HomeMy WebLinkAboutHODGINS,MOE, ZABOROWSKA, UNION-1999-03-06
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IN THE MATTER OF AN ARBITRATION
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BETWEEN:
QUEENSW A Y-CARLETON HOSPITAL
-AND-
ASSOCIATION OF ALLIED HEALTH PROFESSIONALS: ONTARIO
AND IN THE MA TIER OF INDIVIDUAL GRIEVANCES OF LYNN HODGINS,
JANICE MOE AND IRENE ZABOROWSKA, AND A POLICY GRIEVANCE
RELATING TO CONTRACTING-OUT
Russell Goodfellow - Sole Arbitrator
APPEARANCES FOR THE HOSPITAL:
Carole Piette, Counsel
Laurie Richer
Frank Demizio
APPEARANCES FOR THE ASSOCIATION:
Judith Allen, Counsel
Sue McCulloch
Donna Barnes
Lynn Hodgins
Janice Moe
Irene Zaborowska
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AWARD
This award deals with three individual grievances and a policy grievance arising
out of a restructuring in Laboratory Services. The individual grievances challenge the
"reclassification" of one employee, the "transfer" of another employee, and the "lay-off' and,
later, "reduction in hours of work" of a third employee as failing to comply with the lay-off and
recall provisions of the collective agreement. The policy grievance alleges an improper
contracting-out and a failure to "involve the Association in the planning process in the Fiscal
Advisory Committee".
After approximately ten days of hearing, the parties settled the individual
grievanccs and agreed that the only remedy to the Association arising out of the policy grievance
would be a declaration that the Hospital breached article 11.01 of the collective agreement.
However, as part of the settlement, the parties asked me to answer the questions set out below.
In reviewing these questions, it will be helpful to know that article 11 is the lay-off and recall
provision of the collective agreement and that article 2.04 is the contracting-out provision. It
may also help to understand that the Association's position, in broad terms, is that the Hospital
should have applied the lay-off and recall provisions to the individuals identified in questions
one and three, and that these individuals, in the exercise of their seniority, were entitled to bump
part of ajunior employee's job. The Hospital asserts that neither the reduction in classification
nor the transfer constitute a lay-off and, in any event, employees are not entitled to claim only
part of another employee's job.
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With that overview in mind, the questions are as follows:
I) Did the reason for Lynn Hodgins' reclassification engage article
ll?
2) If the answer to question #1 is yes, what rights was Lynn Hodgins
entitled to exercise, if any?
3) Did the reason for Janice Moe's transfer engage article II?
4) If the answer to question #3 is yes, what rights was Janice Moe
entitled to exercise, if any? Specifically, was Janice Moe entitled
to bUrilp the .5 F.T.E of microbiology hours being performed by
Lise Roy-Girard?
5) If the answer to question #4 is no, the parties still wish to know
whether an employee who has received a lay-off notice is entitled
to bump a portion of ajunior employee's hours of work or duties.
_ 6) Did the hospital breach article 2.04 when it contracted-out work to
thc provincial lab? If so, what remedies would have flowed from
this?
I will address questions one and three together, followed by the others. The
relevant collective agreement provisions state:
ARTICLE 2 - RECOGNITION
2.04 Contracting Out
The Hospital shall not contract out work currently performed by members
of this bargaining unit, if, as a result of such contracting out, a layoff of
any bargaining unit employees oceurs. This clause will not apply in
circumstances where the Hospital no longer provides a particular service
as a result of the rationalization or sharing of services between hospitals in
a particular geographic district, or as a result of the withdrawal of the
Hospital's licence to perform such services.
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ARTICLE 3 - DEFINITIONS
3.03 a "regular part-time employee" is defined as an employee who is regularly
scheduled on a pre-determined basis to work less than the normal hours of
work described in Article 21.02. A regular part-time employee may work
casual hours in excess of her pre-determined scheduled.
ARTICLE 4 - MANAGEMENT RIGHTS
4.01 The Association acknowledges that the management of the Hospital and
the direction of working forces are fixed exclusively in the Hospital and
shall remain solely with the Hospital except as specifically limited by the
provisions of this Agreement and, without restricting the generality of the
fO"regoing, the Association acknowledges that it is the exclusive function
of the Hospital to:
(a) maintain order, disciplinc and efficiency;
(b) hire, assign, retire, discharge, direct, promote, demote, classify,
transfer, layoff, recall, discharge or otherwise discipline
employees, provided that a claim of discharge or discipline without
cause may be the subject of a grievance and dealt with as
hereinafter provided;
(c) determine, in the interest of efficient operation and highest
standards of service, job rating and classification, the hours of
work; work assignments, methods of doing the work, and the
working establishment for the serviee and the location of work;
(d) generally to manage the operation that the Hospital is engaged in
and, without restricting the generality of the foregoing, to
determine the number of personnel required, methods, procedures
and equipment in eonnection therewith;
(e) make, enforce and alter from time to time rules and regulations to
be observed by the employees.
4.02 These rights shall not be exercised in a manner inconsistent with the
provisions of this Agreement.
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ARTICLE 9 - GRIEVANCE AND ARBITRA nON PROCEDURE
9.12 The Arbitration Board shall not have jurisdiction to amend or add to any
of the provisions ofthe Agreement, or to substitute any new provisions in
lieu thereof, nor to give any decision inconsistent with the terms and
provisions of this Agreement.
ARTICLE 11 - LAYOFF AND RECALL
11.01 With respect to the development of any operating or re-structuring plan
which may affect the bargaining unit, the Association, through the Fiseal
Advisory Committee shall be involved in the planning process from the
early phases through to the final phases ofthe process.
11.02 A layoff includes a temporary or permanent discontinuation of work or
reduction in hours of work. In the event of a proposed layoff at the
Hospital of a short-term (less than three (3) months) or long-term nature
(three (3) months or longer), the Hospital will:
(a) for short-term layoff provide no less than 30 days notice to the
employees and no less than 30 days notice to the Association,
indicating the reasons causing the layoff, the anticipated duration
of the layoff and identify the employees likely to be affected. If
requested, the parties will meet.
(b) for long-tcrm layoffprovide no less than three (3) months notice to
the employees and no less than three (3) months notice to the
Association and meet with the Association to review the following:
(i) the reason causing the layoff
(ii) the service the Hospital will undertake after the layoff
including the areas of cut-back and the employees to be laid
off;
and plan the following:
(iii) the method of implementation
(iv) revised work schedules including the reallocation of hours
of work among full-time and part-time employees with due
regard to seniority
(v) ways the hospital can assist the employees to fmd alternate
employment including identifying vacant positions within
the hospital for which surplus members of the bargaining
unit might qualify, or such positions which are currently
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filled but which are expected to become vacant within a
twelve (12) month period.
11.03 Employees shall bc laid offin reverse order of seniority provided that
those entitled to remain on the basis of seniority are willing and qualified
to do the work which is available. Probationary employees then casual
and temporary employees shall be laid off first before any regular full-time
or any regular part-time employees are laid off.
11.04 (a)
For short-term layoff the available work assignments shall
be distributed to the most senior incumbents of the classification
and site where operationally feasible provided that they are willing
and capable of performing the available job duties to ensure to the
greatest extent possible that the layoff impacts the most junior
employee(s). No bumping is permitted.
For the purpose of this provision only, the term "classification"
shall have a broad meaning to include all jobs which have the same
professional basc; example M.S.W., B.S.W. and Discharge Planner
is one classification; Senior Physiotherapist and Physiotherapist is
one classification.
For the purpose of this provision only, thc term "sitc" shall mcan
cach hospital location. The Kanata Clinic shall bc part of the
Queensway Carlcton Hospital. Almonte and Carleton Place shall
be considered one site.
(b) An employee who is subject to a long-term layoff shall have the
right to either:
(i) accept the layoff; or
(ii) displace an employee who has lesser bargaining unit
seniority in a lower or identical paying classification if the
employee originally subject to layoff can perform the duties
of the lower or identical paying classification without
training other than orientation. It is understood that such an
employee would be accorded the same amount of
orientation to which a new employee would be entitled.
