HomeMy WebLinkAboutUNION-1986-01-06
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I N THE t1A HER OF AN AR8lTRA II ON
BETHEEN
,
.
OTTAWA CIVIC HOSPITAL
"the Hospital"
AND
I\SSOCIATION OF ALLIED HEALTH PROFESSIONALS: ONTARfO
"the Association"
POLICY GRIEVANCE RESPECTING RECOGNITION
OF RECENT RELATED CLINICAL EXPERIENCE
BOARD OF ARBITRATION - Jane E. Emrich, Chair
Donald Halpert, Hospital Nominee
Andrew Raven, Association Nominee
APPEARANCES:
For the Hospital: D~ Pearlman, Director, Labour Relations
P. Darby, Director, Pharmaceutical
Services
11. Husband, Coordinator - Pharmacy
~Jtient Service
J. May, Labour Relations Officer
For the Association: C. Bowman, Executive Director
S. McCulloch, Executive Assistant
Hearings held at Ottawa on the 4th and 6th days of November, 1985.
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The subject-matter of this arbitration is a policy grievance
dated May 10, 1985 in which the Association claims that the Hospital
violated Article 14.2 of the collective agreement by its onission to
credit previous retail pharmacy experience as "recent related cl inical
~
experi ence" for the purpose of placement on the salary gri d . The
Association seeks as a remedy, that the Hospital "give full credit for
retail pharmacy experience and give such credit retroactively to date
of hire to all pharmacists presently in the Association Bargaining
Unitll .
At the outset of the hearing, the Hospital raised the
preliminary objection that insofar as the grievance as framed seeks
;
retroactive credit to pharmacists with previous retail pharmacy
experience, it is not properly brought 3S a.policy grievance, but ought
to have been brought as an individual grievance. The Kospital notes
that as an individual grievance, any such grievance would be untimely,
since the last employee hired in the Pharmacy Department with prior
re: ,1 pharmacy experience was placed 'on the salary grid long before
the policy grievance was filed. The Board reserved its ruling as to
the proper format and timeliness of the grievance and proceeded to hear
the merits subject to the preliminary objections raised.
The provisions of the collective agreement relevant to this
dispute are as follows:
Ar~cl e]_ - MANAG_tMENT RIGJ:i.:l2
3.1 It shall be the exclusive function of the Hospital to:
(b} Hire, discharge, classify, direct, transfer, layoff,
promote, demote, suspend or discipline employees
provided that a claim of discriminatory promotion,
demotion or transfer or a claim"that an employee has
been discharged or disciplined without just cause, may
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be the subj ect of a gri evance and dea 1 t wi th as
hereinafter provided.
Article 4 - ASSOCIATION RESPONSIBILITIES
,
<
4.2 The Association recognizes the right of Management to operate
and manage the Hospital in all respects in accordance with
its obligations and pursuant to its policies and to make and
alter from time to time; rules and regulations to be observed
by the employees. These rules and regulations and policies
shall not be inconsistent with the provisions of this
agreement.
Article 14 - SALARIES AND ALLOWANCES
14.1 The salary rates and salary ranges as agreed to and attached
to this collective agreement shall be effective during the
term of this collective agreement. All employees in the
bargaining unit shall be paid in accordance with the
classificatfon and the year of service shown in Appendix "A"
which includes the bi-weekly, the monthly and hourly rates
which form part of this agreement. .
14.2 The Hospital agrees to inform new employees that claim for
recent related cl inical experience, if any, shall be made in
writing by the employee at the time of hiring. The employee
Shall cooperate with the Hospital by providing verification
of previous experience so that his recent related clinical
experience may be determined and evaluated during his
probationary period. Having established the recent related,
clinical experience the Hospital will recognize recent
related clinical experience on the following basis:
(a) Employees shall receive salary recognition for previous
related clinical experience provided they have not been
out of the profession for more than three (3) years,
(except employees of Pharmaceutical Services for whom
the periOd shall be two (2) years).
(b) Employees with related clinical experience in Canada
shall be. credited with one (1) year less than tire
employee's actual experience. The maximum rate being
"after 4 years" shown on the attached salary scale.
(c) Employees with related clinical experience in countries
other than Canada shall be credited with two (2) years
less than the employee's actual experience. The maximum
rate being "after 3 years" shown on the attached salary
sca 1 es .
(d) Employees who have been out of their profession for more
than 3 years shall have their related clinical
experience and ability evaluated at the end of their
initial six (6) months service with the Hospital,
(except for employees of Pharmaceutical Services for
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"
whom the 3 year periOd shall be two (2) years). As a
result of this evaluation the salary may be adjusted to
an appropriate increment to become effective 6 months
after initial employment and will not be subject to the
grievance procedure.
,
,
Article 23 - GRIEVANCES AND ARBITRATION
23.2 Complaints of the Hospital or of employees shall be adjusted
as quickly as possible. It is understood that 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 following types of grievances
are recogn i zed:
(a) Employee Grievance: which shall be defined as a
complaint of an individual employee and shall commence
at Article 23.4.
(b) Group Grievance: which shall be defined as a complaint
of a group of employees and shall commence at Article
23.5
(c) Policj 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 Step
I 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.
23.6 Grievance - Third Step
lIf 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 within five (5) working qays after the date of the
meeting.
