HomeMy WebLinkAboutUnion 24-07-261
In the Matter of an Arbitration
Between:
Manitoulin-Sudbury District Social Services Board
(The “Employer”)
-and-
Ontario Public Service Employees Union, Local 679
(The “Union”)
Re: Casual Part-Time Status Policy Grievance
Arbitrator: Brian Sheehan
Appearances:
For the Employer: Mark Mason – Counsel
Kimberly Dias – Student-at-Law
For the Union: James Craig – Counsel
Hearings were conducted via Zoom on March 27 and April 10, 2024
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This Award addresses a policy grievance filed by the Union asserting that the
Employer violated Article 5.02 of the collective agreement.
The Relevant Provisions of the Collective Agreement
ARTICLE 3 - MANAGEMENT RIGHTS
3.01 The Union recognizes and acknowledges that the DSB is the employer
responsible for the management and direction of the work force and shall retain
all other residual management rights without limitation except as otherwise
specifically limited in this agreement.
3.02 Without limiting the generality of the foregoing, management's rights
include:
a) The right to direct the workforce;
b) The right to plan, direct, manage and co-ordinate the operation of
the Ambulance Service;
c) The right to introduce new and improved methods, facilities,
equipment;
d) The right to determine work schedules, work assignments and
methods of doing work;
e) The right to determine, at its discretion at all times, the number of
employees and the amount of supervisors necessary;
f) The right to formulate policies as set out in the Employer Paramedic
Services, Policy, Directive and Procedure Manual subject to Union
consultation;
g) The right to establish standards of care and quality;
h) The right to determine the nature, type, location and scope of
Ambulance Service which the Employer will provide, and the increases
or decreases in employment;
i) The right to hire, assign, discharge, transfer, promote, demote, direct,
classify lay- off, recall or discipline employees;
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j) The right to operate the Ambulance Service so as to provide
appropriate emergency health care in a manner consistent with the
obligations of the Employer to the Ministry of Health and the general
public;
k) The right to maintain order and efficiency.
3. 03 All rights reserved to management herein are subject to the provisions
of this Agreement and shall be exercised in a manner that is fair, reasonable,
and consistent with the terms of the Agreement.
APPENDIX " B"
ARTICLE 5 - PART- TIME AVAILABILITY AND COMMITMENT:
5. 01 All part-time employees (casual, regular and rotational) will be
required to identify their availability for work by 23: 59 hrs on October 15, for
the following calendar year. Should it not be submitted by this date, the
Employer may exclude the Employee from receiving shifts through advanced
scheduling.
5. 02 Part time employees may choose to be considered either a 'casual' or
a “regular part time' employee with written request to the Deputy Chief. Those
wishing to change status may do so in writing by September 15, to take effect
January 1 of the following year. In the event of extenuating circumstances,
such requests will be considered at a time other than September 15. All status
change requests will not be unreasonably denied, subject to operational
requirements.
5. 03 Casual employees will be required to provide a minimum availability
of two (2) days per pay (for this purpose, a day of availability is defined by a
period from 0700 hours to 0800 on the following day). Casual employees will
be capped at 36 hours of advanced scheduled work per pay period.
5. 04 Regular Part-time employees will be required to provide a minimum
availability of four (4) days per pay (for this purpose, a day of availability is
defined by a period from 0700 hours to 0800 on the following day). Their
availability must include at least one weekend per month (defined as the period
from Saturday at 0700 hours to Monday at 0800).
(emphasis added)
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An Overview of the Factual Background
The Employer is responsible for delivering paramedic services for the Manitoulin-
Sudbury District, excluding the City of Greater Sudbury. The bargaining unit has three
categories of paramedics: Full-Time (FT), Regular Part-Time (RPT), and Casual Part-
Time (CPT). RPTs and CPTs are collectively referred to as Part-Time (PT) paramedics.
At the time of the hearing, the following was the breakdown of paramedics by
status: 88 FT Paramedics, 31 active RPT Paramedics, and 5 CPT Paramedics. There
were also 6 Full-Time Community Paramedics.
The paramedics are assigned to four Service Areas based in the following
locations:
(a) Service Area 1: Little Current, Espanola, Massey.
(b) Service Area 2: Mindemoya, Gore Bay, Wikwemikong.
(c) Service Area 3: Noëlville, Hagar, Killarney; and
(d) Service Area 4: Gogama, Foleyet, Chapleau.
