HomeMy WebLinkAboutUnion 16-11-18
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AWARD
The Ontario Public Service Employees Union, Local 577 (the “Union”) has filed a
grievance alleging that Humber River Hospital (the “Hospital”) has violated the collective
agreement by prohibiting part-time employees from picking up shifts during periods
when they are under suspension.
FACTS
The parties have agreed to a Statement of Facts as follows:
The Parties
1. Humber River Hospital (the “Hospital”) is one of Canada’s largest regional acute
care hospitals, serving a catchment area of more than 850,000 people in the
northwest Greater Toronto Area. The hospital currently operates out of its Wilson
Avenue site with a total of 656 beds, approximately 3,500 staff, approximately
700 physicians and 400 volunteers.
2. The Hospital has a bargaining relationship with the Ontario Public Service
Employees’ Union, Local 557 (the “Union”)
3. The Hospital and the Union are parties to a Collective Agreement for a combined
Full-Time and Part-Time unit, which contains the following scope clause:
The Hospital recognizes the Union as the sole bargaining agent for all
Laboratory Technologist/Technicians, Medical Imaging
Technologists/Technicians, Respiratory Therapists/Care Practitioners,
Polysomnographers (Sleep Lab Technologists/Technicians), Anesthesia
Assistant, PACS Analyst, Radiation Safety Officer and Certified Asthma
Educator, and any other Technicians 1 to 5 (i.e. E.E.G.,E.C.G.) as
identified by Phase III of the Wage Standardization Programme employed
by Humber River Regional Hospital, save and except persons above the
rank of Charge, students in training and employees covered by subsisting
Collective Agreements.
4. The Collective Agreement covers approximately 204 Full-Time employees and
approximately 126 Part-Time employees.
5. The current Collective Agreement between the parties is in force from April 1,
2014 to March 31, 2016.
6. The Union filed Policy Grievance No. 2014-0577-0008 on February 27, 2014 (the
“Grievance”). A copy of the Grievance is attached at Tab A.
7. The Collective Agreement in force at the time the Grievance was filed is attached
at Tab B.
Scheduling Part-Time Hours
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8. Article 18.08 of the Local Appendices of the Collective Agreement requires work
schedules for Full-Time and Part-Time employees to be posted at least six (6)
weeks in advance of the schedule taking effect. Work schedules cover a nine (9)
week period.
9. Managers in each department complete a draft schedule before a schedule is
posted based on operational needs. Full-Time employee hours are scheduled
prior to Part-Time employees. After Full-Time hours have been included in the
schedule, managers will schedule Part-Time employees based on the Part-Time
employees’ stated availability and operational needs.
The Grievance
10. The Grievance alleges the Hospital has violated Articles 2.04 and 2.05 of the
Local Appendices (Management Rights) of the Collective Agreement.
Specifically, the Union disputes the Hospital’s policy regarding the suspension of
Part-Time employees, which is described more fully below.
11. When the Hospital suspends a Part-Time employee, the Part-Time employee is
suspended from his or her next scheduled shift(s) following the date the
suspension is issued (the “Period of Suspension”). For example, if the Hospital
issues a three-day suspension on January 1 to a Part-Time employee, the Part-
Time employee will be suspended on the next three shifts he or she was
scheduled to work following January 1; the Period of Suspension ends after the
third-shift in this example.
12. During the Period of Suspension, the Hospital does not consider the Part-Time
employee eligible to work additional shifts – either through picking up additional
Part-Time shifts, or by trading shifts with a colleague – if the additional shift(s) fall
within the Period of Suspension.
13. As per the parties’ agreement, a sample nine-week schedule covering Part-Time
employees is attached at Tab C.
14. The sample shift schedule as indicated above provides for a scenario where
Regular Part-time Employees are working no less than three shifts per week. It is
also the case that in other departments over the same period, other regular part-
time workers may be scheduled less frequently than shown in the attached
sample schedule. The parties agree that the work schedules for individual part-
time employees vary based on operational demands, seniority, and employee
availability.
