HomeMy WebLinkAboutLadouceur/Union 21-07-30
In the matter of an Arbitration
Between:
Ontario Public Service Employees Union, Local 439
and
Brockville Mental Health Centre
(Member of the Royal Ottawa Health Care Group)
Grievance of Cindy Ladouceur and Union Policy Grievance
Andrew Tremayne, arbitrator
Appearances:
Emily Cumbaa, Jesse Isaac Gutman for the union
Marie-Pierre T. Pilon for the employer
Hearing held on February 10, March 12, and April 29, 2021 by videoconference
Award issued on July 30, 2021 at Ottawa, Ontario
2
Background and Introduction
1. This hearing concerned two grievances in which the union complained about
how the employer assigned 16 hours of overtime for January 18, 2020. The first
grievance was filed on behalf of Cindy Ladouceur, a full-time RPN who works
primarily in the Health Centre’s Forensic Treatment Unit (FTU). The union claims
that the employer should have assigned the last 4 hours of the 16 hours of overtime to
Ms. Ladouceur. The second grievance is a policy grievance that alleges that the way
that the employer assigned the overtime for January 18, 2020, did not comply with
the parties’ Collective Agreement. The parties agreed to consolidate the two
grievances.
2. The union argues that the parties’ Collective Agreement, which includes a
Memorandum of Understanding (MOU #7) that is directly relevant to the assignment
of overtime in this situation, required the employer to meet its requirement for the 16
hours of overtime by offering one 12-hour overtime shift and one 4-hour overtime
shift. Instead, the employer offered two 8-hour overtime shifts, which was improper
because there are no 8-hour shifts for RPNs. In the alternative, argues the union, if
this situation is not covered by the Collective Agreement and MOU #7, the Collective
Agreement requires the parties to meet and jointly develop a fair and equitable
method for distributing the overtime.
3. The employer resists the union’s interpretation of the parties’ Collective
Agreement and MOU #7 and argues that the Management Rights provisions of the
Collective Agreement allow it to create and assign 8-hour overtime shifts.
4. The outcome of these grievances turns on the interpretation and application of
the parties’ Collective Agreement, particularly MOU #7. For reasons which are set
out below, the grievances are dismissed.
Evidence
5. At the hearing, the parties called evidence about the employer’s scheduling
and overtime call-out process, particularly the steps that the employer followed when
it assigned 16 hours of overtime for January 18, 2020. As the hearing progressed, it
became clear that the parties’ dispute was less about the mechanics of that process
and more about whether the employer ought to have assigned the overtime as one 12-
hour shift and one 4-hour shift rather than two 8-hour shifts. The parties also called
some evidence about the employer’s past practice in assigning overtime and about
their understanding of the purpose of MOU #7. However, neither party argued that
the doctrine of estoppel should be applied or that the relevant terms of MOU #7 are
3
ambiguous. As a result, a brief review of the evidence to provide background and
context is sufficient
6. Ms. Ladouceur testified at the hearing. She has worked at the Health Centre as
a full-time RPN since 1999. She has held many leadership positions with OPSEU
Local 439 and is currently the Local President. Her home position is in the Forensic
Treatment Unit (FTU), but she has also worked in the Secure Treatment Unit (STU),
so she is qualified to work and eligible for overtime in both units. There is a 6-week
schedule, and all RPNs work 12-hour shifts. Full-time RPNs are scheduled for twenty
12-hour shifts over the 6-week period.
7. On January 18, 2020, Ms. Ladouceur was working a 12-hour shift from 07:00
to 19:00. Her co-worker NH was working an overtime shift from 07:00 to 15:00. At
some point, NH told Ms. Ladouceur that she (NH) had been asked if she wanted to
work another overtime shift from 15:00 to 23:00 and that she had accepted it.
8. Ms. Ladouceur understood that the reason for the overtime was a medical
order for the constant observation of a patient. She testified that this requires one
RPN to be with the patient at all times but that staff take turns, so it is a rotational
duty amongst the RPNs and does not need to be the same nurse for the entire time.
