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HomeMy WebLinkAboutBurgess 02-04-23 / IN THE MATTER OF AN ARBITRATION BETWEEN: THE SCARBOROUGH HOSPITAL AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 575 AND IN THE MATTER OFTHE GRIEVANCE OF B. BURGESS OPSEU FILE NO.: 01-575-080 SOLE ARBITRATOR: MAUREEN K. SAL TMAN APPEARANCES FOR THE HOSPITAL: CAROLE E.C. HOGLUND FOR THE UNION: MARY ANNE KUNTZ AWARD The Union claims that the Hospital violated the collective agreement in failing to appoint the Grievor, Brenda Burgess, to the position of full~time Core Laboratory Technologist, which she obtained through a job posting, effective July 17, 2000, which is the date on which the other successful applicants assumed the position. There was no dispute that at the time she was advised that she had been selected as a successful applicant on the job posting, the Grievor was absent on pregnancy leave. ..: The provisions of the collective agreement which bear upon a resolution of this matter are the following: ARTICLE 3 - NO DISCRIMINATION OR HARASSMENT 3.02 It is agreed that there will no discrimination by either party or by any of the employees covered by this Agreement on the basis of race, creed, colour, national origin, sex, marital status, age, religious affiliation, sexual orientation or any other factor which is not pertinent to the employment relationship. ARTICLE 13 - JOB POSTING, PROMOTION AND TRANSFER 13.07 In matters of promotion and staff transfer, a successful bargaining unit applicant shall be allowed a trial period of up to sixty (60) days (450 hours for employees whose regular hours of work are other than the standard work day) worked during which the Ilospital will 2 determine if the employee can satisfactorily perform the job. Within this period the employee may voluntarily return, or be returned by the Hospital, to the position formerly occupied, without loss of seniority. Should the employee return or be returned to his former job, the filling of subsequent vacancies will be reversed. ARTICLE 14 - LEAVES OF ABSENCE 14.05 (a) Preqnancy Leave (i) Pregnancy leave will be granted in accordance with the provisions of the Employment Standards Act, except where amended in this agreement. ...: As well, the following provisions of the Employment Standards Act are relevant to this matter: PART XIV LEAVES OF ABSENCE PREGNANCY LEAVE GENERAL PROVISIONS CONCERNING LEAVES 52. (1) Length of employment. - The period of an employee's leave under this Part shall be included in calculating any of the following for the purpose of determining his or her rights under an employment contract: 1. The length of his or her of [sic] employment, whether or not it is active employment. 2. The length of the employee's service whether or not that service is active. 3,The employee's seniority. 3 (2) Exception. - The period of an employee's leave shall not be included in determining whether he or she has completed a probationary period under an employment contract. 53. (1) Reinstatement. - Upon conclusion of an employee's leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not. (2) Exception. - Su bsection (1) does not apply if the employment of the employee ended solely for reasons unrelated to the leave. (3) Wage rate. - The employer shall pay a reinstated employee at a rate that is equal to the greater of, (a) the rate that the employee most recently earned with the employer; and (b) the rate that the employee would have been earning had he or she worked throughout the leave. The facts were agreed to, for the most part, betweeh the parties as follows: 1. Ms. Burgess is a Medical Laboratory Technologist who has been employed with the Hospital (General Division) since October 7, 1996. 2. Prior to the commencement of a maternity leave on June 19, 2000, she was employed in a part-time technologist position. 3. Upon returning from her leave on December 18, 2000, she assumed duties and currently remains a full-time Core Laboratory Technologist. 4. She had successfully competed for one of four full-time Core Laboratory positions posted in June 2000. 5. The positions were posted on June 15, 2000 with a deadline of June 22, 2000. Ms. Burgess was one of the applicants for a position. 6. June 16, 2000 was the last workday for Ms. Burgess prior to the commencement of the maternity leave that began on June 19,2000. 4 7. Mr. David Wu, Manager of Haematology, informed Ms. Burgess by telephone in early July that she was one of four successful candidates for a position in the Core Laboratory. 8. The other incumbents assumed their new positions effective July 17, 2000. 9. Ms. Burgess was expected to be on maternity leave until January 2, 2001. She chose to return to work December 18, 2000 in order to be paid for the December 2000 and January 1, 2001 statutory holidays as a full-time employee. 10. She was on maternity leave for 26 weeks. During that time she received a SUB top up for 25 weeks per Article 1405 of the collective agreement. 11. During the time Ms. Burgess was on maternity leave she notified the Hospital that she was exploring the possibility of jot)' sharing the full~ time position. Individuals in job share positions are classified as part- time. 12. Ms. Burgess was advised verbally that the effective date of her appointment to the full-time position (should she return to work into the full-time position) would be her start date in the position. 13. On Ms, Burgess' return to work on December 18, 2000, she requested a letter from the Hospital's Human Resources Department regarding her transfer to the full-time position. By letter dated December 18, 2000, she was advised that the effective date of her transfer to the full- time position was December 18, 2000. 14. As a result of assuming the full-time position, Ms. Burgess' Seniority/Service date and Review/Anniversary dates were adjusted to reflect prior part-time service. 15.1t will be the Hospital's position that past practice in similar circumstances has been that the effective date of a transfer of an employee to a new position is when the employee starts in the position. 