HomeMy WebLinkAboutJacklin 2010-0320-0004/5
In the Matter of an Arbitration
Between
West Parry Sound Health Centre
and
OPSEU, Local 320
Grievances of Cheryl Jacklin
AWARD
Befbre:
Dana Randall, Arbitrator
Fori the Employer:
Hugh Dyer, Counsel
Tilo Blankenfeldt
Fori the Union:
Chris Bryden, Counsel
Cheryl Jacklin
~\\~Y\~Ock~
z.o,.c
These matters proceeded to hearing on May 17, 20'10 in Parry Sound, Ontario.
AWARD
Cheryl Jacklin has filed two grievances against West Parry Sound Health Centre
( hereinafter: "WPSHC", "the Health Centre" or "the Centre"). Dated June 24 and
26; 2008, the first grieves that the Centre breached the no discrimination clause
of fh~ collecti~e agree~ent and the Ontario Human Rights Code, by failing to
prdvlde her wIth a medIcal accommodation. The second arises from the same
fads and is best characterized as a subset or refined pleading of the first. It
reads:
WPSHC has violated the divestment agreement dated December 14,
2000, Specifically, but not exclusively, Article 2 in regards to loss of
wages,
Bo~h grievances seek full redress including aU lost wages.
II
The Centre brings a preliminary objection to my jurisdiction to hear this matter.
The Centre's written reply, dated November 18, 2008, to the latter grievance,
sets out the position clearly:
...it is the Health Centre's position that we have fulfilled all of our
obligations as your former employer and particularly in regards to the
divestment agreement of December 14,2000. Your employment with the
Health Centre was divested to the Victoria Order of Nurses on May 30,
2008 at 11.59 pm. You did receive a severance payment as per the
agreement. It is also our understanding that you were offered a position
with the Victoria Order of Nurses, albeit you have not been offered hours of
work. It is the Health Centre's position that VON is your employer and
your grievance should be raised with them.
III
The Divestment Agreement between West Parry Sound CCAC and OPSEU,
Lodel 320, dated December 14, 2000 provides:
1. It is understood that the CCAC will be required to divest its direct f
responsibility for the delivery of its Home Support Services under the. terms 0
the divestment policy of the Ministry of Health. This agreement applies only
to those employees represented by OPSEU, The agreement will become
effective upon the completion of the RFP process, the awarding of a contract
to the successful contractor and the divestiture of the employees to this
successful contractor.
2, T~e CCAC .agrees that a~y successful RFP applicant or contractor employer
will be required to recognize OPSEU as the Bargaining Agent for these
employees, The collective agreement in force at the time of divestment will
be assumed by the successful RFP applicant, or contractor employer. There
shall be no loss of seniority or service, wages or benefits to any divested
employee except a~ specified in this agreement. The CCAC agrees that the
RFP process must Include this provision until four (4) years from the original
date of divestment, irrespective of the number of RFP processes required
during this period.
3. It is understood that should the successful RFP applicant, or contract
employer not have a comparable pension plan, the divested employees will
receive the applicable percentage in lieu as per the collective agreement.
4, The CCAC will provide a severance package to each regular part-time Home
Support Worker who is terminated under this agreement which is in full
satisfaction of all rights under the collective agreement arising out of such
termination and in full satisfaction of the termination and severance provisions
of the Employment standards Act. The package shall be calculated by
multiplying 70 hours times the number of years of completed service with the
CCAC. It is understood that this package is inclusive of all termination pay
(or notice) and severance pay requirements.
5, The CCAC will provide a severance package to each casual Home Support
Worker who is terminated under this agreement which is in full satisfaction of
all rights under the collective agreement arising out of such termination and in
full satisfaction of the termination and severance provisions of the
Employment Standards Act. The package shall be calculated by multiplying
35 hours times the number of years of completed service with the CCAC. It
is understood that this package is inclusive of all termination pay (or notice)
and severance pay requirements.
6. It is agreed that a Home Support Workers' completed years of se,:,ice will be
calculated utilizing the following formula: employees employed prior to
November 22, 1999 will be credited with service on the basis of 1950 hours
equals one (1) year of service. Effective November 22, 1999 employees shall
be credited with service accumulated on or after November 22. 1999 on the
basis of 1750 hours equals one (1) year of service.
7, The parties agree to modify the existing OPSEU collective agreement tOrt
produce a renewal collective agreement applicable to the Home Suppo
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Workers. Sh?uld an agreement not be reached prior to divestment, the
current collective agreement will remain in force.
