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HomeMy WebLinkAboutSLIVINSKI, VINE, UNION-1985-09-11 ae.Jf 6uttE. 201, 200 Elgin.. <::Et'U.d Ottawa, Onla,ic 'J( 2:7' 11:5 'Jd.p.hM'" !Bu.<. [61S} 2S2-7151 d?... (61S) 2S4-8196 r:baaLd d-f. !J(a.tE.5. cIl~{,.LhatLon dnaLcE.5. [fnc. ~O\J 2 t ,gas <:JilL, DK-85-416 November 8, 1985 Ms. Karen Moss 46 Parkland Crescent Nepean, Ontario K2H 7W5 Dear Ms. Moss: Re: The Rights Arbitration between the Association of Allied Health Professionals Ontario and the Queensway Carleton Hospital Please find enclosed a copy of the Board's decision in the above matter. Yours truly, DAVID H. ~TES PJU3ITRATION S~VICES fNC. , ~. ,-I i 4/ 'I ,"-;--, r / I I! '\ (~ I \;'>\. I David H. Kates. \ Encl. NOV 2 1 1985 If":; IN THE MATTER OF AN ARBITRATION BETWEEN: The Queensway-Carleton Hospital (hereinafter referred to as "the hospital") - and - The Association of Allied Health Professionals: Ontario (hereinafter referred to as ..the trade union") And In the Matter of a Policy Grievance and the Grievances of A. Slivinski and S. Vines Before: D.H. Kates, Chairman K. Moss~ Union Nominee R. Stansel, Hospital Nominee Appearing for the Hospital: B. Handford, Director of Huaan Resources Appearing for the Trade Union: A. Raven, Counsel Heard at Ottawa, Ontario on October 23, 1985. ~'. ....', -1- Decision The issues raised in this case pertain to the hospital's alleged obligation under Article 29.04 of the collective agreement to credit previous clinical experience in arriving at a new hiree's starting salary. Three grievances have been referred to arbitration with respect to the parties' dispute. The trade union's policy grievance and the "Slivinski" grievance relate to the ~lleged impropriety of the hospital's practice of refusing to credit for pay purposes previous clinical experience of employees hired as "casuals". The "Vines" grievance pertains to the hospital's practice that is alleged to be contrary to the for~ula contained in Article 29.04 of placing a "cap" on a new hiree's (other than casuals) previous clinical experience at the mid-point of the salary schedule of the particular position concerned. Article 29.04 of the collective agree~ent reads as follows: 29.04 Claim for recent related clinical experience, if any, shall be made in writing by the employee at time of hiring or change from casual to regular status. The employee shall co-operate with the Hospital by providing verification 0% previous experience so that her recent related clinical experience may be determined and evaluated during her probationary period. The employee shall be given credit for not less than one (l) year's service for every (2) years of related clinical experience, as determined by the Hospital. The employee may be placed at the start rate until verification, satis:actory to the Hospital and the rate established will be retroactive to the date of hiring. The circumstances precipitating the parties' dispute are relatively straightforward. The Queensway-Cerleton Hospital is a general patient-care facility. Amongst its employees are a group -t:) -2- who are referred to as "parall\edicals". They include physio and occupational therapists, psychologists, social workers, psycholl\etrists, dietitians, laboratory technologists and technicians, etc. The trade union is the certified bargaining agent for these paramedical employees at the hospital and, as such, has entered into two collective agreements (with the assistance ox third party arbitration) since certification. The hospital recognized the trade union as the exclusive bargaining agent xor the following bargaining unit of employees: ARTICLE 2- RECOGNITION 2.01 The Employer recognizes the Association of Allied Health Proxessionals: Ontario as being the sole and exclusive bargaining agent of all paramedical personnel employed by Queensway-Carleton Hospital in the Cities of Nepean and Kanata and the Ottawa Valley save and except supervisors and persons above the rank of supervisor, students in training, interns, students employed during the school vacation period and persons covered by subsisting collective agreements. For the purposes of clarity, "paramedical personnel" includes: dietitians, medical laboratory technologists, health record administrators, occupational therapists, physiotherapists, pharmacists, psychologists, psychometrists, radiological technologists, respiratory technologists, social workers, discharge planners, E.C.G. technicians, and pharmacy assistants.. For purposes 0% cla.rity, "Ottawa Valley" includes the Arnprior and District Memorial Hospital in Arnprior, the Kemptville District Hospital in Kemptville, The Great War Memorial Hospital of Perth District in Perth, the Carleton Place and District Hospital in Carleton Place, and the Almonte General Hospital in Almonte. For purposes of clarity, "supervieor" includes Supervisory Technologist in the Medical Laboratory, Charge Technologist in Radiology, Senior TechnOlogist-Valley, Intermediate Supervisory Technologist, Supervisor - Food Services, Senior Technologist - Administration and Speech Pathologist. It ie further agreed that the Laboratory Assistant employed at The Great War Memorial Hospital of Perth Dietrict is included in this bargaining unit. Owing to the operational and manpower requirements of a hospital facility bargaining unit employees are described under three categories based on their respective work schedules. These 1!"