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HomeMy WebLinkAboutUNION-1988-03-10 IN THE MATTER OF AN ARBITRATION BET WEE N: THE OTTAWA CIVIC HOSPITAll The Hospital, - and - THE ASSOCIATION OF AllUIED HEAUTH PROFESSIONAliS: ONTARIO The Association. And in the matter of policy grievances with respect to certain non-registered pharmacists and physiotherapy residents. BOARD OF ARBITRATION I. G. Thorne, Chairman Ronald leBlanc, Hospital Nominee Sandra Nicholson, Association Nominee APPEARANCES FOR THE EMPliOYER Jacques A. Emond, Counsel Pat Steward, labour Relations Officer Ron Mills, Director, labour Relations APPEARANCES FOR THE ASSOCIATION Diane Nicholas, Counsel Sue McCulloch, labour Relations Officer Barbara Jovaisis, Pharmacy Representative A hearing in this matter took place on March 21st, April 28th, May 9th, June 2nd and June 28th, 1988 at Ottawa. r (2 ) A WAR D The association and the hospital are parties to a collective agreement which governs the terms and conditions of employment of pharmacists and physiotherapists, among others at the hospital. This relationship has existed for some years and through several renewals of the collective agreement. The two renewals which concern us in this case are the agreement covering the periOd from April 1st, 1983 to March 31st, 1984,and the one relating to the period immediately following, April 1st 1984 to March 31st, 1987. The association represented full-time employees during the former term; part-time employees were brought within the scope of the agreement during negotiations for the 1984 to 1987 term. The association has filed two grievances alleging that the hospital has failed to apply the provisions of the collective agreement to certain non-registered pharmacists and to certain physiotherapists who were qualified but not licenced, all of whom were said to fall within the bargaining unit. While the grievances were framed as policy grievances, relief was also asked for the individuals affected. The hospital objected at the opening of the hearing that relief for individuals should not be considered in the context qf a policy grievance. The hospital also objected that the grievances were filed beyond the time limits specified in the agreement. It then appeared that the parties disagreed as to whether the timeliness provisions of the 1983-4 or the 1984-87 agreement applied to the grievances, these provisions having been amended as the result of negotiations for the more recent agreement. A further potential issue was whether (3) we should exercise our discretion to extend the time permitted for the filing of the grievances if they should be found to have been untimely. The hospital's position that the grievances were untimely came as a surprise to the association, which was not prepared to deal with that issue or to call evidence in connection with it. It was apparent from the parti es' open ing statements that the issue would be an important one and the association then requested an adjournment. The board was of the view that, although the objection might well have been anticipated, the association was in fact taken by surprise. As the situations complained of in the grievances had all come to an end, and since the evidence would still be available at an adjourned hearing, we granted the requested adjournment. When the hearing resumed (from which point the association was represented by counsel) e v ide n c e was he a r d bot h 0 n th e p r e,l i m i n a r y mat t e r san don the merits, the issues being somewhat interconnected and the evidence on the preliminary matters being lengthy. The fi rst of the two grl evances was dated November 3rd, 1986. It alleged that two pharmacists who worked more than 24 hours per week had not been paid salary or benefits, that the employer did not remit union dues for them and that the posting procedure was not complied with. The grievance sought compensation for the affected employees, compensation to the association ~or dues, and declaratory relief. While the evidence of the surrounding circumstances will be summarized later in this award, for the purposes of clarity the names of two non- registered pharmacists and the periods during which they were at (4 ) the hospital can be mentioned now. One was Ho luu, who worked at the hospital on terms to be described more fully later, from May 26th, 1983 to June 14th, 1984. From May 26th, 1983 until February 15th, 1984 he worked less than 22.5 hours per week, placing him outside the bargaining unit which at the ti me included only those working 22.5 hours or more per week. From March 5th, 1984 onward he was paid. The period over which the association grieved was that between February 16th and March 4th, 1984, during which Mr. Luu worked more than 22.5 hours per week. The other non-registered pharmacist was Sangeeta Srivastava, who worked full-time without pay from June 17th until September 30th, 1985, after which time she was paid. She bec ame a permanent employee in June 1986. No posting was made for the position, which she still holds. The second grievance was dated May 20th, 1987. It claimed that physiotherapists who 'were qualified but not licensed had not been included in the bargaining unit, that the association had not been provided with a job description or an opportunity to negotiate salary, that the individuals involved had not received salary or benefits and that the employer had not remitted union dues. The grievance asked for complete redress, including compensation for the individuals. affected and for the association for dues. Again, the circumstances are important and will be set out in due course. Briefly, four physiotherapists were said to be involved, all of whom had worked full-time for certain periods: Bozena Oleszkiewicz from June 10th to July 29th, 1985 and again from September 30th to November 8th, 1985; Vera Forster from June 30th to October 31st, 1986; Andrea Labelle from January 5th to May 9th, 1987; and Catherine Webster (5 ) from April 21st to August 14th, 1987. The dispute over the timeliness of these grievances centred on the wording of Article 23.4 as it stood in the 1983-84 agreement and as it was revised in the 1984-87 agreement: (1) 1983-84: Grievance - First Step If an employee believes he has a grievance he must submit it in writing and sign it and present it to his immediate supervisor within ten (10) working days of the occurrence otherwise all parties recognize that no formal grievance exists. The immediate supervisor must convey his decision in writing to the employee within five (5) days of the receipt of the grievance. (2) 1984-87 Grievanc - First Step If an employee believes he has a grievance he must submit it in writing and sign it and present it to his immediate supervisor within ten (10) working days of the occurrence giving rise to the complaint or from the date upon which the subject matter of the complaint may reasonably be deemed to have come to the attention of the employee so affected, otherwise all parties recognize that no formal grievance exists. The immediate supervisor must convey his decision in writing to the employee within five (5) days of the receipt of the grievance. As will be seen, alternative submissions were made about the applicability of other provisions in Article 23 and about the applicability of Article 23.4 to policy grievances, but the provisions set out above are central to the hospital's preliminary objection. The hospital's position was that, at the time of the filing of both grievances, the collective agreement in effect was the 1983-84 agreement. If that was the case, the grievance with respect to the pharmacists was long out of time, while the grievance with respect to the physiotherapists could be timely only insofar as it concerned the situation of Catherine Webster. (We