9. Ms. Ladouceur told NH that she should not be getting more than 12 hours of
overtime and that an RPN with more seniority should get the last 4 hours. It was an
amicable conversation, but Ms. Ladouceur was upset. She called the Scheduling
Clerk and told them about what had happened. She said that assigning more than 12
hours of overtime to NH was a mistake and that it undermined the Collective
Agreement. She said that NH could have the first 12 hours, but the last 4 hours should
go to another RPN by seniority. The scheduling person said that she would look into
it and get back to her. There was no change, and NH stayed for the full 15:00 to 23:00
overtime shift. Ms. Ladouceur may have also spoken to Ms. Hunter the following day
or the next day she was at work, and if she did, she told her the same thing that she
told the Scheduling Clerk.
10. Kevin Hudson, a long-service employee at the Health Centre, gave evidence
at the hearing on behalf of the union. Mr. Hudson served on the executive of Local
439 for many years and was the Local President for 8 years. In that capacity, he
helped negotiate the language governing hours of work and overtime in the parties’
Collective Agreement. He described the history and context that led to all shifts for
RPNs being 12 hours. Anything above a 12-hour shift, which is the normal scheduled
day for an RPN, is overtime. There are no regularly scheduled 4 or 8 hour shifts for
RPNs.
4
11. Mr. Hudson explained his interpretation of the relevant provisions of the
Collective Agreement, including MOU #7. The employer can offer up to 4 hours of
overtime to an RPN who is already working, but if more overtime is required, the
employer must offer those additional hours to others based on seniority.
12. Kate Hunter, the Manager of Central Scheduling and HR Systems, testified on
behalf of the employer. The employer has an automated call-out system for offering
additional shifts. The system “sits on top of” the employer’s regular scheduling
system, which is programmed with “rules” based on the terms of the parties’
Collective Agreement. The programming is done in conjunction with Labour
Relations.
13. All employees, including the RPNs, indicate their availability for overtime
using a form titled Staff Availability Form (ONA/OPSEU) that has been in use for
many years. Each form covers several pay periods, and employees cross off shifts for
which they are not available. Employees can indicate their availability for 4, 6, and 8-
hour shifts. Some staff are not interested in shorter shifts because of travel or child
care, so they can opt-out of being called for those. 4 and 8-hour shifts are common,
but Ms. Hunter could not recall a 6-hour shift ever being called out.
14. When there is a vacant shift, or a shift is created that needs to be filled, the
Manager contacts scheduling, tells them what is required, and the automated system
calls out the shift. In this case, the Manager asked for two 8-hour shifts. The system
offered the shifts at regular time to all RPNs who were not working and available
(i.e., not sick or on leave), but nobody accepted. The scheduling clerk contacted the
Manager for approval to call out the shifts as overtime, and the shifts were called out
again at overtime to all RPNs who were not working and available. This time, the
shifts were accepted. Specifically, NH was not working and was available for the first
8-hour shift from 07:00 to 15:00, and she accepted it. She was also not working and
available for the second 8-hour shift from 15:00 to 23:00, and she accepted that shift
as well. It was just a coincidence that the same person (NH) got both shifts.
15. Cheryl Purvis is a Manager in the FTU. She gave evidence on behalf of the
employer and described how the January 18, 2020, overtime shifts came about. On
January 14, 2020, she was informed that a patient in the unit needed constant
observation while awake (07:00 – 23:00) due to mobility concerns and to prevent
falls. This was a medical order and was to be in effect until early February, when the
patient was due for surgery. Constant observation, also referred to as “therapeutic
engagement” or “one-on-one” coverage, means that a staff member must be with the
patient at all times. This requires an additional RPN above the normally scheduled
complement of staff.
5
16. Ms. Purvis sent an email to Central Scheduling with this request for additional
coverage. At the end of her email, she wrote: “Please try to find coverage with RPNs
2 x 8 hrs or 1x12 hr & 1x4 hr.” She spoke with the Scheduling Clerk, who told her
that there was a higher probability of filling two 8-hour shifts than one 12-hour shift
and one 4-hour shift. Ms. Purvis recalled other situations when a 12-hour shift and a
4-hour shift were called out, and the 4-hour shift was left unfilled, which meant the
unit was short-staffed for 4 hours.
17. Ms. Purvis testified that in this situation, where one patient needed constant
observation while awake, leaving the unit short staffed would have caused safety
concerns. She wanted to offer shifts with the highest probability of being filled, so she
decided on two 8-hour shifts.