The breakdown of the complement of paramedics by category in each Service
Area is as follows:
(a) Service Area 1 – 26 FT Paramedics; 11 RPT Paramedics; and 1 CPT
Paramedic.
(b) Service Area 2 – 24 FT Paramedics; 6 RPT Paramedics; and 2 CPT
Paramedics.
(c) Service Area 3 – 20 FT Paramedics; 6 RPT Paramedics; and 2 CPT
Paramedics.
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(d) Service Area 4 – 12 FT Paramedics; 1 RPT Paramedics; and no CPT
Paramedics.
PT paramedics are utilized by the Employer to fill gaps in the schedule and to
provide coverage when FT paramedics are absent due to illness, injury, vacation, a
leave of absence, or “bank time off” entitlements.
In accordance with the wording of Article 5.04 of the collective agreement, RPTs
are required to provide a minimum availability of four days per pay period. That
availability must include at least one weekend per month. In accordance with Article
5.03, CPTs are required to provide a minimum of two days of availability per pay period.
Additionally, CPTs are capped at 36 hours of scheduled work per pay period. PT
Paramedics, whether RPTs or CPTs , must make themselves available for Christmas
Day, Boxing Day, and/or New Year’s Eve Day and New Year’s Day.
Article 5.02 provides that PT employees can request a change of status from
RPT to CPT and vice versa. Such requests are to be submitted by September 15 to
take effect January 1 of the following year. Article 5.02 further provides that “all status
change requests will not be unreasonably denied, subject to operational requirements”.
Since 2021, citing its operational requirements, the Employer has denied all
status change requests of an RPT requesting a change in status to a CPT. In 2021,
there were five such denials; in 2022, there was a further denial; and in 2023, there
were two more.
Historically, the Employer has encountered certain difficulties filling all required
paramedic shifts. In addition to issues associated with finding sufficient paramedics to
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fill available vacancies, in several instances, RPTs have failed to provide the required
minimum of four days of availability during a pay period. Moreover, there have been
issues with RPTs and CPTs being absent from a scheduled shift or cancelling their
availability for shifts.
As could be expected, the impact of the COVID-19 pandemic in terms of
increasing absenteeism amongst all three paramedic groups significantly caused further
significant obstacles for the Employer, with respect to not having sufficient staff to meet
its operational needs.
The Employer’s reasoning was ostensibly the same with respect to the denial of
each RPT to CPT change of status request. That explanation was that there was a
staffing shortage at the time the request was made; therefore, there was a need
to have more RPTs available per pay period as that classification was mandated to
provide two (2) additional days of availability over a CPT, and they were not capped at
36 hours of advanced scheduling as are CPTs.
Submissions of the Union
Mr. Craig, on behalf of the Union, advanced a number of arguments in support of
the assertion that the Employer, by denying all the relevant change of status requests of
RPTs, violated Article 5.02 of the collective agreement. The first such argument was to
focus on the fact that the wording of Article 5.02 expressly stipulates that a request by
an RPT to change status to that of a CPT should not be unreasonably denied . Given
that language, it was submitted that the parties clearly intended that the Employer
should err on the side of granting any such request.
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The second branch of the Union’s argument was an assertion that the Employer
had effectively sought to impose a blanket policy of refusing such requests. That is,
rather than assessing each request on its merits as required , the Employer adopted the
approach of automatically denying all such requests. Related to this point, it was
asserted that not only had all requests been denied since 2021, but the rationale
provided with each denial was the same. Moreover, it was opined that the Employer had
effectively imposed an indefinite freeze on granting such requests as it was asserted
that Mr. Myre, Chief of Paramedic Services for the Employer, confirmed in his cross-
examination that the policy of denying such a request would continue to be in place for
the near future.
Related to the above, Mr. Craig noted that the Employer had, in fact,
unsuccessfully advanced a proposal to remove the CPT status from the collective
agreement. Accordingly, it was suggested that it would be improper to allow the
Employer to achieve what it failed to achieve through collective bargaining by allowing
the Employer to impose a blanket policy denying such requests.
It was further argued that the Employer had effectively imposed a condition upon
Article 5.02 that was not part of the parties’ agreed-upon language. That is, the
Employer ’s blanket policy approach resulted in an additional condition ostensibly being
added to Article 5.02, providing that such requests would be denied if the Employer was
experiencing staffing difficulties.