11.05 An employee shall be recalled to the position held prior to the
layoff in order of seniority provided the employee remains qualified and
able to perform the duties.
11.06 An employee shall have the opportunity of recall from a layoff to an
available opening, in order of seniority, provided she is willing and has the
ability to perform the work, before any new employee is hired.
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11.07 An employee recalled to work in a different classification from which she
was laid off, or an employee who has displaced an employee in a lower or
identical paying classification shall be entitled to return to the position she
held prior to the layoff should it become vacant within six (6) months of
the layoff, provided that the employee remains qualified and able to
perform the duties of her former position. In such a case, the posting
procedure shall not apply.
11.08 Regularly scheduled employees who are on layoff shall be offered sueh
casual hours as may be required in the on-going operation ofthe
department subject to the employee's availability and willingness to work
these hours. It is understood that an employee who is offered such hours
shall maintain her position on the layoff list and acceptance of additional
hours shall not constitute a recall from layoff. Notwithstanding Artic1c
10.05 (c) where an cmployee has been working such hours, the hospital
shall convert her status to casual subject to thc availability of hours.
11.09 The Hospital shall notify the employee ofrecall opportunity by registered
mail addrcssed to thc last address on record with the Hospital which
notification shall be deemed to be receivcd on the tenth (10) day following
thc datc of mailing. The notification shall state the job to which the
cmploycc is eligible to be rccalled and the date and time at which thc
cmployce shall rcport for work. Thc ernployee is solely responsible for
hcr proper address being on record with thc Hospital.
11.10 Any agrecmcnt between the Hospital-and the Union concerning layoff and
rccall will take prccedence over the terms of this Article.
11.11 Employees who are on layoff for up to one year may continue to
participatc in bencfit plans enumerated in Article 27, at thcir request but
subject to being allowed by the carrier provided they make arrangements
for payment of the full anlount.
ARTICLE 12 - JOB POSTING
12.01 Prior to an appointment to anew or vacant position, the Hospital shall
post notice of such position on the bulletin board provided for such
purposes for a period of seven (7) working days subject to the following
provisions:
(a) With respect to this clause, vacant position shall rnean only regular
full-time and regular part-time positions, and temporary positions
reasonably expected to continue for a minimum of six (6) months.
Vacancies not expected to continue for a minimum of six (6) months
may be filled at the discretion of the department head.
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(b) The Hospital will post vacant laboratory positions in all locations in
the Ottawa Valley Laboratories.
(c) The posting procedure as outlined above may be eliminated by mutual
consent where no qualified candidates are deemed available in the
Hospital or Valley Laboratories.
(d) The successful candidate must possess the qualifications required for
the job. In the course of the selection process, the Hospital will duly
consider the qualifications, performance, experience and seniority of
each applicant.
(e) If an employee who has greater seniority than the successful applicant
is refused the position, she shall be given the reason for stich refusal
upon request.
(I) Regular full-time and regular part-time employees shall be given
priority over casual and temporary employees provided that the
qualification, performance, expericncc and seniority of each applicant
are equivalent.
12.02 Employces working at the Queensway-Carleton Hospital will not bc
permanently transferred to outside locations without their consent.
12.03 An cmployee who is promotcd to a higher rated classification within thc
bargaining unit will be placed on the grid ofthe higher rated classification
so that she shall receive no less an increase in salary then the equivalent of
one step in the salary range of her previous classification (provided that it
does not exceed the salary range of the classifi{;ation to which she has
been promoted) and she shall retain her Service Review Date for purpose
of Wage Progression. Ari employee who is transferred or demoted to a
lower rated classification will be placed on the position in the grid (if any)
which most closely recognizes the experience level recognized on the
other grid.
Ouestion #1 and Ouestion #3: Did the reason for Lvnn Hodgins' reclassification and Janice
Moe's transfer engage article II?
Facts
In January 1997, Lynn Hodgins was employed as a senior technologist in the
microbiology lab of the laboratory services department. On January 20, 1997 Ms. Hodgins was
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adviscd that "... as a result of re-structuring within Laboratory Services your position is being
reclassificd to a Junior Technologist. The effective date of this reclassification is April 22,
1997."
In January 1997, Janice Moe was employed as a.5 FTE (full-time equivalent)
junior technologist in the microbiology lab ofthe laboratory services department. On January 20
Ms. Moe was advised that"... as a result of a reduction in workload in Laboratory Services, your
position is being eliminated. Consequently, you will be laid off indefinitely effeetive April 22,.
1997." Ms. Moe was also informed of her right under the collective agreement to aecept the lay-
offor displace ajunior employee in an identical or lower-rated classification whose duties she
could perform.
On February 11, 1997 the Association gricved the Hospital's actions. It
characterized Ms. Hodgins' "reclassification" and Ms. Moe's "transfer" as lay-offs and claimed
that thcy were not implemented in accordance with articlc 11 of the collective agreement.
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Ms. Moe responded to the choices offered in the lay-off notice by asking, first, to
displace the microbiology portion (.5 FTE) of the duties performed by ajunior full-time
employee, Lise Roy-Girard, and, second, to bump a .5 FTE position in the core lab. On February
14, 1997 the Hospital advised Ms. Moe that she was not qualified to perform all of Ms. Roy-
Girard's duties and, accordingly, that she would be assigned to a regular part-time (.5 FTE)
position in the core lab. On March 17, 1997, Ms. Moe commenced approximately three and one-
half weeks , orientation for that position.
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Prior to the effective date of the lay-offs, the parties met to discuss the various
gricvances. On April 16, 1997, following discussion ofthe contracting-out grievance, the
Hospital advised the Association that it was "modifying its Laboratory Restructuring Plan to
ensurc that no bargaining unit employee will be laid offas a result of the referral of three
Laboratory tests to the Public Health Laboratory." Among other things, this led to the rescission
of Ms. Moe's lay-off notice and the substitution of a notice advising her that she was being
"transferred" to the core lab. Although lay-off notices had also been issued in the core lab, it
appcars that work either became available or was made available thro'ugh a long-term illness, a
voluntary departure and a pregnancy leave. As a result, no employee was displaced by Ms.
Moe's arrival and she retained her .5 FTE junior technologist status. No change was madc,
howevcr, to thc notice givcn to Ms. Hodgins. In conscquencc, Ms. Hodgins suffercd a reduction
in classification and wagc rate, togethcr with a reassignment to a less desirable shill.
Moving backwards in time, the events giving rise to the restructuring in laboratory
services wcre the subjcct of evidence given by Frank Dcmizio. Mr. Dcmizio is thc Dircctor of
Diagnostic and Laboratory Services, the area in which Ms. Hodgins and Ms. Moe work. Mr.
Demizio testified that in March 1997 the Hospital had noticc of the Ministry of Health's three-
year funding plan. On the basis of this plan, the Hospital projected a deficit of2.4 million dollars
for the coming year. This projection caused the Medical Advisory Committee to look at Hospital
programmes in an effort to determine ways in which savings could be achieved. The ensuing
evaluation led to a decision that approximately 1.5 positions could be cut in microbiology. The
source of the savings was essentially three-fold.
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First, in 1996 laboratory services had lost a contract to perform tests for thc
Perth Hospital. At that time, thc Hospital undertook an assessment ofthc likely impact of the
loss on the number ofFTE's required in each laboratory discipline. The total arrived at was 1.2
FTE's in microbiology. However, by March 1997 it had become clear that thc actual loss was
greater- in the neighbourhood of 1.7 FTE's. On that basis, the Hospital decided that it could
remove a further .5 FTE's in microbiology. Mr. Demizio described this savings as the product of
"under-utilization".
The second area of savings, idcntified in early 1997, was described by Mr.
Dcmizio as the result of "utilization managcment". Essentially, this consisted of educating
physicians as to the nced to be more selectivc about thc types and numbers of tests to bc ordercd,
thcreby eliminating tcsts that were not strictly necessary to the task at hand. This initiative led to
a further savings of.3 FTE's.