18. The shifts were called out from January 14 to February 5 as an 8-hour shift
from 07:00 – 15:00 and another 8-hour shift from 15:00 to 23:00. At the hearing, Ms.
Purvis reviewed documents and confirmed that for the day in question, January 18,
2020, the shifts did not get filled at regular time. The Scheduling Clerk called her to
approve overtime, which she did, and the shifts were called out at overtime and
accepted.
19. Ms. Purvis gave several other examples of situations where additional staffing
was required beyond the normal master schedule. Patients sometimes have
appointments in the community or visits home and must be accompanied by staff.
These usually require a 4 or 8-hour shift because that is enough time for the
appointment or visit, and a full 12-hour shift is unnecessary.
20. Alicia Bouchard, Manager of Labour Relations, also gave evidence on behalf
of the employer. She explained her interpretation of MOU #7. If less than 4 hours of
overtime are required, the employer can offer the hours to an RPN who is already at
work. Any requirement for 4 hours or more of overtime must be offered through the
call-out process and awarded based on seniority. Nothing in the Collective Agreement
would prevent the employer from scheduling a shift outside of the normal 12 hours,
nor is there anything preventing an employee from working more than 12 hours of
overtime, she says.
21. Ms. Bouchard testified that in this case, for January 18, 2000, when the first 8-
hour shift from 07:00 to 15:00 was called out at overtime, following the availability
list, NH accepted it. The second 8-hour shift for that day, from 15:00 to 23:00, was
called out at overtime, following the availability list, and NH accepted it. It was just a
coincidence that the same person (NH) got both shifts.
6
22. The following provisions of the parties’ Collective Agreement are relevant to
the issues in dispute [emphasis added]:
ARTICLE 5 - MANAGEMENT RIGHTS
5.01 Except as specifically abridged, delegated, granted or modified by this
agreement, all the rights, powers and authority of management are retained
by the Hospital and remain exclusively and without limitation within the
rights of the Hospital.
5.02 Without limiting the generality of the foregoing, management’s rights
include:
(a) The right to maintain order, discipline and efficiency, and in connection
therewith to make, alter and enforce from time to time, reasonable rules
and regulations, policies and practices, to be observed by its employees,
and the right to discipline or dismiss employees for just cause.
(b) The direction of the working forces; the right to plan, direct and control the
operation of the Hospital; the right to introduce new and improved
methods, facilities and equipment; the right to determine the amount of
supervision necessary; the right to combine or split up departments; the
right to establish work schedules; the right to establish standards and
quality of care; and the right to determine the extent to which the Hospital
will be operated including any increase or decrease in employment.
(c) The right to select, hire, retire, transfer, assign, promote, demote, classify,
lay-off, recall and to discipline, suspend or dismiss employees for just cause.
(d) The sole and exclusive jurisdiction over all operations, buildings, machinery
and equipment vested in the Hospital.
(e) The right to generally operate the Hospital in a manner consistent with the
obligations of the Hospital to the general public in the community served.
5.03 The Hospital agrees that in exercising its rights, as enumerated above, it will
do so in a manner not inconsistent with the provisions of this agreement.
. . . .
7
ARTICLE 18 -HOURS OF WORK AND OVERTIME
18.01 Work Week and Work Day/Overtime
The normal or standard work day will be seven and one-half (7.50) hours as
determined by the Hospital. The normal or standard work week will be thirty-seven
and one-half (37.50) hours as determined by the Hospital.
. . .
In the assignment of overtime, the Hospital agrees to develop, with the union,
methods of distributing overtime that are fair and equitable after having ensured
that all its operational requirements are met. These methods will ensure that
overtime is distributed within the department/program first before being offered
to other employees.
. . .
18.03 Overtime Definition
Overtime shall be defined as being all hours authorized by the Hospital that are
worked in excess of the normal or standard work day or in excess of the normal or
standard work week. The length of time over which hours of work per week are to
be averaged is one pay period. The overtime rate shall be one-and-one-half (1 ½)
times the regular straight time hourly rate of pay.