The Union further noted that the Employer’s denial of all change of status
requests had been counterproductive to its stated intention of addressing the staffing
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shortages since at least three RPTs, who were denied a change to CPT status,
subsequently resigned.
The final argument advanced by the Union was the staffing issues experienced
by the Employer were directly related to the failure of the Employer to properly police
the collective agreement regarding the mandatory availability requirements applicable to
RPTs. In particular, it was claimed that the Employer had allowed certain RPTs to
repeatedly not comply with the availability requirements set out at Article 5.04, without
those employees being put on notice that disciplinary consequences may flow if their
non-compliance continued.
In support of its submissions, the Union relied upon the following authorities:
Clarke Transport Ltd. and Teamsters Local Union 938 2005 CanLII 51588 (ONLA)
(Kaplan); Trillium Health Partners and Canadian Union of Public Employees Local 5180
2017 CanLII 71069 (ONLA) (Slotnick).
Submissions of the Employer
The Employer asserted that the Union's case is predicated on suggesting that
Article 5.02 constitutes an entitlement, or a guaranteed right, of an RPT paramedic to
drop down to CPT status. Mr. Mason, on behalf of the Employer, noted that Mr. Craig, in
his argument on behalf of the Union, never referenced the qualifying language in Article
5.02 that the Employer’s approval of such a request was “subject to operational
requirements”.
With respect to the Union's “blanket policy” approach argument, it was asserted
that a review of the relevant evidence suggests that the Employer assessed the relevant
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circumstances with respect to each request. The fact that in each case , the existing
significant staffing shortages facing the Employer argued against granting the request
because of operational requirements does not lead to the conclusion that the Employer
had adopted a closed mind to granting such requests. It was suggested that the Union
ostensibly was asking the Employer to provide a different reason than the one that was
relevant with respect to all the denied requests. Mr. Mason submitted that a consistent
approach does not equate to a failure on the part of the Employer to assess the
circumstances of each individual request.
It was further suggested that the evidence establishes that the Employer was
experiencing significant staffing issues in terms of maintaining a viable paramedic
service, and those staffing issues were significantly exacerbated by the impact of
COVID-19. Given the indisputable adverse impact of the pandemic on the Employer’s
ability to satisfy its staffing needs, it was suggested there was no basis whatsoever for a
claim that the Employer’s decision with respect to each denial was inappropriate or
unreasonable. Moreover, it was noted that the Union, in its submissions or with respect
to its cross-examination of Mr. Myre, never suggested that the Employer placed reliance
on any inappropriate or irrelevant considerations in denying the requests.
Mr. Mason further noted that the collective agreement has a robust management
rights clause, and that the Employer was in the best position to determine its operational
requirements.
It was asserted that the Union's argument focusing on an alleged failure on the
part of the Employer to diligently police the availability requirements of RPTs was
definitely a novel approach to be taken by a union. Moreover, it was submitted that the
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Employer had initiated a number of counselling and coaching initiatives to seek to have
RPTs comply with their availability requirements.
In support of its submissions, the Employer relied upon the following authorities:
Fanshawe College v. Ontario Public Service Employees Union 2006 148 L.A.C. (4th)
358 (O'Neil); Kawartha Pine Ridge District School Board and Elementary Teachers’
Federation of Ontario 2005 CarswellOnt 10288 (Swan); Elgin (County) and Service
Employees International Union (2015) 249 L.A.C. (4th) 127 (MacDowell); Kingston
General Hospital and Ontario Nurses’ Association 2000 CarswellOnt 9536 (Howe);
Lapointe-Fisher Nursing Home Ltd. and Unifor, Local 2458 (Kerkhoff-Fox) 2014
CarswellOnt 14232 (Crljenica); Windsor Regional Hospital and Ontario Public Service
Employees Union, Local 101 (Mifflin) 2023 CarswellOnt 7247 (Waddingham);
Providence Continuing Care Centre and Ontario Public Service Employees Union 2007
CarswellOnt 8768 (Nairn); Renfrew (County) District School Board and Elementary
Teachers’ Federation of Ontario [2000] O.L.A.A. No. 967 (Goodfellow); Royal Canadian
Mint and Public Service Alliance of Canada [1997] C.L.A.D. No. 436 (Freedman);
OPSEU and Ontario (Ministry of the Solicitor General) (Clark) 2020 CarswellOnt 3436
(Ont. Arb) 115 (Sheehan).
