr Sparling, counsel reiterates that nothing in the HSRC dIrectIves mandated any change m the HospItal's AddictIon Program. He mamtams that if a counselor was laid off from the Meadow Creek facilIty and an RN was hired, that was merely consIstent with the mcreased clinical needs of the patients who are seen there. He submIts that the employment of a psychologIst rather than a psychometrist m the Mood Program was an adjustment towards greater effiCIency Finally, counsel asks that If the 70 layoff notIces Issued m 2002 were all the consequence of the HSRC directIves, why were the great bulk of them rescmded when a subsequent correctIOn m fundmg was forthcoming? He argues that It seems ObVIOUS that the dIrectives of the ComrrnSSIOn and the consequences of them cannot be rescinded. The fact that events unfolded as they did is entIrely consistent with the HospItal's pOSItIon that nothmg in these layoff notices was prompted by the HSRC directives. On that baSIS he maintains that the grievance should be dIsmissed. I turn to consider the competing pOSItIOns of the parties. WhIle the eVIdence is extenSIve and relatIvely complex, the Issue becomes relatively narrow, to the extent that it boils down to the applicatIon of ArtIcle 3 01 of the Human Resources Labour 22 Adjustment Plan for Ottawa-Carleton. Were the layoffs which are the subject of these grIevances negative consequences of the drrectIves of the Health Services Restructuring CommIssIon, issued m 1997 and 1998, or were they, as the HospItal mamtams, entrrely related to the budgetary constraints and upgrading the qualIty of staff in furtherance of the Employer becommg a center of excellence in specialIZed mental health care? It IS not dIsputed that there were no amalgamatIons or program transfers whIch drrectly or mdrrectly gave nse to the layoffs whIch are the subject ofthis dIspute. The Issue, it IS agreed, is whether what has occurred IS a "result" whIch IS the same as a transfer of a program or service, even though none has been ordered by the Health ServIces Restructunng CommISSIon. In the ArbItrator's VIew, the language of ArtIcle 3 01 of the Plan cannot be mterpreted in a way abstracted from other provIsions of the Plan, and most particularly ArtIcle 1, which describes ItS purpose At the outset, and with the greatest respect, I am compelled to comment that Article 3 01 of the Plan IS less than a model of clear syntax and fortunate drafting. At frrst blush a reader might be compelled to agree WIth the approach of counsel for the HospItal to the effect that the emphasis wIthm ArtIcle 3 01 is upon "movement" as constItuting a deemed program transfer The difficulty, however, IS that all reference to the movement of servIces or beds is found only wIthm an example followmg the designation "e g." Therefore it becomes less than clear whether the language that appears there is less than exhaustIve, and that other examples not involvmg movement might also operate. Certamly, the pOSItIon of the HospItal would be stronger ifthe authors had used the designation "I.e " (that IS) rather then "e.g." (for example) It is for that reason that the ArbItrator deems it important to draw more broadly on the language 23 of the Plan, and m partIcular to examine closely the language of Article 1 concemmg Its purpose In that regard I consIder the language of ArtIcle 1 02 to be sIgnIficant. It bears repeating. The partIes are determmed to mmImlZe the adverse Impact of restructurmg on employees by developmg a plan that deals WIth human resources issues common to all Hospitals. Srmilarly, artIcle 1 01 speaks to "the Impact of the restructurmg on the HospItals and Umon-related employees" In my VIew these proVIsIons mdIcate that It IS not necessanly the movement or the transfer of work, servIces or beds whIch is at the heart of the matter Rather, It IS the overarching concept of "restructuring" which triggers the protectIve provisions of the Plan. By any lOgIC, restructurmg does not of itself necessarily mean that there must be movement between two mstItutIOns. For example, the elimmatIon of a program wIthm a hospital and its replacement by nothing, whether m that hospItal or any other hospItal, would constItute a form of restructurmg. If the words of the Plan are to be read in a relatIvely liberal and remedial way, consIstent WIth the overall mtentIon of the document, It IS dIfficult for an arbItrator to come to the conclUSIOn that only the movement of servIces, programs or beds resulting in negatIve rmpacts on employees will give rise to the protections of the Plan. That IS not to say, obVIOusly, that every adjustment WIthin a hospital, or transfer of servIces wIthm and among ItS own departments, would constitute restructurmg so as to invoke the protectIOns of the Plan. On the contrary, for the protectIOns of the Plan to apply the Umon must estabhsh that there has been some form of change or restructurmg 24 whIch flows clearly and dIrectly from the dIrectives of the Health Services Restructuring COlmmssIOn, and secondly that those changes have an adverse effect on the employee who would avail hllTIself or herself of the enhanced severance provisions of the Plan. When the second of these requIrements IS consIdered, namely that there must be some adverse Impact, the ArbItrator has considerable difficulty wIth the position of the Umon as regards the layoff notices whIch were m fact rescmded before the date they were to be Implemented. Accepting, for the sake of analysIs, that the notices whIch Issued to one occupational therapIst on WhItney 4, and to three employees in PedIatrics on October 16,2002, to take effect on March 16,2003, fell under the Plan and were all rescmded effective February 25 to 27, 2003, on what basIs can it be said that the persons who receIved those notices of layoff were adversely affected in any way? The fact that they may have opted to leave theIr employment and not to accept to return when It became clear, well m advance of March 16,2003, that they were not bemg laId off does not change the essence of what occurred. What occurred IS that