HomeMy WebLinkAboutBoniakowski Group 20-11-24IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION ON BEHALF OF ITS LOCAL 227
and
HEADWATERS HEALTH CARE
Article 13.11 Policy and Group Grievances (Grievance Nos. 2019-0227-0009 and 2019-
0227-0010)
Before: Jesse M. Nyman
Sole Arbitrator
Appearances:
For the Union: Lesley Gilchrist (Senior Grievance Officer), Tanya Boniakowski,
Stacie Dagenias (Grievor) and Gemma Vanden Berg (Grievor).
For the Employer: Robert W. Little (Counsel), Linda Kett, Charlene Rogers, Frances
Duiker and Monique Campbell.
This grievance proceeded to a hearing by video conference on August 12, 2020 and
written submissions were received on September 30, October 23 and November 13,
2020.
1. The employer, Headwaters Health Care (the "Hospital") operates a hospital in
Orangeville, Ontario. The union, Ontario Public Service Employees Union on behalf
of its Local 227 ("OPSEU") represents the paramedical employees employed by
the Hospital. The Hospital and OPSEU are parties to a collective agreement
covering the paramedical employees (the "Collective Agreement").
2. In 2019, the Manager of Diagnostic Imaging took an extended leave due to illness.
At the outset of the leave the duration was indeterminate but the leave was at all
times considered temporary. Some of the Manager's duties (some scheduling,
inventory and other functions) were temporarily reassigned to Elizabeth Berry, a
Senior Nuclear Medicine Technologist, during the leave. Ms. Berry is junior to
Stacie Dagenais (a Senior Technologist in Mammography) and Gemma
Vanden Berg (a Senior Technologist in Radiology). OPSEU filed a policy grievance
and a group grievance, both of which assert that the Hospital was required to
consider both Ms. Dagenais and Ms. Vanden Berg pursuant to Article 13.11 for the
assignment of the duties that were ultimately assigned to Ms. Berry (the
"Grievances"). The Hospital denied the Grievances and they were referred to
arbitration before me.
3. Having carefully considered the parties' submissions and case law, I find that the
Hospital did not violate the Collective Agreement. The Grievances are dismissed.
My reasons are as follows.
FACTS
4. The material facts are not in dispute and were stipulated by the parties in their
written submissions. In addition to the facts set out above, the parties stipulated
the following facts.
5. The Manager of Diagnostic Imaging works Monday to Friday. There are only two
Senior Technologists that work Monday to Friday. They are Ms. Berry and another
Senior Nuclear Medicine Technologist who is senior to Ms. Berry, Ms. VandenBerg
and Ms. Dagenair. Ms. VandenBerg and Ms. Dagenais work weekends. The other
Senior Nuclear Medicine Technologist was the first to be offered the reassigned
duties, but she declined.
6. Ms. Berry has experience with one of the Hospital's software programs called
PACs. Ms. VandenBerg and Ms. Dagenais do not have experience with PACs. Some
of the Manager's duties that were reassigned during her absence included work
with PACs.
7. There was insufficient work to be performed to fill a shift and the parties agree
that a vacancy was not created by the Manager of Diagnostic Imaging's absence.
The Supervisor that assigned the duties to Ms. Berry did not want to change
schedules and wanted someone with capacity in their day to perform the
reassigned duties. The Supervisor also wanted someone with PACs experience.
8. The Hospital did not make Ms. Dagenais or Ms. VandenBerg, or the rest of the
unit, aware that some of the duties of the Manager of Diagnostic Imaging would
be temporarily reassigned to Ms. Berry prior to their assignment to Ms. Berry. The
Hospital did not "post" the assignment of these duties or solicit expressions of
interest.
9. Scheduling in the unit was formerly performed by a Charge Technologist. There is
no current Charge Technologist and scheduling has been performed by the
Manager of Diagnostic Imaging. Ms. Dagenais and Ms. VandenBerg wanted the
opportunity to perform the duties that were temporarily assigned to Ms. Berry
and hope to one day successfully apply for a managerial position.
10. Ms. Berry received responsibility pay under Article 17.08 during the time she was
assigned the additional duties. By the time the matter came before me the
Manager of Diagnostic Imaging had returned to work and the reassignment of
duties had ended.
11. Article 13.11 is a Central Term that applies to all hospitals bound to the Central
Collective Agreement. It reads:
13.11 From time to time the job duties or scope of a bargaining unit
position(s) may change in such a way as to represent a developmental
opportunity, a specialization, or a broadening of duties for a limited
number of employees within a department (or appropriate work unit),
without increasing the complement of employees in the department.