18.04 Overtime Accumulation
Where a full-time employee has worked and accumulated approved overtime
hours, then such employee shall have the option of electing payment at the
applicable overtime rate or time off equivalent to the applicable overtime rate in
accordance with Article 18. Where an employee chooses the latter option, such
time off must be taken at a time mutually agreeable to the Hospital and the
employee by March 31 of each year or will be paid out at the applicable overtime
rate.
. . .
18.07 Notwithstanding the other provisions of this agreement, where, at the date
of ratification of this agreement there are existing arrangements in place
respecting regular hours of work and schedules that are greater than those
set out above, those existing arrangements shall continue until both the
union and the Hospital mutually agree otherwise.
. . . .
8
MEMORANDUM OF UNDERSTANDING #4
RE: PHYSICAL MOVE OF THE FORENSIC UNITS OXFORD 1. -2 AND 3 RELOCATED TO
A NEW BUILDING - FORENSIC TREATMENT UNIT
The parties have agreed to the following terms and conditions regarding the
physical move of the current Forensic Oxford 1 - 2 and 3 Units to a new building –
Forensic Treatment Unit.
The work schedule will continue with 12 hour shifts on a cyclic rotation.
The forensic allowance will continue to be applicable to RPN staff for all hours
worked on clinical units, who in addition to their clinical responsibilities are
assigned security responsibilities.
The parties agree to resume discussions regarding the impact of operating the
control room once a determination has been made regarding the operational
responsibility for this function.
This agreement is on a without prejudice and without precedent basis.
. . . .
MEMORANDUM OF UNDERSTANDING #7
RE: ASSIGNMENT OF OVERTIME
The parties recognize patient care and safety as a priority and in accordance with
Article 18 of the Collective Agreement. The parties agree to the following terms
and conditions regarding assignment of overtime:
1. Employees interested in working overtime, must submit to their Manager,
with a copy to Scheduling Office, their availability in writing, one month prior to the
six (6) week rotation. Those employees who do not provide written availability will
not be called for overtime shifts.
2. If the requirement for overtime is less than four (4) hours, the Hospital may
utilize staff who are already at work, offering the additional hours in order of
seniority.
3. All overtime hours will be offered to staff on the Overtime Availability List as
follows:
9
For Nursing Staff:
- full time by Nursing program/service
- regular part-time by Nursing program/service
- full time hospital wide
- regular part-time hospital wide
- casuals
For Staff in all other services: -
full time
- regular part-time
- casual
For clarity purposes, “nursing program/service” includes all wards within the
service. For example: Forensic services includes B3 - Pineview, B4 - Riverview; STU
includes 2E, 2W, 3E and 3W. Nursing Float pool staff will identify one area they
wish to be called for and will be added to the list for that area.
The practice for Overtime distribution in all other services shall be - casual staff
given shifts up to eighty hours, remainder of shift would go to the most senior full
time staff from the seniority list from top to bottom before starting at the top of
that list.
Staff on vacation would be called after all other staff not on vacation have been
called. Shifts accepted during vacation will be paid at premium rate.
4. Scheduling Office will offer overtime shifts from the entire list from top to
bottom over a six (6) week period, with the overtime going to the next person in
line.
5. An unanswered call and/or if an employee misses a call before it is accepted
by another employee is deemed an offer.
7.[sic] This agreement shall be in effect on the date of signing and shall continue
until the Union and the Hospital mutually agree otherwise.
MEMORANDUM OF UNDERSTANDING #8
RE: 12 HOUR SHIFTS-SECURE TREATMENT UNIT
The Parties have agreed:
that effective on or about December 14, 2003, 12 hour shifts will be implemented
for RPNs working in the Secure Treatment Unit;
10
either party may terminate this agreement by providing a 60 day written notice
period to the other party. This agreement is on a without prejudice and without
precedent basis.
An affected employee is any of the following:
i) an employee who occupies a position which is identified as surplus;
ii) an employee who is displaced by an employee with more seniority;
iii) an employee who is identified for lay-off.
The Seniority lists which are established within the organization and officially
posted will be used within the process to establish the last in - first out basis.
PROCESS
1. As part of consultation process, the Society agrees to discuss employee lay-
offs with the union prior to implementation, and to seek alternate options to
achieve this goal.
