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HomeMy WebLinkAboutHarriott 18-02-07IN THE MATTER OF AN ARBITRATION BETWEEN: HUMBER RIVER HOSPITAL (the "Employer" or the "Hospital") /:f►117 ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 590 (the "Union") AND IN THE MATTER OF THE GRIEVANCE OF J. HARRIOTT CONCERNING RELATED EXPERIENCE CREDIT ARBITRATOR APPEARANCES FOR THE UNION FOR THE EMPLOYER ROBERT J. HERMAN RICHARD BLAIR . JULIETTE MARRIOTT VICKI GOLDSON KAREN ROUSSEAU JACKIE VANDERMEULEN BEVERLEY PHILIP IRYNA RIZZUTO DIANE PESTRIN THIS MATTER WAS HEARD IN TORONTO ON OCTOBER 6, 201'7 AND JANUARY 12, 2018 The grievor filed a grievance over the failure of the Employer, Humber River Hospital (the "Hospital"), to take account of her related experience for purposes of placement on the salary grid when she transferred from a part-time position at the Hospital to a different Rill -time position. The Union, OPSEU Local 540, alleges the Hospital thereby breached Article 26.03 (d) of the Collective Agreement. The Hospital submits that it is only required to consider related experience at original time of hire of an employee and not when an existing employee transfers or is promoted to a different position. 2. Article 26.03 reads: 26.03 Claim for Recent Related Experience (a) When a new employee has submitted a Curriculum Vitae with his/her application for a job he/she shall be informed: (i) that the Curriculum Vitae represents his/her claim for recent related experience, and therefore, determines his/her starting position on the salary scale, and, (ii) that if he/she wishes to provide, fiu-ther information regarding experience he/she must do so when replying to the letter of offer. (b) When a new employee does not include written documentation of recent related experience at the time of application, the Hospital shall inform him/her: (i) that no claim for recent related experience has been provided, and therefore his/her staffing position on the salary scale is at the base rate, and z (ii) that if he/she wishes to provide further information regarding experience he/she must do so when replying to the letter of offer. (c) After the initial year of experience, more than three-quarters C/a) of a year will be recognized once as a fiull year. For example: two and one-half (2 %2) years' experience counts as two (2) years; two and three-quarters (2 %) years counts as three (3) years; three and one-half (3 %2) years counts as three (3) years; three and three-quarters (3 3/) years counts as four (4) years; four and one- quarter (4 '/a) years counts as four (4) years and so on. (d) All employees shall have their respective placement on the grid adjusted to reflect the combination of their claim for related experience, if any, claimed at the time of hire and the number of years of service that the employee has at the Hospital. (emphasis added) The parties filed the following "Agreed Statement of Facts": 1. The Grievance Form is attached at Tab 1 of the parties' Joint Book of Documents. 2. At the relevant times, the parties were governed by a collective agreement with a term of April 1, 2014— March 31, 2016 (the "Collective Agreement"). A copy of the Collective Agreement is included at Tab 2 of the Joint Book of Documents. 3. Article 3.01 (a) of the Collective Agreement defines "Employee" as "an employee of Humber River Hospital for whom the Union is the recognized collective bargaining agent." 4. Article 12.01 of the Collective Agreement provides: Service is defined as that fixed continuous period of time from commencement to termination of employment with the Hospital, except as otherwise provided herein. Permanent part -tune employees will accumulate service fiom commencement from last date of hire to termination of employment with the Hospital on the basis of one (1) years' service for each 1500 hours worked, except as otherwise provided herein. Permanent part -tune employees shall have their service expressed on the basis of number of hours worked. Article 12.04 of the Collective Agreement provides, in part: In the event that a paid -time employee changes status to full-time or vice -versa, he/she shall not lose service or seniority. For a part-time employee who changes 3 status to full-time, each fifteen hundred (15 00) hours of service shall be equivalent to one (1) year' service, and each fifteen hundred (1500) hours of seniority shall be equivalent to one year's seniority. [ ... ] 6. Article 26.01 of the Collective Agreement provides: The salary rates in ranges as agreed to and attached to this Collective Agreement shall be effective during the term of this agreement. All employees in the bargaining unit shall be paid in accordance with the classification and year of service in Appendix A, which forms part of this agreement 7. Article 26.03 of the Collective Agreement provides, in part: Claim for Recent Related Experience (a) When a new employee has submitted a Curriculum Vitae with his or her application for a job he/she shall be informed: (i) that the curriculum vitae represents his/her claim for recent related experience, and therefore, determines his/her starting position on the salary scale, and, (ii) that if he/she wishes to provide further information regarding experience, he/she must do so when replying to the letter of offer. [... ] (d) All employees shall have their respective placement on the grid adjusted to reflect the combination of their claim for related experience, if any, claimed at the time of hire and the nuunber of years of service that the employee has at the hospital. 