[Attachments not included]
COLLECTIVE AGREEMENT
HRR 2.04
The Union recognizes that the management of the Hospital and the direction of
the working force are fixed exclusively in the Hospital and shall remain solely with
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the Hospital except as specifically limited by the express provisions of this
Agreement. Without restricting the generality of the foregoing, the Union
acknowledges that it is the exclusive function of the Hospital to:
(a) Maintain order, discipline and efficiency.
(b) Hire, discharge, direct, classify, transfer, promote, demote, assign
employees to shifts, lay-off and suspend or otherwise discipline
employees for cause provided that a claim of discriminatory classification,
promotion, demotion, or transfer or a claim that an employee has been
unjustly discharged or disciplined may be the subject of a grievance and
dealt with in accordance with the Grievance Procedure.
(c) Establish and enforce rules and regulations to be observed by
employees, provided that they are not unreasonable nor are inconsistent
with the provisions of this Agreement.
(d) Generally to manage and operate the Hospital in all respects in
accordance with its obligations and without restricting the generality of the
foregoing, to determine the kinds and locations of machines, equipment
to be used, the allocation and number of employees required from time to
time, the standards of performance for all employees and all other
matters concerning the Hospital’s operations, not otherwise specifically
dealt with elsewhere in this Agreement.
HRR 2.05 It is agreed that these rights shall not be exercised in a manner
inconsistent with the express provisions of this Agreement.
HRR 18.11 APPLICABLE TO PART-TIME
Additional part-time hours will be offered in a fair and equitable manner and
reflective of seniority.
The parties recognize that unforeseen circumstances may arise where the
Hospital may be unable to offer the extra shift to the most senior employee. (e.g.
last minute sick call)
SUBMISSIONS
The Union argues that not permitting part-time employees to pick up shifts until they
have served all the dates of their suspension is a hardship for employees who are not
scheduled for a lot of regular shifts. It submits that the collective agreement requires
schedules to be posted six weeks in advance and an individual could be scheduled for
only one shift every two weeks for a total of three shifts. An individual in that situation
would be off work for six weeks for a three day suspension. The Union asserts that the
Hospital should be required to amend its policy so that part-time employees can pick up
shifts as long as they do not overlap with any that are subject to the suspension.
The Union requests, in the alternative, that the Hospital be required to consider specific
circumstances when imposing discipline including the possibility that an employee be
permitted to serve a suspension on intermittent shifts. It submits that such an approach
would be appropriate given the potential economic ramifications for the employee as well
as the heavy commitment the part-time employees are required to make to the Hospital.
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The Union argues that the collective agreement requires part-time employees to be
available 12 months per year, six shifts per pay period, for rotating and extended shifts,
50 percent of weekends, paid holidays and Christmas and New Year’s. Thus, employees
are required to make a significant commitment to the Hospital and their lives may be
deeply affected by being subjected to a protracted suspension. The Union says that it
would be difficult for employees to mitigate their losses in a period of weeks given the
commitment they have had to make. It maintains that the Hospital’s policy effectively
penalizes employees for that commitment.
The Union argues that Article HRR 18.11 requires the Hospital to offer part-time hours in
a fair and equitable manner and reflective of seniority. It maintains that the Hospital’s
refusal to offer shifts to people under suspension violates that requirement. The Union
contends that the requirement to offer part-time hours in a fair and equitable manner is a
separate entitlement under the collective agreement. It submits that prohibiting its
members from picking up additional shifts during a period of suspension is, therefore, an
additional penalty because they are not only losing the shifts they were scheduled but all
of the other shifts they would have worked as well.
The Union argues that living in Toronto is expensive and that the part-time members of
the bargaining unit have a difficult enough time supporting their families on their wages
without also being unable to pick up shifts for an extended period of time. It maintains
that such an onerous impact goes beyond progressive discipline. The Union says that
the Hospital must take the financial impact on an employee into account when meting
out discipline and in setting its policies. The Union insists that barring an employee from
being in the workplace for several weeks is not a just response.
The Union also contends that spreading discipline out over weeks waters down its effect
so intermittent discipline would be a better response. It says that would also insure that
an employee is not put in a position in which they cannot make a living.
In conclusion, the Union submits that its part-time members are prejudiced by the
manner in which the Hospital administers discipline. It maintains that part-time
employees should be permitted to continue to pick up shifts during any period of
suspension because otherwise their period of suspension could last for six weeks. The
Union contends that Article 2.05 of the collective agreement requires that the Hospital’s
policy decisions be reasonable and consistent and that either of the remedies it is
seeking would meet those requirements.