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23.7 Grievance - Final Step
If no settlement is reached within five (5) working days
after any matter respecting the interpretation, application,
administration or alleged violation of this collective ~
agreement, the matter may be referred to Arbitration upon a
request in writing made within ten (10) working days after a
decision is given under Article 23.6 and in the absence of
such a request the matter shall be deemed to have been
settled or abandoned.
23.15 Exce tions to Grievance Procedure
Except as provl e y Sectlon .10 no matter shall be
submitted to arbitration whiCh has not been properly carried
through all previous steps of the Grievance Procedure.
23.16 Decisions of the Arbitration Board
No ArbltratlOn Board shal \ have authority to make any
deCision inconsistent with, nor to direct the alteration,
modification or amendments of any provision of this
collective agreement, except arrangements as to compensation
which are just and equitable in the opinion of the Board.
The preliminary issue before this Board is whether the
grievance has been properly brought as a policy grievance. The
Hospital conceded rightly that if the grievance were properly brought
as a policy grievance, then the Association had complied with the time
limits set out for processing a policy grievance in the collective
agreement.
The Board begins by noting that in Article 23.2 the parties
have recognized three types of grievances - an employee grievance; a
group grievance and a ~olicy grievance, defined respectively as
complaints of an individual employee, of a group of employees a.nd of
the Hospital or Association. The Article provides that an employee
gri evance "shall commence" at the fi rst step (Art i c 1 e 23.4), a group
grievance at the second step (Article 23.5) and a policy grievance at
the third step (Article 23.6). 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
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the procedures are mutually exclusive. There is no elaboration as to
the proper scope of each sort of grievance. There are no provisions
specifically confining certain issues or subject-matters of complaint
to a particular form 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. In the instant case, the
complaint is framed as a policy grievance and as such was filed at the
third step. Nothing in the wording of Article 23 speCifies the sort of
remedies available in respect to the recognized types of grievances;
rather, Article 23.16 authorizes and contemplates a Board of
Arbitration making "arrangements as to compensation which are just and
equitable" in its opiri~on.
In the instant case, the Association grieves the manner in
which the Hospital interprets and applies Article 14.2 in respect to
the assessment and evaluation of "recent related clinical experience".
While the effect of this interpretation and its application would
undoubtedly affect any individual placed on the salary grid whose
previous retail pharmacy experience was rejected as unrelated, the
policy grievance raises the broader issue of the proper interpretation
and application of Article 14.2, generally.
In Re Corporation of the Borough of Etobicoke and Etobicoke
Civic Employee's Union, Local 185, 28 L.A.C. (2d), (Shime, 1980) the
board of arbitration noted that more recent cases had blurred "the line
of demarcation betwe.en individual and policy grievances". At page 7,
the board concludes that unless an express limitation is contained in'
the collective agreement upon the remedy flowing from a policy
grievance, the award of monetary relief to individuals pursuant to
a pol icy 9ri evance wi 11 not be
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inappropriate and is not considered a bar to proceeding with the
grievance. The board examined the reasons of the Supreme Court of
Canada in Hamilton Stree1:.. Railway Co v. Nor_thcott (1966) 58 D.loR. (2d)
70B, [1967J S.C.R. 3, 66 C.l.l.C. para 14, 157 and concluded that the
:
decision impliedly authorized the grant of monetary relief as well as
declaratory relief pursuant to a policy grievance. At pages 5-6, the
boa rd states:
It appears that the net effect of that decision is to
allow the union to grieve and obtain a declaration where sums
of money related to specific individuals are concerned. But.
more important, it permits individual relief, albeit by a
two-step procedure, which requires the employee to sue on the
declaration, notwithstanding that a policy grievance has been
filed in ti:le first instance. Also, the procedure in labour
relations matters, as the Courts have stated in many cases,
is intended to be inexpensive, expeditious and non-technical
and, accordingly, it seems pointless to put the parties to
the time and expense of proceeding to arbitration and then to
the Courts; in our view, it is more appropriate that rel ief
be granted in a single proceeding and that a board of
arbitration ought to grant the full relief rather than ,force
the parties to take such an impractical route to get an
appropriate remedy.
The board then turned to tne reasons in Re BJouin Drywall
f.ontJ}_c_tor_~J:..tj-,~!ld Uni ted Brotherhood of ~a.r'pe~ter~~2..o~ ner2...9~
Ameri_c~, (1975), 57 D.L.R. (3d) 199,8 O.R. (2d) 103 (C.A.) which
advocated a liberal construction of the grievance and the provision of
the appropriate remedy, whether this be declaratory or monetary relief.
In that case, the union had brought a grievance on behalf of unemployed
members who were available to perform work which had been performed by
non-union members. The Court held that monetary relief, rather than
only declaratory relief was appropriate. At p.209, the Court stated:
In my opinion, the grievance for the loss of the benefit
in terms of the loss of wages, was maintainable either as a
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grievance by the non-employee members of the union or by the
union on their behalf.
The board in Etobicoke concludes upon review of these court
,
,
cases and the award in Re Canadian Pacific ltd. and Canadian
Telecommunications Union (l975), 10 l.A.C. (2d) 178 (Adams) the
following at p.7:
Accordingly, after considering the decided cases and the
general pol icy in labour relations matters, it is our view
that it is not inappropriate to award monetary relief where a
policy grievance is filed.