would think that that grievance was timely also \ 0) with respect to Andrea Labelle, given that Article 23.3 excludes Saturdays and Sundays from the calculation of the time limit.) If the wording of the 1984-87 agreement was in effect, however, it might be that the grievances might be timely if they had been filed within ten working days from the date on which the complaint might reasonably be deemed to have come to the association's attention. It should be noted that no individual has filed a grievance about the situations of which the association has complained so that it is the state of knowledge of those acting on behalf of the association which is material to this issue. At this point, therefore, we shall summarize the evidence relating to the question of which collective agreement was in effect and what was known by representatives of the association from time to time. Following the expiry of the 1983-84 agreement on March 31st, 1984, the parties negotiated for a renewal. The process was lengthy, but by December, 1985 agreement had been reached on all issues except salaries and vacation entitlement. Those issues were referred to a board of arbitration, chaired by Maureen Saltman, pursuant to the Hospital Labour Disputes Arbitration Act. An initial hearing was held on July 22nd, 1986 but the parties' submissions were not completed on that date. Because of the time it would take to complete the hearing, the board made an interim award on August 27th, 1986 under which employees would receive rates of pay in accordance with the hospital's final offer, expressly without prejudice to the final disposition of the salary issue. Earlier that summer there had been a discussion between (7) Sue McCulloch, the Executive Assistant of the association at Ottawa, and Jeanett2 May, a Labour Relations Officer at the hospital, about the proposed implementation of the 1984-87 agreement. Specifically, Ms. May indicated to Mrs. McCulloch that the hospital was planning to implement the new collective agreement to the extent that agreement had been reached. A draft of the agreement had been provided to the association in March, 1986 and on July 29th, Ms. May wrote to Mrs. McCulloch as follows: Enclosed please find the newly revised A.A.H.P:O Collective Agreement for the term April 1, 1984 to March 31, 1987. In order to expedite matters, if you would kindly sign the document and, forward it back to Human Resources at your earliest convenience. At that point, it will be signed by the Hospital. The agreement provided by Ms. May was signed on behalf of the Association on or about August 5th, 1986 and was returned to the hospital. However it was not si gned by the hospital. The former Director of labour Relations had left the hospital at the beginning of August and his successor, Ron Mills joined the hospital on October 1st. Shortly after he arrived, Mrs. McCulloch raised with him the question of the signing of the co 11 ec t i ve agreemen t. He discussed the matter with the Vice- President, Human Resources. They decided that the hospital was not prepared to sign a partly completed agreement and he advised Mrs. McCulloch of this. Nonetheless, she continued to understand that the collective agreement was to be implemented (except with respect to the two issues which were before the Saltman board); the hospital had not indicated that it would not implement the agreement and she observed that the interim salary arrangement (8 ) had been implemented even before the board had made its interim award. From her point of view, therefore, the revised version of Article 23.4 was in effect at the time of the filing of the two grievances. As it happened, the new agreement was not signed for quite some time after the final award of the Saltman board was issued on February 17th, 1987. Mr. Mills found himself virtually alone in the Labour Relations Department following the resignation of Ms. May and the serious illness of his secretary. He was not able to provide a draft of the new agreement to Mrs. McCulloch until May, and it then turned out,that the parties were not in agreement on the wording of provisions dealing with vacation entitlement and retroactivity on vacations. The disagreement was not resolved until October and the agreement was then signed. We now turn to the facts surrounding the filing of the two grievances. Mrs. McCulloch testified that she became aware on October 24th, 1986 of the situation giving rise to the "pharmacy" grievance. Mrs. Srivastava had raised a question on seeing a seniority list which had been prepared at some time following the point at which she became a registered pharmacist: a pharmacist who had started working at the hospital after her starting date had been pl aced ahead of her on the seniority list. Her question had led to a meeti ng with Mrs. McCulloch and others at which the details of her situation came out. Mr. l.:uu was also at the meeting and Mrs. McCulloch then learned of his situation as well. The grievance was then filed. Mr. Mills then asked for an extension of the time allowed for a (9 ) response ln order that the hospital could investigate the allegations. Shortly after that, Mr. Mills wrote to ask for the names of the pharmacists and the time frame involved, observing that the grievance did not provide these details. In hi s 1 etter he remarked, "I am assuming that the situations you are referring to must have occurred fairly recently in view of the date of your grievance." A meeting to discuss the grievance took place in February, 1987, when Mr. Mills asked Mrs. McCulloch why the grievance was coming forward now as one of the situations complained of dated back to 1984. Mrs. McCulloch replied that she had learned of it only recently. In her testimony she acknowledged that Mr. Mills had raised the question of timeliness but she had not felt that the hospital was indicating that it would deny the grievance on that basis. There had been communications between the hospital and the association in the past about both Mr. luu and Mrs. Srivastava. On May 20th, 1983 the manager of Industrial Relations wrote to the then business representative of the association (in part): 2. Pharmacy Intern. The hospital has made arrangement with a Mr. Ho Luu for him to come on staff as a voluntary Pharmacy Intern. Mr. Luu is a Registered Pharmacist in Vietnam. He arrived here four years ago and became a Canadian citizen. In order to qualify as a Registered Pharmacist in the Province of Ontario, he must, get one year's practical experience under the supervision of a Registered Pharmacist in addition to supervision of a Registered Pharmacist in addition to passing his written requirements. His period of supervision must total one year and Mr. Luu will be spending four hours a day at the Civic Hospital and four hours a day at the Royal Ottawa getting his training. It is hoped that Mr. Uuu will start on Tuesday, May 24. Mrs. McCulloch acknowledged that the association had been (10 ) aware then that Mr. luu was working at the hospital without pay, but she noted that he was initially working less than 22.5 hours per week, placing him outside the bargaining unit, so that the association could take no action. On July 11th, 1986 the Director of Labour Relations wrote to Mrs. McCulloch about Mrs. Srivastavas as follows: "As per our conversation this will confirm that the above-named employee will, on a without prejudice basis, be placed on the second step of the Registered Pharmacists salary scale retroactive to her obtaining her license from the province. This action is being taken due to the fact that she completed a year of practical experience at the Civic in order to qualify for her license and, the department feels this could be analogous to the agreement we have reached re the Pharmacy Resident." While