16.1t is not disputed that there is no specific written policy expressly setting out the process governing the practice referred to in 15 above. 17. The Hospital does have a Policy with respect to Pregnancy Leave that was most recently revised in April 1999. 5 Apart from these agreed facts, the evidence indicates that, although the Grievor inquired as to the possibility of job sharing the full-time position, she never advised the Hospital that it was her intention to enter into a job-sharing arrangement or asked the Hospital to look into job-sharing opportunities on her behalf. As well, although benefit coverage is available to full-time employees (but not to part-time employees), the Grievor did not attempt to activate benefit coverage while on pregnancy leave. It would appear, however, that she is covered under her husband's plan. When the Grievor inquired as to the accrual of vacation leave. she was advised that she would begin to accrue vacation entitlement effective the date of transfer to the full-time position, which would take place upon her return to work from pregnancy leave. In this regard, Human Resources Consultant. Kirsten Leach. testified that the effective date of transfer to a new position is the date on which the employee starts work in the position, which applies where an employee is in attendance at work, but unable to start work in the position immediately (perhaps because the position is not immediately available) and where an employee is absent on leave. Moreover, although Ms. Leach testified that, where an employee is absent on pregnancy leave, the practice has been that the effective date of transfer to a full-time position is the date on which the employee starts work in the position. the President of the Local Union, Patricia Collyer, could not recall another instance in which one of the successful applicants on a job posting was on pregnancy leave at the time the other 6 successful applicants assumed their posted positions. In fact, Ms. Collyer could not recall any other instance in which an employee had been awarded a position pursuant to a job posting while the employee was on any type of leave. However, Ms. Leach made reference to two part-time employees, one in the CUPE bargaining unit and the other in the ONA bargaining unit, who had been offered full-time positions while on pregnancy leave. Although both employees accepted the offer of full-time employment, just before the CUPE member was scheduled to return to work, she advised the Hospital that she would be unable to assume the position due to difficulties with her child care arrangements. As to .{ the other employee, Ms. Leach testified that she will assume her full-time position upon her return to work from pregnancy leave. Finally, Ms. Leach acknowledged in cross-examination that, had the Grievor not been on pregnancy leave, it is likely that she would have started in the full-time position on the same date (July 17,2000) as the other successful applicants. The evidence indicates that even as late as December 27, 2000, the Grievor's name appeared on the part-time seniority list, a copy of which was sent the Union. However, Ms. Collyer claimed that there were errors on the list, among them, the inclusion of the Grievor's name. Although the evidence indicates that such errors are generally drawn to the Hospital's attention at Labour-Management Committee meetings, it is unclear whether the inclusion of the Grievor's name on the part-time seniority list was ever drawn to the Hospital's attention, Nevertheless, it would appear that the Grievor's seniority relative to 7 Nancy Kriparos, another of the successful applicants, would not have changed even if she had been appointed to the full-time position as of the date of the other successful applicants. Finally, although the collective agreement provides for a SO-working day trial period upon the assumption of a new position, Ms. Collyer testified that the Grievor worked in the same position on a part-time basis as she obtained on a full-time basis as a result of the job posting. Ms. Collyer further testified that when employees transfer from part-time to full-time status (or vice- versa) in essentially the same position, they generally do not experience performance-related problems during the trial period. For her part, Ms. Leach did not dispute that there was no change in the nature of the work which the Grievor performed upon attainment of the full-time position. Submissions for the Union The Union submitted that the evidence supports the conclusion that, but for the Grievor's pregnancy leave, she would have started in the full-time position on the same date as the other successful applicants, Le., July 17, 2000. The Union further submitted that (1) the Employment Standards Act is intended to prevent women who access the pregnancy (and parental) leave provisions of the Act from being prejudiced by experiencing losses during their period of absence; and (2) in this case, the Grievor suffered the loss of seniority and other benefits as a result of the Hospital's failure to appoint her to the full-time position on the same date as the other successful applicants. The Union further 8 submitted that, although it is fortuitous that the Grievor's relative seniority would not have changed even if she had been appointed to the full-time position as of July 17, 2000, as soon as the Hospital failed to appoint the Grievor as of that date, she began to lose ground' in relation to the other successful applicants. In addition, she was denied access to service-based benefits, such as vacation leave, and paid holidays, to which only full-time employees are entitled. It was further submitted that Article 13.07, which provides for a 60- working day trial period upon the attainment of a full-time position, cannot be "' relied upon to circumvent the provisions of the Employment Standards Act. Accordingly, the Grievor ought to have been afforded the seniority accumulation and other benefits provided to full-time