The board then turned to the reasons in Re Milk & Bread
Drivers, Dairy Employees, Caterers and Allied Employees, local 647 and
Weston Bakeries Ltd.; (1970) 21 l.A.C. 308 (Weiler) and in Re Toronto
Star Newspapers Ltd. and Toronto Newspaper Guild, local 87 (1978), 20
l.A.C. (2d) 392 (Prichard) and concluded at p.8:
The net effect of the recent cases suggests that
definitive language must be found in the language to limit
the scope of uniOn grievances if it is sought to prevent a
grievance, which, tradition~lly, had been considered
individual in nature, to be arbitrated by way of a policy
grievance.
Having reference to the case, Re U.A.W., Local 252 and
Canadian Trailmobile Ltd. (1978),19 L.A.C. 227 (Adell), the board
reasoned that the union as bargaining agent has the right to grieve
a violation of the collective agreement even if an individual employee
directly affected has declined to grieve. At p.10-ll, the board
states:
We are also of the view that the mere existence of
separate procedures for union and individual grievances, such
as exists in this case with the uniQn being allowed to file a
policy grievance at Step 2, does not prohibit the union from
bringing this grievance. The existence of a separate
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procedure for an individual to bring a grievance is merely an
additional right to the basic statutory procedure which
permits problems to be dealt with at their very inception,
and does not preclude the union from bringing a grievance
where an i nd i vi dua l' s ri ght is a 11 eged to ha ve been vi 0 I ated
under the agreement. It is only where the agreement or the
procedures expressly limit the scope of the un10n gr1evance
that grievances, which have customarily been considered
individual, may be precluded from being arbitrated by a
policy gr1evance.
But even if we are in error and that a distinction does
exist between individual and policy grievances, it is our
view that despite such a distinction, a union may bring a
grievance on the theory of Canadian Trailmobile ltd., supra,
"where the employee involved is unable or unwilling to press
an individual grievance". (emphasis added)
"
.-
The approach outlined in the Borough of Etobicoke case, has
been followed in the following subsequent cases: Re Bell Canada and
Communications Workers of Canada 3 L.A.C. (3d) 413 (Burkett) and ~
Belleville General Hospital and Service Employees International Unions,
Locals 183 and 663 30 L.A.C. (2d) 323 (M. Picher).
The dispute before this Board raises the general issue of the
proper interpretation- and appl ication of the phrase "recent relat,ed
clinical experience" in Article 14.2., The Union contends that retail
pharmacy experience ought to be recognized as "related cl inical
experience", As pointed out in Canadian Trailmobile. the union as
bargaining agent for all employees has a proper interest in preventing
the continuing application of a policy it perceives to be a violation
and thus an interest "in stOpping the development of what might later
be held to be an adverse past practice", At the same time, if the
Board finds that the Hospital has improperly interpreted and applied
Article 14.2 in crediting "recent related clinical experience" .then, in
the absence of clear language in the collective agreement limiting the
scope of a pOlicy grievance and limiting the relief available, no
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impediment exists to the jurisdiction of the Board to hear and
determine the grievance as presented and to award monetary relief if
circumstances warrant. As poi nted out above, the Board found no
express limitation in the collective agreement upon the scope of a
policy grievance. Article 23.16 allows the Board to make just and
equitable arrangements as to compensation; otherwise the relief
available upon a policy grievance is r.ot circumscribed. Read as a
whole, the language of the collective agreement does not evince an
intention that the procedures are mutually exclusive or that the Board
is precluded from hearing the grievance as constituted or from awarding
monetary rei ief to in.pividuals, if the grievance is upheld.
In the result, the Board dismisses the Hospital's preliminary
objection as to the form of the grievance and to the Board's remedial
jurisdiction in respect to the grievance as framed.
MER iTS
Article 3.1 of the collective agreement accords to management
the exclusive function of hiring and classifying employees. While
placement of a newly hired employee on the salary grid for a given
classification might be considered part of the hiring process, in
Article 14.2, the parties have agreed that individual employees may
claim credit for salary recognition for recent related clinical
experience. The claim for credit is to be made in writing by the
individual employee at the time of hire, at which time the Hospital is
to inform the employee that such a claim can be made. The Hospital is
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to determine and evaluate recent related clinical experience. Once
established, the recognition of the recent related clinical ~xperience ~
is to be granted in accordance with the formulae in Article 14.2 (b),
(c) or (d), whichever is appropriate in the circumstances.
Recently, there has been a flurry of arbitral and judicial
comment as to the standard of review of the exercise of management's
discretion. As noted in Re York Board of Education and Borough of York
Women Teachers' Association (1986) 20 L.A.C. (3d) 366 (Swinton) a
certain consensus has been reached among arbitrators that the exercise
of managerial discretion can be reviewed for reasonableness where that
intention can be implied from the language of the collective agreement.
The board stated the following at p.359:
While there has been a significant amount of
controversy ove; the extent to which arbitrators can review
the exercise of managerial discretion, the present consensus
is that there are circumstances where it is appropriate to
consider the reasonableness of management's decision because
of the language of the collective agreement. For example,
the OntariO Court of Appea.1 in Re Counci1 of Printing
Industries of Canada and Toronto Printing Pressureu and
Assistants' Union No. 10 (1983), 149 D.L.R. (3d) 53,4.2 O.R.
(2d) 404, 83 C.L.L.C. para.14, 050 [leave to appeal to S.C.C.
refused Novemeber 7, 1983J, held that an arbitration board
gave a reasonable interpretation to a collective agreement
when it held that an employer's power to classify employees
permanently was subject to requirements that the employer act
reasonably, without discrimination, bad faith or
arbitrari ness.
