HomeMy WebLinkAboutNovak 17-10-18IN THE MATTER OF AN ARBITRATION BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION, LOCAL 331
-and-
Ontario Shores Centre for Mental Health Sciences
(the "Union")
(the "Hospital")
BEFORE: Christine Schmidt, Sole Arbitrator
APPEARANCES
For the Union:
For the Hospital:
Tim Mulhall, Grievance Officer OPSEU
Jonathan Leung, Vice President, Local 331 OPSEU
Beaudry, Treasurer, Local 331 OPSEU
Lauren Novak, Grievor
Craig Rix, Counsel
Kieran Dyer, Student-at-law
Diane King, Human Resources Consultant
Jennifer Moogk, Lead, Labour Relations
Sheila Gallagher, Clinical Manager
This hearing was held in Ajax on October 4, 2017.
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AWARD
1.This award deals with an individual grievance filed by the Union on December 4,
2016, on behalf of Ms. Lauren Novak ("the Grievor"). The Grievor currently holds the
position of Vocational Rehabilitation Counsellor ("VRC") with the Hospital.
2.The issue, as framed by the parties, is whether the Hospital violated article 36.02
of the collective agreement when it denied the Grievor's claim for "Experience Credit"
("EC"). The Grievor made her claim on or about October 15, 2015, after being awarded
the position of VRC.
3.The parties agree that I have been properly appointed under the terms of the
collective agreement, and that I have the jurisdiction to determine the matter before me.
4.The parties stipulated to the following agreed facts at the outset of the hearing.
5.The Hospital hired the Grievor as a Vocational Instructor ("VI") in March 2014. In
the Hospital's offer of employment, which outlines the basic terms and conditions of
employment, the Hospital referred the Grievor to, and set out, article 36.02, which
reads:
Claim for recent related experience, if any, shall be made in writing by the
employee at the time of hiring on the application for employment or
otherwise. The employee shall cooperate with the Centre by providing
verification of previous experience.
6.The Grievor began working at the Hospital in the VI position in May 2014. At the
time of her hiring, and during the Grievor's tenure in the VI position, she did not apply
for EC. She did not feel that her experience with a previous employer met the criteria of
"recent related experience" for the VI position.
7.In or about September 2015, the Grievor applied for another position in a higher
classification at the Hospital: the VRC position. She was the successful candidate. On
October 15, 2015, the Grievor submitted a claim for EC by email, together with
supporting documentation.
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8.The Hospital denied the Grievor's EC claim. It takes the position that the
collective agreement language that provides for EC applies only to newly hired
employees. The Hospital informed the Grievor that, with reference to the language at
issue, when article 36.02 refers to "at the time of hiring on the application for
employment" or "otherwise" the claim is typically made within three months from an
employee's date of hire.
9.The parties agree that the Grievor's successful application for the position of
VRC resulted in her promotion to a higher rated classification within the meaning of
article 34.09 of the collective agreement. They also agree that once the Grievor moved
into the VRC position her salary was adjusted appropriately pursuant to article 34.09.
THE COLLECTIVE AGREEMEMT
The collective agreement articles referred to by the parties in the course of argument
are set out below:
Article 5
MANAGEMENT RIGHTS
5.01 The Union recognizes that the management of the operation and the
direction of the employees are fixed exclusively with the Centre and shall
remain solely with the Centre and without restricting the generality of the
foregoing it is the exclusive function of the Centre to:
(a)Maintain order, discipline, and efficiency;
(b)Hire, assign, promote, demote, classify, transfer, direct, lay-off, recall
and toe suspend, discipline or discharge employees provided that a
claim...
Article 17
PROBATIONARY PERIOD
17.01 Probationary Period
A full time employee from the date of hire will be considered on probation
until he has completed one hundred and eighty (180) days of work or
1350 hours within any twelve (12) calendar months.
Article 34
POSTING AND FILLING OF VACANCIES WITHIN THE CENTRE
34.05 The Employer agrees that it will give internal bargaining unit applicants
primary consideration before considering external candidates.
34.08 Promotion
Promotion occurs when the incumbent of a position is assigned to
another position in a classification with a higher maximum salary than the
class of his former position.
34.09 Promotion to Higher Rated Classification
An employee who is promoted to a higher classification within the
bargaining unit will be placed in the range of the higher classification so
that he shall receive no less an increase in wage rate than the equivalent
of one step in the wage rate of his previous classification (provided that
he does not exceed the wage rate of the classification to which he has
been assigned). An employee will receive a new anniversary date.