The Union asks that the grievance by allowed. It refers to the following awards: London
(City) v. London & District Service Workers Union, 1982 CarswellOnt 2471 (Palmer);
Rubbermaid (Can.) Ltd. v. U. A.W., Local 252 (1978), 21 L.A.C. (2d) 432 (Weatherill);
Brampton (City) v. A.T.U. Local 1573, 1978 CarswellOnt 887 (Shime).
The Hospital argues that its practice with respect to suspensions is a reasonable
exercise of its management rights and is not restricted by anything in the collective
agreement. It submits that a suspension means that a person is off the payroll and out of
the workplace until the period of suspension has been completed. The Hospital argues
that the two remedies the Union is seeking both mean that an employee would be
working during the period of suspension. The Hospital contends that that is not
appropriate and is inconsistent with labour relations principles.
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The Hospital relies on three principles that it asserts are found in the jurisprudence. The
first is that a suspension is a period of time away from the workplace and off the payroll.
That period of time should not be interrupted by an employee working. The second
principle proposed by the Hospital, is that an employee may incur other negative
consequences as the result of a suspension and that is not considered to be a double
penalty. The third principle is the exception to the second and is that the suspension
cannot cause an employee to lose an earned right, such as statutory holiday pay. The
Hospital denies that eligibility for shifts during a suspension is an earned right.
The Hospital says that the practice it uses for the part-time employees is the same one it
uses for full-time employees. In both cases, suspensions are served on the next
scheduled shifts. The Hospital asserts that that is the practice of most employers. It says
that its practice is, in effect, a rule or a policy and that it can have rules and policies
providing that they are not inconsistent with the provisions of the collective agreement.
The Hospital agrees that if an employee had already been approved for an extra shift or
for a shift exchange before a suspension was imposed, that shift would be counted for
the purposes of the suspension. It also confirms that an employee would not be
expected to be available for additional shifts while they are suspended.
The Hospital denies that the requirement to provide additional shifts in a “fair and
equitable manner and reflective of seniority” continues during a period of suspension. It
says that Article 18.11 must be read in context and in light of the management rights
clause. The Hospital also maintains that Article 18.11 must be interpreted taking into
account the purpose of issuing a disciplinary suspension. A disciplinary suspension is
meant to be corrective and to give an employee a period away from the workplace to
consider what they have done. The Hospital asserts that the fact of being suspended
does change certain rights for a period of time. An employee cannot expect to be called
into work during the period of a suspension.
In the alternative, the Hospital argues that a suspension is an “unforeseen circumstance”
for the purpose of the second paragraph of Article 18.11. It is, therefore, an exception to
the requirement to offer additional hours to the most senior employee.
The Hospital submits that the remedy the Union seeks would require language in the
collective agreement that is not there. It asserts that an arbitrator has no jurisdiction to
add such language.
The Hospital acknowledges that an employee might argue that the impact of a
suspension is disproportionate in a particular case but it says that cannot be addressed
by a policy grievance. It insists that the fact that there may be other negative impacts
does not mean that suspended part-time employees must be allowed to pick up shifts as
a matter of policy. The Hospital notes that it is the employee’s misconduct that leads to
the discipline. It contends that employees can always pick up shifts after the end of the
suspension to make up for the income loss.
The Hospital asks that the grievance be dismissed and for a declaration that its
approach to administering suspensions is permissible and is not unreasonable.
The Hospital refers to the following awards: Metro Ontario Inc. and United Food and
Commercial Workers Canada, (Unreported January 3, 2013 (Stout)); Kruger-Longlac
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Wood Industries Inc. and I.W.A.-Canada, 1997 CarswellOnt 6691 (Backhouse);
Rubbermaid (Can.) Ltd. v. U.A.W., Local 252, 1978 CarwellOnt 938 (Weatherill);
National Edible Oils v. U.F.C.W., Local 208, 1986 CarwellOnt 3668 (Solomatenko);
Samuel Manu-tech Inc. (Nelson Steel Division) and United Steelworkers of America,
Local 8782 (Unreported, October 2, 2004 (Carrier)); Metropolitan Toronto Civic
Employees Union, Local 43 and The Municipality of Metropolitan Toronto, (Unreported,
June 24, 1988 (Joliffe)); Ontario Public Service Employees Union (Sindall/Chmurzynski)
and The Crown in Right of Ontario (Ministry of Community Safety and Correctional
Services), Grievance Settlement Board, December 9, 2008 (Petryshen)); Religious
Hospitallers of St. Joseph of Hotel Dieu of Kingston and Ontario Public Service
Employees Union, Local 465, 1991 CarswellOnt 6388 (Brent).