In Re Meadow ParK Nursin~ Home and Service Employees
Int'l Union, local 220 (1983),9 L.A.C. (3d) 137, aroltator
Swan made an effort to harmoni ze certain "fai rness" cases in
which the courts appeared to many to have taKen inconsistent
approaches in reviewing arbitral decisions in which a duty of
fairness was considered. He stated at p.140:
What the Metropolitan Toronto Police decision
decides eRe MetropOlitan Toronto Board of Com'rs of
Police and 11etroPolitan Police Assoc. et 31. (1981)
124 D.L.R. (3<1) 684, 81 C.L.L.C para.14, 116, 330.R.
(2d) 476), in our respectful view, is simply that
arbitrators exceed their jurisdiction if they purport to
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establish general principles for the administration of
collective agreements divorced from the language ,
negotiated by the parties in the matter before them, and .
that they commit errors of law if they purport to treat
a judgment of the courts, refusing to interfere with an
arbitration board on the basis that it did not give
collective agreement language a meaning which it could
not reasonably bear, as binding expositions of the
genera I 1 aw.
The arbitration board's responsibility is to look at the
language which the parties have negotiated, in the context of
the collective agreement as a whole, and to try to give
effect to the parties' expectations.
The principle emergent from the Metropolitan Toronto Police
and Council of Printing Industries cases, supra, that any implicit
obligation upon management to exercise its decision-making power in a
reasonable and non-discriminatory fashion must be supported by the
language of the collective agreement was also articulated in the recent
case Re Toronto Public Library Board and Canadian Union of Public
Employees, Local 1996, 17 l.A.C. (3d) 22 (Kates, 1984) at pp.25-26:
In response to this question the parties' written
submissions focused mainly upon the impact of Re Councilor
Printing Industries of Canada and Toronto Printin Pressurau
and Assistants Unlons No.1 et a . 19 , 1 .L.R. d
53, 42 O.R. (2d) 404, 83 e.l.L.C. para 14, 050 (Ont. C.A.}
[leave to appeal refused November 7, 1983J, on the principles
recited in Re Metro olitan Toronto Board of Com'rs of Police
and Metropo itan oronto Po ice Assoc. et al. 1 1 , 1 4
D.L.R. (3d) 684, 33 O.R. (2d) 406, 81 C.L.L.C. para.1l6 (Ont.
C.A.). I do not propose for the reasons to follow to embark
upon an elaborate analysis of those decisions. It suffices
to say, that.the principle emerges from reading these two
decisions that there exists no "implicit" obligation on
management's part to be fair and non-discriminatory in its
treatment of its employees unless its impugned actions can be
imputed directly or indirectly to a specific provision of the
collective agreement. It is equally clear that the burden
rests with the party alleging unfair, discriminatory
treatment by the employer to demonstrate how management's
action can be construed to have undermined an employee's
entitlement to a substantive right contained in the
coilective agreement. And a failure to demonstrate that a
Substantive right has been compromised will foreclose an
aggrieved employee from relying upon the management's rights
clause to import an implicit obligation on the employer's
JUN 04 '91 08:37
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part to be fa i rand non-d i scriminiltory. I n short, there
exists no conflict between Re Council of Printing Industries
of Canada supra, and Re Metropolitan Toronto Board Of Com'rs
of Police, supra, in the sense that the question of whether
an impllClt obl1gation may be imputed imposing upon the
employer the requirement of reasonableness and
non-discrimination in its decision-making must emerge from
the context of the language of the collective agreement under
consideration: see Re Toronto East General Hospital and
Service Em 10yee's Union, local 204 (1984), 13 L.A.C. (3d)
400 Burkett at p.406.
,
,
Once the language of the collective agreement has been interpreted to
give rise to an implication that management's decision-making is to be
reasonable, consideration must be given to the standard of
reasonableness that is to govern. In this regard, arbitrators have
consistently held that management's decision-making is to be assessed
./
against an objective standard and not the arbitrator's sUbjective
concept of reasonableness or fairness. In Toronto East General
Hospital, arbitrator Burkett referred to an earlier case that he had
chaired, Re United Parcel Service Canada Ltd. and Teamsters Union.
Local 141 (1981), 29 l.A.C. (2d) 202, in which it was found that there
was an implied restriction on the exclusive function of the company to
schedule vacations. At p.411 of the Toronto East General Hospital
award, Mr Burkett quotes from p.213 of the United Parcel Service Canada
Ltd. award:
Is an arbitrator to sit back and assess management's
decision-making in the light of some subjective concept of
reasonableness or fairness? The result would be to
substitute the arbitrator's judgment for that of management
in areas where the parties have decided, given certain broad
parameters, that management's judgment should govern.
Rather, in our view, the duty is one which should be measured
against more Objective standards such as used by the Court in
the MetropOl itan Toronto transfer judgment, supra. [Re
Metropolitan Toronto and Toronto Civic Employees' Union;
Local 4:; et al. (19//) 79 D.L.R. (3d) 249, 16 O.R. (2d) 730J.
In our View the employer's decision-making should be assessed
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against the requirement to act for business reasons and the
-requirement not to single out any employee or group of
employees for special treatment which cannot be justified in
terms of real benefit to the employer. When the parties
agree that such matters as classification, qualification,
demotion, transfers and the scheduling of vacations are {o be
in the discretion of management they do so in the knowledge
that management's decision-making in these areas will be made
1n management's self-interest, may adversely affect
individual employees, and/or may .not impact on ail employees
equally. However it is not contempiatedas part of the
bargain that the employer will exercise his authority in
these areas for reasons unrelated to the betterment of his
business or to single out employees for the type of special
treatment described.
