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Home My WebLink AboutUNION-1996-04-03 ': In tho x~tter of an Arbitration '. Bot"..n ~h. ottawa civio Hospital (E:mployer) and The Association of Allied HQalth Prof$$sionals; ont~rio (AAHPIO) (Union) And in the Hatter of Barq~ining unit Work B<llfor&l M.B. ~$ll.r, Arbitrator Appearancesl Francine Roach and Phil :aunt for th0 union C~rolQ Pietto tor th$ Employer Rearing in ottawa, DGcember 14, 199~, January 26, Nov~mb~r 23, 1995 and 19bruary 29, 1996. 0:=:/11 '96 10:32 ID :SOWi,RY ,Wl<lGHf. VICIU" r-RX: f-'RGI:. b 2 AWARD The Union seeks to have a person they claim is performing bargaining unit work included in the bargaining unit. The Employer takes the position that the person in question is not an employee of the Hospital and, therefore, regardless of the work '. performed (without admitting that it is of the same nature of the work performed by bargaining unit members), the grievance can not succeed. Given the disposition of this matter, that is the only issue that needs to be addressed. The relevant provisions of the collective agreement are found at Article 2. "2. Recocrnition The ottawa Civic Hospital recognizes the Association of Allied Health Professionals: Ontario, or its successors, as the sole collective bargaining agent for the persons described in the certificates issued by the Ontario Labour Relations Board May 18, 1976 and June 23, 1986. The parties agree to interpret the combined contents of these certificates as follows: All Physiotherapists, occupational Therapists, Recreation Therapists, Pharmacists and Clinical Dieti tians in the amp.loy of the Trustees of the Ottawa Civic Hospital in ottawa, save and except supervisors, persons above the rank of supervisor and persons covered by subsisting collective agreements, constitute a unit of employees for collective bargaining. 2.2 It is also agreed that persons, while classified as Phar~acy Residents, Dietetic Interns, Physiotherapy and Occupational Therapy students, Interns and graduate students, shall not be included in the bargaining unit. , ".~..... 3 2.3 Employees not covered by the terms of this Agreement will not perform duties normally assigned to those employees who are covered by this Agreement, except for the purposes of instruction, or in emergencies when regular employees are not readily available. Management shall not perform duties normally performed by members of the bargaining unit which shall directly cause or result in the laY-Off, loss of seniority, service or benefits to members of the bargaining unit. 2.4 The Hospital shall not contract out any 'work usually perfor1lled by membe.rs of the bargaining unit, if as a result of such contracting out, a layoff of any employees other than casual part-time employees results from such contracting out. contracting out to an employer who is organized and who will employ the employees of the bargaining unit who would other~ise be laid off with similar terms and conditions of employment is not a breach of this provision. The key element to be determined is whether the individual in question, Ms. Beth Mansfield is an employee of the hospital. At the time the grievance 'Jas launched, Ms. Mansfield was a graduate student at McGill University in Montreal working towards a masters degree in human nutrition. She had three mentors responsible for her masters programme. One was Dr. Ruth McPherson who ahe had met at the Royal victorla Hospital in Montreal. According to her testimony, Dr. McPherson moved from Montreal and is employed by the University of ottawa, Department of Medicine, doing research. She also has a private practice. The former takes up about 75~ of her time. Her research is performed out of the Lipid Clinic at the Heart Institute. She is Director of the Lipid Clinic and the Lipid Research Lab. She sees her private patients through the Clinic. Y.;J/,l.,..I. ~v ..1......._..... l)..)