HomeMy WebLinkAboutWong/Chung 20-04-231
IN THE MATTER OF AN ARBITRATION BETWEEN:
SUNNYBROOK HEALTH SCIENCES CENTRE
(the “Employer”)
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
LOCAL 5113
(the “Union”)
AND IN THE MATTER OF THE GRIEVANCES OF M. WONG AND C. CHUNG
# 2018-5113-0001 AND # 2018-5113-0002
Louisa M. Davie
Appearances
Sole Arbitrator
For the Union:
Alexander Zamfir
For the Employer: Christian Paquette
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Award
The arbitration of these two grievances was conducted via teleconference hearing on
April 1, 2020. Further written submissions were received on April 3, 2020. The parties
did not raise any issues with respect to the method of hearing or my jurisdiction to
determine the matters in dispute.
Overview of the Issue
The facts are not in dispute. Sunnybrook Health Sciences Centre (“the Employer”) is a
large healthcare provider which, amongst other things, operates hospitals and
laboratories at various sites in the City of Toronto. The grievors are Laboratory
Technologists represented by the Ontario Public Service Employees Union (“the Union”)
in a bargaining unit covered by a collective agreement which applies to all those sites.
The dispute between the parties is whether premium pay attaches to the hours of work
each grievor worked when the location at which they worked was changed with less
than twenty-four (24) hours’ notice.
It is the Union’s position that the location at which work is performed is an integral
feature of an employee’s schedule so that a change in location is a change to the
employee’s schedule. The collective agreement obliges the Employer to pay premium
pay where an employee’s schedule is changed with less than 24 hours notice. It is the
Employer’s position that a change in location which does not involve a change in hours
of work is not a change in schedule. Premium pay does not attach to the hours worked
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at a location to which the employee is assigned even if that location is changed with
less than 24 hours’ notice.
The Facts
The parties filed the following Agreed Statement of Facts (“ASF”).
AGREED STATEMENT OF FACTS
1. OPSEU Local 5113 (hereafter, “the Union”) and Sunnybrook Health Sciences Centre
(hereafter, “the Hospital”) are parties to a Collective Agreement with a term of January
23, 2014 to March 31, 2019. This is the first Collective Agreement between the parties.
2. At all relevant times, the Hospital has operated laboratories at various sites in the City of
Toronto. Those sites included the Hospital’s Bayview Campus, Holland Centre, St.
John’s Rehab, and, until November 1, 2019, the Women’s College Hospital. Members of
the bargaining unit may work at any of those locations, provided they have the requisite
training and experience to fulfill the duties, routines, and processes, for the particular
laboratory. For instance, members of the bargaining unit working in the blood bank can
work at the Bayview Campus or the Holland Center, while those working in hematology
may work at the Bayview Campus or Women’s College Hospital.
3. The grievors, Ms. Melanie Wong and Ms. Chloe Chung, are full-time Medical
Laboratory Technologists.
4. The hours of work, work week, and work schedules of the grievors are governed by
Article 20 of the Collective Agreement.
5. Article 20.01 of the Collective Agreement requires that a Rotational Schedule be posted
in six (6) month blocks, a minimum of (4) weeks in advance. A sample Rotational
Schedule is found at Schedule “A”. The Rotational Schedule in this example sets out the
days and sites (for technologists and technicians in hematology, those sites are Bayview
Campus and the Women’s College Hospital) on which employees are scheduled to work.
The schedule sets out the type of shift for employees (day, evening, on call, night shift,
weekend, etc.).
6. Article 20.02 of the Collective Agreement requires that a Bench Schedule be posted in
four (4) week blocks, a minimum of four (4) weeks in advance. A sample Bench
Schedule is found at Schedule “B”. The Bench Schedule sets out the workstations at
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which employees are assigned (for instance, manually processing, coagulation, etc.) and
includes the specific work hours for employees on each day.
