HomeMy WebLinkAboutUnion 12-06-04BETWEEN:
IN THE MATTER OF AN ARBITRATION
THUNDER BAY REGIONAL HOSPITAL
(the "Hospital' or the "Employer ")
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the "Union ")
Policy Grievance re Payment of Course Costs
Bram Herlich, Sole Arbitrator
Carolyn Kay, Liane MacIntosh
for the Employer
Eric del Junco, Dan Albert
Christi Campbell a Dawn Romeo for the Union
AWARI)
(Hearin; was held in Thunder Bay on February S, 2012)
Article 14.06 of the collective agreement between these parties reads as
follows:
Education Leave
Where the Hospital directs and the employee agrees to take an
educational course to upgrade or acquire new employment
qualifications such employee shall not lose regular pay because of
necessary absence from work due to participation in such course. The
Hospital shall pay the full cost of such course in advance. The
Employee may apply to the Hospital for a. reasonable advance to cover
additional costs associated with the course.
The question the parties put before me, in the context of the agreed
facts, which shortly follow, is whether the hospital has directed or is directing
certain employees to take an educational course of the type contemplated by
the collective agreement. The focus before me was not on the nature, quality
or other characteristics of the course involved but simply on whether the
employer has directed or is directing employees to take it.
The parties filed the following statement of agreed facts (I have
omitted most references to the tab numbers of the documents appended to the
statement of facts — all of these were marked as exhibits):
1. The Hospital and the Union are party to a collective agreement which
consists of a central portion and a Local Appendix.
2. On December 3, 2010 the Ontario Government passed amendments to
the registration section of Ontario Regulation 202/94 under the
Pharmacy Act.
3. With the passing of the regulation, changes to the Pharmacy Act
occurred which included the provision that the title "pharmacy
technician" can only legally be used by pharmacy technicians
registered with the Ontario College of Pharmacists.
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4. For purposes of becoming registered, the OCP has established a
process of registration for individuals currently in the profession and
for those entering the profession.
5. For those currently in the profession, the process requires individuals
to complete the following steps:
a. Successfully pass the Pharmacy Technician Evaluating
Examination by January 1, 2012, to be administered by the
Pharmacy Examining Board of Canada;
b. Complete the Bridging Education Program which consists
of four courses by the end of 2014;
c. Successfully pass the Pharmacy Technician Qualifying
Examination also administered by The Pharmacy
Examining Board of Canada
d. Successfully pass the Pharmaceutical Jurisprudence
Examination.
6. The Hospital employs approximately 25 employees in the
classification of "Pharmacy Technician/Assistant" which is included
in wage group "Technician 3 ".
7, In December, 2009, the OHA sent out a circular advising its members
regarding the impact of the changes to the Pharmacy Act and
regulations. In this circular, the OHA advised its members that they
had 3 options as a result of these changes:
a. Move to a Regulated Pharmacy "Technician model;
b. Maintain their current practice (arid rename the current
pharmacy technicians to reflect a non- protected title); or
c. Introduce a hybrid model which combines the use of regular
and non - regulated phannacy staff.
8. The Hospital chose the first of these 3 options.
9. As a result of the above, representatives of the Hospital met with
representatives of the Union to advise of the above requirements.
10. Tab 11 is a copy of the handout given to the Union at a meeting on
March 25, 2010.
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11. By letter dated May 20, 2010 from Dr. Jeff Chan, Manager,
Pharmacy, all individuals employed as Pharmacy Technicians at the
Hospital were advised of the requirements for the registration process.
12. By letter dated June 22, 2010, Dr. Chan wrote to all the Pharmacy
Technicians with respect to potential retirements and the registration
process.
13. As set out in the letters of May 20, 2010, the Hospital agreed to pay
for the costs associated with the following:
a. One attempt of the Evaluating Examination (referred to as
the PEBC Evaluation Exam in the letter);
b. Costs associated with the Bridging Education Program
courses.