~
In Re Meadow Park Nursing Home and SerVice Employees'
International Union (1983) 9 L.A.C. (3d) 137 arbitrator Swan after
reconciling the principles enunciated in the Metro Toronto Police and
.,1
Council of Printing Industry cases, went on to consider the manner in
which management's exercise of discretion had been impliedly
circumscribed by the language of the collective agreement. The issue
in this case was an employee's entitlement to sick leave benefits which
the employer had decided to suspend. The board started from the
principle that the standard of review of management's discretion would
In these circumstances, where the parties have agreed to
give to the employer a discretion to suspend the payment of
earned benefits in certain circumstances, we think that it
must have been intended in using that formulation to
incorporate a number of the elements of the administrative
law concept of discretion. In particular, we think that the
exercise of the employer's discretion must be in good faith,
must be a genuine exercise of discretion and not merely the
application of a rigid policy, and must include a
consideration of the merits of each individual case. All
relevant factors must be considered, but no extraneous or
irrelevant considerations may be t~ken into account.
Finally, we think that parties must have intended that an
exercise of discretion so unreasonable that no reasonable
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employer could ever have come to it would fall outside of the
meaning of Art. 14.05.
This passage was cited in the recent case of Re Great Atlantic and
Pacific Co. of Canada Ltd. and Bakery Confectionery and Tobacco Workers
Int'l lJnion, Local 264 (1985) 18 l.A.C. (3d) 44 in which the board
,
,
chaired by Mr. Burkett held that the employer's discretion to deny sick
leave benefits was circumscribed by an implied duty to exercise its
discretion fai rly and reasonaoly. At p.SO, the ooard stated:
Having regard to the foregoing we cannot imagine that it
would have been the intention of the parties, in reaching an
agreement as to the manner in which and the extent to which
employees would be protected from the effects of injuries or
illness necessitating time off work, that these oenefits
could be refused on the whim of management or that the plan
itself coul~ be operated in an arbitrary or discriminatory
fashion. We are satisfied on a reading of Appendix "A" that.
the parties would have intended that anyone who was genuinely
disabled and whose claim did not .in some way constitute an
abuse. of the pian should receive siCk benefits. In this
context it would have been the intention of the parties that
the management discretion would be fairly and reasonably .
exercised to prevent abuses to the plan. It would further
have oeen intended that management, in exercising its
discretion to approve the payment of benefits would put its
mind to the circumstances s~rrounding each application.
To the extent that the management's exclusive function to
hire as expressed in Article 3 is perceived to include the placement
of a prospective employee on the salary grid for a particular
classification, Article 14.2 constitutes a qualification upon the'
exercise of that function. Other qualifications upon management's
exclusive function to hire are expressed in Article 12 in relation to
promotion and staff changes and in Article 13 in relation to
discriminatory conduct. There is no question that Article 13 would
prohibit any discriminatory conduct of employees in respect to
salaries, but no such issue was raised by the 'parties before this
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Board. Indeed no evidence was adduced to suggest any suCh
discrimloatory conduct and the Board makes no finding of discriminatory
conduct on the part of the Hospital. ~
Article 14.2 governs the manner in which an employee may be
granted credit for salary purposes for "recent related cl inical .
experience". The Hospital has agreed and. is obliged accordingly
to inform new employees of their entitlement to make a written claim
for recent related clinical experience at the time of hire. If such a
claim is made, the obligation to provide verification of previous
experience rests with the employee. The Hospital is to determine and
evaluate the employee's claim having reference to the verification of
previous experienceproviG~j. The Board does not construe this to mean
that the Hospital is confined to the verification provided by the
employee, but the Hospital may make enquiries sufficient to enable it
to judge and thereby "establish" the level of "recent related clinical
experience" the employee possess. This process of establishing such a
level is essentially judgmental and is distinguished from the next
step, which is recognition of the level of recent related clinical
experience for salary credit. Recognition for salary credit is to
occur on the basis set out in Article 14.2 (b), (c) or (d), whichever
is applicable. The Board interprets the phrase "during the
probationary period" in the second sentence of Article 14.2 as
referring to the period of time during which the Hospital is to
ascertain and assess and thereby establish the level of "recent related
clinical experience" to which the Hospital must then apply the formulae
in Article 14.2 (b), (c) or (d) for the purpose of salary c-edit.
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JUN 04 '91 08:39
P.17/10
Article 14.2 (a) gives gUidance as to what prior ~xperience
is to b~ considered recent. In circumstances where the employee's
professional experience has been discontinuous, in the sense that the ;
employee has been out of the profession of pharmacy for more than two
years, the period during which related CI inical experience is to be
evaluated is extended by three additional months. Furthermore, Article
14.2 (d) specifically stipulates that the employee's ability is to be
taken into account at the end of the initial six month periOd of
service in order for the Hospital to gauge the level of related
clinical experience, when such experience has not been recent.
Placement on the salary grid for the relevant classification is then to
occur "at an appropr,'i'ate level".