The third area of savings, of.7 FTE's, came from the transfer of certain tests (ic.
mycology, parasitology and chlamydia) to the public health laboratory in February and March
1997. After the work had been transferred, but prior to the effective date of any associated lay-
offs, the Hospital conceded that the transfer amounted to a contracting-out and purported to
remedy it by restoring a corresponding number ofFTE's to the bargaining unit.
The effect ofthe foregoing changes was to reduce tl1e arnount of work available to
be performed in microbiology by junior technologists, such as Ms. Moe, and the amount of
supervisory work required to be performed by one of the two senior technologists - Ms.
Hodgins.
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Submissions
On the basis of the foregoing, the Association submits that Ms. Hodgins'
"reclassification" was the result of a reduction in the work that she had been performing and that
this reduction falls within the language of a "discontinuation of work" or a "reduction in hours of
work" in article 11.02. The Association asserts that Ms. Hodgins' reclassification was, in reality,
a lay-off and that she should have been accorded the benefits of the lay-off provisions of the
collective agreement. According to the Association, an employee need not "go out the door" in
ordcr for article 11 to apply; rather, the article applies whenever there is a reduction in the
volume of work initiated by the Hospital that impacts advcrscly on an employee's status. Thc
Association also points out that the Hospital appcars to havc shared this interpretation, at lcast
initially, as evidenced by it having provided to Ms. Hodgins three months notice of the
"reclassification" - an obligation that only arises in respect oflay-offs.
In the case of Ms. Moe, the Association notes that she received an actual notice of
lay-off, consequent upon the same reduction in work, which was only later changed to a
"transfer". According to the Association, this too attracted the application of article 11.
The Association submits that article 11 is concerned with the effects of various
employer initiatives on employee status, not their cause. Hence, even if work is lost as a resulf of
increased efficiencies, it does not preclude a finding oflay-off. There are, according to the
Association, only two pre-conditions to the application of article 11.02: (1) a change initiated by
the employer and (2) a consequent loss of work to the bargaining unit. In support of its position,
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the Association asserts that the Hospital is unable to transfer employees unilaterally to vacant
positions. Article 12.01 makes clear that (subject to ccrtain exceptions set out in articles
11.02(iv) and (v) that do not apply) vacancies must be posted.
In sum, the Association submits that Ms. Hodgins' "reclassification" and
Ms. Moe's "transfer" engaged article 11 and, aceordingly, questions one and three must be
answered in the affirmative. The Association relies on: Domtar Chemicals Ltd. (1972),1 L.A.C.
182 (Hil1negan); The Crown in Right of Ontario (Ministry of Health) (1982), 3 LAC. (3d) 385
(Kcnl1edy); Regional Municioalitv of Ottawa-Carleton (1989), 9 L.A.C. (4th) 201 (Thome);
SUIlnvbrook Health Science Centre (1997), 63 L.AC. (4th) 227 (Goodfellow); and T.R.S. Foods
(1993) Ltd. (1997), 63 LAC. (4th) 317 (R. Brown).
Thc Hospital asserts that article 11 only applies to "lay-offs". According to thc
Hospital, a lay-off is a qualitativcly different cvent from a demotion, a rcclassification or a
transfer. All four evcnts are idcntified separately in articlc 4.01 (the management rights clause),
which cxpressly recognizes thc Hospital's authority to make such changes. The Hospital further
submits that it is entitled to order its affairs in such a way as to avoid the lay-off of employees
and that this may include transferring employees to lower-rated classifications. In that event, the
Hospital asserts that the only contractual limitation is found in article 12.03, which requires that
the employee transferred to the lower-rated classification be placed "on the position in the grid (if
any) which most closely recognizes the experience level recognized on the other grid". In the
case of transfers, article 12.02 prohibits the Hospital from "permanently transferring the
employee to an outside location" without her consent. According to the Hospital, this means that
it can transfer employees to inside locations without their eonsent.
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The Hospital also submits that the reference to "included" in article I LOl must be
read as "means and includes" and that the "reduction in hours of work" or "discontinuation of
work" must apply to individual employees. Since neither Ms. Hodgins nor Ms. Moe ceased
working or lost any hours of work, neither employee was laid-off. In support of this
interpretation, the Hospital refers to article 11.01 of the predecessor agreement which recognizes
that reductions in hours of work are differcnt from lay-offs:
11.0 I Should a layoff of employees or a reduction of working hours become necessary,
employees shall be laid off on the basis of seniority within job classification and
department provided that employees entitled to remain on the basis of seniority
arc willing and qualified to do the work which is availablc. It is understood that
casual cmployecs, then temporary employees and thcn probationary cmployees
shall be laid off in that order prior to thc layoff of any regular full-time or regular
part-time employees. _
Finally, the Hospital asscrts that the remaining provisions of articlc II provide support for its
interprctation. On the basis ofthc foregoing, the Hospital asks that questions one and three be
answercd in the negative. The Hospital relies on: The Corporation of the Citv of Hamilton,
released July I, 1991, unreported (Gorsky); rev'd at (1997) 33 O.R. (3d) 5 (Ont. C.A.); Western
Grocers. Division of West fair Foods Ltd. (1989), 6 LAC. (4th) I (M. H. Freedman); Ontario
Produce Co.. Oshawa Foods Division of Os haw a Grouo Ltd. (1991),22 L.A.C. (4th) 274
(Haefling); York-Finch General Hospital (1993), 32 LAC. (4th) 326 (H. D. BroWn); The
Toronto Hospital (Toronto Western Division). released October 12, 1993, unreported (M. V.
Watters); Canadian Technical Taoe Ltd.. released Oetober 12,1994, unreported (Rayner); and
Camp Hill Medical Centre (1996), 53 LAC. (4th) 314 (E. K. Slone).
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Decision
The parties' views as to the meaning of article II diverge considerably. On thc
one hand, the Hospital asserts that absent some reduction in hours of work or a temporary or
permanent discontinuation of employment by an individual employee article 11.02 does not
apply. The Association, by contrast, appears to suggest that, provided there is a reduction in the
volume of work perfomled by thc bargaining unit as a wholc, any consequent impact on
employees must be filtered through the language of the lay-offprovisions. With respect, I am
unable to aecept either of these interpretations.
In my vicw, thc focus of the lay-off provisions, bcyond articlc 11.01 at least, is on
individual bargaining unit mcmbcrs rathcr than" on the bargaining unit as a whole. Article I 1.0 I
accords the Association certain rights with respect to "the development of any operating or
restructuring plan which rnay affcct thc bargaining unit". Article 11.02, by contrast, provides a
definition ofthc tcmllay-offin preface to rights which depend upon consequences to individual
employees. This is consistent with the theory that the occurrence of a lay-off depends primarily
on what happens to employees, not on whether there has been an overall reduction in bargaining
unit work.
The purpose oflay-offprovisions is to protect individual employees from various
employment-related losses consequent upon changes to the quantity or nature of work performed
within the bargaining unit. However, employers are entitled to seek to limit the effects of such
changes by reorganizing the way in which the remaining work gets done. Unl~ss employees are
affected in a particular way, the individual rights conferred by the lay-off provisions do not
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apply. The result is that whether an individual employee will be entitled to exercise the seniority
and other rights set out in the lay-off provisions may dcpend upon how successfully the employer
has mediated at an individual level the effects of a loss of work at the bargaining unit level. The
mere fact that there has been a loss of work to the bargaining unit and some impact on employees
does not mean that a la:y-offhas occurred; whether it has or not depends upon the preeise nature
of the impact and the language of the collective agreement.
Under this collective agreement the Association is entitled to participate with the
Hospital in a process that may obviate the need for lay-offs or that may limit their effects:
articlcs 11.01 and 11.02. Dcspitc its appearance at the beginning of the lay-off and rccall
provision, however, artic1c 11.01 docs not purport to indicate whether the balance of the lay-off
provision will apply. Articlc 11.0 I serves as a sort of early warning system, enabling thc
Association to participate in the development of any opcrating or restructuring plan whieh mav
affect the bargaining unit. The fact that article 11.0 I applies says nothing about whether an
individual employee will bc cntitled to exercise her seniority rights - that depends upon whether
the employee has been "laid-off'.