Submissions of the Parties
23. The union submits that Ms. Ladouceur’s situation on January 18, 2020, is a
case study of how the employer has breached the Collective Agreement by not
assigning overtime following Article 18 and MOU #7. RPNs work 12-hour shifts in
the FTU and the STU. When the employer decided that it needed 16 hours of
additional coverage, it should have first offered 12 hours, leaving 4 hours to be called
out based on seniority. Ms. Ladouceur, whose shift ended at 19:00, was available to
work those 4 hours, and as the most senior employee, she was entitled to them.
24. The Collective Agreement sets out the normal or standard work day. For some
employees, it is 7.5 hours (Article 18.01), but for RPNs, who work in the FTU and
the STU, it is 12 hours (MOU #4 and MOU #8, respectively). Article 18.01 also
requires the employer to develop with the union “methods of distributing overtime
that are fair and equitable after having ensured that all its operational needs are met.”
MOU #7 sets out that method. Essentially, employees present their availability for
overtime in writing. If the requirement for overtime is less than 4 hours, the employer
can use staff who are already at work. Any additional hours are offered in order of
seniority.
11
25. In this case, submits the union, the employer knew about the requirement for
overtime well in advance because it was a medical order for the constant observation
of a patient that was to last from January 14 to February 5, 2020. Ms. Ladouceur
testified that the one-on-one coverage rotates among staff who are working, so it does
not need to be the same RPN for the entire shift. The employer’s evidence was
inconsistent about why the 16 hours were called out as two 8-hour shifts and not one
12-hour shift and one 4-hour shift. The employer’s witnesses also agreed that the
normal or standard work day for RPNs on the FTU and the STU is 12 hours.
26. The union argues that the parties’ Collective Agreement must be read as a
whole and that its words must be given their ordinary meaning. The starting point is
that the normal or standard work day for RPNs on the FTU and the STU is 12 hours.
Article 18.03 defines overtime as all hours that are worked “in excess of the standard
work day or in excess of the normal and standard work week.” Article 18.07 says that
existing arrangements respecting regular hours of work remain in place until the
Hospital and the Union mutually agreed otherwise.
27. The method that the parties developed for distributing overtime is set out in
MOU #7. The second numbered paragraph of MOU #7 begins, “if the requirement for
overtime is less than four (4) hours, the Hospital may use staff who are already at
work.” In the union’s view, the employer did not err when it assigned the first 4 hours
of the second 8 hour overtime shift to NH because she was already at work. However,
the paragraph continues, “offering the additional hours in order of seniority,” and the
union submits the last 4 hours are “additional hours,” which must be assigned in order
of seniority.
28. In this case, once NH worked 12 hours, the language in MOU #7 should have
been applied because a more senior RPN, namely Ms. Ladouceur, was available to
work the last 4 hours. This would better meet the obligation to distribute overtime
fairly and equitably while still ensuring that the employer’s operational requirements
are met. Instead, NH received 16 hours of overtime when a normal shift is 12 hours,
and a more senior employee was available for part of the time.
29. The union relies on two unreported decisions involving these same parties:
OPSEU Local 439 (Bradley) v. Brockville Mental Health Centre, May 22, 2009
(Knopf), and OPSEU Local 439 (multiple grievors) v. Brockville Mental Health
Centre, October 10, 2019 (Albertyn). These awards underscore the importance of
respecting MOU #7, argues the union.
30. The employer submits that the union’s position is based on the existence of a
4-hour shift, but that shift never existed because there were only ever two 8-hour
12
shifts. Two 8-hour shifts were called out for January 18, 2020, and Ms. Ladouceur
was not available for either of them because she was already working a 12-hour shift
from 07:00 to 19:00.
31. The Management Rights language in the Collective Agreement allows the
employer to create additional shifts outside of the regular schedule and schedule those
shifts to meet the employer’s operational needs best. If the shifts are assigned as
overtime, the only limitation is that the employer must follow MOU #7, which the
employer did in this case.
32. The employer argues that the second numbered paragraph of MOU #7 applies
when the requirement for overtime is less than 4 hours. In that situation, the employer
can assign the hours to whoever is already at work. The third numbered paragraph of
MOU #7 applies when an overtime shift is called out to employees who have
indicated their availability in writing and who are not working and are otherwise
available to work the overtime shift.
