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HomeMy WebLinkAboutBECKER-1987-30-04-HOTEL DIEU HOSPITAL KINGSTON BETWEEN: THE RELIGIOUS HOSPITALLERS OF ST. JOSEPH OF THE HOTEL DIEU HOSPITAL OF KINGSTON the Hospital, and ASSOCIATION OF ALLIED HEALTH PROFESSIONALS: ONTARIO, LOCAL ASSOCIATION t 3 the Union. AND IN THE MATTER of the grievance of Marianne Becker with respect to her placement on the salary scale. ARBITRATOR 1. G. Thorne APPEARANCES FOR THE ASSOCIATION Sandra Nicholson, Labour Relations Officer Paul Davidson, Bargaining Unit Representative Marianne Becker, Grievor APPEARANCES FOR THE HOSPITAL Les Foreman, Labour Relations Representative Mark Edmonds, Hospital Administration Jan Worsley, Director, Speech Pathology Department A hearing ~n this matter took place on March 25th, 1987 at Kingston. Page 1 AWARD The gr~evor, Marianne Becker, ~s a speech pathologist at Hotel Dieu Hospital in Kingston. She was hired ~n October 1985. The issue in this case ~s whether, in placing her at step 1 on the salary scale in the collective agreement, the hospital has properly recognized her recent related clinical experience as of the time she was hired. The matter is slightly complicated by the fact that there was no collective agreement in effect at the time Ms. Becker started at the hospital. When the first agreement between the parties was signed in June 1986 (retroactive to July lst, 1984) it was not initially recognized that Ms. Becker was a member of the bargaining unit. She was unaware that she might be covered by the collective agreement until about July 1986, when she contacted the association about the matter. As she put it, she "fell through the cracks" until August, 1986, when she was placed on the salary scale under the agreement. When Ms. Becker started with the hospital, she was placed at Step 5 on the salary scale which was then in place for speech pathology. The salary at that level was $33,2l6.00 per annum. There was of course no collective agreement in place at the time. Ms. Becker's salary resulted from a process of negotiation: the salary first mentioned to her was lower than that figure, while the figure she proposed was higher than the hospital was prepared to pay. The manager who recommended that she be hired at that salary level noted that her experience waS specifically suited to the position and difficult to Page 2 find in the market place. However the considerations which must determine her placement on the salary scale under the collective agreement are set out in the agreement itself at Article l6:02. The relevant provisions of that Article are: Recent Related Experience Each new employee shall be informed by the employer that claim for recent related clinical experience, if any, shall be ~ade in writing by the employee at time of hiring. The employee shall co-operate with the Employer by providing verification of previous experience, if necessary, so that her recent related clinical experience may be determined and evaluated. Having established such experience the Employer will recognize recent related clinical experience on the following basis: (a) Experience gained with the employer in the same classification within the five (5) year period prior to date of hire will be recognized at the rate of one (1) increment for each year of experience; (b) Other full-time experience will be recognized at the rate of one (1) increment for each (2) years of serv~ce; (c) After the initial year of experience, more than three quarters (3/4) of a year will be recognized once as a full year. For example: 'two and one-half (2 1/2) years experience counts as (2) years; two and three quarters (2-3/4) years counts as three e3) years; three and one- half (3-1/2) years counts as three (3) years; three and three- quarters (3-3/4) years counts as four (4) years; four and one-quarter (4-1/4) counts as four (4) years and so on; (d) The maximum starting salary will normally be four (4) increments (Level 4) in the salary scale, but the Hospital may place a new employee at a higher level with the agreement of the Association which agreement shall not be unreasonably withheld... Ms. Becker received a Bachelor of Science ~n Speech and Hearing Therapy in 1975. From September of that year until August 1977 she was employed as Program Director of Speech Pathology at Western Memorial Hospital in Corner Brook, Newfoundland. In that position, she had the responsibility of providing diagnosis and treatment of communication disorders over a wide geographic area. There was an educational component to her work: as there were only three speech pathologists in the Province of Newfoundland, part of the job involved conducting workshops for other professionals and for parents, Page 3 basically so that others could learn to provide some of the services of speech pathology. She found the work 01 a sole charge position ~n these circumstances to be a challenging responsibility and she decided that she needed further education. After a period of travel, from September of 1977 to August 1978, she entered the Masters Program at the University of Western Ontario. Apart from the completion of her thesis, she had finished her academic work by April, 1982, and she then became Program Director of the Communicative Rehabilitation Program at the Northwestern Health Unit ~n Dryden, Ontario. She remained in that position until October ,1985, when she came to the hospital. While she was in Dryden, she completed her thesis and received her Master of Clinical Science in Speech Language Pathology in October 1984. The hospital has recognized the grievor's three and a half years in Dryden as recent related clinical experience. While her Master's program included a clinical placement in each term, it is not'contended by the association that this was exper~ence of the sort that should be recognized. What is suggested is that her two years experience in Newfoundland should be taken into acccount. Thus it is common ground that, at least during the period from September 1977 to April 1982, she was not gaining related experience within the meaning of the collective agreement. The ma1n issue between the parties is whether that "break" of about four and a half years had the effect of rendering her experience in Newfoundland too remote in time to be recognized as recent