employees on pregnancy leave, as there would have been no difficulty reconciling any benefits provided in the event that the Grievor returned to her former position. Finally, it was submitted that the trial period is for the benefit of the employee and, as the Grievor had been doing , essentially the same job on a part-time basis as she obtained on a full-time basis, as a practical matter, it is unlikely that she would have been required to return to her former position. In summary, the Union submitted that the Hospital ought to have appointed the Grievor to her full-time position effective July 17, 2000. Submissions for the Hospital The Hospital subrniUed that the effective date of transfer to a new 9 position is the date on which the employee assumes the duties of the position. The Hospital further submitted that, by transferring the Grievor to the full-time position as of December 18, 2000, it dealt with her in the same way as any other employee and not in a discriminatory manner based on her status as an employee on pregnancy leave. In fact, had the transfer been effected prior to the time the Grievor assumed the duties of the full-time position, she would have been granted preferential treatment because of her absence on pregnancy leave. Further to the allegation of discrimination, the Hospital submitted that the appropriate comparison is not with the other employees who were at work at the time they were selected as the successful applicants on the job posting, but with employees on other types of leave, who were also transferred to their new positions as of the dates they assumed the duties of these positions. Accordingly, there is no basis upon which to conclude that the Grievor was discriminated against in relation to her transfer to the full~time Core Laboratory Technologist position. Finally, the Hospital submitted that the Employment Standards Act protects employees' rights in the positions they held at the time they began their pregnancy leave. It does not protect employees in positions they have not yet obtained at the start of their pregnancy leave. The Hospital further submitted that Article 13.07 requires an employee to serve a trial period upon promotion or transfer to a new position. Were it otherwise, a part~time employee on pregnancy leave could be appointed 10 to a full-time position and take advantage of the accrual of seniority and other benefits and then decide to return to her part-time position or not to return to work at all. In either case, the employee would have received the benefits associated with the full-time position without ever having worked in the position, Moreover, although the Union seemed to suggest that the Hospital could reconcile any overpayments made to the employee, it was submitted that the Employment Standards Act prohibits recovery in these circumstances and that there is no 'provision in the collective agreement allowing for such recovery. In any event, the Hospital submitted that there was no legislative intent that employees on pregnancy leave would receive preferential treatment over employees absent for other reasons, e,g" employees on workers' compensation who are appointed to their positions as of the date they assume the duties of the positions, However, the Grievor did receive seniority and other benefits, to which she was entitled as a part-time employee under the collective agreement, upon her return to work from pregnancy leave. .( Decision The issue is whether the Hospital violated the collective agreement in transferring the Grievor to full~time status effective upon the date of her return to work from pregnancy leave. 11 The facts indicate that the Grievor, who was employed as a part- time Core Laboratory Technologist, applied for a job posting for a full-time Core Laboratory Technologist position on June 16, 2000, which was her last day of work prior to the commencement of her pregnancy leave. Some time in early July, the Grievor was advised that she had been selected as one of four successful applicants on the job posting. Apart from the Grievor, the other successful applicants assumed their positions effective July 17, 2000. The Grievor, on the other hand, assumed her position upOn her return to work from pregnancy leave on December 18, 2000, which was the effective date of her transfer to full-time status. Nevertheless, the Union claimed that the effective date of the Grievor's transfer to full-time status ought to have been the same as the other successful applicants, namely, July 17, 2000. It should be stated, however, that there is no provision in the collective agreement which deals with the effective date of transfer to a new position and, in particular, with the effective date of transfer from part-time to full-time status. Nevertheless, the Union claimed that the Grievor was prejudiced as a result of accessing the pregnancy leave provisions of the Employment Standards Act, referred to in Article 14.05 of the collective agreement. With respect to pregnancy leave, in particular, the Employment Standards Act provides for (1) the reinstatement of an employee, upon her return to work from pregnancy leave, to the position which the employee held at the start of the leave or, if that position no longer exists, to a comparable position (Ss. 53(1)); and (2) 12 except for purposes of determining whether an employee has completed her probationary period, the inclusion of the period of pregnancy leave in calculating the length of her employment, service and seniority (S. 52). However, the Act does not protect an employee in a position which she has yet to occupy. Furthermore, the Act does not speak to the effective date of transfer to a new position or in any way vary the ordinary rule that a transfer is deemed to take effect on the date on which the employee assumes the duties of the new position: see, e.g., Air Canada v. International Assn. of Machinists and Aerospace Workers (Mark Grievance) [2000] C.L.A.D. No. 160 (M.G. Picher). Nevertheless, the Union submitted that the Grievor was, in effect, discriminated against by being appointed to the full~time Core Laboratory Technologist position upon the date of her return to work from pregnancy leave (December 18, 2000) rather than on the date on which the other successful applicants assumed their positions (July 17, 2000). Article 3.02 of the collective agreement prohibits discrimination on the basis of, among other matters, sex, which would include discrimination on the basis of pregnancy: see Brooks v. Canada Safeway Ltd. (1989), 59 D.L.R.