33. In this case, argues the employer, and contrary to the union’s assertion, the
evidence of the employer’s witnesses was clear about how the requirement for two 8-
hour shifts came about. On January 14, 2020, there was a medical order for constant
observation of a patient from 07:00 to 23:00 each day until February 5, 2020. Ms.
Purvis decided to create two 8-hour shifts after discussing the situation with the
Scheduling Clerk. They were both concerned about filling a 4-hour shift, which
would be required if the first shift was 12 hours. Ms. Purvis decided on two 8-hour
shifts to maximize the likelihood that all 16 hours would be covered and avoid being
short-staffed for the last 4 hours. This decision was arrived at in good faith, for
legitimate reasons, and in response to a need for additional patient care.
34. The employer submits that there is nothing in MOU #4, MOU #8, or the
Collective Agreement that prevents the employer from creating an 8-hour shift. The
normal or standard work day for RPNs working in the FTU and STU is 12 hours, but
the two 8-hour shifts were not part of the normal or standard work day. The shifts
were extra hours, above the regular complement, and not part of the standard 6-week
schedule.
35. The employer argues that it is generally accepted that management has a
presumptive right to establish working times, and that the right to “the direction of the
working forces” includes the ability to create and control the working hours, shifts
and schedules of its employees unless there is clear language in the agreement to the
contrary (Brown and Beatty, 5:3110). Moreover, employees do not have a right to
13
determine the amount of overtime, and management is free to decide how its work is
performed (Brown and Beatty 5:3220).
36. The employer relies on Cooper Standard Automotive Fluid Systems and CAW
Local 27 (re: Hours of Work) 2013 CarswellOnt 2256 (Hinnegan), Cargill Foods v.
U.F.C.W. Local 633, 2006 CarswellOnt 6793 (Shime), and U.F.C.W. Local 1118 and
Alberta Distillers Ltd. (re: Improper Work Schedules) 2019 CarswellAlta 1476
(Beattie). In the Cooper and Alberta Distillers awards, the employer either
implemented temporary shifts from time to time or added additional shifts outside of
the normal workday hours set out in the collective agreement. In both cases, it was
held that standard management rights language that included the right to “manage the
business and direct the working forces” (or words to that effect) permitted the
employer to implement temporary shifts and add shifts outside of the normal work
schedule. Any restriction on management’s right to schedule shifts requires very clear
language in the collective agreement, argues the Health Centre.
37. In Cargill, a group of senior employees filed grievances when more junior
employees were called in to work overtime on Saturdays. The senior employees were
not eligible for the overtime shifts because they worked Friday afternoon shifts and
would not have been off work for 11 hours before the Saturday shift as required by
the Employment Standards Act. The union argued that the employer should be
required to adjust the start time of the Saturday shift or break it into shorter shifts so
that the more senior employees would be eligible to work it. The Arbitrator, quoting
extensively from the Management Rights language of the collective agreement, held
that the company’s right to manage its business and control its operations included
the right to determine overtime work in accordance with its business requirements.
This included deciding on the total number of hours worked and shift scheduling. A
clear indication in the collective agreement to the contrary would be required before a
board of arbitration could intervene. The Health Centre argues that this award is
directly applicable to the facts before me.
Analysis and Decision
38. From January 14 to February 5, 2020, the employer needed 16 hours of
additional coverage each day by an RPN because of a medical order for the constant
observation of a patient. The issue to be decided is whether the employer was
compelled to meet this requirement using one 12-hour shift and one 4-hour shift
instead of the two 8-hour shifts offered. Having carefully considered the evidence and
the parties’ submissions, I find that the employer’s decision to offer two 8-hour shifts
was not contrary to the parties’ Collective Agreement, including MOU #7.
14
39. The Management Rights language in the parties’ Collective Agreement
(Article 5, set out above) is not materially different from the language discussed in
the case law presented by the employer. In particular, Article 5 includes the standard
phrases, “except as specifically abridged, delegated, granted or modified by this
Agreement, all the rights, powers and authority of management are retained by the
Hospital and remain exclusively and without limitation within the rights of the
Hospital,” and, “without limiting the generality of the foregoing, management’s rights
include: (b) the direction of the working forces; the right to plan, direct and control
the operation of the Hospital.” This language has been consistently held to vest the
employer with the authority to control employees’ working hours, shifts, and
schedules unless there is clear language in the agreement to the contrary.