8. The p~rties agree that any settlement reached on the outstanding grievance
regardmg wage .rates and interpretation of the January 5, 2000 Memorandum
of Agreement will apply to this agreement and the divested employees.
9, Th~ parties ~gree .th~t they shall recommend ratification of this agreement to
their respectrve principles and will provide the results of such ratification to
each other in writing. The employer will submit this agreement to the Ministry
of Health for approval and notify the union of their decision,
IV
I heard no viva voce evidence. Rather, counsel, by way of oral submissions and
the1filing of numerous documents, established all of the following material facts.
The Health Centre is a multi-faceted health care provider. It is, in the first place,
a hbspital: it also has nursing stations throughout the Parry Sound District; it runs
thelParry Sound Ambulance Service; it has a Long Term Care facility. And, more
importantly for our purposes, until May 31 J 2008, it also operated the regional
Community Care Access Centre (CCAC).
Ths Grievor was a employee of the Centre's CCAC. She had been hired as a
casual homemaker in August, 1989. She became a part-time Home Support
Worker (HSW) in June, 1996, HSWs have the job of attending at the homes of
the :elderly and infirm to assist them in the tasks of everyday living, The Grievor
was injured on the job in September, 2004. She was accommodated by the
Centre from September, 2006 until May 30, 2008.
On May 31,2008 the Centre 'divested itself' of its CCAC services. In accordance
with Ontario provincial government policies respecting Local Health Integration
NetWorks (LHINs), the Centre transferred its CCAC to the LHIN-aligned North
East CCAC. This transfer was a long-time in the making and involved several
parties and several steps. I was provide~ with a great number of, detail.s. The
following brief summary, which makes of It a two step process, WIll suffice for our
present purposes.
First, on May 30,2008 the Centre and VON entered into a document c~lIed a
"CdAC Services Agreement". In that document, VON agreed to two things: 1)
VON became the "Service Provider", which meant that it was to provide the
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personal support and homemaking services (the CCAC service) heretofore
prcI>vided by the Health Centre and 2) VON was bound by all of the terms of the
Di'Vestment Agreement set out above. Put simply, VON acknowledged that it
was the "successful RFP applicant" and was required to employ the Health
Centre's CCAC employees, recognize OPSEU as their bargaining agent, and
assume the extant collective agreement.
The second step in the process was that the Health Centre, on May 31,2008
entered into an "Assignment and Indemnity Agreement" with the North East
CdAC, North East assumed the Health Centre's rights and obligations under the
Setvlce Agreement with VaN. Of course, this consolidation of the Health
Cehtre's CCAC into that of North East's had begun a year earlier when certain
emlployees and functions had been transferred to North East.
In any case, with these two steps, the Health Centre, as Mr. Dyer puts it, "was
entirely out of the CCAC business".
By Iletter dated May 28, 2008 the Grievor and all the other Home Support
Wdrkers in the Centre's employ were advised by the Centre:
... effective May 30, 2008 at 11 :59 p.m. your employment will continue with
the Victoria Order of Nurses (VON) in your current position and subject to
your existing terms and conditions of employment.
The Ontario Public Service Employees Union (OPSEU) will continue as
your bargaining agent. The current collective agreement will remain in
effect with VON as the employer until renegotiated...
Further to the Divestment Agreement between the West Parry Sound
CCAC and OPSEU, you will receive a several payment upon divestment to
VON.
The letter goes on to talk about the entitlement and when and where the cheque
can be picked up.
Apf!>roximately two weeks later and in accordance with pa~agraph four of th~
Divestment Agreement, the Grievor was paid $15,375.59 In severance monies.
After the Grievor was transferred to VON, she met with members of t~~t
employer's representatives. They informed her that VON had .no positrons that
acdommodated her restrictions. Since that time, she has received no hours of
work from VaN. Her only employment has been with Tim Hortons.
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A timely grievance has also been filed against VON; as of the time of this
helaring, that grievance had not been referred to arbitration.
v
The Centre's argument is straightforward. Mr. Dyer submits that the Grievor is a
former employee of the Centre, who has no further rights under either the
OPSEU collective agreement extant at the time she was severed or under any of
the terms of the Divestment Agreement. The Centre submits that all the
Grlevor's rights have been satisfied, and thereby extinguished. The Centre relies
patticularly on paragraph 4 of the Divestment Agreement, which provides that the
severance package given to the Home Support Workers 'who are terminated
un(jer this agreement is in full satisfaction of all rights under the collective
agreement arising out of such termination and in full satisfaction of the
termination and severance provisions of the Employment Standards Act'.