7. Under the Sunnybrook Site Hematology Workstation Schedule (which fulfills the
function of a “Bench Schedule”) published September 10, 2018, Ms. Melanie Wong was
scheduled to attend work at the Hematology Laboratory located at the Hospital’s
Bayview Campus site (2075 Bayview Avenue) on October 16, 2018 to perform the DxH
Routine.
8. On October 15, 2018 at approximately 8:20 p.m., Ms. Wong was directed by the Hospital
to report to the Women’s College Hospital site the next day, October 16, 2018, in order to
provide coverage for Alina Zalwowski who would be absent that day.
9. Ms. Wong complied with the Hospital’s direction and reported to the Women’s College
Hospital site at her scheduled work hours to provide coverage for Alina Zalwowski.
10. Under the Sunnybrook Site Hematology Workstation Schedule published September 10,
2018, Ms. Chloe Chung was scheduled to attend work at the Hematology Laboratory at
the Hospital’s Bayview Campus site (2075 Bayview Avenue) on October 17, 2018 to
perform the DxH Routine.
11. On October 16, 2018 during her work hours, Ms. Chung was directed by the Hospital to
report to the Women’s College Hospital site the next day, on October 17, 2018, in order
to provide coverage for Alina Zalwowski who would be absent that day.
12. Ms. Chung complied with the Hospital’s direction and reported to the Women’s College
Hospital site at her scheduled work hours to provide coverage for Alina Zalwowski.
13. The Women’s College Hospital Site is located at 76 Grenville Street, near the Bay Street
and College Street intersection.
14. Neither Ms. Wong nor Ms. Chung’s scheduled work hours were changed for those shifts
when they were asked to report at Women’s College Hospital as opposed to the Bayview
Campus.
15. Article 20.15 of the Collective Agreement provides as follows:
Change of Schedule
(a) Full-Time Employees Only
Where an employee’s schedule is changed by the Hospital with less than twenty-
four (24) hours’ notice, she shall receive time and one-half (1½) of her regular
straight-time hourly rate for all hours worked on the next shift.
…
16. The dispute in this grievance is whether the direction to Ms. Wong and Ms. Chung to
report to the Women’s College Hospital site, rather than the Bayview Campus, with less
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than twenty-four (24) hours’ notice, constituted a schedule change contemplated in
Article 20.15(a) so as to oblige the Hospital to pay the grievors the premium
contemplated in that article of the Collective Agreement.
17. The hematology rotation schedule codes are set out below for the attached Schedules:
Throughout the remainder of this award the term “Sunnybrook” will be used to refer to
the Employer’s Bayview Campus site.
The Collective Agreement
In addition to article 20.15 (a) referenced in the ASF, other sections of article 15 of the
collective agreement are relevant to the submissions of the parties and my
determination.
Article 20 states:
ARTICLE 20 - HOURS OF WORK/WORK WEEK/WORK SCHEDULE
20.01 The Rotational Schedule will be posted in six (6) month blocks a minimum of four
(4) weeks in advance.
20.02 The Bench Schedule will be posted in four (4) week blocks a minimum of four (4)
weeks in advance.
20.05 Work Week and Work Day
[The collective agreement then sets out the normal or standard work week and work
day for full-time and part-time employees with reference to hours of work per day]
…
(f) In the event an employee is assigned to different job duties or a different position
from the one for which she was scheduled, she shall not lose pay as a result of the
transfer.
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(g) A request for a change in the posted time schedule must be submitted to the
Manager or designate in writing, signed by both employees. Managerial (o r designate)
approval is required. It is understood that such change in shifts or days-off initiated by
the employee(s) and approved by the Hospital shall not result in additional premium or
overtime payment, nor shall it be considered a violation of the Collective Agreement…
…
20.08 Call-Back
An employee who is called to work after leaving the Hospital premises and outside of
his regular scheduled hours, shall be paid a minimum of no less than four (4) hours’ pay
at time and one-half (11/2) his regular straight time hourly rate for work performed on
each call-in.