this letter was not in her files, Mrs. McCulloch assumed that she had received it and noted that the letter gave no indication that Mrs. Srivastava had worked without being paid. Finally, with respect to the pharmacists, Mrs. McCulloch agreed that the association had a staff representative in the pharmacy department at all times and that the representatives would likely know that Mr. Luu and Mrs. Srivastava were working in the department without pay. However no staff representative had brought the situation to her attention and the hospital had not advised the association when these individuals came on staff within the bargaining unit. Mrs. McCulloch sought to alert the members of the bargaining unit to the issue raised in the pharmacy grievance. In early December, 1986 she circulated an information package to (11 ) them. Its purpose was primarily to inform them of the results of negotiations for the incorporation into the bargaining unit of employees who worked less than 22.5 hours per week and to advise them of a meeting to hold a ratification vote. However the package also included a memo informing the members of the policy grievance filed in connection with the Pharmacy Department. The memo explained that "The department has hired non-registered pharmacists on a "volunteer" basis to perform the complete job duties of non-registered pharmacists. These pharmacists accepted these working conditions in order to get the experience necessary to write their jurisprudence exams." The memo went on to explain why it was considered important to challenge the practice and it concluded: Although the Association is aware of this practice occurlng in the Pharmacy, it is possible that similar situations could be happening in other departments as well. If you are aware of voluneers performing professional services in your department (either past or present) could you please inform your Staff Representative. With respect to the physiotherapists, Mrs. McCulloch's evidence was that she became aware on May 12th, 1987 that physiotherapists had worked at the hospital without receiving pay or benefits. She learned of this in a telephone conversation with Mrs. Srivastava on that date. (She had called her to ensure that she was aware that a meeting with management in connection with the pharmacy grievance had been cancelled). Following a contact with the Canadian Physiotherapy Association, from which she learned something of the terms on which some physiotherapists must undergo a period of hospital residency, Mrs. McCulloch filed the grievance with respect to the physiotherapists on May 20th, 1987. As in the case of the non-registered pharmacists, the (12 ) association had a staff representative in the Physiotherapy Department at all times. While Mrs. McCulloch did not know of the presence of resident physiotherapists who received no payor benefits, she acknowledged that the staff representatives would know. The practice had never been reported to her even after the memo of December, 1986 to her members. The final factual circumstance to set out concerns the terms on which the two pharmacists and the four physiotherapists worked at the hospital. There was one common factor in all of the cases: the requirement that a person who had attained some degree of professional qualification outside Canada must spend some time at a hospital in Canada in order to obtain professional status here. In the case of the two pharmacists, while their situations were not identical, it was a matter of spending a year under the supervision of a registered pharmacist in a hospital and to pass an examination in order to become registered pharmacists in Ontario. In the case of the physiotherapists, all of whom had qualified in other countries and some of whom had considerable professional experience, it was necessary for each to spend a period of time as a resident in a hospital under the supervision of a licensed physiotherapist. Essentially the purpose of the residency was to permit the resident to demonstrate her skills to the standar-ds of the Canadian Physiotherapy Association in order to become licensed. All of the individuals involved gave evidence, with the exception of Mr. l.:uu. In each case the individual had approached the hospital, or an approach had been made on her behalf, to determi ne if the person coul d work at the hospital for the required period. (13 ) Applicants were told that there was no money budgeted to pay them, with the variation that in the Pharmacy Department it was indicated that payment would be possible after a period of time. The individuals agreed to work on this basis (and in most cases at the hearing expressed their gratitude for being enabled to do so). It appeared that there was a mixed practice at hospitals accepting residents in such circumstances, some hospitals always paying such residents and others paying if finances permitted. When Mr. luu and Mrs. Srivastava were later paid, it was at the rate established on a scale in the collective agreement for non-registered pharmicists. The pharmacy residents generally did not work alone, until they became registered, but otherwise did much the same work as those supervising them and worked the same hours as other pharmaci sts. There was an element of training in their work. The physiotherapy residents were less closely supervised, although each was assigned to a licensed physiotherapist who would review and co-sign her reports, and some were taught procedures with which they had not previously been familiar. The physiotherapy residents acquired their own caseloads of patients and indeed were expected to handle at least 80% of the caseload of , licensed physiotherapist in order to meet the requirements of the Canadian Physiotherapy Association. In dealing with patients they were expected to identify themselves as clinical residents and' they wore identification tags to this effect; however we would not think that the meaning of the distinction would be apparent to most patients. The physiotherapy residents generally conformed to the Department's dress code for physiotherapists. The residents were expected to work the hours (14 ) in effect in the areas in which they were placed, but from the Department's poi nt of view they were free to take time off for illness or for personal reasons. However residents who testified on the point felt obliged to attend work work regularly and to make up any days they missed. It was not the Department's policy to use them to cover for staff who were absent, and the Department sought to cover absences and vacations with temporaries or part-timers. However there were occasions on which residents replaced physiotherapists who were absent. The Issue of Timeliness As indicated at the outset, the timeliness of the grievances was in issue. A fundamental issue, and one to which a good deal of testimony was directed, was whether the version of Article 23 which governed the situation was the one in the 1983- 84 or that the 1984-86 collective agreement. It was the hospital's contention that the former agreement was the one which was in effect when the grievances were filed in November, 1986 and May, 1987, for the simple reason that no new collective agreement had replaced it. The union's view was that the parties had decided that the provisions of the new agreement on which they had reached agreement would be brought into effect leaving open only the two issues on which they disagreed. It was. of course open to them to enter into a new collective agreement in respect of certain matters and to leave the items in dispute to be governed by the provisions of the former agreement (or by the terms of the interim award of the Saltman board) The question is whether they did so. Mrs. McCulloch was no doubt led to believe by the hospital's