ARTICLE 36
COMPENSATION
36.01 New Classifications
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5
36.02 Experience Credit
Claim for recent related experience, if any, shall be made in writing by the
employee at the time of hiring on the application for employment or
otherwise. The employee shall cooperate with the Centre by providing
verification of previous experience. The Centre will credit the employee
with an appropriate increment level on the salary grid such that a newly
hired employee will not receive more than one grid increment for each
year of recent relevant experience.
For the purpose of this clause, as it applies to part-time employees, part-
time experience will be calculated on the basis of 1950 hours worked
equaling one (1) year of experience. The Centre will credit the employee
with an appropriate increment level on the salary grid.
The Positions of the Parties
10.The Union submits that article 36.02 is clear: it affords employees who want to
claim recent related experience with the opportunity to do so at the time of hiring on the
application for employment or otherwise. Since the reference in the first sentence of
article 36.02 does not say "new hire" or "newly hired" but refers instead to the claim
being made on the application for employment - unqualified by "initial" employment — a
EC claim can be made when an employee obtains any position to which her experience
applies, be it when she is a new employee to the Hospital or afterward when she
obtains another position.
11.Even if the Union is incorrect in its primary submission, the Union says that
Grievor is still entitled to EC because her claim falls within the term "or otherwise" in the
same first sentence of article 36.02. The Union directs me to the meaning of "otherwise"
as set out at the legal-dictionary.com website, which defines otherwise as an adverb
meaning: "apart from this, excluding that, in a different circumstance, in a different
manner, in a different way ..." Similarly, dictionary.com defines "otherwise" as: "under
other circumstances, in another manner; differently or in other respects."
12.The Union submits that, since there is no temporal restriction on the term
"otherwise" in article 36.02, there is no basis for the Hospital to have imposed one. "Or
otherwise," in the Union's submission, must mean something more than at the time of
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hiring — either at some other time, or on some other application.
13.Although the Grievor's offer of employment made specific reference to article
36.02, nevertheless the Union submits that the offer letter does not explicitly state that
the Grieve was restricted to make a claim of EC only at the point of initial hire. The
inclusion of the disputed collective language in the offer letter does not advance the
Hospital's case in the Union's submission. Furthermore, were the language to be
interpreted as the Hospital suggests it should be, the Grievor would be at a
disadvantage to an external hire vying for the VRC position. That would defy logic in the
Union's submission. Finally, since article 34.09 of the collective agreement does not
expressly preclude an employee's entitlement to EC under article 36.02, the Union
argues that no such disentitlement arises.
14.In support of its position the Union provides two cases: Royal Ottawa Hospital
and ONA, 1990 CarswellOnt 5375, 19 C.L.A.S. 533 (Brown) ("Ottawa Hospital'), which
the Hospital also relied upon, and F.J. Davey Home for the Aged and ONA, 1990
CarswellOnt 5447, 21 C.L.A.S. 181 (Samuels).
15.In Ottawa Hospital the issue was the interpretation of the EC credit provision in
the ONA Central Agreement. The relevant provision, article 19.05 (a) in the full-time
ONA Central Agreement is similar to the one in the collective agreement before me. As
can be seen, the first sentence of article 19.05 is virtually identical to the language in the
collective agreement in this case. It reads:
19.05 (a) Claim for recent related experience, if any, shall be made in
writing at the time of hiring on the application for employment or
otherwise. The nurse shall cooperate with the by providing experience so
that her recent related clinical experience may be determined and
evaluated during her probationary period. Having established the recent
related clinical experience, the hospital will credit the new nurse with one
(1) annual experience increment for every two (2) yeas of experience up
to a maximum of Level 6 (i.e.) 5th year increment).
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16.The basic facts in the Ottawa Hospital case were that the two grievors had both
been hired as casual nurses on May 16, 1988, but they had had not specifically written
to request recognition of their past experience at the time they were hired by the
Hospital. It was apparent though from their applications and resumes at their date of
hire that both had long and extensive prior nursing experience. When the grievors
obtained full-time status in 1989 after their probationary period had expired, the Hospital
denied their specific requests for EC. In allowing the grievances, the arbitration board
wrote at paragraph 22:
By the use of the word "or otherwise" in the first sentence of article 19.05 (A) the
parties have expanded the method of making a claim for the purposes of this
section and which in our view, would include the provision of a C.V. or job
Resume to the Hospital which each grievor did prior to the offer of employment
by the Hospital or a claim in a form other than the application for employment
and at some other time.