(4lh)321 (S.C.C.) referred to in O.N.A. v. Orillia Soldiers Memorial Hospital (1999), 169 D.L.R.(4Ih)489 (Ont. C.A.), 42 O.R.(3d)692 (Ont. C.A.), leave to appeal to,S.C.C. refused 169 D.L.R.(4lh)vii, 252 N.R. 106n ("Orillia Soldiers")). In order to decide whether an employee has been discriminated against (in this case, by being transferred into the full-time position some five months later than the other successful applicants), it is necessary to 13 identify the appropriate group for comparison (the "comparator group"): see Odilia Soldiers. Although the Union suggested that the other successful applicants would comprise the comparator group, I cannot agree. Following the reasoning in Odilia Soldiers, a purposive approach must be taken to identifying the appropriate comparator. As the purpose of appointing an employee to a position is presumably to enable the employee to actually work in the position, the appropriate comparator, in my view, is not the other successful applicants who, unlike the Grievor, were able to assume the duties of the full-time Core Laboratory Technologist position, but other employees within the bargaining unit as a whole who were unable to assume the duties of the positions at the time they were selected as successful applicants, either because the employees were on leave or, in the case of employees who were in attendance at work, because their positions were not immediately available, among other reasons. The question which remains is whether the Grievor was discriminated against in relation to the comparator group. In this regard, Ms. Leach testified that the effective date of transfer to a new position is the date on which an employee starts work in the position and, further, that, if an employee is absent on leave, the transfer is effective as of the date on which the employee returns to work from leave. Notwithstanding Ms. Leach's evidence, Ms. Collyer was unable to recall another instance in which an employee had been awarded a position pursuant to a job posting while the employee was on any type of leave. Moreover, although Ms. Leach made reference to two instances in which part~ 14 time employees were offered full~time positions while on pregnancy leave, there was no indication that these employees, who were in other bargaining units, were treated any differently than the Grievor (the evidence being that neither employee was appointed to the full~time position while on leave). In any event, the issue here is not whether the Grievor was discriminated against in relation to other employees on pregnancy leave, but whether she was discriminated against in relation to employees who were unable to assume the duties of their positions as of the dates on which they were selected as successful applicants for those positions. Although the Union did not appear to be aware of the practice with respect to employees on leave, it was unchallenged that employees who were in attendance at work were appointed to the positions for which they were selected as of the dates on which they assumed the duties of these positions, which is consistent with the broad purpose for which positions are filled. In these circumstances, I am unable to conclude that the Hospital acted in a discriminatory manner in appointing the Grievor to the Core Laboratory Technologist position upon her return to work from pregnancy leave. It should be noted, as well, that Article 13.07 provides for a 60- working day trial period upon promotion or transfer, which would encompass the Grievor's appointment to the full-time Core Laboratory Technologist position. Although the Union suggested that a trial period would not be necessary, as the Grievor had already performed the duties of the position on a part-time basis and, therefore, would not likely have been returned to her former position, a trial 15 ..: period is a requirement under the collective agreement. Moreover, the purpose 9f the trial period is not only to allow the Hospital to require that an employee be returned to her former position, but also to give the same option to the employee. If the trial period were eliminated, this option would be removed from both the Hospital and the employee, which would put the employee at a disadvantage if she wished to revert to her former position. As well, although there was some suggestion that the trial period could have been served when the Grievor returned to work from pregnancy leave, Article 13.07 does not provide for an employee to receive the benefits of a new (in this case, full-time) position while deferring the trial period. With respect to other provisions of the collective agreement, as there was no dispute that the Grievor received all of her entitlements as a part- time employee upon her return to work from pregnancy leave, the collective agreement obligations have been met. Accordingly, it is unnecessary to consider the cases relied upon by the Union, which hold that an employee on pregnancy (or parental) leave is entitled to maintain all seniority- and service~based benefits in the employee's existing position as if the employee had not been absent on leave: see, e.g., Re Halton (Regional Municipality) and D.N.A. (1995), 48 L.A.C.(4th)301 (Burkett). That requirement has been met in this case in relation to the part~time position which the Grievor held at the start of her pregnancy leave. 16 In the result, I find that there has been no violation of the collective agreement. Accordingly, the grievance must be dismissed. DATED AT TORONTO, this 23rd day of April, 2002. Sole Arbitrator