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HomeMy WebLinkAboutBirtch et al 19-10-102133/F IN THE MATTER OF AN ARBITRATION BETWEEN ROYAL OTTAWA HEALTH CARE GROUP BROCKVILLE MENTAL HEALTH CENTRE (“the Hospital” / “the Employer”) - AND - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 439 (“the Union”) CONCERNING several individual grievances (Grievance #s: 2017-0439-0035, -40, -41, -42, -47, -50, -51, -60; 2018-0439-0007) Christopher Albertyn - Sole Arbitrator APPEARANCES For the Union: Michael Fisher, Counsel Kevin Hudson, Local President Cindy Ladouceur, Vice President Sherry Haley, Steward For the Employer: Marie-Pierre Pilon, Counsel Justin Murphy, Student-at-Law Alicia Bouchard, Manager, Labour Relations & Conflict Resolution Brian Merkley, Director, Patient Care Services Hearing held in BROCKVILLE on October 10, 2019. Award issued on October 10, 2019. 1 AWARD 1. This matter concerns several individual grievances (Grievance #s: 2017- 0439-0035, -40, -41, -42, -47, -50, -51, -60; 2018-0439-0007) over the Employer’s method of dealing with errors in the call-in process for the distribution of shifts. The Employer issued a notice on November 10, 2016 (“the Notice”), which is challenged in the individual grievances. That notice describ es how the Employer offers replacement shifts (or pays out the affected employee for the loss) for the missed opportunities to work the original shift. 2. Although these are individual grievances and there is no policy grievance, the issues involve interpretation of the collective agreement. The parties accept that I have jurisdiction to make this interpretation as if a policy grievance had been filed. 3. The Employer explains that the Notice was intended to bring about a consistent practice across the Hospital. 4. The parties have made submissions as to what should happen if there are errors in call-ins for available shifts, and on whether the Notice complies with the collective agreement. 5. I have considered the parties’ submissions. This decision determinates the issue of whether the Notice complies with the collective agreement. It also gives certain directions on the application of the Notice. 6. The Notice reads as follows: Re: Notice to OPSEU Local 439 RE CHANGE IN PRACTICE REGARDING SHIFTS OFFERED IN 2 ERROR This memo is to provide notice that effective January 1, 2017, where the parties agree that an error has been made in the call-in process for the distribution of shifts to casual, part-time and/or full-time employees, the Employer will remedy the error as follows: 1. The affected employee will be offered a shift as an extra within sixty (60) days based on submitted availability; 2. The extra shift is in addition to the shifts scheduled to provide the regular staffing complement and will not be counted towards the employee's commitment; 3. Such shift shall be worked at a mutually agreeable time but no later than 60 days from when the error was made; 4. The extra shift shall be paid at the rate that would have applied had the missed shift been worked; 5. The employee working as an extra will not be assigned as a replacement if an absence subsequently arises on that shift which requires a call-in replacement; 6. If the hospital does not offer the affected employee an extra shift within the 60-day period, the employee will be paid at the rate the employee would have received due to the scheduling error. 7. Each replacement shift offered by the Hospital under the Notice is a shift above complement. 8. The parties explain that if the replacement shift worked by the employee puts an employee into overtime for that shift, that replacement shift will be paid as an overtime shift and will include vacation pay and seniority, if the original (missed shift) would have entitled the employee to seniority, as there is no seniority accrual for a regular overtime shift. 9. Also, for employees who work a 6-week shift cycle, if an employee (full- time, part-time or casual) works a 21st shift within that shift cycle, that shift (and any above it) is an overtime shift. 3 10. The issue in the case is whether the Employer can offer replacement shifts, as described in the Notice (as the Employer argues), or whether the Employer must pay out the value of the lost shift to the employee who should have received the offer of that shift (as the Union argues). 11. The parties agree that, if the Notice is in compliance with the collective agreement, I should issue directions on the proper application of the Notice. 12. The general principles for this issue are described in Sault Area Hospital and Unifor, Local 1539, 2019 CanLII 71756 (ON LA). When the assignment of shifts is by seniority, not by equitable distribution, a lost shift to the most senior employee is typically compensated. When the assignment of shifts is by equitable distribution, typically a lost shift is remedied by giving the affected employee a replacement shift. 13. The assignment of regular and overtime call-in shifts (Article 13.09 and Letter of Understanding re Assignment of Overtime) goes to the most senior as described in the LOU. Typically, under the caselaw, errors in the assignment of these shifts resulting in a missed opportunity would be paid out by the Employer. This is because the prejudice to the most senior employee is not satisfied by a replacement shift, since the senior employee would have been entitled, in any event, to work that shift. However, in this case, because the replacement shifts (offered by the Employer to those who have been erroneously passed over in the call-in procedure) are above complement, there is no prejudice to the most senior employee who is entitled to a necessary (whether regular or overtime) call-in shift in the ordinary course. 14. Accordingly, I find that the Notice is not in violation of the collective agreement. Each of the individual grievances is dismissed. 15. Given, though, that the guiding principle is that the loss of a shift to the 4 senior employee entitled to receive it should be compensated, the following guidelines apply: a. The Employer may for any particular case decide not to offer a replacement shift above complement, but rather pay out the employee instead; b. If the Employer pays out any individual who has lost a shift, such pay-out will not constitute a representation to the Union that that will always be done; c. If an employee is working a regular replacement shift and a call-in shift becomes available at the same time to which the employee would otherwise be entitled, they will be moved to the call-in shift and their replacement shift will be held in abeyance. 16. I remain seized of the implementation or interpretation of this award. DATED at BROCKVILLE on October 10, 2019. _____________________ Christopher J. Albertyn Arbitrator