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HomeMy WebLinkAboutHRISCHUK-1991-03-09 ,. RFCEi\iEO OCT 0 9 i93] IN THE MATTER OF AN ARBITRATION Between: The Queensway-Carleton Hospital and The Association of Allied Health Professionals: ontario, and Karen Hrischuk, Gri~vor AWARD Board of Arbitration: D. Fraser, Chair Brian Switzman, Association Nominee Dan Pearlman, Hospital Nominee Appearinq for the Association: Sue McCulloch, Labour Relations Officer Karen Hrischuk, Grievor Duncan Hayes, Bargaining Unit Representative Appearinq for the Hospital: Stephen P. Foreman, Director of Human Resources Jill Melhuish, Personnel Supervisor ., This matter was heard at Ottawa on May 13th, 1991. 2 In this matter the grievor, Karen Hrischuk, who is Laboratory Technologist, alleges that the employer has inappropriately calculated her supplemental employment benefit (hereinafter referred to as SUB). At the outset of the hearing, the parties provided an agreed "Joint Statement of Fact", which reads as follows: , JOINT STATEMENT OF FACT: OUTLINED BELOW ARE MATTERS OF FACT AGREED TO BY THE HOSPITAL AND THE ASSOCIATION IN AN EFFORT TO EXPEDITE THIS HEARING. 1. The Queensway-Car1eton Hospital is a 240 acute care community pospital located in the City of Nepean. 2. The Association of Allied Health Professionals: Ontario is a bargaining agent representing approximately 164 paramedical employees at the Queensway-Carleton Hospital, including 71 full time, 55 part time, 34 casual and 4 temporary. 3. The Collective Agreement is that which March 31, 1991, signed August 27, 1990 was effective since February 6, 1990. #2) expired but which (Exhibit 4. The grievance dated May 25, 1990 relates to the calculation of the Supplemental Unemployment Insurance Benefit (SUB) for Karen Hrischuk, a laboratory technologist. (Exhibit #3) 5. There are no preliminary objections related to the grievance. 6. The definition of the various types of employee and the Hospital'S practice in calculating the Supplemental Unemployment Insurance Benefit (SUB) follows: A Full-time Employee is an employee normally works 37.5 hours per week. is calculated on 37.5 hours. who The SUB 3 A Regular Part-time Employee is an employee who makes a commitment to the Hospital to be available on a preschedu1ed basis as required and in respect of whom there is advanced scheduling. The "commitment" is in the form of a full-time equivalency (FTE) which is based on the number of hours the employee is normally scheduled to work relative to a full-time employee over the work schedule. For example, the grievor is regularly scheduled to work 3 days one week and 2 days the next and has a FTE of .5. The SUB is based on the full-time equivalency (FTE) of the part-time employee, i.e. the SUB of a .5 FTE is calculated on 18.75 hours. , A Casual Employee is an employee who works only when called to do so, and has the option of accepting or rejecting those hours of work. The SUB is based on the average weekly hours worked in the six months immediately previous to the maternity leave. 7. A Regular Part-time Employee may also work as a Casual. 8. The Hospital does not include any casual hours worked in the calculation of the SUb for a Regular Part-time Employee. 9. The grievor's hours worked in the six months immediately previous to her maternity leave are attached. (Exhibit #4) 10. The grievor worked as a casual employee in a position outside the bargaining unit and received a SUB for those hours worked. The parties have also reached agreement on a monetary settlement of the grievor's claim. They have accordingly asked this board to treat the matter as a policy grievance requiring a declaration as to the appropriate method of calculating SUB, and to remain seised of Ms. Hrischuk's individual grievance in the event it is not fully resolved by the outcome of the policy 4 grievance. We agree to do that and declare that we remain so seised. The right to SUB appears in Article 16.06 of the collective agreement, in th~ following terms: 16.06 Effective April 01, 1988, on confirmation by the Unemployment Insurance Commission of the appropriateness of the Hospital'S supplemental unemployment. benef it (SUB) plan, an employee who is on Maternity Leave or Adoption Leave as provided under this agreement who is in receipt of unemployment insurance maternity benefits, pursuant to Section 30 of the Unemployment Insurance Act, 1971, shall be paid a supplemental unemploym~nt benefit. That benefit will be equivalent to the difference between seventy- five percent (75%) of her weekly earnings and the sum of her weekly unemployment insurance benefits and any other earnings. Such payment' shall commence following completion of the two we,ek 'unemployment insurance waiting period, and receipt by the Hospita~ of the employee's unemployment insurance cheque stub as proof that she is in receipt of unemployment insurance maternity benefits, and shall continue while the employee is in receipt of such benefits for a maximum period of fifteen (15) weeks. The employee'S regular weekly earnings shall be determined by multiplying her regular hourly rate on her last worked date prior to the commencement of the leave times her normal weekly hours. The manner of payment shall be at the discretion of the Hospital. The collective agreement defines "full-time employee", "regular part-time employee", and "casual employee" in the following terms in Articles 3.02, 3.03 and 3.04 as follows: 5 3.02 A "full-time employee" is defined as an employee who normally works the number of hours described in Article 21.02. 3.03 A "regular part-time employee" shall mean an employee who makes a commitment to the Hospital to be available on' a pre scheduled 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, and has the option of accepting or rejecting those hours of work. Ms. Hrischuk has worked as both a regular part-time employee, a casual employee within the bargaining unit, and a casual employee outside the bargaining unit. She has been paid SUB in the past for her work as a regular part-time employee in the bargaining unit, and a casual employee outside the bar~aining unit. She has not been paid SUB for her work as a casual employee within the bargaining unit, and one of the issues in this case is whether she should so be paid, whether or not the actual form of calculation of such benefit is agreed to. We find that she is entitled to be paid SUB for her work as a casual employee within the bargaining unit, in some form to be determined, as that position is found in the definitions of employee in the collective agreement, and is not exempted from the SUB scheme found in Article 16.06. 