related clinical exper~ence. Before turning to the arguments made by the parties I should record one ruling on a matter of evidence whose admissibility was in dispute. The association sought to introduce through the grievor an inter-office memorandum prepared by the manager of the Human Communication Unit before the grievor Was Page 4 hired. The memo had been shown to the gr~evor by the manager when she asked for some documentation of the salary level at which she had been hired. The hospital's representative objected at the hearing that the contents of the memo were privileged and in any case not relevant to the issues. My ruling was that any privilege must be deemed to have been waived when the memo was provided to the grievor for her information. The relevance of the contents of the document was a matter for argument. To the extent that the document establishes the salary level at which Ms. Becker was hired and how it was arrived at, it is helpful to an understanding of the present situation; indeed the hospital conceded that she was hired at the top of the then existing salary scale. However the balance of the memo, which proposed how the grievor's salary might be dealt with within the budget, is of no particular assis~ance. Certain other points which came up in evidence should also be mentioned. In cross-examination the grievor was shown a further inter-office memorandum dated August 26th, 1986 (the date of the grievance) in which the same manager indicated that he concurred with the hospital's position with respect to the placement of the grievor on the scale under the collective agreement. The memo concludes with the sentence: "Prior credit given for your years of experience with a Bachelor's degree in speech/language pathology cannot be applied under this agreement". It was also suggested to the grievor in cross-examination that post-graduate training was the normal qualification for her position and that credit for exper~ence was normally given only for the period after the completion of that requirement. The grievor disputed this, saying that she had no knowledge of the practice being followed or of what had been done in the past. No evidence was called on behalf of the hospital and thus there is no evidence to support the suggestion put to the grievor. If the memo asserts that credit can be given only after the post- graduate level (and that assertion is not clearly made in the memo), that is Page 5 simply the hospital's view of the matter. Ar!1;ument The association noted that Article 16:02 spoke of "recent related clinical experience" and that there was no express contemplation of the impact of a break in the experience of an individual under consideration. The association's position was that the grievor's three and one half years of experience in Dryden should be added to her two years in Newfoundland. The total of five and one half years would result in the placement of the grievor at Step 2 on the salary scale (or at Start plus 2 as it is sometimes expressed). The association reviewed several arbitration awards which had dealt with language similar to that in issue here, ~n particular Re Sudbury Al!1;oma Hospital and Ontario Nurses' Association (August 7th, 1986 - unreported - Burkett), Re Altamont Nursing Home and Ontario Nurs~~ Association (October 3rd, 1985 - unreported -Swinton), and Maitland Manor and Ontario Nurses' Association -(August 17th, 1984 - unreported - Barton). The Sudbury and A1tamont decisions included discussions of the factors that made experience 1'related". The Maitland case dealt with how it should be determined whether experience was 1Irecent". The association urged that I adopt the reasoning in the Maitland case and take into consideration the fact that part of Ms. Becker's work at the University of Western Ontario had been clinical in nature. It was suggested that this factor had the effect of keeping the grievor's experience in Newfoundland fresh and that that experience should thus be regarded as recent. The hospital argued that the association had not proved a violation of the agreement. It was noted that the salary at which the grievor was hired Page 6 was equivalent to $l7.03 per hour and that when she was brought under the collective agreement at Step l, before the anniversary of her date of hire, her rate was brought to $17.08 per hour. The hospital also noted that the normal minimum educational requirement for the grievor's position at the hospital was a Master's in speech pathology and asked me to draw the conclusion, from this fact and from the statement quoted from the memo of August 26th, 1986, that the consistent approach of this employer was to give credit only for exper~ence gained after the completion of the normal miniumum educational requirement for the job. The essence of the hospital's position was that, in any case, the grievor's experience in Newfoundland, preceding a break of about four and one half years, was simply too far ~n the past to be "recent" within the meaning of the agreement. Mr. Foreman suggested that the collective agreements of hospital nurses had established a standard by providing, in effect, that a two year period out of nursing work would break recent related experience for recognition purposes. This, he suggested, had establ~shed a norm for the industry. CONCLUSION It is not seriously ~n dispute that Ms. Becker's experience in Newfoundland was "related" experience within the mean~ng of the agreement. On the evidence, it was related in the sense that that word is interpreted, for example, in the Sudbury Algoma ~~ital Deci~i~~ referred to ~n argument. The real issue is whether that experience was I'recent". Some of the points made ~n argument do not really assist in the resolution of the question. It was suggested that the consistent practice of the employer in the past was to give credit only for recent related experience Page 7 gained after completion of the normal educational requirement for a particular job. As indicated earlier, the evidence does not support this assertion. But, even if it did, what could it say about the way in which the p~rties' agreement is to be interpreted? It could not be said that the association had acquiesced in the employer's interpretation as the association has only recently arrived on the scene. An employer's