8. The griever, Ms. Juliette Harriott is a Social Worker with a Masters of Social Work ("MSW") which she obtained in 2007 and is registered with the Ontario College of Social Workers and. Social Service Workers and the Ontario Association of Social Workers. 9. Ms. Hairiott has been employed with the Hospital as a bargaining unit employee since 2005, when she was successfully hired as a part-time Social Worker in Allied Health Services, working in the Emergency Department. A copy of the posting from that position is attached as Tab 5 of the Joint Book of Documents. A copy of Ms. Harriott's offer letter is included at Tab 7 of the Joint Book of Documents. 10. At the time of her original employment, she was placed on the salary grid at Step 1, and in 2009 was given one additional step in recognition of her 1 year's Previous MSW experience. Between 2009 and 2015, when this grievance was filed, the grievor moved up the salary grid to Step 3 and 4, respectively. 11. Since 2001, Ms. Harriott has also been employed as a front line social worker with the Toronto Catholic Children's Aid Society ("CCAS") in a full time position directly related to child welfare. 12. In 2015, the Hospital posted a position for a full-time Social Worker in the Maternal and Child Program. A copy the job posting is included at Tab 4 of the Joint Book of Documents. 13. Ms. Harriott applied and was awarded the position by letter dated August 6, 2015, a copy of which is attached at Tab 3. In that letter, she was advised that her current salary would be maintained. 14. Ms. Harriott applied for and had the qualifications for the position. Specifically, the position description required: "Previous recent experience with Obstetrical and with Paediatric patients, Child Protection Services and Perinatal Loss Issues." 15. Beginning on September 11, 2015, Ms. Harriott pursued discussion of the issue of her grid placement and child welfare experience with the Hospital, and subsequently filed a grievance dated December 18, 2015, Emails related to -the discussion concerning grid placement are included at Tab 6 of the Joint Book of Documents. M. Ms. Harriett grieved pursuant to Article 26 and in particular Article 26.03 of the Collective Agreement, on the basis that her recent related experience did not result in an adjustment to her placement on the salary grid when she accepted a full time Social Work position with the Maternal and Child Program. 17. Ms. Harriott seeks placement on the grid in her class at ,Step 7, retroactive to the date of commencement of her duties in the full time position. 4. The parties also led viva voce evidence that established the following additional facts. After she began working part-time for the Hospital in 2008, the grievor acquired considerable additional training and work experience through her continued work for the CCAS as a Rill -time employee, experience that would be considered "related experience" within the meaning of Article 26.03 if the Hospital was required to take it into account in the circumstances at hand. She has also acquired considerable additional experience. through her part-time position with the Hospital, experience that would also qualify as "related experience". The grievor's posting to the position in question was a transfer and not a promotion. The department or program she posted to, the Maternal and Child Program, assesses and credits related experience for purposes of placement on the salary grid only when an individual is first hired by the Hospital, and not when s/he changes positions as an existing employee, whether as a transfer or promotion from another department or position or within the Program. With respect to the practice of the Hospital in other departments or programs, there is no evidence that the Hospital has ever assessed or credited "related experience" acquired either outside the Hospital or with the Hospital at any time other than as of time of initial hire by the Hospital. Submissions S. Neither party submits that the relevant language is ambiguous. 6. The Union submits that recent related experience is to be considered both at time of original hire and upon a transfer or promotion to a different position. It notes that Articles 26.03 (a) and (b) make clear that recent experience is to be assessed and credited at time of original hire. Common sense and the language of Article 26.03 (d), the Union asserts, both suggest that related experience is also to be considered when an employee takes up, or is "hired", into anew position. It is common sense, the Union maintains, that when an existing employee comes to a new positon, s/he may bring with her/him recent related experience, and if s/he does so, the Employer values that experience, on the same basis that the Employer values and acknowledges related experience when an employee is first hired. Indeed, notes the Union, the posting for the grievor's position required "Previous recent experience with Obstetrical and with Paediatric patients, Child Protection Services and Perinatal Loss Issues", so the Hospital clearly took recent related experience into account in "hiring" into the posted position. The language of Article 1.1 26.03 (d) also supports this interpretation, for unlike subsections (a) and (b) of Article 26.03, which expressly