Where there has been no such brea~ in professional
experience, formulae are provided in Articles 14.2 (b) and (c) for
those whose prior experience was acquired in Canada and outside Canada
respectively. The Board interprets these provisions to mean that once
the Hospital has evaluated and established the level of recent related
clinical experience, there is no further discretion to decide whether
or not to apply either Article 14.2 (b) or (c) if there has been no
break in the employee's professional experience. Article 14.2 (b) and
(c) are expressed in mandatory terms and set out a straightforward
deduction and maximum limit upon the credit to be accorded. The Board
interprets "actual experience" in Articles 14.2 (b) and (c) to refer to
the le~el of recent related clinical experience which the Hospital has
established that the employee actually possesses. The deduction
recognizes the extent to which a transfer from one location to another
in the same sector of practice or from one sector to another is
17
JUN 04 '91 08:40
P.18/10
disruptive to the steady accretion to clinical experience. The
deduction is greater for those whose actual experience was acquired
elsewhere than in Canada in recognition that the potential for
;
variability in adequacy and type of training and professional
development would increase if acquired elsewhere. The specification of
a maximum level of credit in Article 14.2 (b) and (c) constitutes a cap
on the liability of the Hospital in respect to the credit and prevents
a newly hired employee from parachuting in at the top level of the
salary scale as set out in Appendix "A". It constitutes a compromise
between recognition in monetary terms of the worth to the Hospital of a
seasoned employee's skill and ability in clinical pharmacy, and the
interest of the Hospit,;l in maximizing efficiency, but minimizing its
costs.
Although Article 14.2 (a) provides guidance as to what
experience will be considered "recent", no such guidance is provided as
to the meaning of "cl inical" or "related". Furthermore, no cases were
drawn to the Board's attention which h?ve construed these terms.
was clear from the evidence and argument of the parties that both
considered experience as a ~egistered pharmacist in a large teaching
.~
lo.
hospital the epitome of clinical experience. Thus, experience obtained
in the retail and industrial sectors of pharmaceutical practice as we11
as in other facets of the hospital sector such as a small cO"'ffiunity
hospital, was considered "related clinical experience" depending upon
the degree to which the tasks performed, and the working context,
replicate the duties and working environment at Ottawa Civic Hospital.
The dispute between the parties focused on the degree to which the
duties and responsibilities of a registered pharmacist in the retail
18
JUN 04 '91 08:41
P.1'3/10
sector corresponded to the duties and responsibilities of a registered
pharmacist at Ottawa Civic Hospital. The Association contended that
the professional qualifications and nature of responsibility assumed by
registered pharmacists in both the retail sector and at the Hospital
were so similar that previous experience as a retail pharmacist should
be characterized as "related cl inical experience". The Hospital
claimed that the knowledge, skills and duties were so disparate in the
two sectors that prior retail experience would be considered unrelated,
in general.
Having regard to the job description for the registered
pharmacist classification and description of duties associated with
various rotations ands'pecialized assignments in the classification as
outlined in Exhibit #1S, "clinical" experience refers generally to
duties associated with advice, treatment and education of patients in
conjunction with other health care professionals.
The more contentious matter is the meaning of the term
"related". The Concise Oxford Dictionai"Y defines "relation" as "what
one person or thing has to do with another, kind of connection or
correspondence or contrast or feeling that prevails between persons or
things". Black's Law Dictionary defines "related" as "standing in
relation; connected; allied; akin". The word "related" standing alone,
provides no quantification of the closeness of the correspondence or
cJnnection. While the term "related" would certainly include prior
experience that is the same as that which would be acquired at a large
teaching hospital, it is not limited to that degree of congruence.
The Board interprets the purpose of Article 14.2 as recognition in
monetary terms of an employee's qualifications and expertise in
19
~
JUN 04 '91 08:41
P.20/10
carrying out the duties of his or her classification, although these
attributes were acquired in some other context. The extent to which
such qualifications and expertise are readily transferable, thus
,
.
connected or corresponding to that required to perform the duti~, of
the classification at Ottawa Civic Hospital is a question of degree to
be assessed and appraised by the Hospital. The degree of
correspondence or relation will vary from individual to individual.
For this reason, the parties have agreed that the Hospital is to
determine and evaluate any claim having regard to the verification of
experience provided by the claimant and to assess the adaptability of
the claimant's qualifications and prior experience to the context of a
J
1 a rge teachi ng hospi'til 1 .
8y individualizing the salary recognition process, and
agreeing to a certain structure as to the quantum of credit to .be
accorded and the basis upon which the evaluation is to be made, the
language of Article 14.2 gives rise to the implication that the parties
did not intend that management's discretion to determine and evaluate'
recent related clinical experience for salary credit could be
excercised in an arbitrary, unreasonable manner. The language of
Article 14.2 clearly indicates that the Hospital is to put its mind to
the circumstances of ea~h applicant's claim. It would be inconsistent
with the integrity and equities of the salary scales set out in
Appendix "A" to conclude that the parties had agreed that management's
discretion to establish recent related clinical experience could be
exercised in other than a reasonable manner. Put positively, the 80ard
concludes that the language of Article 14.2 in the context of the
collective agreement as a whole gives rise to the implication that
20
JUN 04 '91 08:42
P.21/10
management's discretion to establish recent ,related clinical ex?erience
is to be exercised in a reasonable manner. Furthermore, recognition of
"
.
recent related clinical experience so established must be in accordance
with the formulae in Article 14.2 (b) and (c), whichever applies. Only
in circumstances where Article 14.2 (d) apply, when related clinical
experience is not recent, do the parties purport to foreclose challenge
to the evaluation and recognition of salary credit for prior related
clinical experience.