letter of July 29th, 1986, and by her (15 ) conversation with Ms. May, that the hospital was prepared to implement all of the items which had been settled: that is the only conclusion one can draw from the text of the agreement provided by Ms. May in conjunction with her statements to r'irs. 11cCul1 och. There was also evidence that certain of the newly agreed provisions were implemented. But the hospital was not bound to the course of action indicated by Ms. May. It changed its position and made it clear that it would not sign a new agreement until all the outstanding issues had been resolved. At that point it should have been clear that the parties were not in agreement. The remaining question on this point is whether, the on the signing of the agreement in October, 1987, the new version of Article 23.4 had retroactive effect. Some provisions of the new agreement were made retroactive expressly, but Article 23.4 was not among them. Nor was there evidence that the parties had treated it as being in effect before the signing of the agreement. In 0 u r view the general rule should apply that an agreement takes effect upon executivn, )n the absence of a clear stipulation to the contrary. In the case of a provision as to the time limits for filing grievances, the retroactive application of a new provision without any prior understanding that this would be ~he case, could put in question the disposition of some grievances already resolved. We do not of course say that there have been any such grievances. We simply make the point that we would ~xpect the parties to consider the possiole implications of a change of this sort and to agree expressly that it was to be retroactive if that was their intention. (16 ) The union made the alternative submission that, whichever agreement was in effect, the time limit establi shed in Article 23.4 did not apply to these grievances in any event as they were pol i cy gri evances. Counsel noted that Article 23.2 recognized employee, group and policy grievances and suggested that there was some latitude available to the union to decide in which form a grievance should be brought. In this respect she drew our attention to the comments of the board in Ottawa Civic Hospital and Associaiton of Allied Health Professionals: Ontario (unreported, May 1st, 1986 Emerich). Only an employee grievance had to be commenced under Article 23.4 and thus, she argued, only an employee grievance was subject to the time limits set out in that article. A policy grievance was to be launched under Article 23.6, which imposed no time limit. Counsel for the hospital argued that that would be an absurd interpretation of Article 23, which should be read as a whole. The scheme of the article was to establish a multi-stage grievance proce,ss whose objective was to resolve disputes. Policy grievances were commenced at a higher level of official involvement but the whole process was still to be started within the time limit in Article 23.4, failing which the article stipulated that "...no formal grievance exists". As indicated above, we consider that Article 23 as it appeared in the 1983-84 agreement is applicable. The relevant portions of it are as follows: 23.2 Types of Grievances Complaints of the Hospital or of employees shall be adjusted as quickly as possible. It is understood that ( 17) an employee has no grievance until the matter has been referred to the employee's immediate supervisor and an opportunity been given to adjust the complaint. The fOllt)l1ing types of grievances are recognized: a) Employee Grievance: which shall be defined as a complaint of an individual employee and shall commence at Article 23.4. b) Group Grievance: complaint of a group Article 23.5. which shall be defined as a of employees and shall commence at c) Policy Grievance: which shall be defined as a complaint of the Hospital or of the Association shall commence at Article 23.6. 23.3 Time limit Saturday, Sunday and paid holidays shall not be counted in determining the time within which any step is to be taken or completed in any of the steps of the Grievance or Arbitration procedure. Time limits presently set forth may be modified by mutual agreement in writing. 23.4 Grievance ~ First ~ If an employee believes he has a grievance he must submit it in writing and sign it and present it to his immediate supervisor within ten (10) working days of the occurrence otherwise all parties recognize that no formal grievance exists. The immediate supervisor must convey bsi decision in writing to the employee within five (5) days of the receipt of the grievance. 23.5 Grievance ~ Second Step If an employee believes that his complaint has not been satisfactorily adjusted at the first step level the employee and the appropriate staff representative are to request within five (5) working days an appointment with the Department Head. The Department Head must convey his decision in writing to the employee within ten (10) working days of such a meeting. 23.6 ~ Grievance ~ Third i~~~ If the employee believes that his complaint has not been satisfactorily adjusted by Management he may, together with the Grievance Committee, submit the matter in writing to the Assistant Executive Director (Personnel) for consideration at a meeting of the Grievance Committee with representatives of the Hospital which shall be held within ten (10) working days after the written submission and the Assistant Executive Director (Personnel) shall render his decision upon the complaint with five (5) working days after the date of the meeting. (18 ) As the board observed in the Ottawa Civic Hospital Case (supra) at page 5: While the sorts of grievances are identified and a corresponding procedure is assigned to each, the articles do not contain any stipulation to the effect that the procedures are mutually exclusive. There is no elaboration as to the proper scope of each sort of grievance. Once a particular format is chosen, the Article merely dictates at which step of the grievance procedure that sort of grievance should commence. After a careful review of cases in the area, the board found that there was no express limitation in the agreement on the scope of a policy grievance and that the three types of grievances recognized in the agreement were not mutually exclusive. We agree with that analysis, and conclude that the association has considerable latitude' in choosing the form in which to bring a grievance. It is not necessary in the present case to consider how broad that latitude may be. It does not follow that the time limit applicable to an employee's grievance does not apply to a policy grievance. The structure of Article 23 establishes a progression, starting with a time limit for launching a grievance and following through a series of time-limited steps. Each step refers back to the prior step, which itself is dependent on a time limit, the effect being to maintain the pressure to meet time limits throughout the process so that the dispute will either be brought forward to a resolution or, at some point, abandoned. We must determine what effect on this process was intended by the stipulation in Article 23.2 (c) that a po1icy grievance was to "commence" at Article 23.6. In our opinion, the intended effect is indicated by Article 23.6 itself: the matter is to be submitted directly to (19 ) the Assistant Executive Director (Personnel) and there is to be a meeting between the Grievance Committee and the representatives of the hospital to consider it. In other words, a policy grievance is to be dealt with in the first instance by a senior official of the hospital, and the involvement of lower levels of supervision is eliminated. It is understandable that the parties should wish to deal at a senior level with matters of more general interest than the