14. The Hospital has not agreed to pay for:
a. the costs related to the Qualifying Examination nor the
Jurisprudence Examination. The cost of each of these exams
is approximately:
i. Qualifying exam - $1,200
ii. Jurisprudence exam - $250
b. Reasonable expenses associated with travelling to Toronto
for the weekend to complete the Qualifying Examination.
This exam is completed over 2 days, a written portion on
Saturday and a practical portion on Sunday- and is only
currently offered in Toronto.
15. The Hospital has paid reasonable travel expenses, including mileage,
airfare, accommodations and meals, where the hospital has approved
and required an employee to travel to complete upgrading courses. In
such circumstances, the hospital has also paid wages for any time lost
as a result of such courses, whether or not travel is required.
16. The Union filed a grievance dated August 26, 2010 alleging a
violation of Article 14.06 of collective agreement.
17. In the event there is a finding that the employer violated the collective
agreement, the parties agree that the arbitrator will remain seized
regarding any issues arising out of the implementation of his award,
m
including any issues relating to specific claims by individual
employees.
In essence, as a result of statutory and regulatory changes and at the
culmination, on December 31, 2014, of a relatively protracted process, it will
be necessary for any person holding himself or herself out as a "Pharmacy
Technician" to have successfully completed the certification process just
described.
As outlined, the hospital has a number of options in response to this
new regulatory scheme. It could continue the existing regime with non-
registered pharmacy technicians, so long as neither it nor the technicians
claimed the hospital was employing registered technicians. That could
presumably be achieved by simply altering; the job title of the incumbent
technicians from the current "Pharmacy Technician /Assistant" to something
like "non-registered Pharmacy Technician/Assistant ". It could move to a
system of employing exclusively registered. Pharmacy Technicians, insuring
that all such individuals were duly certified. Or it could move to some hybrid
complement of registered and nonregistered technicians. It has opted to
move to a system of employing only registered technicians.
Despite that choice, the employer asserts that it is not directing any of
its technicians to complete the certification process. That is not to say,
however, that an individual technician's choice to not pursue registration will
not have employment consequences. A number of the documents filed serve to
illustrate the context for the employer's position in relation to the issue before
me, i.e. whether or not the hospital is directing its technicians to complete the
registration process. For example, a letter from the :Manager, Pharmacy to
one of the Pharmacy Technicians included the following:
Should you choose to not pursue Registration, we would
strongly suggest that you pursue other positions through the posting
process. We trust that you will have successfully completed both the
PEBC Evaluation Exam by January 1, 2012 and the registration process
by January 1, 2015, as failure to present proof of registration status as a
regulated Pharmacy Technician with the OCP by January 1, 2015 will
render you unqualified to work as a Pharmacy Technician with
TMISC.
(It is perhaps worth noting that, as the employer has agreed to pay for
the costs associated with one sitting of the PEBC Evaluation exam, there is
no issue before me in respect of those cost,.. The issue before me relates to the
costs the employer has indicated it will not pay, as set out in paragraph 14 of
the parties' agreed facts.)
While I will shortly outline the parties' submissions in somewhat
greater detail, they are, in essence, neither complicated nor surprising. The
employer contends that whether or not to pursue the registration process is
an individual choice of each of its current technicians. And while there may
well ultimately be significant employment consequences for those who choose
not to pursue registration, the hospital is simply not directing them to do so.
The union argues that such a position is a triumph of illusion over reality.
The reality is that unless a technician does pursue the registration, s /he will
be advised that, after performing the job (perhaps for many years), s /he is
suddenly no longer qualified to perform it and will thereby risk displacement
from the position, perhaps even a permanent lay off. Whether or not the
hospital explicitly speaks its direction out loud, the level of compulsion
associated with the circumstances is more than sufficient to require the
conclusion that the hospital is, at least effectively, directing its technicians to
pursue and attain formal certification and registration.