When this occurs, the Hospital shall post this opportunity in the form of
an information notice in the relevant department(s) for a period of at
least seven (7) calendar days. A copy of the posted notice will be sent to
the Local President or designate within the aforementioned seven (7)
calendar days. Employees wishing consideration for these opportunities
must express their interest, in writing, within the seven (7) day period
referenced herein.
The Hospital shall consider employees for these opportunities on the
basis of skill, ability, relevant qualifications and seniority.
Notwithstanding the above, in order to address operational
requirements and efficiencies and to distribute the opportunities
amongst eligible employees, the final decision for selection will be at the
discretion of the Hospital.
If requested, the Hospital will discuss with unsuccessful applicants [sic]
reasons why they were not chosen for the opportunity.
12. The parties referred to the following additional Articles of the Collective
Agreement. These are also Central Terms that apply to all hospitals bound to the
Central Agreement:
13.01 Where a vacancy exists, or where the Hospital creates a new
position in the bargaining unit, such vacancy shall be posted for a period
of seven (7) calendar days. Applications for such vacancies shall be made
in writing within the seven (7) day period referenced herein.
Notwithstanding the above, the Hospital may fill at its own discretion
vacancies caused by:
(a) illness;
(b) accident;
(c) pregnancy and parental leaves of absence;
(d) leave of absence not expected to exceed twelve (12) months;
(e) vacation;
(f) specific tasks not expected to exceed six (6) months;
(g) where temporary vacancies occur as a result of special one-time
funding, the parties may agree to extend the timeline.
In filling such temporary vacancies, the Hospital shall consider
employees who have expressed an interest, in writing, in filling such
vacancies, on the basis of the selection criteria as set out in Article 13.06.
Employees in bargaining units at the Hospital represented by OPSEU
selected to fill such temporary vacancies agree not to apply for other
temporary positions while filling the temporary vacancy, unless the start
of the new assignment is after the expiration of the existing assignment.
Where regular or casual part-time workers fill temporary full-time
vacancies, such workers shall maintain their regular or casual part-time
status, and shall be covered by the part-time terms of the collective
agreement. Upon completion of the temporary vacancy, the bargaining
unit employee will be returned to her former position. Such employees
shall continue to accrue seniority while filling a temporary vacancy.
Employees newly hired to fill such temporary vacancy will not accrue
seniority during the filling of such vacancy. For clarity, Article 10.01
(probationary period) does not apply to this group of employees during
the period of the temporary assignment. If such employees successfully
post into a permanent position within the bargaining unit, prior to the
end of the non -posted vacancy, they will be credited with seniority from
their last date of hire. The release or discharge of such employee at the
completion of the temporary vacancy shall not be the subject of a
grievance or arbitration.
13.06 In filling posted vacancies the selection shall be made based on
skill, ability, experience, and relevant qualifications of the applicants.
Where these factors are relatively equal, bargaining unit seniority shall
be the governing factor.
17.08 Responsibility Pay
Where an employee is assigned temporarily to perform the duties and
assume the responsibilities of a higher paying classification in or out of
the bargaining unit, for one full shift or more, she shall be paid a
premium of $1.40 per hour for the duration of the assignment.
POSITIONS OF THE PARTIES
13. OPSEU argues that the assignment of some of the duties of the Manager of
Diagnostic Imaging to Ms. Berry was a "developmental opportunity" within the
meaning of Article 13.11. OPSEU argues in support that the duties that were
assigned to Ms. Berry were beyond the ambit of her Senior Technologist position,
that they attracted responsibility pay and that as a result the 'job duties" of the
bargaining unit position changed and Ms. Berry gained experience and improved
employability. OPSEU argues that a developmental opportunity by implication
includes the addition of duties not normally performed by a bargaining unit
position and that nothing in the language of Article 13.11 excludes adding duties
from a higher rated classification. OPSEU argues that reading the Collective
Agreement as a whole it is difficult to envision a scenario where a development
opportunity does not create a vacancy but creates new job duties or expands the
scope of a classification's duties, but does not include duties from outside the
classification. OPSEU argues that if a development opportunity only arises in such
unlikely circumstances, Article 13.11 is illusory. OPSEU argues that as a result,
Article 13.11 is directed at the very circumstances that occurred in this case.
OPSEU argues that the assignment of the Manager of Diagnostic Imaging's duties
therefore triggered the seven day posting period provided for in Article 13.11 and
required the Hospital to consider Ms. Dagenais and Ms. Vanden Berg, as they
would have applied, if the opportunity had been posted.