…
NOTE: Applicable to Part-Time Employees Only
For purposes of clarification, Article 20.08 does not apply to prescheduled hours of
work. Article 20.08 does not apply where the employee elects to work additional
unscheduled hours made available by the Hospital.
20.11 Meal Allowance
An employee who continues to work more than two (2) hours of overtime immediately
following his scheduled hours of work, shall be provided with a meal voucher valued at
a maximum of four dollars ($4.00) or four dollars ($4.00) if the Hospital is unable to
provide a meal voucher.…
20.14 Time-Off Between Shifts
The minimum number of hours between shifts Is twelve (12) hours.
Failure to provide the minimum number of hours between the commencement of an
employee’s scheduled shift and the commencement of such employee’s next scheduled
shift shall result in payment of one and one-half (lk) times the employee’s regular
straight
…
20.15 Change of Schedule
(a) Full-Time Employees Only
Where an employee’s schedule is changed by the Hospital with less than twenty-four
(24) hours’ notice, she shall receive time and one-half {1 1/2) of her regular straight-time
hourly rate for all hours worked on her next shift.
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(b) Regular Part-Time Employees Only
Where a regular part-time employee’s scheduled shift is cancelled by the Hospital with
less than twenty-four (24) hours’ notice, she shall receive time and one-half (1 1/2) of
her regular straight-time hourly rate for all hours worked on her next shift.
(Emphasis added)
In addition, during their submissions the parties also referred to the following provisions
of the collective agreement.
ARTICLE 2 - SCOPE AND RECOGNITION
2.01 The Employer recognizes the Union as the sole bargaining agent of all Medical
Laboratory.Technologists. Laboratory Technicians, Technical Specialists and Technical
Assistants employed by Sunnybrook Health Sciences Centre in the City of Toronto,
save and except supervisors, persons above the rank of supervisor, biochemists,
analysts, pathology assistants, lab administrative assistants, employees working in the
Ontario Regional Blood Coordination Network. Laboratory Information System Analysts,
Research Assistants, Charge Technologists, students in training, students employed
during the school vacation periods, practising members of the medical and nursing
professions and persons covered by subsisting collective agreements.
ARTICLE 3 - EMPLOYEE DEFINITIONS
…
3.02 A full-time employee is an employee who is regularly scheduled to work the normal
full-time hours referred to in Article 20.05 (a).
…
Article 12- PAID HOLIDAYS
12.02 (e) A shift that begins or ends during the twenty-four (24) hour period of the
above holidays where the majority of hours worked fails within the holiday shall be
deemed to be work performed on the holiday for the full period of the shift. Likewise, a
shift that begins or ends during the twenty-four (24) hour period of the above holidays
where the minority of hours worked falls within the holiday shall be deemed not to be
work performed on the holiday for the full period of the shift.
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Submissions of the Union
In support of its position that a change to the work location of an employee constitutes a
change to the employee’s schedule, and obliges the Employer to pay premium in
accordance with article 20.15 if twenty-four (24) hours’ notice was not provided, the
Union relied principally on the language of article 20.01 and 20.02 and the purpose
underlying article 20.15.
The Union urged me to take a purposive approach to interpreting article 20.15. The
purpose of the article was to recognize the inconvenience to an employee whose
schedule was changed on short notice. It was to compensate an employee whose travel
and other personal plans are disrupted where, as here, the employee ha s to make
alternate arrangements in order to attend at a different work location than the one at
which they had been scheduled to attend. It was not an insignificant inconvenience to
have to alter travel plans. Both grievors lived in suburban areas in Toronto and had to
rearrange travel plans. The distance between the location of the two sites was 9 km
through a congested, heavily traveled area of a large municipality. In addition, the
purpose of article 20.15 is to act as a deterrent to the Employer to make last-minute
changes to an employee’s schedule as such changes may adversely impact the
employee’s personal plans.