-1 -3- are "full time", "regular part time" and "casual" employees. Casual em.ployees re::aain "on call" to provide services on an ad hoc basis for a specified period of time. These employees are included under the recognition clause as e~ployee me~bers of the bargaining unit. And, as such, "casuals" are entitled to the benefits of the collective agreement. Article 3 o~ the collective agreement defines the three categories of employees as follows: ARTICLE 3 - DEFINITIONS 3.01 The term "employee" or "employees" as used in this Agreement shall mean only those employees who are included in the bargaiing unit as defined in Article 2.01 above. 3.02 A "full-time employee" is defined as an employee who normally works the number oz hours described in Article 20.02. 3.02 A "regular part-tine employee" shall mean an employee who makes a commitment to the Hospital to be available on a prescheduled basis as required and in respect of whom there is advanced scheduling. 3.04 A "casual employee" is an employee who works only when called to do so, or zor a specific period of time. As we understood the evidence the hospital's practice is to place a casual employee, despite his or her previous clinical experience, at the start rate of the salary range of the position occupied. This practice may change in an exceptional circumstance where a particular employee's services may be needed by the hospital. In that case the employer might credit past clinical experience in order to attract that employee to come to work for the hospital. It suffices to say, however, for purposes of the parties' dispute in this case that the hospital's practice, irrespective of the unchallenged quality of ,,!',;: -4- the casual's past clinical experience, is to place that employee upon being hired at the start position on the salary range. Ms. Anna Slivinski's situation represents an example of the application of the hospital's policy with respect to casuals. Ms. Slivinski is a therapeutic dietitian who had several years o~ clinical experience at hospitals and like institutions since her graduation in 1977 with a Bachelor of Home Economics Degree from.the University of British Columbia. In 1982 she was hired by the hospital as a regular full time employee (i.e., she worked a 37 1/2 hour week) and was given appropriate credit for her past clinical experience. Between 1982 and 1985 the grievor progressed annually on the salary grid until she reached the fourth level of the range. Because the grievor wished to spend more time with her family, she decided in 1985 to quit her position as a full time employee. Ms. Slivinski then applied for employment as a casual to the very same position that she had left. There is no dispute that as a casual employee Ms. Slivinski performed the same duties and discharged like responsibilities as when she was a full time therapeutic dietitian. Yet, upon the commencement of her employment as a casual the hospital placed Ms. Slivinski at the start rate of the salary grid. In other words, her change to casual status resulted in a demotion. The "Vines" grievance pertained to the hospital's precticep irrespective of the unchallenged quality or length of an employee's previous clinical experience, to place a "cap" in crediting that experience for pay purposes at the mid-point of ~~ -5- the position's salary range on the salary grid. The employer's rationale for this general practice is to ensure that a new employee at the Queensway-Carleton Hospital accumulates some experience at the hospital before he or she reaches the height of the salary range. Article 29.04 however contains no such express limitation in the formula of crediting one year on the salary grid for each two year's previously related clinical expez:.ience. Again, we accept the hospital's evidence that there may be some variation in the application of this practice based upon the hospital's need for the services of a particular type of employee. Indeed, the trade union's collateral allegation in this grievance related to the hospital's "arbitrary" and "discriminatory" application of its practice in each of the circumstances herein deecribed. But for purposes of disposing of this grievance it suffices for this Board to simply set out the hospital's policy with respect to crediting previously related clinical experience with respect to new hirees generally (seve, Ox course, casuals) which reads as follows: 2. EMPLOYEE RATE AND CHANGES OF RATE a) The employee's rate is. determined by en ev~luation Ox relevant experiences by the Manager at the time of hiring. b) Two years relevant experience is equivalent to one step on the scale, and a new employee may be hired to: i. the s.econd step of a :four point scale ii. the third step o:f a :five point scale iiL the fourth step of a six point 2>cele iv. and the fifth step of an eight point scale Any proposed deviation from this policy has to be specifically approved by the Administrative Committee. ~~ ." -6- Ms. S. Vines' situation is an example of the hospital's application of the above policy. Since the grievor received her diploma in phsyiotherapy fro~ the University of Alberta in 1961 she has accumulated approximately twenty-five years experience as a physiotherapist at several hospitals and like facilities. In January, 1984, Ms. Vines was hired by the hospitai as a regular part time physiotherapist on its geriatric unit. The hospital has ,not suggested that Ms. Vine's previous clinicsl experience for purposes of assigning