The Association relies, however, on a deeision of arbitrator Hinnegan in Domtar
Chemicals Ltd., supra. In that case, following a seasonal reduction in the employer's surface
operation, the grievor was removed from his job as a warehousemen and "transferred" to an
underground position in the classification of miner. Relying on a provision of the collective
agreement which gave employees the right to exercise seniority in the event of a"... lay-off of
more than five (5) days or a reduction of work o(more than five (5) days ...", the grievor
claimed the right ~o burnp into a different classification on the surface. The employer denied this
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rcquest on the footing that thc provision only applied in the event of an overall reduction in the
workforce. Noting the use of the disjunctivc in thc relevant collective agreement provision, the
arbitrator concluded that the first part of the artiele was meant to apply to a reduction in thc
workforce in the entire mine while the latter was meant to embrace a rcduction in the workforce
in a particular area. On that basis, the arbitrator held that even though there was no overall
shortage of work (and even though there was a "vacant" position underground into which the
grievor could have been placed), the grievor was entitled to bump into other classifications on the
surface.
Accepting thc merit of the Domtar Chemicals Ltd. dccision, the lcsson to be
drawn from it is not that cmployees arc entitled to cxercise their scniority in thc event of any and
all changcs brought about by a loss o(work, but that they may do so in respcct of ~ changcs;
the question is, which ones. In Domtar, the grievor was displaced (albeit temporarily) from his
existing classification and was reassigncd to another, less desirable, elassification. Whilc this
finding may support thc Association's position in rcspect of Ms. Hodgins, it does not address the
circumstances of Ms. Moe.
In determining whether individual employees are entitled to exercise their
seniority rights under this collective agreement, I an1 equally unable to accept the Hospital's
assertion that they must "go out the door" for some or all ofthe working day. The presence of
the word "includes" in article 11.02 means that the definition is inclusive rather than exclusive.
(In so stating, I rej ect the Hospital's assertion that the word "includes" should be read as "means
and includes". This interpretation was based on a decision of the British Columbia Supreme
Court dealing with the definition of the word "hospital" in an insurance contract: Penn
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(Guardian ad litem of) v. Canada (Attomev General) (1995), 34 C.C.L.I. (2d) 55. Howcver, the
Court's approach to the word "includes" in that case depended entirely on the presence ofthc
word "means" and the words "does not include" in other portions of the definition. Obviously,
there is no such language here and no reason to give the word "includes" anything other than its
ordinary non-exhaustive meaning.) As a result, I can see nothing in the language of article 11.02
that would restrict the meaning of the word "lay-off' to the two events specifically mentioned.
Nor is there any basis for adopting such an ihterpretation in the languagc ofthe
predecessor agrcement or in thc remaining provisions of this agreement. Article 11.01 of the
previous agrecmcnt suggcsts only that the parties may have considered a reduction of working
hours to bc diffcrcnt from a lay-off; it does not indicatc what the word "lay-off' was intendcd to
mcan nor does it suggcst what the parties intended when thcy abandoned an exclusive, and
adopted an inclusivc, approach to thc definition. Similarly, thc fact that articlc 11.03 of the
current agreemcnt (thc provision which requires lay-offs to procced in accordancc with seniority)
refers to cmployees entitled to ."remain" begs the question: "remain in what - employment, hours
of work, classification, duties, etc.?" (Indeed, if this argumcnt were accepted it would also
appear to undermine the other spec.ifically mentioned form oflay-off - "reduction in hours of
work"). Finally, the fact that some of the rights created by the article may only apply to
employees who are no longer actively employed does not mean that the balance ofthe rights
were not intended to apply to other circumstanees.
Indeed, far from supporting the Hospital's assertions of a unilateral entitlement to
reduce an employee's classification in the event of a loss of work, the remaining provisions of
article 11 suggest the contrary. Thus, among the purposes of article 11.04 appears to be the
18
preservation of the availablc work to the senior employees in the classification affected. In the
case of short-term lay-offs, the parties have seen fit to give the word "classification" an expanded
meaning; in the case of long term lay-offs, employees are accorded bumping rights against junior
employecs in the same or a lower-rated classification. Similarly, in a recall situation, articles
11.05 and 11.07 provide for a right ofretum to the position or classification originally held. In
my view, these provisions recognize that lay-offs will be identified, and bumping will proceed,
on a classification basis - an approach which is entirely at odds with the Hospital's claim to be
able to reduce an employee's classification unilaterally in the event of a loss of work.
The Hospital asscrts, however, that implicit support for its position can be found
in articlc 12.03 (which cntitles employecs who havc been "transferred" or "demoted" to a lowcr-
rated classification to rctain their cxperiencc level for purposes of placemcnt on the ncw wagc
grid). I disagree; the purposc ofarticlc 12.03 is to provide employees with a limited form of
wage protcction in the event of a "transfcr" or "demotion" to a lower-rated classification.
However, thc articlc says nothing about the circumstances in which that may occur and whethcr
the purported reduction of an employee's classification for a lack of work would be included.
Furthcr, even if such circumstances were to be included, the article does not state that article II
cannot apply to the same events.
The Hospital also points out, however, that the arbitral case law has often referred
to a lay-off as involving "a temporary severance ofthe employment relationship (in the narrow,
technical sense of that phrase) for the purpose of reducing the employment force in order to meet
the manning requirements of the employer" (Northern Electric Co. (1971),23 L.A.C. 104
(Weatherill)); or as equivalent to "... any period during which employees are required to cease
19
working that includes bcing sent home from work as little as 15 minutes before the end of a
rcgular working pcriod" (Vaunclair Purvevors Ltd. (1963), 13 L.A.C. 369 (Arthurs)). White the
Hospital is correct in this assertion, it is important to look beyond the surface of the transaction
(or the labcl that the employer has chosen to apply to it) and examine the substance. In this
regard, a review of some additional authorities relied on by the Hospital is instructive.
In Westcrn Grocers. Division of West fair Foods Ltd, supra, a board of arbitration
chaired by M. H. Freedman was asked to address the following question:
Under thc terms ofthc Collective Agreement, what limits arc therc on the
Company when reducing the workforcc in the warchouse in assigning thc
rcmaining work to the rcmaining workcrs with respect to the assignment to:
(a) a diffcrent shift;
(b) a diffcrent location; or
(c) a different classification.
In particular, is therc an obligation to allow senior workers to remain on the shift
of their preference by moving them to other jobs in the same classification at
different locations currently occupied by junior employees or by moving them to
jobs in different classifications currently occupied by junior employees?
The evidence in that case indicated that employees affected by the workforce
reductions were given one of three kinds ofnotiee: (a) two weeks notice oflay-offfrom their
position and an entitlement to bump the most junior employee on the seniority list; (b) two weeks
notice oflay-offwith no right to bump; and (c) "reassignment" to a new shift within the same
classification. Although much of the award dealt with the first two types of notice, the board
addressed the third type as follows:
20
Those persons who are dealt with in the Type C notices were reassigned
from particular shifts at particular locations to othcr shifts at the same or at
differcnt locations. They retained their classification and they retained
their pay.
We believe that such assignments are within the Company's prerogativc
and that, subject to the express provisions of the Agreement, the Company
has the right, consequential upon a lay-off, to reassign persons to different
shifts ~t the same or at a different location. .
When reducing the work-force in the warehouse the Company may assign
remaining work to remaining workers, so long as it does so in conformity
with the management rights clause (and not in contravention of the
restrictions in the management rights clause), with respect to shifts and
locations as the Company in its judgment thinks appropriate (and subject
to the Agreement). However, assigning remaining workers to lower
classifications effectively constitutes a lay-off, giving those persons the
right to bump.