address related experience of "a new employee", subsection (d) in contrast states that "all employees" shall have their placement on the grid adjusted for their related experience. On the Employer's interpretation, the Union submits, the provision would be internally inconsistent and would not give effect to the intention of the parties, which is clearly that "all employees" have their placement on the grid adjusted "to reflect the combination of their claim for related experience" and "the number of years of service that the employee has at the Hospital". It follows, argues the Union, that the words used in Article 26.03 (d) can only mean that related experience is to be assessed and credited when existing employees change positions, as it is only existing employees that could ever receive credit for related experience in combination with years of service at the Hospital. In this context, the Union asserts, the phrase "claimed at time of hire" can only be interpreted to mean when an employee is hired into or moves to a different position. 7. The Union also referred to a number of other articles, including Article 26.04, which reads: 26.04 Increments (a) Applicable to Full-time Employees Only Annual increments will become effective the first day of the pay period following the anniversary date of employment with the Hospital Adjustments to the anniversary date may be made due to periods of unpaid Ieave as provided for herein. 7 (b) Applicable to Part-time Employees Only A part-time employee shall be eligible for an increment after working each fifteen hundred (15 00) hours. The Union notes that this Article carries employees through the grid; that is, they don't lase the credit they received at time of hire for related experience, Ruther support for the proposition that Subsection 26.03 (d) is intended to address the related experience of current employees when they are "hired" into new positions. 8. The Hospital responds that the Union's interpretation of Article 26.03 (d) either ignores the words "claimed at time of hire" or does not give them their common and ordinary meaning, which it submits is that claims for related experience are to be considered for placement on the grid when an employee is first hired by the Hospital; that is, when an employee is first engaged or hired by the Hospital in any capacity. Parties in labour relations settings understand what the phrase "time of hire" means, the Hospital asserts, which is when an individual is initially hired by an employer, and they understand that "claimed at time of hire" refers to a claim made at that time of initial hiring. Further, it maintains, common industry practice and the practice followed at the Hospital is for related experience to be considered and credited only at time of original hire, and not when employees later change positions. To interpret the relevant language as asserted by the Union, submits the Employer, would seriously undermine the current wage grid placements of employees who had changed positions since their time of hiring. It notes that subsections (a) and (b) of Article 26.03, which set up the scheme for assessing related experience, make clear that it is only applicable for new employees, for M. both subsections apply only to a "new employee". Subsection (c) then describes how much credit a new employee will receive for such experience. No similar process, the Hospital submits, is set out for current employees anywhere in Article 26.03. While Subsection (d) does apply to "all employees", the Hospital asserts that it clearly does not allow or entitle current employees to claim related experience credit, since it expressly states that such claims are limited to related experience "claimed at time of hire". Rather, the Hospital submits, this subsection stipulates only that all employees will have their placement on the grid determined or adjusted to reflect the combination of related experience at time of hire and years of scrvice, which the Hospital has done in the case of the grievor. With respect to Article 26.04, the Hospital submits that it does not address whether or when existing employees are to be credited for related experience, but rather when automatic movement up the salary grid is to occur. This Article does not preserve for employees the right to claim related experience credit after original time of hire. 9. The parties each referred to number of prior arbitration decisions. neckion 10. Where the relevant language of the Collective Agreement is clear and unambiguous, it is to be interpreted without regard to extrinsic evidence such as past practice of the parties. Here, the relevant language is clear and unambiguous. 11. Article 26.03 (d) stipulates that all employees are to have their placement on the grid adjusted to reflect the combination of their claim for related experience, if any, 14 "claimed at the time of hire" and their years of service with the Hospital. This clause states that placement on the grid is to reflect related experience when it was "claimed" (i.e. the past tense is used, reflective that the claim in question was previously made) and to avoid any ambiguity, the subsection expressly addresses the relevant time frame, for it expressly describes claims for related experience as those "claimed at the time of hire". These words clearly state the parties' intention that claims for related experience that are to be considered for purposes of placement on the salary grid are only ones made when the employee was first hired. 