6 What remains, then, is the method for calculating SUB. The difference between the parties lies in the meaning of "normal weekly hours", found in the second last sentence of Article 16.06. That sentence reads: "The employee's regular weekly earnings shall be determined by multiplying her regular hourly rate on her last worked date prior to the commencement of the leave times her normal weekly hours" (underlining added). The position of the Hospital is that the grievor's hours worked as a regular part-time employee and as a casual employee within the bargaining unit, should be added together for a specific period of time prior to the leave taken, and then averaged to provide normal weekly hours for the purpose of the formula found in Article 16.06. The employer suggests that six months is an appropriate period for this averaging. The Association's position is that the grievor's normal weekly hours as a regular part-time employee within the bargaining unit should be based on a full-time equivalency (FTE) of.5; that her normal weekly hours as a casual employee within the bargaining unit should be based on her average weekly hours worked in the six months prior to the leave taken; and that the two sets of normal weekly hours should be added to provide the basis ~or the SUB calculation found in Article 16.06. Both parties submit that the clear language in Article 16.06 supports their differing positions; and alternatively, should 7 that not be the case, that practice within the Hospital and elsewhere (as found in other collective agreements and arbitral jurisprudence) comprises extrinsic evidence which supports the differing views of the meaning and application of "normal weekly hourstl. In respect of the clear language in Article 16.06, Ms. McCulloch, for the Association referred the board to a definition and synonym for the word "normal", found in Webster's New World Dictionary, Colleqe Edition (1966), at p.1001. There "normal" is defined as "conforming with or constituting an accepted standard, model, or pattern; especially corresponding to the median or average of a large group in type, appearance, achievement, function, development, etc.; natural; standard; regular". Furthermore, the synonym "regular" is dealt with in the Dictionary in the following way: "regular implies conformity with the prescribed rule or accepted pattern for its kind (the reqular working day)". These definitions, in the Association's view, supported the use of a FTE for a regular part-time employee, and an average method for a casual employee. Mr. Foreman, for the Hospital, provided a definition of "normal" found in Black's Law Dictionary (5th ed.), at p.955. 8 That definition reads: "According to, constituting, or not deviating from an established norm, rule, or principle; conformed to a type, standard or regular form; performing the proper functions; regular; average; natural" This definition, in the Hospital's view, supported the averaging ,method to determine "normal weekly hours" for both regular part-time employees, and casual ~mployees. Such an approach would give the language in question its "normal or ordinary sense", an approach sanctioned in Re Ed Mirvish Enterprises Ltd. (Ed's Chinese Restaurant et al (1988) 34 L.A.C. (3d) 1 (Haefling), at p.10. The definitions themselves suggest the problem in trying to resolve this matter based on the plan and ordinary meaning of "normal weekly hours". They refer to "an accepted standard", or "an accepted pattern", or "an established norm", and it is quite clear that the phrase in question is meaningless absent some reference point for the word "normal", whether it be an accepted or established standard, pattern, or norm. In other words, there is an ambiguity of application when the phrase is viewed in isolation, and that can only be determined by reference to the practice. We shall consider that practice as extrinsic evidence to resolve the ambiguity. 9 The parties provided several types of extrinsic evidence for us to consider in this respect. The Association referred either to practice directly between the parties within the bargaining unit, or the Employer's practice in treating other of its employees within the bargaining unit performing casual work outside the unit, or other employees outside the bargaining unit. The Hospital also referred to that practice, but submitted in addition evidence of the practice between the Hospital and two of . , its other unions, the Canadian Union of Public Employees, and the Ontario Nurses' Association. The Hospital referred further to jurisprudence which determined the meaning of "normal" for other parties not involved in this grievance, as the result of varied practices between those parties. On reviewing this material, it is our conclusion that the practice involving the parties herein is the best evidence of their intent, and we shall now consider that evidence. Ms. Jill Melhuish, Personnel Supervisor for the Hospital, was the only witness in this case. She is responsible for all recruitment, benefits, compensation, and other matters at the Hospital, and administers all SUB plan benefits. A summary of relevant portions of her evidence follows. 