cOlTIplaint of a single employee. However the requirement that a policy grievance "commence" at Article 23.6 does not suggest to us an intent to do more than to raise the level of official involvement in a dispute. It does not suggest that the scheme of timely raising and resolution of disputes was to be set aside. In our view Article 23 does not exempt policy grievances from the requirement of timeliness (although it may be of course that some policy grievances will be of a continuing nature so that they may be raised at any time while the situation complained of continues). While Article 23 is not ideally phrased, the applicable time limit must be that set out in Article 23.4, after which "...an parties recognize that no formal grievance exists. It was also argued that these grievances were continuing grievances and so could not be untimely. It is sometimes difficult to determine whether a grievance is truly of a continuing nature, the cases which have given particular difficulty being those in which a single action, long since passed, has a continuing effect. That type of situation was distinguished in Re Port Colborne General Hosoital and Ontario Nurses' Association (1986), 23 LA.C. (3d) 323 (Burkett), from cases in which there are reCUi'"rent acts ilhich give rise to a (20 ) renewed cause for complaint as long as they continue. The board there had to consider whether an alleged improper exclusion from the bargaining unit gave rise to a continuing grievance. While observing that the cases were not consistent in their treatment of such situations the board commented, at p. 327-8: ...It is clear from a reading of the cases that the question that must be asked is whether or not the conduct that is complained of gives rise to a series of separately identifiable breaches, each one capable of supporting its own cause of action. Allegations concerning the unjust imposition of discipline, the improper awarding of a promotion or the failure to provide any premium or payment required under the collective agreement on a single occasion, while they may have ongoing consequences, constitute allegations of discrete non-continuing violations of the collective agreement. In contrast an allegation of an ongoing failure to pay the wage rate or any benefit under the collective agreement or an ongoing concerted work stoppage constitute al1egatfons of continuing breaches of the collective agreement. In these cases the party against whom the grievance is filed takes a series of fresh steps each one giving rise to a separate breach. In this latter type of case the time limits for the filing of a grievance, apart altogether from any question as to when damages commence to run, must be found to be triggered by the breach closest in time to the filing of the grievance. The difficulty in this case is that, except for the physiotherapy grievance which is timely with respect to one or possibly two individuals, the actions of the hospital were not continuing in their consequences or in the sense that a breach continued up to the time of the grievance. Each time a physiotherapy resident or a non~registered pharmacist worked, it might have been alleged that a violation of the agreement continued as long as the individual remained at the hospital. On the evidence, it is difficult to conclude that the presence of these individuals had any effect on the status of other members of the bargaining unit once they had left the hospital. E ac h (21 ) time one of them left the hospital any violation of the agreement ceased. The most that can be said is that there may have been a series of distinct violations, each of which may have been continuing in nature but each of which (except the last) had ceased. There is a possible exception in the case of Mrs. Srivastava who, it was alleged, obtained a permanent position without its bei ng posted but we di d not understand that the association was now seeking to have her position posted, or to have the seniority list revised in consequence. The association made the further alternative argument that the hospital had waived any right it may have had to object to the timeliness of the grievances. Although Mr. Mills had questioned the timeliness of the pharmacy grievance when the parties first discussed it, counsel urged that the hospital's failure to raise the question again the course of the grievance procedure must amount to a waiver: the grievance had been processed on its merits and the formal reply to both grievances had dealt with the merits and had made no reference to any irregularity in the filing of the grievance. There were more details which, in counsel's submission, supported the conclusion that any irregularity had been waived: the hospital's first act in the grievance process had been to ask for more time to look into the matter and it was many months before the hospital finally responded to both grievances; and the associ ation had presented evidence to show that the hospital's normal practice was to object in writing at an early stage if it intended to rely on an irregularity~ Counsel for the hospital argued that it was sufficient for the hospital to raise the issue of timeliness in the way Mr. Mills had at the outset and suggested that it had (22) been necessary for the hospital to ask for time to respond to the pharmacy grievance, which lacked specifics. Whether a procedural irregularity, such as the late filing of a grievance, has been waived is a question of fact. One would also think that waiver can take place at any time during the course of the grievance procedure. Thus an objection at the outset may very well be sufficient to put the other party on notice unless the objecting party changes its position at a later stage. In determining this issue we must bear in mind how the pharmacy grievance came to the hospital's attention. The grievance which was filed lacked any indication of the time frame in which the situations complained of had occurred and did not name the employees invo1ved. It was hardly surprising that the hospita1 should ask for time to investigate. When the time frame involved became apparent, one wou1d have to say that the delay in filing a grievance - whatever the reason - was striking. One of the alleged violations had ceased ~ore than more than two years before the grievance was filed and the other was not recent. Mr. Mills questioned this aspect and the parties can hardly have been unaware that it was an issue thereafter. Did the hospital then waive its right to object by responding to the grievance on its merits? We should not be quick to find that it did. It is not unreasonable that an employer should discuss the merits of a grievance which is out of time in the hope of reso1ving it, whi1e reserving its right to rely on an objection it had already made. We are inclined to think that the rather slow processing of the grievance in this case would not reflect anything more than the pressure of work on Mr. Mi 11 s' department at the time, and perhaps a feeling that a matter outstanding for so long was not urgent. (23) Whatever the cause may have been we do not think that the delay says anything about an intention on'the hospital's part to waive its rights, nor do we find the evidence of the hospital's usual practice helpful: it might have been desirable for the hospital to state its objection in a more formal way, but its failure to do so does not indicate to us an intention not to maintain its objection. We come back to the obviously lengthy gap between the events which were grieved and the filing of the grievance. Both parties must have been aware of that problem. In aTT the circumstances, we do not find that a waiver has been made out. This brings us to what we have found to be the most difficult issue in this case: whether we should extend the time