Union counsel submitted that in interpreting the word “schedule” in article 20.15 (a)
reference must be made to articles 20.01 and 20.02 which required the posting of an
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“rotational schedule” and a “bench schedule.” The meaning to be attributed to the word
“schedule” in article 20.15 should be consistent with the schedules required to be
posted under article 20.01 and 20.02. As evidenced by the schedules attached to the
ASF, both the hours of work and the location at which duties are performed are features
of those schedules. The Union argued that the location of the work is an essential
feature of the schedules referenced in article 20.01 and 20.02 and is equally integral in
the interpretation of the word “schedule” used in article 20.15.
Although it was open to the parties in article 20.15 (a) to negotiate a “carveout” so that if
only one component of the schedule, such as location, was changed a premium would
not be payable, it was significant that the parties had not done so in this case. The
language used in article 20.15 (a) was absolute and without exception. The parties did
not negotiate a provision that a change to the employee’s scheduled location of work
would not attract premium pay. The parties did not limit themselves so that only a shift
change or a change in hours given without sufficient notice would attract premium pay.
Instead they negotiated a provision in which any change in the posted schedule, given
without sufficient notice, obliges the Employer to pay a premium.
Union counsel argued that the word “schedule” in article 20.15 (a) should not be limited
to denote only a schedule of hours or a shift. In so doing counsel pointed to other
provisions of the collective agreement where the parties specified a premium payment
which attached to a “shift.” Article 12 (e) for example provides premium pay to
employees whose “shift” begins or ends on an holiday where a “majority of [the] hours
worked” on “shift” fall within the holiday. The same article denies premium pay to
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employees whose “shift” may begin or end on a holiday but where “the minority of hours
worked” fall within the holiday. In article 12 (e) the parties specifically equated hours of
work and “shift”. In contrast, article 20.15 (a) does not use either “hours of work” or
“shift.” The fact that the parties did not use either term in article 20.15 (a) indicated that
a broader, more expansive and purposive definition should be given to the word
“schedule.” The specific use of the word “schedule” rather than “shift” required that the
meaning to be ascribed to a change in schedule was not simply a change to shift hours.
The principle of collective agreement interpretation is that where parties use different
words such as “shift” or “schedule” they must have intended those words to have
different meanings.
The Union did not dispute that the Employer had a management right to assign work.
Counsel acknowledged that, notwithstanding the fact that the posted “bench schedule”
indicated the duties or workstation at which the employee was scheduled to work, it was
open to the Employer to change the workstation specified on the posted schedule and
assign the employee to a different workstation --- with less than 24 hours notice and
without attracting premium pay --- provided that the change did not include a change in
hours or worksite location. Thus, for example, where the posted bench schedule
indicated that the employee was to work a line entitled “DxH STATS – 7:00 – 15:15”
when the employee attended at work at the scheduled time and location to perform that
work the employee could nevertheless be assigned to a line in the posted bench
schedule entitled “Morphology 7:00 – 15:15” or “Coagulation Routine – 7:00 – 15:15”
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A change in assignment directed by the Employer in exercise of its management rights
on the day an employee attends at work in accordance with the posted schedule was
not an issue and was not what happened in the case of these two grievors. Here, even
though their hours of work remained the same, the location or site at which they were to
work was changed with less than 24 hours’ notice. The collective agreement provides
that where the Employer changes an employee’s schedule in that manner it must pay a
premium.
In reply to the Employer’s submissions that in various articles of the collective
agreement the parties have used the word “schedule” (or “scheduled”) in relation to
hours of work Union counsel noted that in each of the articles relied upon by the
Employer the word “schedule” (or “scheduled”) was used as a verb to modify other
words. By way of contrast, in article 20.15 (a) the word “schedule” is clearly used as a
noun, to describe that which is defined in article 20.01 and 20.02 as the “rotational
schedule” and the “bench schedule.” The other articles of the collective agreement
where “schedule” or “scheduled” is used were therefore not determinative of the
interpretation to be given to “schedule” in article 20.15 (a).