On'the facts, did the Hospital act in a re,sonable,
non-arbitrary manner in establishing credit for recent related salary
credit for Mr. Hartnett, Mr. Moore and Mr. Hunt, on behalf of whom the
"J
Hartnett, Mr. Moore or Mr. Hunt that claim for salary credit for rec~nt
related clinicai experience could be made in writing at the time of
hire. Had these employees been so informed, in all probability,
written claims would have been made in a timely fashion. Mr. Hartnett
and Mr. Moore were disappointed with their salary credit and whiie Mr.
Hart~ett remained discreet, Mr. Moore made it known informally to Mr.
Husband that he was disgruntled about his salary level. Certainly once
the policy grievance wa~ filed on May 10, 1985, the Hospital was put on
notice that the Association contested the Hospital's interpretation and
application of Article 14.2.
Much of the evidence of Mr. Darby, the Director of Pharmacy
and of Mr. Husband, the Coordinator of Patient Service for Pharmacy,
dealt with a contrast of the duties and responsibilities of pharmacists
at Ottawa Civic Hospital as opposed to the duties of a retail
21
JUN 04 '91 08:42 P.22/10
pharmacist. This evidence was summarized in Exhibit 114 and Exhibit
#16. Exhibit #14 identifies and elaborates upon four major areas of
difference between the two sectors and Exhibit #16 purports to identify'
,
,
which tasks of the various rotations and specialized assignments within
the classification of registered pharmacist would be performed by
retail pharmacists. For instance, Mr. Darby stated that most of the
contact which retail pharmacists would have with physicians would be to
refill prescriptions, which would not be comparable to the evaluation
of physicians' orders in the context of a large teaching hospital
employing interns and residents. In general, Mr. Darby indicated that
a more extensive knowledge base was required to practice ,pharmacy in
,
the context of a large teaching hospital. Mr Darby admitted that when
the issue of Mr. Hartnett's placement on the salary grid was
considered, the requirements of Article 14.2 were not followed. Mr.
Darby and Mr. Husband, who participated in the decision-making process,
reached their decision as to the placement of Mr. Hartnett on the
salary scale on the basis of certain assumptions they held about the
nature of clinical tasks and responsibilities in the retail sector of
practice. It was apparent from their testimony that they assumed that
generally, the knowledge base and the nature and extent of professional
skill and responsibilit;y required in a retail pharmaceutical practice
was so much less demanding than that required in the practice of
clinical pharmacy in a large teaching hospital that it was unrelated.
This assumption was made in Mr. Darby's case on the basis of experience
gleaned from a part-time job in a retail pharmacy in 1975 during his
last year of his degree programme in Pharmacy, as well as from his
experience in supervising clinic pharmacies at McMaster General for 3~
22
JUN 04 '91 08:43 P.23/10
years and the Ottawa Civic Hospital for the. past 2; years. Mr. Husband
testified that he had managed a community pharmacy for seven years
prior to his employment at Ottawa Civic Hospital which commenced 11~
years ago. Both Mr. Darby and Mr. Husband stated that they kept
current with the nature of retail practice through contact with
'.
colleagues in the retail sector at conferences and through work.
Certain major areas of difference between retail pharmacy and pharmacy
at the Hospital were identified by Mr. Darby and Mr. Husband such as:
1. hospital sector phar"-acists are required to deal with
types, dosages, and routes of administration of drugs
not found in the retail sector - ego total parenteral
nutritton solutions and I.V. additives; chemotherapeutic
and investigative drugs
2. greater responsibility for continuing education and
research falls upon pharmacists in a teachng hospital
than in the retail sector
3. treatment of and advice to a patient population that is
generally more sickly than the ambulatory population .
treated by the retail sector; treatment in specialized
services is provided in a teaching hospital which
services and method of'distribution have no counterpart
in the retail sector
4. much of the time of a retail pharmacist is spent
managing the commercial aspects of a retail pharmacy
whereas these responsibilities are not assumed by a
pharmacist in a teaching hospital, except those working
in the Clinic ?harmacy
The Association disputed the extent to which the
quaiifications and skillS required in retail pharmacy differed from
those required to carry out the duties of a registered pharmacist at
the Hospital. In particular, the Association denied that a retail
pharmacist was required to compromise his professional responsibility
to the demands of business. Mr. Hartnett pointed out that up until the
23
JUN 04 '91 08:44
P,24/10
final year of the B.Sc. degree in Pharmacy, all the same courses are
taken. In the final year, pharmacy students may choose one or two
courses and work in their sector of choice - hospital, retail,
industrial/government. Furthermore, ~r. Hartnett stated that
~harmacists are required to be licensed in the retail sector and the
hospital sector, although a one-year period of grace is accorded to
non-registered pharmacists at the Hospital, as is apparent from p.2 of
the jOb description and the salary scale for non-registered pharmacists
appended to the collective agreement. Both Mr. Hartnett and Mr. Moore
testified that pharmacists in both the retail and hospital sectors are
responsible for monitoring and checking orders, evaluating physician's
orders, liaison with n~rses administering drugs and occasional liaison
with other health care professionals, providing drug information and
meeting continuing education requirements. Both Mr. Hartnett and Mr.
Moore testified to the effect that they had acquired the requisite
skills, ability and qualifications to perform all the main duties of
the classification as set out in the job description, while working as'
retail pharmacists. They acknowledged unfamiliarity with total
parenteral nutrition solutions and I.V. additives, which was overcome
. with the training received during the orientation period. The
Association contended that the relationship or connection between the
professional skills and responsibilities requisite to both the hospital
and retail sectors is revealed by the demonstrated expertise of Mr.