The submissions of the union
The union asserts that the change to required qualifications is clearly
one initiated by the employer, one it has opted to implement despite the
availability of other options. And the resulting mandatory —at the instance
and insistence of the hospital — nature of the required registration is echoed
in the very first answer on the "Q & A" sheet the employer prepared for its
technicians:
TBRHSC will be initiating the Pharmacy Technician model as
of January 1, 2012. This will mean that all Pharmacy Technicians will
need to have successfully completed the PEBC Evaluating exam by
Jan. 1, 2012 and must have completed the registration process and be
registered by Jan. 1, 2015.
[emphasis added]
It is unduly narrow to say it is the legislation and not the employer
that is directing compliance with the statutory regime. Indeed, even if the
Legislature required the current technicians to become certified — which it
does not — the matter would still fall within the ambit of Article 14.06 as the
employer would be directing its employees to comply with the law. The
employer had options. It could have simply altered the job title to reflect the
non-registered status of the incumbents. It did not. Rather, it chose the
option whereby its technicians must complete the registration process. It. has
thus directed its employees to upgrade on pain of unemployment.
The union relied on a number of cases in support of its urging that I
conclude that the employer here, even absent an explicitly articulated order,
has, nonetheless, at least effectively and for the purposes of the collective
agreement., directed its employees to complete the upgrading.
The most useful of those is the decision in Guelph General Hospital
and Ontario Nurses'Association (Marcone Grievance) (2005] O.L.A.A. No.
147 (Snow). The collective agreement contemplated certain compensation
"when a nurse is required by the Hospital to attend courses..." The issue in
the case was whether the grievor had beers required to take the course in
question. Establishing an analytic framework, the arbitrator offered the
following (at paragraph 53 and following):
..."require" means more than a mere request and suggests an
element of compulsion or necessity. The element of compulsion or
necessity need not be discipline — the lack of a disciplinary response
for failing to attend is not determinative of whether attendance is
required...
... "required" in this context means a request, or indication of
expectation, accompanied by a measure of compulsion. The
compulsion may be a threat of discipline but it may also be an
indication of an adverse impact on existing employment, whether it be
work assignment, current position or otherwise.
The arbitrator went on to conclude that the level of compulsion in that
case was sufficient to warrant the conclusion that the nurse had been
required to take the course.
The union submits that in the present case, failure to complete the
upgrading threatens the very job security of the current technicians. The
level of compulsion associated with the upgrading process is therefore more
than sufficient to warrant the conclusion that the Hospital is directing its
technicians to complete the upgrading.
The submissions of the hospital
Not surprisingly, the employer paints a different picture. The genesis
of the events resulting in this grievance is legislative change, not the
hospital's initiative. As a result of that legislative change, only individuals
who have completed the requisite training or upgrading can carry or continue
to carry the title of Pharmacy Technician. And while it is true that, in the
face of this legislative change, the hospital has opted to go forward with a
regulated model, it has not directed any of its incumbent technicians to
complete the upgrading. Indeed, the hospital argues that the legislative
changes simply cannot be equated with a direction from the employer.
The employer referred to a number of cases including Hotel Dieu
Hospital and Canadian Union of Public Employees, Local 1097 and Vic
Panezuk, unreported, February 15, 1982 in which the Divisional Court
quashed the arbitrator's award allowing a grievance claiming pay for time
taken off work to write an emergency medical care examination. The grievor
was required, by legislation, to, among other things, pass that exam as a
condition of continuing his employment as a driver attendant. One issue
before the arbitrator was whether the grievor had been "required" by the
employer to write the examination. The arbitrator accepted an argument not
unlike that advanced in the present case:
I consider that it would be within the contemplation of the parties in
drafting the clause that both the ongoing nature of the business and of
the employment relationship was envisaged and, in my view, in the
context of the whole contract and the regulations governing the
operating of the Employer's business the word "required" connotes that
which is necessary for the continuation of the employment relationship.
The Divisional Court, however, concluded that this was not a
reasonable interpretation of the collective agreement, offering the following
(at p. 4):
The Board, in framing its interpretation has taken the view, as
we see it, that the regulations place an obligation on the hospital to see
to it that the grievor took the examination. That, however, is an
obligation on the employee under s. 9(2) but not on the employer; the
employer's obligation is to comply with [those sections of the
Regulations which prohibit an operator from continuing to employ a
driver attendant where the driver attendant is required to discontinue
full -time employment if, for example, he /she has failed to obtain a
pass standing in the medical care examination].