for the filing of these grievances as permitted by Section 44 (6) of The ~abour Relations Act. -That section reads: Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, notwithstanding the expiration of such time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. An extension is necessary if the merits of the pharmacy grievance are to be considered. It is necessary only with respect to certain aspects of the physiotherapy grievance as that grievance was timely so far as the situations of two employees are concerned. Specifically, the latter grievance has raised in a timely way the issue of the status of those employees as (2-4 ) members of th" bargaining unit. Accordingly we must deal with that issue and with the parties' submissions about the appropriateness of compensation for those employees. Should the time limits for the filing of the other grievances be extended? In approaching a problem of this sort, a number of cases have relied on the considerations set out in: Re Becker Milk Co. ltd. and Teamsters Union, uocal 647 (1978),19 LA.C. (2d) 217 (Burkett): The exercise of the equitable discretion vested in an arbitrator under s. 37 (5) [now s. 44(6)J of the Act requires a consideration of at least three factors. These are: (i) the reason for the delay given by the offending party; (ii) the length of the delay; (iii) the nature of the grievance. If the offending party satisfies an arbitrator, notwithstanding the delay, that it acted with due diligence, then if there has been no prejudice the arbitrator should exercise his discretion in favour of extending the time-limits. If, however, the offending party hds been negligent or is otherwise to blame for the delay, either in whole or in part, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exist for an extension of the time 1 i mi,ts. It seems to us that the first of these factors wi 11 be critical in this case. The essence of the union's justification for the delay was that it did not know about the situations of the six individuals whose work at the hospital gave rise to the grievances. The hospital's view is that if the union did not know about them it should have known. The salient features of the evidence in this area can be summarized. The employees in question were not advised of the existence of the union or of the collective agreement. It is understandable that their coming from outside Canada (apart from Ms. Webster who was returning to Canada), their acceptance that their work was not to be paid, and their consciousness that they needed to complete a stipulated period of work in order (25 ) to complete their professional qual ifications, all may have contributed to their not inquiring into rights they may have had under the agreement. The association was not directly or formally advised by the hospital of the presence of the six individuals. However staff representatives of the association knew of their presence and must have been aware of the type of work they were doing and the hours they worked. As well, officials of the association had been made aware of the presence of Mr. !;uu and Mrs. Srivastava, though not of the critical facts which would have indicated to. the association a possible violation of the collective agreement. There can be no question that Mrs. McCulloch was prompt in raising the alleged violation through grievances as soon as she became personally aware of them. What this issue seems to come down to is the extent to which the association Should be affected with the knowledge which the staff represe:ltatives, and indeed other's u'; it;:; ;;1e,llbers, had of the presence and the work of the six individuals. We do not see this as a legal question, as would be the question of who may speak for the association. Rather it is a practical one of the effectiveness of the information-gathering activities of the association through the various people responsible. Senior officials cannot be expected to know of everything that may affect the association's interests and presumably one function of the st~ff representatives is to inform the executive officers of the association of possible violations, as well as to inform individual employees of their rights. Yet apparently no one apart from the most senior officers of the association found these situations worthy of inquiry. Even when Mrs. McCulloch (26 ) drew the nature of the problem, as the association saw it, to the a:tenti on of all members of the bargai ni ng uni tin December, 1986, no further information was forthcoming about the problem. One '/lay of viewing the difficulty before us is to observe that Mrs. McCulloch did not know of the circumstances which prompted the grievances, but it is also the case that others knew of them and did not act. In our view that failure is significant. We should also consider the length of the extensions which would be necessary to make these grievances timely. One of the two situations covered by the pharmacy grievance had ceased about two and a half years before the grievance was filed, the other about a year before. Under the physiotherapy grievance, the two cases which were not current had been outstanding for about six months and one and a half years. We must consider these delays not only ln the light of the reasons for them put forward by the associ ati on but al so in rel ati on to the ten day time limit set out in the collective agreement. Finally we should remark that an issue the association considers highly important, that of individuals apparently within the scope of the bargaining unit working without payor benefits, must be canvassed within the context of the physiotherapy grievance. In all of these circumstances we do not consider that reasonable grounds have been shown for an extension, quite apart from any question of any possible prejudice to the hospital. We are conscious that this decision precludes an award of compensation for certain of the individuals affected by the grievances. (27) However the same time 1 imits appl i ed to them and presumably the same reasons for the delay; we say "presumably" as the only reasons put forward were for the failure of the association to grieve. For these reasons, we find that the pharmacy grievance was out of time. The physiotherapy grievance was timely to the extent that it was raised by the situation of two physiotherapy residents, Ms. Webster and Ms. Labelle. (28) The Merits of the Physiotherapy Grievance It was the position of the association that the physiotherapy residents (being for the purposes of this arbitration Ms. Webster and Ms. ~abel1e) had substantially performed the duties of physiotherapists at the hospital. The work they had done was of the sort done within the bargaining unit. Although they were engaged in meeting the requirements of the Canadian Physiotherapy Association, the hospital controTTed the assignment of work and shifts to them. The association also maintained that the hospital, in making arrangements with individuals for terms and conditions not authorized by the collective agreement, had thwarted the union's exclusive authority to bargain for employees. The hospital's view was that the physiotherapy residents could not faTT within the scope provisions of the agreement as they were not employees; they were simply present in the hospital for work experience and training. The hospital had not treated them as employees and did not determine the duration or conditions of the relationship which was determined by the Canadian Physiotherapy Association, the hospital's role being to evaluate the residents for the CPA. The hospital could not terminate a resident - unless perhaps her evaluation was unfavourable. Counsel noted that this was not an all-employee unit: Article 2.2 excluded certain employees whose common characteristic was a lack of full