unilateral course of conduct ~n the past would not normally be received as evidence of past practice. In any event, evidence of past practice is usually received only when it has been shown that there is some justification for doing so; normally one must. rely on the words of the agreement itself. The point was also made that the grievor ~s no worse off financially under the collective agreement than she was under the individual agreement made when she came to the hospital. That appears to be the case, but the issue here is simply whether the grievor has been placed at the correct step on the salary scale under the collective agreement. It is no answer to say that he~ reasonable expectations may have been fulfilled. I cannot accept the argument that the nurses' collective agreement has established an industry norm for assessing breaks in experience. Nurses are only one group ~n the hospital field and their negotiations are distinct from those of employees represented by the association. There is no evidence before me on which I could base the finding which has been proposed. The fact remains that the parties here have set no absolute outside limit on what is "recent" experience. This consideration returns the discussion to the question of what is meant by "recent" related experience. In the absence of a stipulation in the agreement it is my view that the assessment must be made on a consideration of the actual experience of the individual rather than on the Page 8 basis of some outside standard. The Maitland Manor case is helpful ~n this regard and is the only one of which I am aware which deals with this point. In that case the grievor was a nurse who was hired ~n April 1976. Sbe had related experience from January, 1974, to her time of hire and four years of previous experience up to November, 1971, which the board accepted as related. The issue was whether the interim period of about one and a half years, during which she worked as a nurse in a doctor's office, had the effect of making her experience before November, 1971, something other than l'recent'l; it was acknowledged, as in this case, that the "break" period was not related experience within the meaning of the agreement. The arbitrator found that the experience in issue was recent. In doing so, he noted that the agreement put a cap of three increments (of two years each) on recognition of exper~ence with previous employers. On its face, therefore, the agreement authorized him to go back for s~x years from the date of hire at which point the grievor was working in the job in which she ultimately gained a total of four years exper~ence. The arbitrator accepted that that unbroken service ending within the six year period was recent related experience. However, it appears that the fact that the experience ~n question had ended within the six year cap period was not in itself sufficient to make that experience "recentll; the board went on to note that (at page 8); This position is strengthened by the fact that her year and one-half spent in the doctor's office was time spent in nursing, even though it was agreed between the parties that it was not "related" within the meaning of Article l8.05. If the Grievor had not kept her nursing skills alive during this period, it might have been more difficult to suggest that her experience at the Alexandra Marine and General Hospital was "recent". The Maitland Manor award ~s helpful in that it suggests that a standard set ~n the collective agreement itself, namely the increment cap, provides a guide as to a cut-off point beyond which experience might no longer be recent. There is such a cap in this agreement in Article 16:02(d) and its effect is to go Page 9 back eight years from the date of hire in recognizing experience gained elsewhere. I should say at once that I do not think that any experience occurring within that eight year period is "recent" by reason of that fact alone and that something more is required to qualify experience as recent. In the Maitland case the additional factor was the fact that the grievor had kept her skills alive during her break in related experience. In view of the evidence of Ms. Becker's clinical work during her post graduate training the point can reasonably be made that she too had kept her skills alive during that training. However the length of the break in related experience must also be a factor and in Ms. Becker's case the break was considerably longer than the one considered in Mai!land Ma~ and included a year in which she was not working in her field at all. Was a break of this sort sufficient to make her previous experience something less than I'recent"? The cap mentioned ~n Article l6:02 (d) offers some guidance as to what the parties were to consider as appropriate exper~ence for recognition, although. in my opinion the clause does not go so far as to exclude experience occurring outside the eight-year period from consideration; strictly it simply sets a limit on maximum st~rting salary. However it should be noted that the previous experience which is in dispute ended just outside the eight- year period. I would regard this as a factor to be considered though not a conclusive one. More significant ~s the actual length of the break in related exper1ence. That break was of four and a half years compared to a total working career, at the grievor's time of hire, of about five and a half years. While much of the break was clearly occupied with maintaining and indeed improving her professional skills, one year was not. At some point experience must cease to be "recent" if that word is to have any effect. In my opinion the employer's determination that the exper1ence 10 question was not recent Page 10 related experience was an appropriate one and was not a breach of the collective agreement. Accordingly the grievance is dismissed. D'ATED at Kingston, this 30th day of April, 1987. ,~~ /~/_<[~~ ~ ~-~ I. G. THORNE, Arbitrator - _..~ ............... .-......,! ASSOCIATION OF ALLIED HEALTH PROFESSIONALS: ONTARIO 234 Eglinton Avenue East, Suite 305, Toronto. Ontario M4P 1K5 FACSIMILE TRANSMISSION TO: J1Jn) ~2--- YCUVLLt~ Fax: (ffi(~ ' Fax: (416) 484-9959 COVER PAGE PLUS 1/ PAGE(S) (If you do not receive complete transmission please call 484-9685) TIME: 1!'o/0>~ DATE: FROM: MESSAGE: tP ~J/!Y-~o( , J V