14. OPSEU argues that if Article 13.11 does not apply there was still a duty of fairness
owed by the Hospital to Ms. Dagenais and Ms. VandenBerg in the exercise of its
discretion that required the Hospital to consider their seniority and interest when
making the assignment. OPSEU argues that the Hospital's actions violated the
Collective Agreement. By way of remedy OPSEU requests one third of the
responsibility pay that was paid to Ms. Berry be paid to each Grievor for their lost
opportunity.
15. The Hospital argues that in the event of illness, it can reassign duties as necessary
as an exercise of its management rights and that this discretion is unfettered by
Article 13.11. The Hospital argues that the Collective Agreement must be read as
a whole. The Hospital points out that pursuant to Article 13.01, it does not need
to post a vacancy caused by an illness and it may fill such a vacancy pursuant to its
own discretion. The Hospital argues it would be absurd to find that the Hospital
does not need to post a vacancy caused by an illness and that the Hospital could
fill such a vacancy in its own discretion but that the reassignment of duties caused
by an illness has to be posted and filled pursuant to Article 13.11. The Hospital
points out that some illnesses may last less than a week and so the reassignment
of duties would be over before the end of the posting process. The Hospital also
points out that requiring the reassignment of duties to be posted every time there
is an illness would be a cumbersome unwieldy process, particularly in large
hospitals that are subject to the Central Terms of the Collective Agreement.
16. The Hospital argues that Article 13.11 does not apply to a temporary reassignment
of duties because the reassigned duties always remain the duties of the other
classification. Once the reassignment is over the duties return to the original
person in the classification that performed those duties. The Hospital argues that
Article 13.11 applies where the actual scope of duties of a classification are
changed, without making the position a new position. The Hospital suggests that
a specialization or a new piece of equipment to be used by a classification are two
possible examples.
17. The Hospital argues that there is no implied duty to solicit and consider
expressions of interest prior to a temporary reassignment of duties. The Hospital
argues that OPSEU has not cited any caselaw that supports its position. The
Hospital also argues that a term cannot be implied that conflicts with the express
terms of the Collective Agreement. The Hospital points out that there are express
terms that define when the Hospital must solicit expressions of interest (that do
not apply to the circumstances of this case) and the criteria on which any such
assignments must be made. The Hospital argues that it would therefore be
improper to imply an additional obligation in this case.
18. In reply, OPSEU argues that under the Collective Agreement the parties have
distinguished between, and have agreed upon different rights and obligations
attaching to, vacancies and developmental opportunities. OPSEU argues that the
parties have treated the two situations differently and therefore it is not necessary
to imply that the exclusions to the obligations to post vacancies also apply to
developmental opportunities. OPSEU also argues that there is no need for a large
hospital to solicit interest from the entire bargaining unit as Article 13.11 only
requires notification to the department and so long as the Hospital acts in good
faith, without discrimination and without arbitrariness they may select whomever
they wish to fill these roles.
19. OPSEU argues that where, as here, the Collective Agreement contains a relatively
equal job promotion clause, access to developmental opportunities is an
important component of job promotion. OPSEU also argues that a hospital may
be able to argue that a short-term reassignment of duties is insufficient to
constitute a true developmental opportunity, but that issue does not arise on the
facts of this case. Finally, OPSEU argues that it is not open to an arbitrator to cure
any deficiencies in the language of a collective agreement by reading in limitations
that the parties did not agree upon.
20. OPSEU relies upon the definition of "professional development" in the Oxford
English Dictionary; the definition of "scope of employment" in Black's Law
Dictionary (11th ed. 2019); Southern Railway of British Columbia v. C. U. P. E., Local
7000 (2010), 198 L.A.C. (4th) 283 (Germaine) (for the established principles of
collective agreement interpretation); OPSEU& Ontario (Ministryof Transportation
and Communications), unreported April 9, 1985 (Verity — GSB) (on the exercise of
management discretion); OPSEU & Ontario (Ministry of Natural Resources),
unreported March 1, 1991 (Gorsky— GSB) (on the exercise of management rights);
Toronto (City) v. C.U.P.E., Local 79 (2012), 215 L.A.C. (4th) 112 (Randall) (on the
issue of remedy); and, O.P.S.E.U. v. Ontario (St. Lawrence Parks Commission)
(2010), 194 L.A.C. (4th) 381 (Herlich — GSB) (on the issue of remedy). The Hospital
relies upon Cargill Ltd. & UFCW, Local 175 (Bronigan), 2019 CarswellOnt 14522
(Carrier) (for the definition of when a vacancy occurs); and George Brown College
of Applied Arts and Technology and OPSEU, 2017 CarswellOnt 10028 (Bendel) (for
the proposition that a term cannot be implied that conflicts with the express terms
of a collective agreement). Each of these authorities has been considered but are
only reviewed in this decision to the extent necessary to explain my reasons.