...",IU....W.......MJ ,......I'J,'..:lnJ ,Vi"-'lUf\ rH/\. r'Hbt:. , .' " She testified that the labs are private premises and not part of the hospital. she is on the active attending staff of the hospital but has no admitting privileges. Patients on the ward are seen on an average of once per month on a consultative basis. She has no admitting privileges to, and receives no money from, the hospital. She does not participate in any hospital activities. Her staff (including a secretary, an R.N. at times, and technicians) is paid by her from her account at the university of ottawa. She is paid by the University of ottawa. When Dr. McPherson moved to ottawa from Montreal and set up in the Lipid clinic she established a workshop for her patients and patients referred to her from other physicians. She asked Ms. Mansfield to head the workshops as they fell within her sphere of knowledge and would be helpful in her master' F; programme. The workshops were given, an averagj:l, once per month at the Heart Institute. They dealt with among other issues, nutrition and exercise physiology. Ms. Mansfield had no control over who attended the workshops being dependant on Dr. McPherson for sending her her patients. The work was performed by Ms. Mansfield as a graduate student ~nd she received a stipend from Dr. McPherson. Both Dr. McPherson's and Ms. Mansfield's names and phone numbers were in the hospital phone-book. The Union argues that Ms. Mansfield is an employee of the hospital. She is physically located on the premises; makes full use of the hospital facilities for t~aching purposes including the classroom ~o~rA~~ri~~ ~n~ ~~~~h{ncr aides; benefits fro~ hospital resources; 03/11 '96 10 :33 . ID:SOLOWAY,WRIGHT,VICTOR FAX: PAGE 9 5 works Under the auspices of Dr. McPherson who fully controlled the work she did. Dr. McPherson, it was argued, was an employee because she had privileges at the hospital; her name is in the directory; was physically located there; sa~ her patients on the premises; visited '. patients on the medical wards; used the staff of the Lipid Clinic; was publicly perceived to be part of the hospital. The employer argued that none of the indicia for determining an employer / employee relationship are present in the instant case. In support of that proposition reference was made to Re Hosoital Emplovees UniQn. Local 180 and 8ranbrook ~nd District Hos9ital and Selkirk Colleae, [1975] 1 Can L.R.B.R.42 (P.c. Weiler). The Board found that student practical nurses were not employees of the hospital. It determined the students were not hired by the hospital, that the hospital had .no say in the students it received from the College, the students did not receive any wages or fringe benefits, the hospital did not set the students schedules and had no rols to play in discipline or education. Reference was also :made to Re Ontario Public Service Emolovees Union. Loc!!l 581 and Scarborou<:rh General Hospital, unreported November 30, 1988 (Verity). In the award arbitrator Verity enunciates the criteria developed by the Ontario Labour Relations Board to determine employee status. "(1) The party exercising direction and control over the e~p1oyees per~orming the work. (2) The party bearing'the burden of remuneration. 03/11 '96 10:34 . ID:SOLOWAY.WRIGHT.VICTOR FAX: PAGE 10 6 (3) Th~ party imposing discipline. (4) The party hiring the employees. (5) The party with the authority to dismiss the employees. (6) The party which is perceived to be the employer by the employees. (7) The existence of an intention to relationship of employer-employee. create the '. In respect of the above it was submitted that none of the criteria were met. Finally, it was argued that the names of other persons who are not employees of the hospital can be found in the hospital directory. After reviewing the evidence in this case, the conclusion that must be reached is that Ms. Mansfield is not an employee of the hospital. Not one of the seven criteria referenced above is met. Her relationship is, and always has been, directly to Dr. McPherson. She was hired, directed and paid by her. She had no relationship to or with the hospital. In turn Dr. McPherson is not an employee of the hospital. The evidence does not disclose that any of the criteria with respect to her were satisfied. She was no~ paid by them, directed by them, SUbject to their discipline or, for that matter, anything else. Her relationship is, and was, to the University of ottawa. Dr. MCPherson has no admitting privileges to the hospital. She receives no money from it. She pays her own staff. Seeing a patient on a ward once per- month is not enough to establish an Q3/11 '96 10:34 iD:SOLOWAY,WRII3HT,ViCTOR FAX: PAGE 11 " C ~....~. 7 employment relationship. Finally the fact that their names appeared in the hospital phone directory does not establish an employment relationship: other non-employees are included as well. On the evidence I can not find that Ms. Mansfield is or was an employee of the hospital. That was '. acknowledged by the parties to be the threshold issue that had to be met before the merits could be addressed, I make no finding on the merits. The grievance is dismissed. signed in Nepean, this ~ day of March, 1996. ~ M.B. Keller, Sole Arbitrator