10 SUB plan benefits for regular part-time employees are calculated on the basis of a full-time equivalency (FTE) which reflects the commitment of such an employee to be available for a set number of hours per week. Thus, if an employee committed herself to be available for 18.75 hours per week, which is half of the full time weekly hours, her FTE would be .5, and that would be used to calculate her SUB pursuant to Article 16.06. The FTE would be used irrespective of the. actual hours put in, as the Hospital felt it was fair to the employees as it equalizes SUB payments for such employees where, in some cases, they may not be able to meet their committed hours. SUB plan benefits for Association employees who: work on a casual basis outside the bargaining unit, have had their payments calculated by the averaging method. Ms. Melhuish submitted details of such calculations for various employees in the bargaining unit,' and it is apparent from that evidence that the employer has been consistent in using the differing approaches described above. Ms. Melhuish testified on cross-examination, that no Association employee had been both a regular part-time employee and a casual employee in the bargaining unit at the same time, but she noted earlier in her evidence in chief that if such a situation arose, the Hospital would have used both methods (i.e. the FTE for regular part-time, and the averaging for casual) in calculating the appropriate SUB payment. She testified in addition, however, that this combined method would be costly in 11 terms both of administration to make the necessary calculations, and in terms of the resulting SUB payment. Sample calculations were provided to the board which lent support to her testimony respecting the extra cost of a SUB payment for one employee derived from the two separate methods. Evidence was also provided respecting the way other employees in other bargaining units in tpe Hospital, or in other " hospitals, have had their SUB payments calculated. We do not consider that relevant or, helpful evidence in respect of the practice between the parties, and will not consider it further as that practice is clear and uncontradicted. There is accordingly evidence that the Hospital consistently made SUB payments to regular part-time employees within the bargaining unit by a calculation under the provisions of Article 16.06 wherein the "normal weekly hours" were determined by a full-time equivalency (FTE). Similarly, such payment were made to casual employees within the bargaining unit on the basis of an averaging method of hours worked over the last six months prior to the leave. The practice under the collective agreement accordingly supports the differing meanings of "normal" in "normal weekly hours", in terms of its application to regular part-time employees and casual employees, and we view that as the best 12 evidence of the intent of the parties in respect to any ambiguity when the phrase is viewed in isolation. Furthermore, the parties have specifically agreed that a regular part-time employee may also work as a casual, in the Joint statement of Fact, and both are positions within the bargaining unit and collective agreement. These matters support the position Of the Association, but we would comment on some of the submissions by the Hospital before concluding this matter. Mr. Foreman, for the Hospital, noted the difficulty and cost in a number of areas that would result in adopting the Association position. He noted that the method of averaging both 'regular part-time hours and casual hours for a single employee, was straightforward and simple, and it was a process being widely adopted elsewhere between hospitals and unions or associations. We note at this time that there is merit in many of these submissions, but it is our duty to determine the bargain struck between the parties in their collective agreement, and the nature of that bargain is clear on the evidence. We therefore declare that the SUB payment under Article 16.06 for an employee within the bargaining unit working as both a regular part-time and a casual employee, must be based on "normal weekly hours" using the FTE method for her regular 13 employment, with both resulting sets of hours added up to determine her total normal weekly hours under that article. We remain seised of Ms. Hrischuk's individual grievance as noted at the outset. Dateg at ottawa this '7 &lA... day of Sz.p~' AD 1991 Fraser, Chair -C cAJ Nominee .'\o.0~/t \\~ '31 'n~.~'- Brian Switzman, Asso iation Nominee September 1991 Dissent o~ the Hospital Nominee In The Matter o~ an Arbitration Hosoital and the Association o~ Hrischuk arievance. Between the Queenswav Carleton Allied Health Pro~essionals- I have reviewed the award o~ the majority o~ the board and, with respect, I must dissent . The hospital has established a reasonable, in ~act, a generous policy in calculating SUB plan bene~its ~or their sta~~. Part Time employees are paid based on the FT equivalency, wether they have regular earnings during the perio~ prior to the leave or not. The case law presented by the hospital clearly supports the view that boards o~ arbitration should not inter~ere with a reasonable management interpretation o~ the contract, simply because the,-e is another, also reasonable or even equally reasonable interpretation that can be placed upon the language o~ the collective agreement. Management in any organi.ation endeavours to establish methods o~ operation based on their own objective evaluation o~ the ~acts be~ore them~ The more. complex and numerous the ~acts,the more di~~icult the decision becomes and, un~ortunately, the easier it is ~or an advocate to raise an objection to the decision~ It is quit simple to raise objections. The more variables involved in making the decision in the ~irst place, the easier it is to object. However, it is a much more di~~icult task to make the decisions in the ~irst place' and unless those decisions are blatantly wrong or have been made without regard to signi~icant relevant ~acts, I do not believe it is appropriate to second guess those reasonable management decisions. I believe the Associations position in this matter, given the examples o~ the hospital and industry practise, as well as the case law quoted' to us,results in their obtaining ~or the employee, bene~its which are beyond the practise at the hospital, industry norms and are in excess o~ those awarded by other rights Boards o~ arbitration. I believe that in this instance, the Board should have denied the grievance, or ,at a minimum, awarded the Hospitals' alternate position as it re~lects the practise o~ the hospital and the community. While I appreciate the logical approach the Chairman has taken in the award, I must dissent.