In support of these submissions counsel referred to Imperial Oil Strathcona Refinery
and C.E.P. Local 777 [2004] O.L.A.A. No. 164 and British Columbia and BCGEU
(Isaksson) (1994) Carswell BC 3304.
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Submissions of the Employer
It was the Employer’s position that when the collective agreement was viewed in its
entirety it was evident that the parties intended the use of the term “schedule” in article
20.15 to refer only to hours of work. In article 20.15 (a) the parties did not intend the
term to encompass the site or location at which work was performed.
In support of this submission Employer counsel relied first upon the fact that the
overriding theme of article 20 was to deal with hours of work. The focus of article 20
was not about location or sites but to address hours of work as the article deals with
everything from meal breaks, “normal” hours of work, standby etc. Each of the
concepts dealt with in article 20 related to hours of work.
Counsel noted that the collective agreement describes a single, all-inclusive bargaining
unit and covers all of the City of Toronto. There is no dispute that employees in the
bargaining unit can be assigned to work at various locations. (Indeed, the content of the
two-week “bench schedule” upon which the Union relies which is attached to the ASF
indicates the name of at least one person “scheduled” or assigned to different locations
on different days).
Counsel referred to various other provisions of the collective agreement where it was
clear that the term “schedule” or “scheduled” referred to hours of work. Thus, for
example, the definition of full-time and part-time employees in article 3.02 and 3.03 both
equate an employee’s status to their “scheduled” hours of work (and not with reference
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to duties performed or location of work.) Similarly, counsel referred to other provisions
of the collective agreement which speak to employees’ scheduled hours of work and
argued that, viewed in context of the entire collective agreement, it was eviden t that the
parties understood and intended the word “schedule” to refer only to time or hours of
work. It was his submission that was consistent also with the commonly understood use
of the word “schedule” within labour relations as a timetable, or a schedule of hours of
work. The plain meaning of schedule is generally used to denote a document which sets
out the time or hours of work of an employee, including the start and stop times.
In addition to relying on what Employer counsel claimed was the plain and generally
accepted labour relations meaning of the word “schedule”, and the context of the
collective agreement where “schedule” is always and only related to hours of work,
counsel took the position that because the Union was claiming a significant financial
benefit it was the Union’s onus to show that it was clear from the language of the
agreement that the parties intended to confer a financial benefit in these circumstances.
The Employer maintained that the language of article 20.15 (a) was not a sufficiently
clear expression of intent to confer a financial benefit in circumstances where only the
location of the work was changed. It was not a question of having to “carve out” an
exception for short notice changes to the location of work as advocated by the Union.
According to the Employer, the Union had simply not negotiated specific language
which would confer a financial benefit on employees where the location at which they
were to work was changed with less than 24 hours’ notice.
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The Employer also asserted that the Union’s interpretation of article 20.15 (a) and the
word “schedule” was untenable and led to an absurd result. The Union’s proposed
interpretation was inconsistent with its acknowledgment that the Employer could change
the duties or “work station” component of the bench schedule and assign employees to
work stations or duties different than those indicated on the posted bench schedule
document without 24 hours’ notice. The posted bench schedule lists not only start and
stop times, but also the workstation to which employees are assigned (for example
manual process, coagulation, DxH routine etc.) It was inconsistent to say one feature
of the bench schedule could be changed without notice and without attracting a
premium, but another feature could not be changed.