So long as persons are not in fact or constructively laid offin a manncr
which advcrsely affects their classification or pay, wc do net see thc
Conlpany's rights constrained in respect of shift or location in terms of
assigning workers (subject to the other express provisions of the
Agrccment, for example art. 6(c)). The incidents of the job that, in this
contcxt, are relevant, are classification, pay, shift and location. Acts of the
Company affecting the first two are almost certainly going to run afoul of
the Agreement, as those two incidents are negotiated expressly, and
objectively set forth in the Agreement. But the.incidcnts of shift and
location, except where express reference thereto is made in the Agreement,
are not part of the job and so long as it conforms to the other parts of the
Agreement the Company may move its work-force around, both as to
hours and place by way of reassignment. (p. 18)
In concluding that there are four incidents of a job that may be relevant in the context of a
workforce reduction and that, absent specific language is the colleetive agreement, lay-off
provisions are intended to protect only two ofthem (ie. classification and rate of pay), the
arbitrator has drawn a useful distinction. Classifications (and their corresponding rates of pay)
are fundamental incidents of the unionized employment relationship and provide the basis around
which much of the collective agreement, if not also the performance of bargaining unit work, is
21
organized. Except in exceptional circumstances (such as the unilateral "transfer" of employees
from Toronto to Kingston that was found to qualify as a "lay-off' in The Crown in Right of
Ontario (Ministry of Health), supra), the same cannot typically be said of the "whcre" and
"when" of an employee's work.
The Hospital notes, however, that the management rights clause in Western
Grocers, supra, unlike the corresponding clause in the present agreement, made no rcferencc to
thc employer's right to "demote" or "classify" employees. While that may be true, the absence
of thosc words formed no part of the reasoning of arbitrator Freedman; rather, that reasoning
proccedcd cntircly on the basis ofthc principles outlined abovc. Moreovcr, the Hospital's
asscliion simply invites an analysis of what is mcant by the tenus "dcmote" or "classify". In my
vicw, thc word "demote" carrics a perfoITnance or, perhaps, discipline-relatcd connotation; it
would not normally bc thought to cmbrace a unilateral change to an crnployce's classification for
reasons that havc nothing to do with the employee and everything to do with a lack of work.
(Indeed, that may explain why the Hospital chose to describe Ms. Hodgins' changc in status as a
"reclassification" rathcr than a "demotion".) As to thc presenee ofthe word "classify", I note
that it is unaccompanied by the word "reclassify" and that to "classify" an employce is typically
what the employer does when an employee is hired: changes to an employee's classification
usually attract other labels and consequences. Finally, it is perhaps trite to observe that all ofthe
rights recognized in the rnanagement rights clause are subject to the remaining provisions of the
agreement, including article 11.
22
Thus, while the language of the management rights clause (as well as the other
findings in Western Grocers) may support a conclusion that a legitimate "transfer" or
reassignment of duties to an employee within her cxisting classification may not attract the
application of the "lay-off' provisions, the same cannot be said of a unilateral reduction to an
employee's classification brought about by a lack of work in the employee's existing
classification.
The Hospital also referred to Ontario Produce Co., supra. In' that case, arbitrator
Haefling concluded that the closure of one facility and thc "transfer" of 54 employees to
vacancics created and posted at another facility was not a "lay-off'. After refcrring to the general
approachcs to thc dcfinition of lay-off sct out above, thc arbitrator concluded that cmployecs
whosc scrviccs havc been retained are not laid off:
On the basis of the facts as stipulated in the instant case, there is no doubt
in my mind that the company's action in creating and posting 54 vacant
positions was a reasonable and legitimate exercise of a management
prerogative, and that those full-time positions were permanent jobs which
were filled in accordance with the provisions of art. 13 of the collective
agreement, save and except that in one instance referred to by the union a
vacancy created by the appointment of one applicant was then not posted
but filled by the company's selecting the most senior employee from the
Towers group. (However, although the union would have been aware of
the circumstances that situation was, understandingly, never the subject of
a grievance.) While there may be cases involving particular collective
agreement language and circumstances which could create exceptions, the
common view is that situations involving legitimate transfers of
employees are to be distinguished from a lay-off situation. In Brown and
Beatty, for example, the authors note that "where, owing to the availability
of other work which the employee could perform, he or she is assigned to
a job on a different shift or location, or to ajob in a different classification,
and his or her services are thereby retained, arbitrators have generally
taken the view that the employee has been transferred rather than laid off'
(at para. 6:2200). That result is also suggested by the various cases cited
in support ofthe company's position here. While the situation to which
< 23
the grievance here is addressed may have produced other changes or becn
differently characterized, but for the fact that the company was able to
create 54 new full-time positions, I am unable to find that the employecs
in question were laid offby the company, or that the cessation of the
opcration through the closing of the Towers warehouse was a
circumstance which caused a lay-off when the individuals were transferred
to other shifts and loeations. There was nothing stipulated to suggest that
there was any gap in employment whatsoever. The key facts are that those
persons were never without work or jobs and as a result would have no
significant loss of earnings potential. In the result, having reached that
conclusion, I find that, notwithstanding vigorous representations made by
the union, the grievance here cannot be sustained, and it is hereby
dismissed.
It is unclear from the foregoing passage, and from the dcscription of the facts,
whcther any cmployecs were unilaterally assigncd to lower-ratcd classifications or whether they
wcrc simply transfcrrcd to diffcrcnt positions and locations within thcir cxisting classifications. I
notc, howcvcr, that thc arbitrator rccords company counsel as having assertcd that "none of the
employces lost a job or lost any hours or camings" - a proposition that would not typically bc
true of an employec whosc classification had bcen rcduced. To the extent, howcvcr, that the
arbitrator (and, indeed, thc rcfcrenccs from Brown and Beatty) may bc read as going furthcr and
suggesting that a unilateral reduction to an employee's classification and ratc of pay consequent
upon a loss of work cannot amount to a lay-off, I would respectfully disagree.
The Hospital also relied on York-Finch General Hospital, supra. In
that case, arbitrator H. D. Brown concluded that the employer did not breach the lay-off
provisions of the collective agreement when, as a result of the closure of 42 beds, it transferred
15 full-time and 19 part-time nurses to existing vacancies The arbitrator stated:
24
The initial issue to be determined by the board is whether in the
circumstances of the closure of Quadrants 5A and 5B and reduction of 42
beds in the hospital thereby, that there was a de t:'lcto lay-off which should
have been declared by the hospital. It is only in such an event that art.
10.07(a) would be applicable which would then raise the issue of the
extent of the application ofthose terms in the manner of the displacement
procedure allowed. The grievances allege that the hospital effected an
improper lay-off contrary to the terms of the collective agreement.
Clearly, the hospital did not declare a lay-off of any nurse in the hospital at
this time. The hospital gave notice of an indefinite extension of bed
closures on 5a and 5b. The evidence is that this bed reduction affected 34
nurses who had worked in those units. It is the evidence that none of those
nurses were given notice oflav-off and none lost anv time of emplovment
or reduction in wages and benefits for anv time as a result of the closure of
these units. The evidence indicates that at the relevant time there were job
vacancies in the hospital some of which had been posted and some had
been advertised outside the hospital, but in circumstances of a shortage of
nurses in the area the vacancics had not, through these procedures, been
fillcd. Thercfore, there wcrc sufficient position vacancies throughout the
hospital to accommodate the nurses affected by the closure of Quadrants
5a and 5b. Thcrc is no dcfinition of"lay-off' in thc eollective agreemcnt.
Ifa lay-off occurred it would have rcsulted from thc closure of two units in one
department and not throughout the hospitaL In order to require a declaration of
lay-off in those circumstances thc collcctive agreement would bc required to
provide that a reduction in staff on any unit or department ofthe hospital would
be considered a lay-off for the purposes of art. 1O.07(a) which would then bc
applicable even though the hospital had not reduced the numbers of employees in
the bargaining unit. Without such a specific definition that concept is contrary to
the general principles applied by arbitrators in defining a lay-off as a situation
which involves a temporary suspension of an employment relationship of
employees as a result of a shortage of work. (emphasis added)
Although referring to the general definitions of lay-off set out above, the conclusion reached by
the arbitrator is entirely supportable on the more narrow ground that no employee suffered any
reduction in classification, hours of work or rate of pay; rather, the only changes were to the
employees' work locations and, perhaps, duties.