they did not lose theIr Jobs, and were not adversely affected by the layoff notices, even If It could be concluded that those layoff notIces would fall under the protective provisIOns of the Human Resources Labour Adjustment Plan. As regards those mdIvIduals, therefore, the grievance clearly cannot succeed. DIfferent considerations come to bear, however, with respect to the employees who receIved layoff notices who were workmg in the Substance Abuse and Concurrent Disorders Program, the AnxIety Program and m the Mood DIsorders Program. In dealmg with the CIrcumstances of those mdividuals, for practical purposes three employees, great care must be taken wIth what transpIred. Firstly, gIVen the contemporaneous hIring 25 whIch occurred, It IS not clear that theIr layoffs were forced by a declSlon to realIZe savmgs m wages. In the case of the Substance Abuse and Concurrence DIsorders Program an addIctions counselor, Mr Ken Sparlmg, was removed from employment notwithstanding that an RN was hIred to brmg greater expertise to bear m the clmIcal needs of the program, gIven the greater complexIty of the patients being treated. I am satisfied on the basis of the eVIdence before me that what occurred was in response to the gradual ShIft of focus in patient care within the Substance Abuse and Concurrent Disorders Program, away from what mIght have been the more srmple garden varIety treatment of substance abuse patIents m the mId 1990' s to what has emerged as the more specIalIzed care and treatment now being provIded. Presently, the program addresses the needs only of persons suffering addictIOns or substance abuse problems who also have other complIcatmg medIcal or pSYChiatrIC condItIons. That, m my VIew, IS clearly m dIrect response to the mandate gIven to the Royal Ottawa HospItal Health Care Group to be a longer term chronic care or tertiary care specialized instItutIOn. While the Arbitrator does not doubt the smcerity of the Employer's own mtemal declSlons and mItIatlVes to move towards becommg a center of excellence, in part by upgradmg staff, I fmd it dIfficult, If not impossible, to separate that miSSIOn from the obviously higher mission of specialized and tertIary care given to the Hospital through the mandate of the Health ServIces Restructurmg CommIssion. In my VIew the two elements, provIdmg more specialIzed servIce and upgrading the qualIficatIon of staff, are virtually inseparable parts of restructurmg, vIewed on an overall program baSIS. I am therefore compelled to accept the pOSItIOn of the Umon as regards the layoff notIce whIch 26 issued to Mr Sparling m respect of the restructurmg which took place wIthin the overall system. His layoff flows directly from the mandate of specIahzatIOn whereby hospItal services are provIded wIthin Ottawa-Carleton to persons with problems of substance abuse, and in partIcular substance abuse compounded by other complicatmg phYSIcal or psychiatric condItions. The fact IS that patients who would prevIously have been seen in the Substance Abuse Department of the Royal Ottawa HospItal have been effectively downloaded onto other commumty servIces and family doctors or clmIcs. The resulting upgrade of the level and sophistication of care within the program of the Employer must, ill the end, be seen as a flowillg from the restructurillg mandate given to It by the CommISSIon. ThIS constitutes a "result IS the same" SItuation, as contemplated by artIcle 3 01 of the Plan. After considerable reflectIOn, I come to the same conclusIOn as regards the layoff and replacement of employees ill the Anxiety Program and the Mood DIsorders Program. In the fIrst, a psychologIcal aSSOCIate was laId off and replaced by a psychologIst, whIch resulted ill the displacement of the incumbent, Marlene RlVier, and the ultimate layoff of another employee, MaggIe Letterman. SimIlarly, ill Mood DIsorders, a psychometnst was laId off to be replaced by a psychologist. In both CIrcumstances the result was an upgrading of the Hospital's manpower qualifIcations WhICh, m my VIew, flowed dIrectly from the mandate given to the HospItal by the Health ServIces Restructunng CommIssIon. These changes are a proximate consequence of its dIrective to the ROH Health Care Group that It become the purveyor of more speciahzed longer term care, ill the role of a tertIary mental health institution. These are, in my VIew, mstances of "restructuring" WIthin the contemplatIOn of ArtIcle 1 02 of the Human Resources Labour 27 Adjustment Plan and they do amount to similar impact events of negatIve consequence as enviSIoned under ArtIcle 301 of the Plan. With the greatest respect, and appreclatmg that the pOSItIOn of the HospItal has been put forward m the best of good faith, the internal decision of the Employer to become a center of excellence does not change the essence of what has transprred WIth respect to these layoffs. I am satIsfied, on the balance of probabilItIes, that these layoffs and manpower adjustments are fundamentally and primarily m furtherance of the restructurmg directIves Issued to the Hospital by the Health ServIces Restructuring Commission. In the result, the grIevance must be allowed, in part. As noted above, those parts of the grIevance relatmg to the layoffs whIch were rescmded are dIsmIssed. Those parts of the grIevance respectmg the layoff notice issued to Mr Ken Sparlmg in the Substance Abuse and Concurrent DIsorders Program, as well as to Maggie Letterman as a result of the dIsplacement of Marlene RIvIer in the AnxIety Program and Ms. Asha Bhatnaggar of the Mood DIsorders Program all come wIthm the proVISIOns of the Human Resources Labour Adjustment Plan, with the resultmg entItlement of the affected employees to the enhanced severance of benefits which It prOVIdes. As agreed at the hearing, the Arbitrator makes no speCIfic directions with respect to amounts of wages and benefits to be paid, and retams JUrIsdICtion in the event that the parties should be unable to agree with respect to those issues. Dated at Ottawa thIS 7th day of March, 2006 / .~,~ Michel G Picher, ArbItrator