qualification. While physiotherapy residents were not among those listed, the intent must have been to include in the bargaining unit only those who were fully qualified to practise. The hospital also took the position that, if there had (29) been a breach of the agreement, the associaition was estopped by its conduct from complaining of it. In failing to act in the face of alleged breaches over a lengthy period the unit must be taken to have aquiesced in them. We can reviewed the deal briefly with the latter point. leading arbitration cases dealing Counsel with the principles on which an estoppel must be founded. One of these is that there must have been a representation, made by the party said to be estopped to the other party, and intended to be relied upon, to the effect that it will not insist on the enforcement of its strict legal rights. Silence in the face of a violation may amount to a representation. Mr. Emond relied in particular on: ~ Consolidated-Bathurst Packaoinq utd. and International Woodworkers .2.f. America, !'ocal 2-242 (1982), 6 L.A.C. (3d), 30 (MacDowell) and Re Vancouver Police Board and Vancouver Police Union (1987),32 LA.C. (3d) 214 (Hope). Common to those cases was a situation in which union officials knew of an employers practice contrary to a collectiv,e agreement - in 'the one case involving the fictional resignation of summer students so that they did not acquire seniority, in the other, a certain shift system. In this case we found that those who could bind the association, i.e., those who could make a representation intending that the hospital rely upon it, did not know of the hospital's practice of taking on physiotheripy residents without pay. Other employees knew of it but we cannot find that their inaction amounted to a representation by the association, for whom they could not speak. The lack of knowledge of responsible officers of the association is what distinguishes this case from those mentioned to us. The association cannot be fixed with a (30) representation about a practice which it did not know about. The next question we must examine is whether the physiotherapy residents were "in the employ" of the hospital within the meaning of Article 2.1 of the col1ective agreement. The question of the status of a person as an employee arises most often in the context of a suggestion that he may be an independent or dependent contractor instead of an employee. Cases which examine the status of a person whose presence in a workplace has an educational aspect seem quite uncommon. However one case in particular which was sited to us deals with the issue: Vancouver General Hospital and Health Sciences Association of British Columbia (June 11th, 1981, unreported, ~abour Relations Board of British Columbia). As it happens the decision dealt with a situation very similar to the present one, in that the individual in question was a physiotherapist, professionally qualified in another country, who was required to work for a period in a hospital in order to demonstrate her ability and so meet the requirements of the Canadian Physiotherapy Association. The board approached the issue by contrasting the physiotherapist's situation with that of the student practical nurses whose status had been con'sidered in Hospital Employees Union, ~ocal 180 and Cranbrook and District Hospital and Selkirk Colleqe [1975] 1 Can. uBR 42. The student nurses had been found not to be employees. In finding that the physiotherapist at Vancouver General Hospital was an employee, the board noted that the direction and control of the individual was in the hands of the hospital rather than an educational body, 'hat the physiotherapist did the same work as other physiotherapists at the hospital (save for the need for her to be supervisee and (J 1) that the physiotherapist was working so that her skills could be evaluated, rather than being trained. The board found the situation of the physiotherapist to be more like that of medical interns, apprentices or articled law students than like that of the student practical nurses considered in the Cranbrook case. The board appeared to attach some importance to the fact that there was a potential benefit to the employer (at page 13): All of these positions have certain elements in common. They all perform some useful work for the employer although, perhaps initially, the work performed may be unprofitable from the employer's point of view. All of them involve a certain degree of learning and assessment of the person in question, but inevitably, there is a benefit to the employer over and above whatever immediate work production is obtained. The additional benefit is the training of future qualified persons who may benefit this particular Employer or the industry in general. We did not have evidence on the latter point and would not assign it as much significance as appears to have been the case in the Vancouver General Hospital case. In other respect" however.. we find that decision persuasive. We would think that the nature of the work done by, the physiotherapists in the present case should be given considerable weight. Each of them spent the greatest part of her time at the hospital carrying a patient load like any other physiotherapis~s. The ~ oad was not as heavy as that of a licensed physiotherapist but the practical responsibilities were essentially the same. The supervision they received was largely for the purpose of evaluation and was in any case not close supervision. We would attach rather less significance to the fact that the physiotherapy residents were not subject to the same absolute requirement to attend work as the permanent physiotherapists: as a practical matter and as responsible individuals the physiotherapy residents were expected (32) to report regularly to the shifts to which they were assigned and to treat the patients assigned to them. It would be somewhat artificial to regard them as free not to follow the rules of the workplace. The fact was that they di d fo 11 ow the rul es, as was necessary for the system to function. In a situation in which "employee" is not defined in the agreement beyond the following: 1.1 (a) "Employee" means an employee of the Ottawa Civic Hospital for whom the Association is the recognized collective bargaining agent, we find the decision of the British Columbia Uabour Relations Board most helpful and reach the conclusion that the physiotherapy residents were "in the employ" of the hospital. We must now consider whether they are within the scope of Article 2.1, 2.1 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 certificate issued by the Ontario Labour Relations Board, May 18, 1976, which reads as follows: "All physiotherapists, occupational therapists, pharmacists, and therapeutic dietitians in the employ of the Trustees of the Ottawa Civic Hospital in Ottawa, save and except supervisors, persons above the rank of supervisor, persons regularly employed for not more than 24 hours per week [since amended by agreement of the parties to 22.5 hours per week] and persons covered by subsisting collective agreement, or whether they are excluded by Article 2.2: 2.2 It is also agreed that persons while classified as pharmacy residents, dietetic interns, dietitian (3) trainees, physiotherapy and occupation therapy junior and senior interns and graduate students shall not be included in the bargaining uiit. On the face of it, "all physiotherapists" are within the bargaining unit and the only exclusions relevant to physiotherapy are "physiotherapy .. .junior and senior interns and graduate students". It is not suggested that physiotherapy residents are expressly excluded but that they should be by analogy as they, like the other persons excluded, are not fUlly qualified. We are not willing to extend the