The employer also referred us to a number of subsequent cases that
dealt with scenarios comparable to the one before me.
In Riverdale Hospital and Canadian Union of Public Employees, Local
79, unreported, November 26, 1987 (Weatherill), the grievors were employed
as Nursing Assistants (NAs). The employer determined to eliminate that
classification and have its work performed by Registered Nursing Assistants
(RNAs). The incumbent NAs were all encouraged and supported in their
efforts to attain the necessary certification to become qualified as RNAs. The
issue was the extent of that support, an issue which turned on an
interpretation of a collective agreement which provided for the employer to
pay full costs of certain courses where "employees are required by the
Hospital" to take them. In dismissing the grievance, the board concluded that
while employees might well have felt required to take the course, that was a
result of the "demands of the situation" not any demand of the employer.
Further, the board observed that employees might well (subject to seniority)
be able to remain in employment without successful completion of the course.
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A similar scenario was the subject of the award in The Wexford Inc.
and Canadian Union of Public Employees, Local 3791, 2001 CanLii 33933
(ON LA) (Albertyn). The employer determined to replace its Health Care
Aides with Personal Support Workers who would have greater health care
expertise than Health Care Aides. Again, the issue was the employer's
obligation to pay certain costs. That obligation arose where "employees are
required by the Employer to take courses to upgrade or acquire new
employment qualifications ". The union argued that the grievors were obliged
by economic necessity (they had all received some 17 months notice of their
impending layoff) and were therefore "required by the employer" to take the
courses. The arbitrator disagreed and offered the following:
Only when, ti0thin the terms of an employee's existing job, the
Employer requests, asks, commands, or compels an employee to
undertake a course of study is the Employer liable to pay the full cost
associated with the course. If, however, (as here) an employee wants
to upgrade his or her skills or qualifications in order to secure
employment in a different job, without any request, command or
compulsion by the Employer to do so, then the Employer is not liable
for the costs of the upgrade tuition.
[:emphasis in original]
The decision in Sensenbl•enner Hospital, Kapuskasing and Service
Employees International union, Local 204, unreported, September 16, 2002
(Brent) did not involve any employer decision to eliminate one classification
to be replaced by another requiring a higher level of skill or training. In this
case the Ambulance Act imposed the requirement of successful completion of
certain training as a condition of the grievor's ability to continue to be
employed as a paramedic. One of the issues in the case was whether the
employer had required the grievor to pursue the necessary training. The
arbitrator concluded the employer had not:
Here, the Hospital did make the grievor aware of the fact that,
given the changes to the Ambulance .Act and its regulations, he could
not be employed if lie did not meet certain educational qualifications
which he lacked. The Hospital, with the grievor's consent, also took
steps to locate a course which would satisfy those requirements and to
tell the grievor how to get in touch with the appropriate person in
order to arrange enrolment the course. The facts remain, though, that
the requirements were those of the legislation and not those of the
Hospital; and the grievor, although informed of the consequences of
non - certification by the Hospital and assisted by the Hospital in
arranging attendance at the course, was not directed or ordered by the
Hospital to obtain his certification. In our view, in order for Article
15:02(c) to apply there must be Hospital initiative tantamount to a
direction or order before it can be concluded that "employees are
required by the Hospital ". Such was not the case here. The grievance
is dismissed.
The employer points to these three cases (and others) in its urging that
I reject any conclusion that the employer, in the present case, has directed its
employees to pursue the upgrading.
Decision
For the reasons that follow, I am persuaded that the instant grievance
must be dismissed.
The issue in this case is whether or not the employer has or is directing
the incumbents to pursue the upgrading /certification process.