Mr. Dyer refers me to numerous articles of the collective agreement to
undjerscore that the Grievor has to be an employee to grieve. He submits that
she is no longer an employee vis-a-vis the Centre. Her rights with the Health
Cehtre have been properly, fully and finally extinguished. The Centre met all of
its contractual and statutory obligations to her.
The Centre submits that the Grlevor's claim is more properly advanced against
VdN.
I will set out the Centre's argument in more detail in my reasons below.
Mr. Bryden makes a very erudite submission on why the Health Centre has not
dome enough to extinguish all of the Grievor's rights. He submits that there are
two bases for the grievances, which are reflected in the grievances themselves:
1 ) ~he Centre violated the Ontario Code by failing to accommodate the Grievor;
an<tl 2) the Centre violated the Divestment Agreement and particularly paragraph
2, which provides that the employees will not lose wages as a result of the
agrteement. He makes clear that, at this preliminary stage, the Union is not
se~king determinations on the Grievor's continuing entitlements, but only the
rigttJt to make out the case respecting each ground.
The Union submits that, even though at first blush, all the c?llecti~e ~gree~ent
and employment obligations were passed on.to VO~, certain obligations with
respect to the accommodation process remalne~ with the Health Centre. Th:
Union submits that there is both an overarching front end and back end duty on
th~ Health Centre as part of the Code obligation to accommodate employees
with medical restrictions.
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The front end duty arises before the Centre entered into the Divestment
Aglreement with OPSEU. As employer and as part of its Code obligations the
Centre was required to inquire and/or ensure that the Grievor would be '
actommodated in some manner by VON. There is some duty on the Centre to
ensure that when an employee, who is being accommodated, is transferred that
the accommodation will continue with the transferee. The transferor cannot'just
pass 'the problem' onto another employer,
Irrespective of satisfying that requirement, the Union argues that the Health
Cehtre also had a continuing obligation to the Grievor, what Mr. Bryden calls the
"back end" one. In the event that after divestment, VaN was unable to
acdommodate the Grievor, she would retain some residual right to an
acdommodation with the Centre and the Centre would retain some obligation re
same.
This submission is based, in part, on the Supreme Court of Canada decision in
Dayco Canada Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230. While the Code right
to accommodation is the Union's 'foot in the door', Mr. Bryden then argues that
said right has vested or accrued to the Grievor under the terms of the 2004-2008
collective agreement between the Health Centre and OPSEU. The Union relies
particularly on the following passage from Dayco:
A collective agreement is rather like a contract of fixed term. At the end of
the term, the contract is said to "expire" by mutual agreement. But the
contract is not thereby rendered a nullity. It ceases to have prospective
application, but the rights that have accrued under it continue to subsist.
This termination or expiration can be contrasted with the contractual notion
of rescission, whereby the contract is rendered null and void, and the
parties have no obligations thereunder... Thus it should not be seen as a
novel concept that grievances can arise after the expiration of a collective
agreement that relate to rights accruing under that agreement. It seems to
me that it would take very clear words to demonstrate that the parties
intended to rescind their agreement by agreeing to enter into a succeeding
agreement.
The Union relies on Health Sciences Association of Saskatchewan v. Prairie
Notth Regional, Health Authority (Felix Grievance) 120 L.A.C. (4th) 1 (Hood);
Algbnquin and Lakeshore Catholic District School Board and OECTA [1999]
O.L.A.A. No.475 (Roach) and Algonquin and Lakeshore Catholic District School
BOilrd v. OECTA [2000] a.L.A.A. No. 990 (Shime).
6
./
Put simply, the Union submits that Ms. Jacklin's right to grieve and complain that
she is not being accommodated by the Centre is 1) Code based and the Centre
cannot contract out of its obligations; and 2) and in any case, her right to an
accommodation accrued and vested under the collective agreement with the
Centre and neither disappeared nor was extinguished by any of the Centre's
adtions.
VI
For the reasons which follow and which track closely Mr. Dyer's submissions, I
am allowing the Centre's preliminary objection. I find that I am without
jutisdiction to hear Ms. Jacklin's grievances on their merits. In my view, her
grievance is properly with VON, arguably with North East, but certainly not with
the Health Centre.
As noted, while Mr. Bryden made a very able argument in support of the notion of
either an overarching duty on the Centre or a residual right vesting in the
Gtievor's employment status with the Centre, I am not convinced that the right
answer, in all of the circumstances of this case, is to allow the Grievor to pursue
these grievances against the Centre.