With respect to absurd results flowing from the Union’s position Employer counsel also
referenced the conflict and inconsistency found in article 20.15 when the provisions with
respect to full-time and part-time employees were compared. Whereas article 20.15 (a)
speaks to a “schedule” change for full-time employees, article 20.15 (b) references the
cancellation of a “scheduled shift” for part-time employees. To adopt the Union’s
interpretation that “schedule” included site location and was different than “shift” had the
absurd result that full-time employees would receive premium payment when the
location of work indicated on the bench schedule was changed, while part-time
employees would not receive a premium if the location of their work was changed, and
would only receive a premium if their entire shift was canceled. Notwithstanding the fact
that the inconvenience of a different location would be similar for both employees,
unless the Employer canceled the part-time employee’s entire shift, the Employer could
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make changes to the bench schedule of the part-time employee (including location)
without notice and without attracting premium payment, but could not make similar
changes to the bench schedule of the full-time employees. Counsel submitted such
inconsistent internal result should be avoided by interpreting the term “schedule” to
mean the same in both instances, namely, a change to the hours of work of the
employee, and not merely a change in the location at which that work was performed.
In support of these various submissions counsel relied upon Conifex Power Limited
Partnership and USW Local 1 – 2017 (2017) 284 LAC (4th) 286; Compass Minerals
Canada Corp. and UNIFOR Local 37-0 (2017) 284 LAC (4th) 54; Reid Dominion
Packaging Limited and Teamsters Union, Local 879 (1981) 1 L.AC (3d) 314; Sobeys
West Inc. and UFCW Local 401 (2019) 140 CLAS 240; Ontario Ministry of Government
Services and OPSEU (Butler) (2013) 114 CLAS 34; TransAlta Generation Partnership
and CEP, Local 707 (2012) 112 CLAS 94; Thunder Bay Regional Hospital and ONA
[2004] 76 CLAS 300; British Columbia and BCGEU supra and Brown and Beatty
Canadian Labour Arbitration (5th Edition) 42120.
Decision
There is much merit to the able submissions of Union counsel that the purpose of the
article 20.15 (a) premium is to compensate employees for the inconvenience
experienced when the location of their work is changed with short notice. Nevertheless,
I have determined that these grievances must be dismissed because, viewed in context,
article 20.15 does not apply to a change in location which is not also accompanied by a
change to the hours of work of the employee.
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I do not propose to detail and analyze the awards referred to by counsel. None of the
cases cited were directly on point or dealt with substantially similar language. All are
distinguishable. Many were cited only for general principles of interpretation. There was
little dispute between the parties about the principles to be applied in interpreting the
collective agreement. The principles cited include that the entire collective agreement
must be read as a whole, that words must be given their plain and ordinary meaning,
that similar words used in different parts of the agreement should be given similar
meaning while dissimilar terms should be given different meanings, that if the language
is capable of two equally plausible meanings the one which leads to absurd results
should be avoided and the meaning which accords best with the collective agreement
as a whole should be preferred. These are the principles I have applied in interpreting
and applying article 20.15 to the circumstances giving rise to these two grievances and
the different interpretations which each party has placed on the word “schedule”.
In interpreting and applying article 20.15 I am mindful of the fact that this collective
agreement covers a bargaining unit of employees employed in the City of Toronto, and
that bargaining unit members may work at any of the several locations in Toronto
operated by the Employer. The ASF specifies “Members of the bargaining unit may
work at any of those locations…For instance, members of the bargaining unit…working
in hematology may work at the Bayview Campus or Women’s College Hospital.” I am
also mindful of the fact that both the rotational schedule and the bench schedule
attached to the ASF cover employees in hematology working at both Sunnybrook and
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Women’s College Hospital. In the hematology department there is not a separate
rotational or bench schedule for the two sites.
I am persuaded by the Employer’s submissions that viewed in context of the entire
collective agreement the preferred interpretation of the word “schedule” in article 20.15
is a reference to time or hours of work. In this regard I note that article 20.15 is found
within a provision entitled “Hours of Work/Work Week/Work Schedule.” Headings may
be used as an aid to interpretation. In this case the heading of the article indicates that
the article is intended to deal with hours of work and not the location at which work is
performed. Throughout article 20 any reference to being scheduled is in relation to
hours of work, not in relation to location of work.