The employer has not threatened to impose discipline on any of its
employees who fail to pursue the upgrading. Indeed, neither has there been a
clear explicit direction issued by the employer. That, however, does not end
the matter. The union asserts that, since failure to pursue the upgrading will
result in job loss, there is significant compulsion in operation and the
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incumbents are, at least effectively and by virtue of that compulsion, being
directed by the employer to pursue the upgrading.
The hospital says there is no such compulsion — it is merely giving
effect to the legislative requirement that anyone professing to be a Pharmacy
Technician must have the requisite qualifications. It is not compelling the
incumbents (in what it has legitimately determined will soon be a vacant
classification) to obtain those qualifications.
There is an organizing principle which appears to have been first
articulated in the Rexford case cited earlier, which I find to be particularly
helpful in the instant case. Indeed, it is an approach echoed in the Guelph
decision (the most recent of all of the decisions cited and one strongly relied
upon by the union). For immediately following his observations on the nature
of the compulsion that may amount to a "requirement ", (e.g. an indication of
an adverse impact on employment), the arbitrator in that case offered the
following qualification:
However, in the context in which I must interpret this
collective agreement, I am unable to think of any situation in which
encouraging a nurse to take a course and indicating that the course
will help in her or his career advancement, or indicating that
successful completion of the a course is a prerequisite for
advancement to another position, would make the nurse's attendance
in the course "required ". Under this collective agreement, additional
education is quite properly considered essential to many promotions
and, for the Employer to acknowledge that, does not constitute
compulsion. ...the measure of compulsion needs to relate to the
employee's existing position.
Thus, in the cases we have focused on, it is possible to distinguish
between circumstances where taking (or not taking) the training, upgrading
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or course in question will have an impact on the employee's existing position
from those where the effect is likely to be felt in relation to some possible
future position. I accept this as an important distinction in the treatment of
cases such as the one at hand. And while there may be some diversity of
adjudicative views on the point, I also accept that a factual context of
compulsion which operates "within the terms of an employee's existing job"
may amount to an employer direction within the meaning of language like
that found in the instant the collective agreement.
Cases involving an employee's very job security in his /her existing
position are to be distinguished from those involving upgrading or seeking
additional qualifications for the purpose of securing a promotion or other
assignment to a new position. Such a distinction is consistent with the
principle that, absent any other collective agreement right or obligation, the
responsibility for upgrading and training for the purposes of future job
applications or promotions is that of the employee.
The facts in the present case much more closely resemble those in
Riverdale and Wexford (elimination of an existing classification; creation of a
new classification requiring a higher level of qualifications) than those of any
of the other cases considered. While the union disputed the factual conclusion
or at least its characterization, I am satisfied that the employer's description
is accurate: although the process may be somewhat protracted, the employer
in this case has determined to eliminate, or at least entirely vacate, the
classification of Pharmacy Technician/Assistant. I also accept the employer's
assertion that the process will culminate in the creation of a new
classification, which will be an as-yet unnamed classification of regulated
Pharmacy Technician (within the meaning of the relevant legislation).
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It is not difficult to understand why the incumbents may be of the view
that their job security will be best served by undergoing the upgrading and,
indeed, feel compelled to pursue that upgrading. It does not necessarily
follow, however, that the employer is therefore directing them to complete it.
There are undoubtedly job security concerns at play, but so long as their
current positions continue to exist there is no reason to believe the current
incumbents cannot and will not continue to occupy them. But the employer,
as it is entitled to do, has determined to, ultimately, discontinue those
positions. Thus, any entirely understandable perceived compulsion on the
incumbents' part to do the upgrading is in relation to the new, not to their
existing classifications. Thus, while the fit may not be perfectly airtight, the
present facts much more closely resemble those involving training to qualify
for promotion than some newly imposed "requirement" to be met in order to
maintain an existing position.
Having regard to the foregoing, 1 am not persuaded that the Hospital
has directed its Pharmacy Technician/Assistants to pursue the qualifications
to meet the statutory requirements for certification as Pharmacy
Technicians. As a result, the instant grievance must be and hereby is
dismissed.
DATED AT TORONTO THIS 4th DAY OF JUNE 2012.
Bram Herlich
Sole Arbitrator