ANALYSIS AND DECISION
21. The issue before me is an exercise in collective agreement interpretation. The
principles are well established and have been set out in many cases including
Southern Railway, supra. In short, the arbitrator's task is to find the intention of
the parties by giving the language its plain and ordinary meaning in the
grammatical sense in which it is used, in context of the provision at issue and the
collective agreement as a whole. The parties did not suggest any different
approach is applicable in this case.
22. The first paragraph of Article 13.11 defines the circumstances to which it applies.
For ease of reference, that paragraph reads:
13.11 From time to time the job duties or scope of a bargaining unit
position(s) may change in such a way as to represent a developmental
opportunity, a specialization, or a broadening of duties for a limited
number of employees within a department (or appropriate work unit),
without increasing the complement of employees in the department
23. There are three elements that must occur to trigger Article 13.11. First, it applies
when the "job duties or scope of a bargaining unit position changes". Second, that
change must create either "a developmental opportunity, a specialization or a
broadening of duties". Third, it cannot create a vacancy or increase the
complement in the department. The first thing that must therefore occur to
trigger the provision is a change in job duties or scope of a bargaining unit position.
It is only where this has occurred that it must then be determined if the change
has created a developmental opportunity, specialization or broadening of duties.
24. The first question in this case is therefore whether the job duties or the scope of
the Senior Technologist position changed. The answer to this question depends
upon whether Ms. Berrywas performing duties of the Senior Technologist position
when she was engaged in the scheduling, PAC's work and other duties that were
assigned to her, or if she was performing work of the Manager of Diagnostic
Imaging.
25. What occurred in this case is that some of the duties of the Manager of Diagnostic
Imaging were temporarily reassigned to Ms. Berry. This reassignment did not
expand the scope of the Senior Technologist classification or change the job duties
of that classification because they were at all times duties of the Manager of
Diagnostic Imaging. This is why Ms. Berry received responsibility pay — because
she was "assigned temporarily to perform the duties and assume the
responsibilities of a higher paying classification". Ms. Berry was, in effect,
performing the duties of two different classifications. Had the duties of the Senior
Technologist position changed to include these duties, she would no longer have
been performing the duties of a higher rated classification. Rather she would have
been performing the duties of her classification and would not therefore have
been entitled to responsibility pay. In other words, in this case there was no
change in the scope or job duties of the Senior Technologist classification because
the reassigned duties did not become part of the duties of that classification.
Article 13.11 therefore was not triggered.
26. The alternative is that any time the duties of one classification are temporarily
assigned to be performed by an individual in another classification the scope of
the two classifications change. That would have the potential to create a great
deal of uncertainty and labour relations instability. For example, in some cases it
could trigger disputes about whether the temporary change in scope or duties
created a new position or converted it to a higher rated classification. That result
makes little sense in the context of a temporary reassignment. Rather, in Article
17.08 the parties have quite sensibly recognized that on occasion the duties of a
higher classification may be temporarily reassigned to someone who is in a lower
rated classification, without altering the scope or duties of either classification,
but that the temporary performance of the duties of the higher classification
should attract a premium.
27. OPSEU argues that it is hard to conceive of a circumstance where the duties or
scope of a classification would be expanded, that would not create a vacancy and
that does not involve the transfer of duties from another classification. OPSEU
argues that as a result Article 13.11 must be interpreted to apply to this situation
or else it will be meaningless because it will not apply to any situation. I do not
agree for two reasons. First, the language agreed to by the parties determines
when the process under Article 13.11 applies. The parties are free to define its
application to as wide or as narrow a set of circumstances as they like. The parties
could have agreed that Article 13.11 applies to changes in the scope or duties of a
bargaining unit position or the temporary reassignment of duties of a high rated
classification. They did not. If parties agree to language that is more restrictive, it
is not appropriate to interpret that language more broadly to include
circumstances that are not covered.