Ha rtneCtand Mr. Moore in carryi ng out the dut i es of the
classification. In particular, Mr. Hartnett was approached to conduct
research and co-author a paper within eight mcntns of his hire. Mr.
Moore was hired in March 1984 and by January 1985 he was assigned to a
24
JUN 04 '91 08:44
P.25/10
special ized position as a member of the pharmacokinetics team and
back-up -to the cardiac/geriatric assessment unit. In the
pharmacokinetics team, Mr. Moore has capitalized on his computer skills
,
,
which he acquired while working in the retail sector. Mr. Moore
testified that his experience with direct patient contact in the retail
sector has been an asset in discharging his counselling
responsibilities while assigned to duties in the cardiac/geriatric
assessment unit. Mr. Hartnett's prior experience has been applicable
to his back-up assignment in the Clinic Pharmacy a: the Hospital. As
noted earlier, the Board interprets the plain meaning of "related" as
connoting a nexus or connection between the retail and hospital sectors
.J .
of prior experience that 1S broader than absolute congruence. Thus,
it appears that the ability of Mr. Hartnettand Mr. Moore to discharge
even these specialized functions capably within a short period of time
points to the conclusion that the knowledge and professional skills
acquired during their retail experience are transferable and adaptable
to the work of their classification and therefore ought to be
considered related for the purpose of salary credit. Having said that
however, the Board recognizes that Article 14.2 consigns the
determination of the degree of relation to the Hospital, provided that
this determination is ma?8 reasonably.
Article 14.2 consigns the determination and evaluation of
recent related clinical experience to the Hospital, but in making this
appraisal, the Hospital is bound to enquire into the circumstances
surrounding each individual's claim. In so doing, it is incumbent on
the Hospital to consider all relevant factors and disregard irrelevant
factors. By placing Mr. Hartnett on the salary grid on the basis of
25
.JUN 04 '91 08:45
P.26/10
general assumptions about the nature of his retail experience, the
Hospital.failed to conduct the sort of enquiry direct~d by Article
14.2. Furthermore, the Hospital failed to apply the formula for
recognition of salary credit in Article 14.2 to the quantum of recent
related clinical experience which it ought to have established through
an evaluation of Mr. Hartnett's verified experience. A similar enquiry
would be required to consider a claim for credit by Mr. Moore and Mr.
Hunt. It is possible that the retail experience that a candidate may
have had in the past gave so little exposure to the range and
complexity of clinical responsibilities that it could be concluded that
the correspondence of experience is so meagre as to be unrelated. Such
a conclusion is to be reached through evalUation of the candidate's
verified prior. experience and qualif'cations. Once an equivalent level
of recent related clinical experience is thereby established, unless
the circumstances in Article 14.2 (d) apply, there is no further
discretion as to whether to apply the formula in Article 14.2 (b) or
(c). If the experience was gleaned in Canada. the employee shall
receive salary recognition in accordance with ArtiCle 14.2 (b). If the
experience was gleaned in other countries, Article 14.2 (c) applies.
AS pointed out earlier, the Board interprets "actual experience" in
Articles 14.2 (0) and (c~ as the level of recent related clinical
experience which the Hospital has established that the employee
actually possesses.
In the result, the Board finds that the Hospital violated
Article 14.2 by failing to follow the procedure and standards for the
determination and evaluation of the recent related clinical experience
of Mr. Hartnett and further failed to apply the formula for salary
26
;
JUN 04 '91 08:46
P.27/10
;
As set out in its ruling on the preliminary objection, the
Board is not precluded by the form of the grievance from considering
the issue of credit to be given to Hr. Hartnett, Mr. ~'loore and Hr.
Hunt. However, the Board refuses at this juncture to appropriate to
itself the function of determining and evaluating the level of recent
27
JUN 04 '91 08:46
P.28/10
.(. ~
related clinical experience which each employee possesses. This is a
function which ought to rest with the Hospital to perform sUbject to
review for compliance with the standards in the collective agreenent as'
interpreted by this Board. The Hospital is in a position to invite the
grievors to file any material relevant to the evaluation of their
recent related clinical experience and the grievors should cooperate
with the Hospital in verifying this previous experience. The Hospital
may then investigate and evaluate this material so as to establish
recent related clinical experience and grant credit pursuant to Article
14.2. Therefore, the Board remits the matter of salary- recognition for
Mr. Hartnett, Mr. Moore and Mr. Hunt back to the Hospital for
reconsideration in accordance with the provisions of Article 14.2 as
interpreted by this Board. The Board directs that any cre~it to be
given should be retroactive to the date that the grievance was filed
since the Hospital was not formally on notice prior to that date that
there was a difference between the parties as to the manner in which
the Hospital was interpreting Article 14.2. In the result, the
grievance is allowed in part. The Board reserves jurisdiction as to
any issue arising from the implementation of this award which the
parties are unable to resolve.
28
JUN 04 '91 08:47
-
..,
Dated at Ktngston, Ontario, this ,-".r-
t"\J'l'-I
day of ~l 1986.
o~ ~'L. 'Z~
\ Jane E. Emr1ch
1 concur/di ~:e?lt
1 concur/a: ~_~"t
"
" A, 0"'. r<FIu~
Andrew Raven
Association Nominee
29
P.29/10
"
,