The Union replies that the entitlement to the equitable opportunity to work extra shifts is
not the same as being denied the opportunity to work overtime during a suspension. It
distinguishes those awards and says that they are concerned with employees getting a
windfall during a suspension. The Union asserts that the issue in this case is whether an
employee can plan their life by getting shifts at straight time without affecting the
suspension itself.
The Union also denies that it is asking for an addition or amendment to the collective
agreement. It denies, further, that a suspension could be considered an “unforeseen
circumstance” for the purpose of Article 18.11.
DECISION
There is no dispute that it is the Hospital’s policy or practice that employees who are
under suspension may not pick up additional shifts. That policy or practice does not
violate the collective agreement. The Hospital has the right to suspend employees for
cause and a suspension usually includes the expectation that an employee will not work
until it has been completed. A disciplinary suspension is a period of time during which an
employee is unpaid and out of the workplace and is expected to consider and correct
their behaviour. It would hardly have the same effect if an employee could just pick up a
shift before or after the one scheduled and thus avoid any loss.
The fact that the Hospital’s policy does not violate the collective agreement does not
mean that its effect need never be taken into account. Discipline must be proportionate
to the offence. Thus a three shift suspension that results in three weeks off work for an
employee who would normally pick up additional shifts may be a harsher penalty than a
three day suspension served over one week. However, the appropriate length of a
suspension is a matter to be determined on a case by case, not a policy, basis. If the
Union considers the effect of any particular suspension to be too harsh it can file a
grievance.
The Union submits that the prohibition against picking up shifts is a separate penalty in
addition to the suspension. It says that the right to pick up additional shifts is an earned
benefit that is being lost. However, jurisprudence with respect to “double penalties” is
more generally associated with situations in which one level of management imposes
discipline which is subsequently increased by someone else. It has also been applied in
circumstances where an employee was not paid for a statutory holiday that fell during a
period of suspension because that was considered to be an earned benefit. (See
Corporation of the City of Brampton supra). However, the ability to pick up shifts is
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conceptually closer to the ability to work an overtime shift than to receive payment for a
statutory holiday. Both overtime and extra shifts for part-time workers provide additional
payment that could diminish or eliminate the effect of losing the suspended shifts. They
are also similar in that an employee who worked an overtime or extra shift would be
attending at the workplace during a period of suspension. There have been a number of
awards in which it has been found that being ineligible to work overtime is a
consequence of being suspended and is not a violation of the collective agreement. (See
The Crown in Right of Ontario, Ministry of Community and Safety and Correctional
Services supra and National Edible Oils supra) The exception is a situation in which an
overtime or extra shift has already been scheduled in which case it should be treated as
one of the suspended shifts but that does not change the principle that employees are
not entitled to work during a period of suspension. (See Rubbermaid (Can.) Ltd. supra
and Municipality of Metropolitan Toronto supra).
Article 18.11 of the collective agreement dictates how additional hours are to be
distributed to those who are entitled to work them. It does not say anything about
whether suspended employees are eligible to work additional shifts and such a right
cannot be read into it. Thus, prohibiting employees who are suspended from picking up
shifts is not a violation of Article 18.11 or any other provision of the collective agreement.
For the above reasons I find that the Hospital’s policy of prohibiting part-time employees
under suspension from picking up shifts is not a violation of the collective agreement.
Whether the application of that policy results in a penalty which is disproportionate to a
particular offence must be decided on a case by case basis, initially by the employer and
subsequently, if the Union disagrees, through the grievance process.
The grievance is dismissed.
Dated at Toronto, November 18, 2016
________________________
Laura Trachuk
Arbitrator
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