40. The parties’ Collective Agreement also requires the Hospital “to develop, with
the Union methods of distributing overtime that are fair and equitable after having
ensured that all its operational requirements are met.” The method that the parties
have developed is set out in MOU #7.
41. MOU #7 requires employees to submit their availability in writing. The Staff
Availability Form (ONA/OPSEU) used by all employees, including the RPNs,
specifically allows employees to indicate their availability for (or opt out of) 4, 6, or
8-hour shifts. Ms. Hunter testified that 4 and 8-hour shifts are not uncommon and
gave several examples where the employer has required 8 hours of additional
coverage to accompany a patient on an appointment or visit.
42. MOU #7 does not dictate the length of shifts that can be offered as overtime.
There is no reference to the “normal or standard work day,” nor is there any reference
to the length of a regular shift. In other words, there is no binding correlation between
the method for distributing overtime in MOU #7 and the fact that the normal or
standard work day for RPNs working in the STU and FTU is 12 hours.
43. MOU #7 does, however, set out two different ways that overtime is to be
assigned depending on the overtime requirement. The second numbered paragraph of
MOU #7 says, “If the requirement for overtime is less than four (4) hours, the
Hospital may use staff who are already at work, offering the additional hours in order
of seniority.” The third numbered paragraph begins, “All overtime hours will be
offered to staff on the Overtime Availability List as follows:” and then sets out the
order in which staff are to be contacted and offered the overtime. The deciding factor
for how overtime is assigned is whether or not the requirement for overtime is less
than four hours.
15
44. It is important to emphasize that the second numbered paragraph of MOU #7
is a complete sentence. This sentence should be read as a whole, and its words must
be given their ordinary meaning. Is the requirement for overtime less than four hours?
If so, “the Hospital may utilize staff who are already at work, offering the additional
hours in order of seniority.” The plain and ordinary meaning of these words is that a
requirement of less than four hours of overtime may be offered to staff who are
already at work, and the offer is to be made in order of seniority. In other words, the
“additional hours” refers to a requirement for overtime that is less than four hours,
and these “additional hours” are to be offered in order of seniority. The entirety of the
sentence refers to a requirement for overtime that is less than four hours. Otherwise,
there would be no obligation for a requirement for overtime of less than four hours to
be offered to staff who are already at work in order of seniority.
45. The third numbered paragraph of MOU #7 is a blanket statement that refers to
“all overtime hours.” This sentence must also be read as a whole and its words must
be given their ordinary meaning. It must also be read in conjunction with the second
numbered paragraph, which applies specifically when the requirement for overtime is
less than four hours. The only logical conclusion is that the third numbered paragraph
of MOU #7 applies when the second numbered paragraph does not, which is when
the requirement for overtime is four hours or more.
46. In this case, the requirement for overtime was two 8-hour shifts. The employer
decided on this requirement because there was a medical order for 16 hours of daily
constant observation of a patient. Based on the employer’s experience, the best way
to maximize the likelihood that all 16 hours would be covered was with two 8-hour
shifts. In my view, specific language in the parties’ Collective Agreement would be
needed to displace the employer’s right to determine the amount of overtime it
requires and how it is to be worked.
47. This also means that because the employer’s requirement for overtime was
four hours or more, the situation was addressed by the third numbered paragraph of
MOU #7. The parties have already developed a fair and equitable method for
distributing this overtime requirement, namely offering it to staff on the Overtime
Availability List in the order set out for Nursing Staff. There is no dispute that this
process was followed on January 18, 2020, and it was just a coincidence that the same
person accepted both 8-hour overtime shifts on that day.
48. As a result, the grievances are dismissed.
16
Disposition
49. I have carefully reviewed the evidence and considered the parties’
submissions, and for all of the reasons set out above, I find that the employer’s
decision to offer two 8-hour overtime shifts on January 18, 2020, was not contrary to
the parties’ Collective Agreement. As a result, the grievances are dismissed.
Signed at Ottawa, Ontario on July 30, 2021
Andrew Tremayne