17.The Hospital agrees with the Union that the language at issue is clear. Its view,
however, is that the language clearly restricts employees' access to EC to the time of
their hire, which means their initial hire. In the Hospital's submission, it is article 34.09 of
the collective agreement that applies exclusively to the Grievor's promotion to the VRC
position, and it points out that there is no dispute between the parties that the wage
adjustment to which the Grievor was entitled upon promotion was conferred in this case
in accordance with that provision. In this collective agreement, the Hospital asserts,
employee entitlements are different depending upon whether the individual is being
initially hired by the Hospital or is being promoted by the Hospital. In the Hospital's
submission, in this collective agreement there are two distinct provisions that apply in
one situation and not the other, and these provisions are mutually exclusive.
18.In support of its position, the Hospital submits that the arbitral jurisprudence
supports the basic proposition that, in order to confer an economic benefit on an
employee, the entitlement to that benefit must be clear and unequivocal on the face of
the collective agreement. Such a benefit it is normally not inferred (see, for example,
Cardinal Transportation B.C. Inc. v. CUPE., Local 561, 1997 CarswelIBC 3206 (Devine).
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19.The Hospital also relies on several rules of construction governing contract
interpretation, which it argues support its interpretation of article 36.02.
20.First, the Hospital says that the language of the two collective agreement
provisions (36.02 and 34.09) is indicative that the parties turned their minds to two
different situations in which economic adjustments apply to employees. Secondly, the
Hospital submits that the interpretive maxim, "inclusion of the one excludes the other,"
and the presumption that all words in a collective agreement have meaning, supports
the Hospital's position that the parties meant to exclude the benefit of the EC to
employees who are not "newly hired." Moreover, the management rights clause (which
differentiates hiring from promoting) and article 17 (where the probationary period is
defined by reference to an employee's date of hire) point to a common intention to give
different consequences to what the parties have identified as different events. Thirdly,
the Hospital argues that "The Plain Meaning Rule," whereby the parties' intention is to
be found in the plain and consistent meaning of the words they have chosen in the
collective agreement, leads inevitably to the conclusion that the Grievor was only
entitled to claim the EC at the time of her initial hire, and not at the time of her
subsequent promotion .1
21.As I earlier indicate, the Hospital, like the Union, refers me to the Royal Ottawa
case. However, the Hospital points out that the context for that Board of Arbitration's
decision was its determination on materially different facts then the case before me. In
Royal Ottawa, the Board allowed the grievance because, in its view, the grievors had
applied for EC when they were newly hired by the Hospital.
22.The Hospital also provides additional cases for my consideration: Welland
County General Hospital and 0.N.A., 1988 CarswellOnt 5372, 11, C.L.A.S. 94
(Samuels), which it says stands for the proposition that the time of hire means at the
1 The Hospital relied upon the following authorities which apply the aforementioned rules of construction,
albeit in different factual circumstances and collective agreement language provisions: I.A.M &A.W.,
Lodge 771 v Abitibi-Consolidated Co. of Canada — Fort Frances Division 2006 CarswellOnt 4180 (Jesin);
St. Michael's Hospital and Ontario Nurses' Association (Union Grievances Re Job Posting/Temp
Vacancies) 2013 Can LII 62269 (ON LA) (Stout) and Canadian Broadcasting Corp. v. N.A.B.E.T., 1985
CarswellNat 684 (Picher).
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time the employee is new to the organization; Newfoundland (Treasury Board) and
NAPE, 2003 CarswelINfld 367 (Aycock); and Southlake Regional Health Centre and
ONA (Due11o), 2012 Casselton 11505 (Cummings), which sets out Arbitrator Cummings
view that article 19.05 under the ONA Central Agreement applies only to newly hired
nurses.
DECISION
23.The parties agree that the Grievor did not claim EC when she was newly hired at
the Hospital. Instead she made a specific claim on October 14, 2015, some 17 months
after her hire and in the context of having recently been promoted from her VI position
to a VRC position - a higher classification in the bargaining unit.
24.The issue is whether the Grievor is entitled to claim EC at the point that she
moved in to the VCR position. The key collective agreement provision is article 36.02
reproduced again for convenience:
36.02 Experience Credit
Claim for recent related experience, if any, shall be made in writing by the
employee at the time of hiring on the application for employment or
otherwise. The employee shall cooperate with the Centre by providing
verification of previous experience. The Centre will credit the employee
with an appropriate increment level on the salary grid such that a newly
hired employee will not receive more than one grid increment for each
year of recent relevant experience.