25
These and other authorities were carefully reviewcd by arbitrator M.V. Watters in
Thc Toronto Hospital (Toronto Western Division), released October 12, 1993, unreported. In
that case, the employer chose not to apply the Jay-off provisions of the collective agreement to
the closure of a pavilion affecting 12 full-time and four part-time nurses. The facts indicated that
no nllrse lost her job or lost any hours of work or earnings; instead, the nurses were simply
transferred to other units within the hospital. Before concluding that the single nurse that grieved
had not been laid-off, the arbitrator reviewed a number of awards, including an earlier decision of
arbitrator Haefling in V.S. Services Ltd. (Food Management Services), dated February 17, 1989,
unreported. In that case, arbitrator Haefling found that the elimination of three positions and the
conscqllcnt "transfcr" of one of the affccted employees to a lower-ratcd classification amounted
to a lay-offnotwithstanding that no employee had bcen "put on thc strcct". The arbitrator stated:
While the present case factually could lead to a conclusion or at least an
inference that thcre was no lay-off, since no cmployee was left out of ajob
or "on the strcct" at thc end of the process, in my view to analyze the
circumstances hcre so as to reach that result would mean looking through
the wrong end ofthc telescope. That is, an attempt is made to define the
circumstances and the process by examining only the net result, which in
this instance was brought about by the parties' understandings of what was
appropriate and reasonable in the circumstances. Rather, in my opinion, as
in many other layoff cases, the analysis more properly begins with an
assessment of the "triggering events", that is, the facts and circumstances
which precipitated and necessitated moving one or more employees. In
this case, the emphasis must be on the fact that, inter ali;b the three Cook I
positions were eliminated.
In distinguishing V.S. Services Ltd. from the faets before him, arbitrator Watters noted that in
V.S. Services Ltd:
26
... there was an overall loss ofh<>urs to the members of the bargaining
unit, particularly those of part-time employees. Additionally, a number of
full-time employees, including the grievor, were assigned to lower-rated
classifications.
And, further, that:
[i]n the V.S. Services Ltd. award, the parties were not really at odds as to
whether a lay-off occurred. A reading of the award discloses that they both
initially treated the situation as giving rise to a lay-off. While no employee
was "out the door" as a result of the Employer's aetions, there was a
rcduction in the workforce through a loss of hours. Additionallv. certain
emplovees were assigned to lower-rated classifications. This Board is
satisfied that this sort of effect is consistent with a lav-offboth under the
prevailing iurisprudence and the terms ofthc collective agreement in that
casc. For this rcason, that award is clearly distinguishable from the present
grievance. (emphasis added)
In the result, no such cffccts having been suffercd by thc gricvor, and applying thc gencral
approach to the definition of lay-off sct out abovc, arbitrator Wattcrs concluded that the gricvor
had not been laid off.
The Hospital also referred to Canadian Technical Tape Ltd., dated October 12,
1994, unreported (Rayner). In that case, a workplace reorganization led to the elimination of the
grievor's non-classified job and his transfer to another non-classified job. The grievor
challenged the "transfer" as a "lay-off' and claimed the right to bump into other jobs. In
rejecting the argument that the grievor had been laid-off, the arbitrator noted, among other
things, that the grievor experienced no reduction in classification.
The Hospital also relied on a decision ofthe Court of Appeal in Comoration of
the-City of Hamilton and C.D.P.E. Local 167 et. at" (1997),33 O.R. (3d) 5. In that case, the
27
Court quashed that portion of an arbitrator's award that had required the employer to "red-circle"
the wage rate of an employee whom it had placed into a vacant position in a lower-rated
classification after contracting-out the work that had been performed in his existing
classification. While the Court appeared to acknowledge the employer's ability to "transfer" or
"demote" an employee in the face of a clause restricting lay-offs resulting from a contracting-out,
the issue was not before it; rather, the question decided by the Court was whether the arbitrator
exceeded his jurisdiction when imposing the red-circling requirement after reinstating the
employee who had been discharged for refusing to accept the reassignment.
Having regard to all of the foregoing, I am satisfied that the removal of an
cmploycc from her cxisting classification for rcasons of a lack of work triggcrs the application of
the lay-off provisions of the collective agreement. Accordingly, thc answer to the first qucstion
is "yes". However, if the Hospital is ablc to find other work for an employee to pcrform within
her existing classification, articlcs 11.02 and following would not appear to be apply.
The Association asserts, however, that Ms. Moe's transfer to the core lab was not
bona fide because lay-offs had also taken place within that lab and because the transfer was not
effccted in accordance with the job-posting provisions of the collective agreement. Taking these
points in the reverse order, the evidence does not establish that the Hospital inserted Ms. Moe
into a vacancy that should properly have been posted but, rather, that the hours assumed by Ms.
Moe (which formed part of a position held by an employee who had become seriously ill) had
not yet coalesced into a "vacancy". In the absence of the incumbent, the work in question had
been and continued to be carried out under various short-term arrangements and (perhaps for
compassionate reasons) the parties do not appear to' have considered that a "vacancy" had yet
28
arisen. (Indeed, as matters developed, Ms. Moe only performed those duties herself for a short
time before returning to microbiology to fill in for a siek leave in that location.) Hencc, the
Hospital does not appear to have substituted a failure to comply with article 12 for a failure to
comply with article II. As to the first point, the evidenee docs not establish that anyone was
laid-off, in effect, in Ms. Moe's place. While lay-off notices had also been issued in the core lab
(to employees junior to Ms. Moe), these were for other reasons and no one was displaced by Ms.
Moe's arrival; rather, and prior to Ms. Moe's lay-off notice taking effect, the Hospital was able to
find sufficient work for her to perform within her existing classification as a result of the
circumstanccs idcntified above.
Accordingly, I find that Ms. Moe was not cntitled to exercisc thc rights eonferred
by article 11 and, therefore, thc answcr to the third qucstion is "no".
Ollestion #2: 'What ril?:hts was Lvnn Hodr!'ins entitled to exercise. ifanv?
Pursuant to article II, the Association asserts that Ms. Hodgins was entitlcd,
among other things, to:
. be informed of the development ofthe re-structuring plan;
. know the reasons for the re-structuring;
. be kept informed of what the Hospital was intending to do from the beginning
of the re-structuring right up to its final phases;
. be advised ofthe services that the Hospital intended to undertake after the re-
structuring;
· participate in the planning ofthe method of implementing the re-structuring;
. participate in the process for re-allocating hours of work;
. be informed of any new vacancies;
. receive any additional training;
. be laid off in accordance with her seniority and regular full-time status;
29
. displace all or part ofajunior employee's hours of work or duties;
. be recalled to her former position in aceordance with seniority.
About this list, three things need to be said. First, many of the rights set out in the
list are properly those of the Association, not the affected employees. Indeed, this would appear
to be true of all but the last five items - the first two of which also require the taking of steps by
the Association (see article II.04(b)(v)). While the intended beneficiaries of the rights conferred
on the Association may be individual employees, it is the Association that is charged with their
exercise, not the employecs.
Sccond, included within this list is a claim to training. However, no such
cntitlcmentappears to bc set out in thc collcctive.agrecmcnt. Rather, article 11.03, which
requires lay-offs to proceed in accordancc with seniority, spccifies that in ordcr to remain
employees must be "willing and qualified to do the work which is available". Similarly, articlc
11.04(b)(ii) requires that employees exercising bumping rights must be able to "perform the
duties of the lower or identical paying classification without training other than orientation".
While the dividing line between training and "orientation" may sometimcs be difficult to locate,
it is nonetheless reaL Hence, it would appear that employees do not have the right to insist on
"training" in a lay-off situation unless the Hospital and the Association provide for it in the
planning process: see articles 11.02(b)(iii) through (v). Whether the parties choose to do so or
not may depend upon a variety of factors, including the availability ofHST AP or other sources
of funding and the direction in which the Association believes that its efforts are best expended.
30
The third issue that arises out of this list forms the subject matter of question #5.