In! my view, the case turns on a consideration of four factors or legal principles: 1)
the Divestment Agreement; 2) the general law respecting employee rights when
successor rights apply; 3) the scope of the duty to accommodate; and 4) the
Centre's agreement with North East.
Clearly, OPSEU made an excellent deal with the Centre in the Divestment
Agreement. The service provider (VON) acknowledges successorship. The
employees, including the Grievor, get both a severance package and the transfer
of their employment to the successor. This is a greater benefit than anything set
out in either the collective agreement of the Employment Standards Act. The
Divestment Agreement was clearly meant to extinguish all rights of the
employees covered by same as against the Health Centre. Allowing the Grievor
to pursue these grievances against the Centre would entirely frustrate the main
purpose of the Agreement and I so find,
My view of the Divestment Agreement is informed by the general law respecting
employee rights when a successorship applies. Mr. Dyer took me through the
two lines of cases: known as the Westbury/Howard Johnson line (see
Westbury/Howard Johnson Plaza Hotel and H.E.R.E, Local 75, 29 L.A.C. (4th) 89
(Charney) and the Verrin Line (see B,B,G.E.U v. British Columbia Industrial
Relations Council (1998) 33 B.C.l.R. (2d) 1 (B.C.C.A.) Neither line of cases
supports the Grievor's argument before me.
7
/
The. first line stand~ for the proposition that an employee's rights go with th
bUsiness. The ratIonale for this line is captured succinctly by Arbitrator Jo;ce in
Re Oshawa Foods and UFCW. LOC8/206 (1987) 27 L.A.C 93d) 105 t
palragraph 29: . a
To a~?rd an e~ployee dual employment protection would require the most
~peclfJc terms In the collective agreement or in the law. I am unable to
find such protection.
The Ve~rin line rejects that view. It holds that employees are not required to
mdve with the assets of the business upon sale or transfer, based on the view
tha~ they could be stripped of their vested rights with the transferor. This line of
authori~y recognizes that the employee has a right to choose his or her employer
at the time of the transfer. But that right to choose and the results that flow
therefrom are not determined a priori. Rather, they are based on the
arrangements that have been made between the workplace parties themselves,
which have been freely negotiated. Whether one looks to the collective
agreement of the Divestment Agreement, no residual rights with the Centre are
contemplated by the parties, let alone triggered by the divestment. In my view,
on the Verrin line, the Divestment Agreement governs the affairs of the parties,
It seems to me that the agreement was meant to foreclose the Grievor having a
chdice by making an offer to her that she could not but choose: severance and
continued employment with VON,
While, in accordance with Verrin, the notion that a transferor of an
accbrnmodated employee has a continuing and overarching Code-based duty to
that employee is not without merit as a general principle, in my view, no such
duty arises or continues in the circumstances of this case. No bad faith is
alleged. There is nothing in any of the arrangements made between the various
parties which can be construed as recognizing such a duty, And while I
appreciate that a party cannot contract out of a Code obligation, there is no legal
autltlority to support the notion that a bona fide and meticulous transfer of
em!l>loyees to another employer and the concomitant divestment of the entire
business can nonetheless be read, against its clear purpose, to safeguard the
Grievor's right to return to or hold the Centre liable for a continuing
accbmmodation. I agree with Mr. Dyer that there is no legal authority for the
proposition that the duty to accommodate relates to anything more than
eml!>loyment with the employer. The scope of the duty does not include a
preliminary assurance from the successor that the latter will meet its Code
obligations.
8
Fihally, even if I am wrong about the last and a residual obligation (Mr. Bryden's
"back end" one) continued to exist, I am of the view that that residual obligation
woul~ lie with the North East CCAC ,and n,ot the Centre. In the second step of
the divestment process - the Centre s ASSIgnment and Indemnity Agreement
wi~h North East - the latter assumed the Centre's 'rights, benefits, obligations
anl:i liabilities under the Service Agreement with VON', The Centre is therefore
twice removed from a continuing obligation to the Grievor.
The Divestment Agreement was clearly meant to extinguish all rights of the
emlployees covered by same as against the Health Centre. Allowing the Grievor
to ~ursue these grievances against the Centre would entirely frustrate the main
purpose of the various agreements. Where the Centre has carefully transferred
its employment obligations to VON, the Grievor's entitlement to an
acdommodation may well have "accrued and vested", as Mr. Bryden submits, but
it c<l>uld only have accrued and vested as against VON, and arguably against
Norlth East, but not the Health Centre.
VIII
For1all of these reasons, these grievances are dismissed.
DAtED IN BARRIE, ONTARIO, THIS 23RD DAY OF AUGUST, 2010.
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