I accept the Union’s submissions that there is a difference between using the word
“schedule” as a noun or as a verb. In this collective agreement schedule, scheduled or
scheduling is often used as a verb. Nonetheless, I find it instructive that in article 20,
even when the word “schedule” or “scheduled” is used as a verb, it is in relation to time
or hours of work, and not in relation to location or site. Indeed, a specific reference to
the posted time schedule (schedule as a noun) is made in article 20.05 (g), in an article
which has as its specific subheading “Work Week and Work Day.” In my view, that
“schedule” in article 20 is intended to refer to a schedule of time is also implicit in the
definitions found in article 20.01 and 20.02 (again in an article with the heading “Hours
of Work…Work Schedule.”) Both article 20.01 and 20.02 indicate that the schedules
are to cover a period of time (six months or four-week blocks) and say nothing about
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location or site. Throughout the collective agreement whenever “schedule”, “scheduling”
or “scheduled” is used it is in relation to time or hours of work. Nowhere is that more
evident than in article 26, entitled “Scheduling” which specifically speaks to the ability of
the parties to make “other arrangements regarding hours of work” and which permits job
sharing arrangements whereby two employees “share the hours of work” of one full-time
position.
Although the word “schedule” can certainly be broadly interpreted to include site or
location, and although it was open to the parties to this collective agreement to
negotiate provisions which would include the importance of site or location to a position
or schedule, the language of the collective agreement does not permit me to infer that
intent. For example, even the article dealing with posted vacancies indicates that
department, qualifications and classification must be included in a posting, but says
nothing about location or site. When one recalls that this is a single bargaining unit and
a single collective agreement covering various sites within a large municipality that is
not surprising. For their own (perhaps different) reasons the parties may not want to
focus on individual sites or locations which could affect the ability and mobility of
employees to work at different sites.
In the end, what I have before me is a collective agreement in which the word
“schedule”, “scheduled” for “scheduling” is always and consistently used in relation to
time or hours of work and not location. In my view the context of the entire collective
agreement supports the Employer’s position that in referring to a change in an
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employee’s schedule in article 21.15 (a) premium payment is required where an
employee’s hours of work as listed on the schedule are changed with less than 24
hours’ notice.
The Union has argued forcefully that “schedule” does not mean “shift.” The two te rms
are different and should have different meanings. I do not disagree with the proposition
that different words in the collective agreement should be given different meanings.
What I do not accept is that just because the parties did not use the word “sh ift” in
article 20.15 (a) that necessarily means that the word “schedule” which they did use
must include site or location so that a change in site or location attracts premium pay.
Moreover, article 20.15 (a) and 20.5 (b) refer to both “schedule” and “shift”. Given that
the different terms are in a single article with the heading “Change of Schedule” it is
difficult to find that only “schedule” in article 20.15 (a) includes location or site and is
significantly different than “shift” in article 20.15 (b).
I turn next to the Union’s submissions that in interpreting “schedule” in article 20.15 the
“definitions” in article 20.01 and 20.02 are most important. Again, I agree. However,
neither 20.01 or 20.02 define the schedules with reference to location, or specify that
the location or site must be included in the “rotational” or “bench” schedules.
The Union asserts that the key feature of the “bench schedule” attached to the ASF is
the location of work. The schedule sets out a combination of time (hours of wor k) and
duties at a location. Although the Women’s College Hospital site is included in the
“bench” schedule, the bulk of the schedule sets out the time and duties of employees in
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hematology at Sunnybrook. It was the Union’s position that the inclusion of the
hematology lab technologists at Women’s College Hospital on the Sunnybrook
hematology department bench schedule was merely for administrative purposes to
ensure coverage. As both location and time are essential features of the bench
schedule, a change to either with less than 24 hours’ notice must attract premium pay
under article 20.15 (a). After all, the effect of a change in location on the employee is
similar to the effects experienced when there has been a change in hours. In both
instances the employee has to change plans.