her appropriate credit on the salary grid wss suspect or was otherwise tainted. Accordingly, had she been given apppropriate credit for her past experience on the basis of the 2 for I formuls contained in Article 29.04 of the collective agreement, Ms. Vines should have been placed at the top of the salary range for her position. Instead~ she wes placed at the mid-point. In other words, aa Mr. Raven indicated, Ms. Vines with her twenty-five years of clinical experience was treated for salary purposes in the same manner as a like employee with six years previous clinical experience. Mr. B. Handford, the hospital's Director of Human Resources, conceded that the employer's practices, as described herein, must conxorm to the exigencies of the collective agreement. He submitted, however, that Article 29.04 specifically reserved to the hospital the discretion to treat new hirees, whether they be casuals or regular part time or ~ull time employees, in accordance with the existing practices that preceded the certification of the bargaining agent. These practices, no doubt, were designed to confer upon the hospital's department ~ -7- heads the discretion to award appropriate weight for previous clinical experience on the basis o~ the hospital's need for a particular service. Accordingly, although the hospital generally adhered to these practices, variation might be made, as hitherto described, if required to attract a particular individual to the hospital's employ. Mr. Handford has not convinced us that the language of Arti~~e 29.04 or any other provision of the collective agreement supports or accommodates the hospital's practices in the two situations herein described. We subscribe to Mr. Raven's interpretation of Article 29.04 in the sense that, in the absence of en express limitation contained in the collective agreement, employees in the bargaining unit are entitled prima facie to the fulcrum of bene~its provided under its terms. More particularly, with respect to the hospital's practice of paying casuals at the start rate on the salary grid, there exists nothing in the collective agreement that abridges the entitlement o~ casuals to the same consideration xor pay purposes with respect to their past clinical experience as i8 extended new hirees to regular part time or full time positions. And with respect to its practice oz starting employees generally at the mid-point of the salary range we are of the like view that, in the absence of an express limitation (as was evidenced in a similar provision contained in the Ottawa Civic Hospital collective agree~ent)p ~he hospital, irrespective Ox the underlying purpose of its policYI was not Justified in pIecing a "cap'. on a new hiree'g entitlement ~ -8- to the full benefit of the formula for crediting previous clinical experience contained under Article 29.04 of the collective agreement. Mr. Handford relied upon the terms "as determined by the Hospital" and "satisfactory to the Hospital" contained in Article 29,04 for the notion that the hospital's practices' of according credit for previous clinical experience were preserved under the rubric of its un~ettered management prerogative. In other words, the hospital argued that in the absence of clear language contained in the collective agreement that af~orded the grievors the benefits they claim for past clinical experience management, having regard to its preserved discretion, retained the prerogative of accepting or reJecting at will an employee's past clinical experience for pay purposes. We do not interpret those particular terms contained in Article 29.04 in the manner suggested by the hospital. If we were disposed to accept the interpretation advanced by the hospital then, in our view, Article 29.04 would be devoid of any practical meaning. Clearly, the referred to provisions contained in that provision affords the hospital the opportunity to assess the quality of a new hiree's past clinical experience in order to determine whether there is merit ~or crediting such experience on the salary grid. If some shortcoming is disclosed that might rel~te to the relevance or the re~oteness of the experience claimed by the new hiree then the hospital is given a wide lattitude in re~using to credit that experience forsalary purposes. The exigencies of Article 29.04 would require the -r.";o' -9- hospital to Justify its refusal to credit an e~ployee's claim for past experience on a rationale basis. Those reasons might very well be challenged at a later time by the employee's bargaining agent in its recourse to the grievance procedure. But, in no manner can we support the principle that Article 29.04 affords the hospital the unzettered discretion to nullizy an employee's , otherwise appropriate clinical experience in the arbitrary and discriminatory zashion that was described to us in both the cases of Ms. Slivinski and Ms. Vines. As a result we are of the opinion that the hospital's practices, as herein described, are in violation of Article 29.04 of the collective agreement and we so declare. Accordingly in haing regard to the hospital's undertaking at the hearing, the parties are directed to meet with a view to compensating the grievor:"'" We shall remain seized for the purpose of the implementation of this award.. Dated this day . {~[)\ U\\~ \'\ \\ \: \'" ;\\./ of November 1985,' \ Yr\ ~\ ;Q \ David.::H."'Kates' ',,----\ I concur "Karen Mess" Trade Union No~inee I concur "R. Stansel" Employer Nominee