28. Second, there are circumstances that are covered by Article 13.11. The examples
given by the Hospital such as the introduction of a new machine or a specialization
that changes the duties of a classification could well occur and Article 13.11 would
likely apply. Another example could be the introduction of a research project or
funding for a new process. It is not wise, nor possible, to define all of the
circumstances to which Article 13.11 could apply in this decision, but what can be
said is that even though the circumstances in this case do not apply, there are
other circumstances to which it would.
29. OPSEU argues that even if Article 13.11 does not apply, the Hospital had an implied
duty to act in good faith when assigning the Manager of Diagnostic Imaging's
duties to Ms. Berry. OPSEU argues that this required the Hospital to consider the
grievors' seniority, their interest in performing the duties, the impact on their
future employment opportunities, whether their schedules could be adapted and
the skills of each employee. Assuming without deciding that the Hospital's
decision in this case is subject to arbitral review, there is no basis to interfere with
the decision.
30. The issue in Ministry of Transportation and Communications, supra was whether
the employer had exercised its discretion reasonably when it denied the grievor a
special leave of absence with pay as contemplated by an express provision of the
collective agreement. In this case, for the reasons given, there is no Collective
Agreement provision that expressly granted Ms. Dagenais or Ms. VandenBerg the
right to be considered for the reassignment of the duties in issue. As a result, the
type of decision, and the basis on which it is subject to arbitrable review, at issue
in Ministry of Transportation and Communications, supra is different than the one
before me.
31. In Ministry of Natural Resources, supra, the Grievance Settlement Board held that
when reviewing a decision made pursuant to an employer's management rights,
the role of the arbitrator is not to assess if the decision was correct, but rather,
whether it was free from bad faith, was free from discrimination and was not
arbitrary. In Ministry of Natural Resources, supra, the grievor alleged that the
employer's decision to deny him a training opportunity was made in bad faith
because it was based on his status as a francophone and because it undermined
his right to seek advancement to other positions under the collective agreement.
The grievor in effect argued that the decision to deny him the training opportunity
was not made for legitimate business reasons and to disadvantage him in future
promotions.
32. Unlike that case, in this case there are no facts before me that would support a
finding that the Hospital acted in a discriminatory or bad faith manner. There is no
suggestion that Ms. Dagenais or Ms. VandenBerg were targeted or that the
decision to assign the duties to Ms. Berry was not made for legitimate Hospital
reasons. What OPSEU argues is that the decision was arbitrary because the
Hospital failed to consider Ms. Dagenais' and Ms. VandenBerg's seniority, their
interest in performing the duties or their willingness to alter their work schedules
in connection with performing the duties.
33. None of the cases referred to me address arbitrary decision making but the test is
well established. Essentially, an arbitrary decision is one that is arrived at without
taking a reasonable view of the problem and reaching a decision that fails to
consider the relevant criteria. Assuming without deciding that the Hospital could
not reassign the duties in this case in an arbitrary manner, the Hospital's decision
in this case was not arbitrary. This is true even though the Hospital did not ask if
Ms. Dagenais or Ms. VandenBerg were interested in performing the work or
consider their seniority. In temporarily reassigning the duties in this case for an
indeterminate period, the Hospital considered when the duties had to be done
(Monday to Friday), what skills the duties required (in this case familiarity with
PACs), and who had the time in their schedule to perform the work. These are all
relevant considerations and the ability to perform the work efficiently with
minimal disruption is clearly relevant to legitimate Hospital business. After the
most senior Senior Nuclear Medicine Technologist declined to perform the duties,
Ms. Berry was the only employee of the three that met all three requirements.
Ms. Dagenais and Ms. VandenBerg had no experience with PACs and are not
scheduled to work Monday to Friday. It was not arbitrary for the Hospital to
exclude them on that basis.
34. The Hospital could have considered whether Ms. Dagenais or Ms. VandenBerg
could have been trained on PACs or could have had their schedule adjusted, but
the decision was not arbitrary because the Hospital chose not to. There is no
Collective Agreement obligation requiring the Hospital to consider retraining
employees or altering shift schedules in order to accommodate a temporary
reassignment of duties. These are significant undertakings and, on the facts of this
case, were within the Hospital's discretion to decline to consider. In short, the
Hospital's decision to reassign the duties to Ms. Berry in the circumstances of this
case was not arbitrary, discriminatory or in bad faith and, assuming without
deciding that that standard applies, there was no basis to interfere in the decision.
35. For all of the foregoing reasons, the Hospital did not violate the Collective
Agreement. The Grievances are dismissed.
DATED at Toronto this 24th day of November, 2020.
Jesse Nyman
Sole Arbitrator