enumerated exclusions on the basis of an analogy, at least in the absence of a much clearer indication of the parties' intentions. We note that not all of the classifications included in article 2.1 are of fully- qualified persons, as the inclusion of a scale in the agreement for non-registered pharmacists indicates. One can also observe that most of the exclusions in Article 2.2 are of persons who are not only not qualified but also only partly trained, the evidence was that the physiotherapy residents were already trained with only minor exceptions. The result, must be a finding that the two physiotherapy residents under consideration were within the bargaining unit. It follows that, in making private arrangements with them with respect to hiring and compensation, the hospital failed to recognize the association as the sole collective bargaining agent of these employees as stipulated by Article 2.1 (we should make it clear that we do not find any evidence that the hospital was in bad faith or that it deliberately violated the agreement. The evidence suggests that the hospital acted at least as much to assist the phYSiotherapists involved as to benefit the hospital). (34) We must consider what remedy, if any, is required beyond the above declaration. In doing so we must bear in mind the evidence that the practice ceased following the filing of the grievance, pending the board's findings. To that extent the objective of the grievance has been met. However the association has also asked for compensation for it and the affected employees. So far as the grievance is timely we consider ourselves obliged to award compensation to the association for dues owing and to the empJ'oyees in question for salary and any applicable benefits (so far as the individual employees affected by the policy grievance are concerned, we are content to fol1ow the decision of Chairman Emrich between these parties mentioned ear 1 i e r i nth i saw a r d) . W'e i nd i cat e d ear 1 i e r 0 u r vie w t hat the grievance, to the extent that it concerned the situation of Ms. liabel1e and Ms. Webster, was timely as a continuing grievance. It was continuing in the sense that a fresh violation of the agreement arose with every pay period. The matter could have been grieved immediately after each pay period but was not. What is appropriate in these circumstances is that there should be compensation to the association and the two employees affected from and after the pay period immediately preceding the filing of the grievance, and we so award. Both employees should be paid at the only rate applicable to them under the collective agreement, namely the start rate for staff physiotherapi sts. We are aware that the association took the position that the hospital should have advised it of the intention to hire these employees, and shoul d have proposed a rate of pay for them. However that was not done. It may well be an appropriate course for the parties to negotiate a special rate for such employees in the future. (35) We remain seized of this matter with respect to any difficulties of implementation including any issue of the calculation of compensation. DATED at Kingston this 27th day of September, 1988. .-"' 1L-- ~ .~ ~.. . . . . . . . . . . . . . . . . . . . . . . . I. G. Thorne, Chairman "Ron !!eBl anc" I concur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ronald LeBlanc, Hospital Nominee "Sandra Nicholson" Partial dissent attached . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sandra Nicholson, Union Nominee IN THE MATI'ER OF AN APBITRATICN BEl'W"EEN OITAWA CIVIC H:lSPITAL AlID ASSCCIATION OF )'IT.T ;mn HEALTH ProCESSIONALS: ONTARIO IN TI-::E MATI'ER OF POLICY GRIEVANCE -PHAR1Ac.{ & PHYSIOI'HERAPY VOlllNI'EEBS PARTIAL DISENT I have read the Award in the matter and find I must dissent in prrt. I concur with the findings as they relate to !'.s. Webster and Ms. Labelle, and to =pa.''1.sation far than iIrlividually plus the Ass=iation. 'Ihe fu.dings I must dissent from are as follow'S: 1. Timeliness: a) Firstly, I would have found that the 1984-87 collective agreanent was in place for the pJrp:)se5 of the grievance proce:3.ure. On a review of the evidence, Ms. McCulloch was in ];Ossession of a written "promise" from the Hospital (in the p:rson of Ms. J. May) as early as July 29, 1986 that the Hospital would sign the revised collective agreanent for' April 1, 1984 to March 31, 1987 ani implement it. Further there was clear evidence that certain clauses, includir.g the interim wage rates, had already been implemented. 'Ihe Association relie:3. on this written represe."ltaticn and the action of implementation, and therefore proferly COn:l.ucte:3. itself as though the agreanent was in effect. - Page 2 - b) Waiver by the Hospital of its right to raise a timeliness objection: Mr. Mills only reference to the issue of timelir>.ess was incorporated into his conversation, in February, 1987 at the first meeting about the grievance (4 rronths after the filing) when he asked.: "Why are you raising the grievance row Whet, the incidents go bac.\:. as early as 1984?" Ms. McCullcch answ'ered that by sayi.."lg the Association had only just became aware of the matter. Mr. Mills admitted that was the only reference He made to the issue of timeliness, ani tbat iran then on the Parties dealt solely with the merits of the grievances. On reviewing my notes of the evidence, Ms. McCulloch did not at any time ackr:owledge that Mr. Mills had thereby raised time limits objection. Therefore, I =uld bave fourrl (had such a finding been required) tbat the H::>spital had waived its right to object to the arbitrability of the grievance based en time limits. c) Section 44(6) of the Labour Relations Act. In rrr:r view, the majority's finding, based on length of delay being the =itical factor, was wrong because it does not properly balance all the factors of the case. Firstly, the nature of the grievance is serious, and of great irn!;or--...ance to the Parties. (Le.- recognition of the Association as sole bargaining agent, and denial of all prClllisions of the collective agreement to certain individual employees). Secondly, the delay, alth::lUgh obITiously len:rchy, was rot due to lack of diligence, nor a cavalier flouting of the - Page 3 - c) . . . . . . . . .Continue:i time limits; rather it was a clear case of the Ass=iation's officer having absolutely IX) kr:owle:ige of tre matters until they were raised as a result of CUl:rent concerns (Le.- the seniority of Ms. Srivastava). Although Ms. McCulloch acknowle:iged that Staff Reps in the Department may have been aware of the presence of the employees in question, the Hospital bad clearly refrained fran prO\l'idin:l' any infonnation to t.'1.e Ass=iation or its me:nbers about the status of these employees. The H:lspital has an obligation under the established bargaining relationship to inform the Association of relevant activity, arrl in my opinion, its c:rnissicn in this case requires it to shoulder as much reS];XJnsibility as the Ass=iation for the ~ in Ms. McCulloch's knowle:ige of the situation. Based on that, it is unfairly prejudicial to the Association the.'l to bar it fran havirg its' FOlicy grievance heard due to the delay in grieving. Therefore, I =uld have founi that reasonable grounis to extend the time limits did exist,and=uld have granted such extension in light of the absence of any claimed prejudice to the Hospital. Therefore, in all the above areas, I =uld have founi the timeliness cbjection to have faile:i. 'fuus, in my view, both FOlicy grievances should have been heaJ:d on their merits, not just a FOsition of the second grievance. All of Which is resp;ctfully subnitte:i. Date:i at Toronto on this 3rd day of Octdler, 1988. ),ft/l1~AA' 0tA,.JrMPn (tI/1 Sandra Nicholson, Union Nomin:e 1,