25.My task is to ascertain the intent of the parties as evidenced by the language of
article 36.02 in the context of the collective agreement as a whole, and give effect to
that intent. If on its face, the collective agreement language is clear and unambiguous, I
am required to apply the language in relation to the facts before me.
26.Having carefully read the clause at issue, and having considered the parties'
submissions, I cannot accept that, by expressing that an EC claim is to be made by an
employee "at the time of hiring on the application for employment or otherwise," the
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parties intended to cover the circumstances in which the Grievor made her EC claim.
27.The primary rule of construction governing the interpretation of contracts is that
the parties' intent is normally found in the ordinary or plain language they use. That
language in this case - "at the time of hiring" - means that an employee must make a
claim when she is newly hired by the Hospital. Further, the employee must do so on
her application for employment or by some other means or method (like by email in this
case), within a reasonable time following her hire. The first condition precedent for
making a claim for EC credit - "at the time of hiring" - was not met by the Grievor on the
stipulated facts before me.
28.The Union's argument concerning the lack of any supporting language to make
clear that "the time of hiring" means the initial hiring stage ignores the ordinary meaning
of "at the time of hiring on the application for employment." Applications for employment
are normally made only at the time of the initiation of the employment relationship.
Combined with an employee being required to make the EC claim at the time of hiring,
the plain and ordinary reading of "at the time of hiring on the application for
employment" means when the employer, in this case the Hospital, first hires the
employee.
29.Moreover, the Union's argument fails to take account of the third sentence of
article 36.02, which states: "The Centre will credit the employee with an appropriate
increment level on the salary grid such that a newly hired employee will not receive
more than one grid increment for each year of recent relevant experience." The
reference to "newly hired" in this sentence reinforces that the parties meant to provide
employees an opportunity to claim EC only at the time of their initial hire. Employees are
not newly hired every time they successfully compete for a new position with the same
employer. They are newly hired only once: at the time of their hire to the Hospital and it
is at that time that the employee must claim EC on the application for employment (or
otherwise).
30.Notwithstanding the above, the Union says that even if the Grievor did not make
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the EC claim at the time of hiring on the application for employment, the grievance
should still succeed because the parties meant to capture the grievor's circumstance by
their use of "or otherwise" in the first sentence of article 36.02. That is to say, another
way the employee may claim EC, if not at the time of hiring on the application for
employment" is at some other time.
31.I agree that "or otherwise" with reference to making a claim for recent related
experience means something more than the employee doing so in writing at the time of
hiring on the application for employment. In my view "otherwise" has the same meaning
the Board of arbitration found it to have in the Royal Ottawa case: the method of
claiming the EC entitlement (like by email or some other written instrument other than
the application for employment itself) which may be at some point after the application
for employment is made. In the Royal Ottawa case the Board of arbitration made the
determination that at the time of the grievors' hire to the Hospital they had effectively
made EC claims. The Board's view in that case was that by the use of the words "or
otherwise" the parties had expanded the method of making a claim for EC to include the
content of a resume (which each grievor had submitted prior to receipt of their offers of
employment). The Board quite rightly pointed out it would have been difficult for the then
prospective employees to be aware at the time they submitted their job applications of
specific clauses of the collective agreement covering their entitlement to claim EC in
relation to the positions to which they were applying. The material facts in this case are
different.
32.In addition to the plain meaning rule of contract interpretation, I am also
persuaded by the Hospital's other submissions. For example, the parties do not use the
term "hire" when referring to other situations in which employees may find themselves
occupying a new position, such as when they are assigned, promoted, demoted or
transferred by the Hospital as contemplated in article 5.01, the management rights
clause. In light of the language of article 36.02, as well as the use of other language in
those other clauses reproduced above, it is clear to me that the parties to this collective
agreement have clearly expressed an intent that EC claims are to be made by newly
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hired employees at the time of their hiring on their applications for employment to the
Hospital or by some other written vehicle at some other time shortly before or within a
reasonable period after accepting employment. What that time line might be is within
the Hospital's discretion and must be reasonable on the facts of any particular case.
That issue did not arise on the facts before me.
33. For all these reasons, the grievance is dismissed.
Dated at Toronto on October 18, 2017.
Christine Schmidt, Sole Arbitrator