12. The Union argues that "time of hire" can have a different meaning, and it refers to a number of decisions that interpreted the word "hire" to have a meaning other than only when an employee was originally hired and became an employee, such as interpreting "hired" to mean "hued" into a new position; see, for example, Provost 111funicipal Health Care Centre and United Nurses of Alberta, Local 69, Grievance of Patricia Ganser -Heck (Moreau) (1993) CarswellAlta 1260,31 C.L.A.S. 180. However, the decisions it relies upon depend on the particular language there in issue, and none of those cases interpret language sufficiently similar to the language in issue. 13. The prior decision most on point is Ontario Shores Centre for Mental Health Sciences and OPSEU, Local 331 (October 4, 2017, Schmidt) (u reported). There too the issue was whether related experience was to be considered and credited when an employee changed positions. The language in the applicable collective agreement stated that claims for related experience were to be made "at the time of hiring on the 10 application for employment or otherwise" and employees were then to be credited with the appropriate level on the salary grid "such that a newly hired employee will not receive more than one grid implement for each year of related experience". The arbitrator interpreted the relevant language to mean that employees must make their claims for related experience credit when they are "newly hired" by the employer, and she concluded that the claim and credit was only available for employees at time of initial hiring. 14. The language of Article 26.03 is similar to the language considered in that case. There is a clear indication in subsections (a), (b), and (d) of Article 26.03 that employees can receive adjustments on the grid because of their related experience only at time of initial hiring, for Article 26.03 (a) and (b) apply only to a "new employee" and Article 26.03 (d) states that it is related experience "claimed at the time of hire" that is to be considered. 15. Article 26.03(d) requires that placement on the grid be determined by combining two factors, related experience claimed (and credited) when originally hired, and .years of service since then as an employee. While it is only existing employees who would have acquired years of service, existing employees also may have related experience that was claimed and credited upon their initial hiring, as was the case with the grievor. The Ianguage used in Article 26.03 (d) requires that both these factors be combined for consideration of placement on the grid, not that related experience acquired since initial hiring is to be combined with years of service since initial hiring in order to determine placement on the grid whenever an employee changes positions 16. Article 26.04 does not support a different interpretation. It deals with the timing of when increments or movement on the grid will automatically be effective. In the face of the clear stipulation in Article 26.03 (d) that related experience is to be credited only when claimed at time of hire, Article 26.04 cannot be read as entitling employees to additional related experience credit every time they change positions. 17. With respect to the posting listing as a qualification that an applicant have "previous recent experience" in certain areas, the posting speaks to different issues than crediting related experience for purposes of placement on the salary grid. While the Hospital did take account of the grievor's recent relevant experience in deciding to award her the position, setting a qualification for a position does not require, on the wording of the Collective Agreement, that existing employees be given related experience credit for grid placement because their experience meets that qualification. As noted, the clear words of Article 26.03 stipulate that an existing employee is not entitled to related experience credit for grid placement purposes other than with respect to related experience at the time s/he was first hired by the Hospital. 18. Alternatively, if I am incorrect and there is ambiguity in the language, extrinsic evidence is relevant to assist in the interpretation of the language. The Maternal and Child Program only considers and credits related experience when an employee is originally hired by the Hospital, and not when existing employees post into positions in 12 the Program. There is no evidence that other Hospital departments or programs deal any differently with related experience credit, nor any evidence that there has ever previously been a grievance over the failure of the Hospital to assess and credit related experience when an employee changes positions. The practice demonstrates that both parties have acted in a manner consistent with the interpretation given to the language described above. Should there be any ambiguity, therefore, the extrinsic evidence supports the conclusion that the parties intended that Article 26.03 only requires assessment of and credit for related experience for purposes of grid placement at time of hiring of a new Hospital employee. 19. For all these reasons, I find that the Hospital did not breach the Collective Agreement. The grievance is accordingly dismissed. Dated at Toronto this 71h day of February, 2018 Robert J. Herman - Arbitrator