Accordingly, it will be dealt with undcr that heading below.
Apart from the foregoing, the remaining rights appear to reflect the language of
the collective ag,eement and no issue was taken with them by the Hospital.
Ouestion #4: Hthe answer to Question #3 is ves. what rie-hts was Janice Moe entitled to
exercise. if anv; specificallv. was Janice Moe entitled to bUinp the .5 FTE of microbiologv
hours bcine- performed bv Lise-Rov Girard?
Thcse questions assume thc existcnce of an affimlative answcr to qucstion #3,
which has not becn provided.
Question #5: Is an emplovee who is in receillt ofa lav-offnotice entitled to bump a Ilortiolil
of a iunior emlllovee's hours of work or duties?
The Association submits that the right to bump a portion of a junior employee's
hours of work or duties resides in two places: articles 11.02(b)(iv) and 11.04(b)(ii). Thc only
differcnce between these rights, according to the Association, is that under article 11.02 the
Hospital and the Association can agree on the location of the bump, while under article 11.04 the
employee has the right to choose.
Fundamental to the Association's position is the assertion that the employees in
question "work as FTE's"; that is, that their activities are measured and definable by work
location and one-tenths of a job. (Thus, for example, a single full-time employee might be
understood as "being" or as "having" a ".5 FTE in micro" and a ".5 FTE in pathology".)
31
Although the "FTE concept" is not expressly identified in the collective agreement, the
Association submits that it is "contemplated" in the definition of "part-time employees" in articlc
3.03. In support of its assertions the Association refers to article 11.03 (the provision that
rcquires lay-offs to proceed in accordance with seniority) and notes that senior employees need
only be able to perform "the work" (not the "position") which is available. Similarly, the
Association points out that articlc 11.04(b)(ii) refers to the employee's ability to perfoml "the
duties of the lower or identical paying classification", not the "whole classification". The
Association submits that these distinctions support the entitlement of employees to bump part of
ajunior cl11ployee's hours of work or duties and, if the Hospital does not believe that it is
operationally fcasible for an employce to do so, the Hospital can "prove it" as part of the
planning process.
Thc Hospital submits that the right to bump only a portion of a junior cmploycc's
hours of work or duties does not cxist in thc collective agrcement. Pursuant to Article 11.04(b)
an cmployec who is subject to long-term lay-offis entitled to displace "an employee", not a
portion of the employee's hours of work or duties. As for the Association, the Hospital appears
to submit that its right to participate in the planning ofrevised work schedules does not extend to
insisting in the case of disagreement nor does it include anything other than a voluntary reduction
in hours. Further, to suggest that the Hospital is required to show some operational unfeasibility
in order to prevent an employee from bumping a part of another employee's job is, according to
the Hospital, to turn the rnanagement rights clause on its head: it is up to the Association to
establish the existence of any such right; it is not up to the Hospital to demonstrate that its
creation or assertion is irnpractical in the cireumstances. In support ofthese propositions, the
Hospital refers to Centenary Hosoital (1991) unreported (McKechnie); B.C. Institute of
32
Technology (1991), 21 L.A.C. (4th) 269 (Munroe); Sunworthv Wall coverings (1993) unreported
(Brandt); Svndenham District Hospital (1994) unreported (Abramsky); and Ottawa General
Hospital (1997) unreported (Lavery).
I agree with the Hospital's submission that absent specific language in the
collective agreement an employee's right to bump extends only to the entirety of another
employee's job, not to a portion of the employee's hours of work or duties. In my view,
"bumping" involves displacing an employee from her work, not displacing a portion of that work
[rom the employee.
Indeed, a similar issue appears to have arisen rccently before arbitrator Lavcry in
Ottawa Gencral Hospital, supra. In commenting on thc right of cmployees in that casc to
"displace an employee" in the event of a lay-off, the arbitrator statcd:
The employee subject to layoff must displace "an employee who has lesser
bargaining unit seniority and who is the least senior employee in a lower
or identical paying classification in the department, if the employee
originally subject to layoff can perform the duties of the lower or identical
classification without training other than orientation". Ifthere is a position
in such classification in the department occupied by an employee who has
lesser bargaining unit seniority than the employee subject to layoff and
who is the least senior employee in said classification, then the employee
subject to layoff must bump into that position ifhe is qualified to perform
the duties ofthat position. He has no other choice but that position. The
emplovee subiect to lavoffmust further accept the displaced employee's
scheduI6'integrallv. He cannot accept onlv part of the displaced
employee's schedule. Nothing in the agreement allows him to do such a
thing. The only caveat to this principle is provided in article 13.02 of the
collective agreement. Under that article, the employer and the union may
agree, as part of the method of implementation of the layoff, to allow
employees subject to layoff to bump in only part ofthe displaced
employee's schedule. But in the abs.~nce of such agreement, an employee
+- ..,
33
must accept the displaced employee's schedule in toto. (emphasis added)
(page 14)
In my view, the same holds true under this agreement: the right aecorded employees (as
contrasted with what may be tl1e output of rights conferred on the Association) is to displace "an
employee". This means displace "an employee's schedule integrally", it does not mean displace
only part of it. In other words, the "bumper" must be able to step into the shoes ofthe "bumpee",
not just one of them. The fact that the parties in this workplace may be able to quantify
employees' activities in fractions ofajob confers no higher rights, nor are such rights to be found
in, or supportcd by, the language of article 3.03.
However, that is not the end of the mattcr. As pointcd out by the Association,
article 11.02 expressly contemplates that the parties will work together towards a similar
outeome. Unlikc, for example, the collective agrcement that was before arbitrator Lavery, where
the possibility for reaching agreement rested solely on the union's right to "review" the mcthod
of implementation, under this agreement the Association has the right to "plan" the method of
implementation and "revised work schedules, including the reallocation of hours of work .__ with
due regard to seniority". In my view, this entitles the Association to sit down with the Hospital
as a co-participant or joint actor in a process that has as its objective the shifting of work and
hours of work from one employee to another in aecordance with seniority. As a result,
essentially the same objective rnay be achieved through the planning process as was claimed by
the Association to exist as part ofthe individual bumping process. The difference is that the
right of a senior employee to assume part of a junior employee's hours of work will depend
entirely upon what the parties have negotiated.
34
Obviously, operational concerns will be neither an irrelevant nor subsidiary part
of this process, and the Hospital will not be required to "prove" anything. Rather, the parties
must work together towards achieving a schedule that will enable the remaining work to get done
with "due" (not exclusive) regard to seniority. How this exercise will play-out in a given case
and the factors that will properly be considered are matters best left to the future. For present
purposes it is sufficient to note that the Association can insist on the proeess occurring (and, on
the well-known principle that there is no right without a remedy, will not be powcrless in the face
of disagrecment) and that the object of the exercise is to find ways to reallocate hours of work
among employces with duc regard to seniority. Thus, while individual employees do not have
thc right to bump only part of ajunior cmployce's hours of work or duties, thc Association has
the right to pursue cssentially thc sanlC objectivc in the planning process.
Strictly speaking, therefore, the answer to question #5 is "no". However, the
Association lias the right under article 11.02(b) to plan, togcther with the Hospital, "revised work
schedules including the reallocation of hours of work among full-time and part-time employees
with due regard to seniority". Hence, the same, or a substantially similar, outcome may be
achieved through this process.
Ouestion #6: Did the Hospital breach article 2.04 when it contracted-out work to the
provincial lab? If so, what remedies would have flowed from this?