I am unable to accept the Union’s submissions that the essential features of the bench
schedule are time and location, or that, in this case, the essential feature of the bench
schedule attached to the ASF is that it deals primarily with work at the Sunnybrook
location.
First, I reiterate that the schedules attached are not limited to a single location or site
such as Sunnybrook. Both the rotational and bench schedules attached to the ASF
include the Women’s College Hospital site. To the extent the schedules are limited, they
are limited to a department, not a site or location. Each schedule indicates on its face
that it applies to the hematology department (that would be consistent with the notice of
job posting which amongst other things requires identification of the department).
In addition, the bench schedule upon which the Union relies consists of components
beyond hours of work or site location. I find that the focus of the bench schedule is to
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set out the “bench” or “workstation” at which employees are to perform their duties.
Article 20.01 and 20.02 make it clear that there is a difference between the “rotational”
and “bench” schedule. Having regard to the schedules attached to the ASF, it seems to
me that the purpose of the bench schedule is to set out with greater precision the duties
to be performed (for example, manual process, or coagulation etc.) when the employee
is at work.
The Union has acknowledged that pursuant to the management right article of the
collective agreement the Employer can change the duties or “workstation” component of
the bench schedule. I note that is consistent with article 20.05 (f) which also recognizes
the Employer’s right to assign employees to “different job duties or a different position
from the one for which she was scheduled.” I find that the reference to “schedule” in
20.05 (f) must refer to the duties or workstation to which the employee was assigned on
the bench schedule.
It is not disputed that an employee assigned on the bench schedule to work the “DxH
Routine” workstation on October 17 could instead be assigned to work the “Coagulation
routine” workstation on October 17. The Union concedes that such change in
workstation assignment from the assignment listed on the posted bench schedule would
not attract premium pay even if less than 24 hours notice of that change was given to
the employee. In these circumstances it makes little sense to say that the Employer can
change one type of assignment set out on the bench schedule without notice but can’t
change another type of the assignment set out on the same bench schedule without
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notice. The Union’s position leads to an inconsistent result that whether the Employer
could assign and tell employees that the following day they would be working at a
different workstation than that indicated on the posted bench schedule would depend on
the nature of the workstation to which the employee was to be assigned. As the
Women’s College Hospital hematology workstation is on the same posted bench
schedule as the other workstations to which an employee’s assignment could be
changed, it is not clear to me that a different result should flow depending on the
workstation. Without a change in hours, a change in assignment from “DxH routine” to
“coagulation routine” (both workstations on the posted bench schedule) is no different
than a change in assignment from “DxH routine” to “WCH Coverage” (another
workstation on the same posted bench schedule.”)
In the circumstances of this case I find that the bench schedule referenced in article
20.02 of the collective agreement has several components or features including
department and hours of work, and, most critically, the workstation or “bench” to which
the employee has been assigned or scheduled. On the posted bench schedule the
workstations to which an employee may be assigned or scheduled may be further
refined by including a specific site (either Sunnybrook or Women’s College Hospital). It
is inconsistent to in effect say that one of the components of the posted bench schedule
(the work station assignment component) can be changed with less than 24 hours’
notice and without premium payment, yet another component (the location of that
workstation) can not be changed with less than 24 hours’ notice unless a premium was
paid to employees.
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The Union does not dispute that the Employer can assign or schedule duties or
workstations and can change those duties or workstations. I have concluded that is
what happened in the factual circumstances giving rise to the grievances before me.
The Employer did not change the schedule of the grievors. Their hours of work
remained the same. Instead, the Employer changed the duties to which they had
previously been assigned on the bench schedule. That change in assignment, to a
different workstation, included on the same posted bench schedule, is not a
circumstance which attracts premium pay under article 20.15. The grievances are
therefore dismissed.
Dated this 23nd day of April, 2020.
Louisa Davie
Louisa M. Davie