As indicated in the facts under questions 1 and 3 above, the Hospital contracted-
out the performance of three microbiology tests to the public health lab in 1997. According to
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35
the evidence of Mr. Dernizio, this resulted in a "savings" (or a loss of work to the bargaining
unit) of. 7 FTE's. Thc Association grieved the contracting-out and the Hospital purported to
correct it by rcscinding the lay-off notice given to Janice Moe (.5 FTE) and substituting a
"transfer" to the core lab, and by rescinding the lay-off notice given to Irene Zaborowska, a .53
FTE junior technologist in microbiology, and substituting a "reduction of hours" notice to .2
FTE. As indicated previously, at least in the case of Ms. Moe, this was accomplished by the
Hospital taking advantage of hours that were made available, or had become available, in the
core lab at or about the same; in particular, through the reassignment of hours being performed in
respect of a .8 FTE position held by an employee who had become seriously ill. In the case of
Ms. Zaborowska, hours appear to have become available, at lcast initially, as a result of a sick
lcavc in microbiology. In thc result, while thc Hospital did not rescind the contracting-out, it did
rcstore to two ofthc employecs affected by it.7 FTE worth of hours. On that basis, the Hospital
submits that no lay-offs occurred as a rcsult of the contracting-out and, therefore, that there was
no breach of articlc 2.04.
According to the Association, Ms. Hodgins, Ms. Moe and Ms. Zaborowska were
all laid-off and these were not the only employees who were responsible for performing the tests
in question. The Association also submits that at least some of the attrition on which the
Hospital purported to rely arose after the contracting-out and, further, that other employees were
laid-off in the core lab at or about the same .~me. The Assoeiation asserts that the Hospital is not
.
entitled to rely on lay-offs in the core lab to offset losses that arose as a result of a contracting-
out in microbiology. The Association relies on Sunnvbrook Health Science Centre. supra;
Regional Municipalitv of Ottawa-Carleton (1999), 9 LAC. (4th) 201 (Thorne); and Northern
and Central Gas Com. Ltd. (1972), 1 L.A.C.147 (Rayner).
.... ....
36
The obligations created by article 2.04 are simple to state but may be difficult to
apply. Article 2.04 does not prohibit contracting-out cntirely, but limits it to situations in which
no lay-offs result. In order to determine whether article 2.04 has been breached, three questions
must be answered:
(I) has there been a contracting-out;
(2) have employees been laid off;
(3) were the lay-offs thc result of the contracting-out?
In this casc thc Hospital conccdes that thc answcr to the first qucstion is "ycs".
Approximatcly.7 FTE worth of tests pcrfomled in microbiology were contracted-out to the
public hcalth lab in 1997.
Thc sccond question has becn answered, in part, above. The alleged lay-offs that
formcd thc subject mattcr of thc grievances in this case wcre:
(I) the elimination ofLynn Hodgins' position as a senior technologist and her
"reclassification" to the position of junior technologist;
(2) the transfer or reassignment of duties to Ms. Moe from her position as a .5
FTE junior technologist in microbiology to a .5 FTE junior technologist in the
core lab; and
(3) the initial elimination of all hours of work and, later, the reduction in hours of
work ofIrene Zaborowska from .53 FTE to .2 FTE in microbiology.
In addition, I was advised that Debbie Parker, a full-time junior technologist cross-trained in
pathology who had expressed an interest in becoming part-time, accepted a .5 FTE reduction in
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37
microbiology. Thus, although the total losses in microbiology were equival~nt to 1.53 FTE, not
_ all of the losses werc attributable to the contracting-out. As indicated under questions I and 3
above, .8 FTE worth of the losses were the result of other factors. Nevertheless, and
notwithstanding that the full quantum of the losses were not attributable to the contracting-out,
the answer to the second question is "yes.".
The third question is whether employees were laid offas "a rcsult" of the
contracting-out. This involves cause and effect and, to some extent, a tracing function. In this
regard, I note that article 2.04, unlike the contracting-out provisions in many other collective
agrcements, docs not limit contracting-out to only those situations in which no employces are
laid-off as a "direct rcsult" ofthc contracting-out but limits it to situations in which no
employecs are laid-off as "a result" ofthc contracting-out. Thus, some indirect cffccts may bc
precluded by the articlc as welL
The lattcr point has meaning for Ms. Hodgins. According-to Mr. Demizio (and
Charlie Dickey, the Manager of Microbiology and Pathology), the principle reason for Ms.
Hodgins' "reclassification" was a reduction in the amount of supervisory work that she was
required to perform as a result of the loss of work in microbiology. In circumstances of a loss of
work (and a declining ')unior" to "senior" ratio), the Hospital believed that it could no longer
maintain two senior technologist positions in microbiology and, accordingly, eliminated that of
Ms. Hodgins. While some of the losses that led to this decision rnay have preceded the 1.53 FTE
in question, a significant component of the recent losses (almost 50 per cent) stenned from the
contracting-out. In the result, and quite apart from any question as to who performed the tests in
question, the contracting-out appears to have been a: substantial contributing factor to the
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38
climination of Ms. Hodgins' position and her consequent "reclassification". As I have found that
the "rcclassification" was, in reality, a lay-off, it follows that the Hospital breached article 2.04
when it contracted-out the tests in microbiology while reducing Ms. Hodgins' classification.
While, strictly spcaking, this would appear to be sufficient to answer the first part
of the question posed under this heading, the parties may wish to know that I would not have
found a breach of article 2.04 on any other basis. .7 FTE worth of tests were lost in
microbiology. The tests had been performed by a variety of employees, including Ms. Hodgins,
Ms. Moe and Ms. Zaborowska. I have found that Ms. Hodgins was laid-off and that Ms. Moe
was not; and, as previously indicated, I am not pcrsuaded that any other employec was laid off in
thc core lab, in cffcct, in "substitution" for Ms. Moc or bccausc of hcr arrival. Rathcr, it would
appcar that the Hospital was ablc to find sufficicnt work for Ms. Moc to pcrform in the core lab
duc to legitimate attrition. Furthcr, whilc it would appear that Ms. Zaborowska rcmaincd on lay-
off (in thc form ofa .33 rcduction in hours),.2 FTE worth of hours wcre restorcd to her.
Inasmuch as it was not suggestcd that Ms. Zaborowska pcrformed more than .2 FTE worth of the
tests or that any othcr employce was laid off as a result of the restoration of hours to hcr, it
cannot be said that any lay-offs (apart from Ms. Hodgins) resulted from the contracting-out.
As to the question of timing, the Hospital is entitled to take full advantage of any
and all attrition as and when it arises, so long as employees are not laid-off in the interim. In this
casc, the attrition in question appears to have been identified or arisen before the impending lay-
offs took effect and, despite Association counsel's best efforts, I am not persuaded that it was but
a "mirage" that obscured a darker, less permissible and perhaps more insidious reality.
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39
In the result, I find that the Hospital breached article 2.04 when it contracted-out
work to the provincial lab while placing Ms. Hodgins on lay-off from her position as a senior
technologist, but not otherwise.
The remedy that would have flowed from this would have been a cease and desist
order requiring the Hospital to retum the work to the bargaining unit, at least until such time as
the lay-off of Ms. Hodgins was rescinded, together with compensation for any losses suffered by
Ms. Hodgins in the interim.
Summarv
The answcrs to thc questions are as follows:
1. Ycs; Lynn Hodgins was cntitled to the benefits of articles 11.02 and
following when hcr senior tcchnologist position was eliminated and
she was "reclassified" to the position of junior technologist.
2. See the list and comments under heading #2 above.
3. No; Janice Moe was not entitled to the benefits of articles 11.02 and
following when her lay-off notice was rescinded and she was transferred or
reassigned from the microbiology lab to the core lab.
4. Not applicable.
5. No; however the Association has the right under article l1.02(b) to plan,
together with the Hospital, "revised work schedules including the
reallocation of hours of work among full-time and part-time employees
with due regard to seniority". Hence, the same or a substantially similar
result may be achieved through this process.
6. Yes; but only insofar as Ms. Hodgins remained on lay-off from her senior
technologist position. The remedy that would have flowed from this would have
been an order requiring the Hospital to retum the work to the bargaining unit, at
,
40
least until such time as the lay-off of Ms. Hodgins was rescinded, together with
compensation for any losses suffered by Ms. Hodgins in the interim.
Finally, I reiterate, in the form of a declaration, the Hospital's acknowledgment
that it breached article 11.01 of the collective agreement.
As all matters have been settled, there is nothing of which I can remain seized.
DATED at Toronto this 3rd day of June, 1999.
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Russcll Goodfcllow - Solc Arbitrator