Decision
Since 2021, the Employer has denied all requests with respect to an RPT
requesting a change to CPT status pursuant to Article 5.02, and in each case, the
Employer provided the employee ostensibly the exact same written rationale to justify
the denial. Moreover, those denials came after the Employer was unsuccessful during
the last round of bargaining with respect to a proposal to totally eliminate the CPT
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paramedic designation. Accordingly, the Union's perspective that the Employer
purposively adopted a blanket policy of rejecting all RPT to CPT change of status
requests under Article 5.02 is, to a certain degree, understandable.
Notwithstanding the above, based on the wording of Article 5.02 and the relevant
facts, it has been determined that the Employer's decision to deny the change of status
requests of the RPT paramedics involved did not violate the collective agreement.
In assessing the appropriateness of the Employer’s decision-making, the overall
purpose of the availability requirements for CPTs and RPTs respectively outlined in
Article 5.03 and Article 5.04 of the collective agreement is a relevant consideration.
Specifically, the parties expressly agreed that RPTs must provide four days, and CPTs
two days, of availability per pay period. Such mandatory availability requirements
underscore the overall importance of PT paramedics in terms of the Employer's efforts
to satisfy its need to adequately staff the paramedic services.
The decision of whether to grant an RPT a change of status to a CPT involves a
discretionary power of the Employer. Arbitral jurisprudence (see Fanshawe College,
supra, and Kawartha Pine Ridge District School Board, supra) suggests the following
principles apply with respect to the proper exercise of such a discretionary power:
1. The decision must be made in good faith and without discrimination .
2. It must be a genuine exercise of discretionary power, as opposed to rigid
policy adherence.
3. Consideration must be given to the merits of the individual application under
review.
4. All relevant facts must be considered, and conversely, irrelevant considerations
must be rejected.
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As suggested in Providence Continuing Care Centre, supra, the Employer has
the onus of establishing the denial of such requests were appropriate. In particular,
given the wording of Article 5.02, the Employer has the onus of establishing that its
operational requirements at the time of the request suggest that it was not unreasonable
to deny the requests.
Assessing the Employer’s refusal to approve the change of status requests, it is
important to appreciate that essentially the same underlying factual matrix was
applicable to all the requests. That is, common to the time period pertaining to each of
the requests was the dramatically increased difficulties the Employer was experiencing
in terms of satisfying its staffing needs, given the impact of COVID-19. Accordingly,
there is not much to the Union’s argument that significance attaches to the fact that the
Employer’s stated rationale for denying all of the requests was essentially the same.
Further to the above, the following facts set out in Mr. Myre's Will-Say Statement,
which were not challenged by the Union, highlight some of the staffing difficulties that
the Employer encountered during the relevant period:
1. Between February 6, 2022, to November 24, 2023, there were
140 “downstaffing” incidents. “Downstaffing” involves a short
staffing scenario which involves only one paramedic rather
than the usual two paramedics per ambulance or a shift that is
short a full two-person crew.
2. Related to the staffing shortage, the number of overtime hours
paid by the Employer increased exponentially by over 6000
hours from 2021 to 2022.
3. There were significant differences between the number of
hours offered, the number of hours scheduled, and the number
of hours worked by RPTs and CPTs. For example, in 2021,
6,801.75 hours were offered for CPTs, but only 2,795.25 hours
were actually worked.
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4. In 2021, 10 PT paramedics left the service. .
In terms of the Union’s argument that the Employer’s decisions to deny RPTs a
change of status to CPTs was, in fact, counterproductive because some of those
employees who were denied the change in status resigned, the Employer disputed that
whether, in fact, in all the cited cases, the employee’s decision to resign was due to the
fact they were not granted CPT status. In this regard, based on the submitted evidence,
it is difficult to arrive at a firm conclusion that the denial of the request was the primary
reason the employees in question resigned. Moreover, e ven if it was established that
the decision of the employees in question to resign was a direct result of the denial of
their request to a change of their status, in my view, that development would be
irrelevant to the assessment of whether the denial was reasonable and appropriate at
the time it was made.
As to the argument that the Employer had failed to properly police RPTs’
availability, there is some merit to the point that the Employer could have been more
aggressive in enforcing the mandated availability requirements for RPTs under Article
5.04. That being said, the evidence establishes that the Employer had taken a number
of initiatives since 2018 to repeatedly remind and counsel employees as to their
availability obligations. Moreover, given the dramatic adverse impact of COVID-19 on
the staffing levels of paramedics with the Employer, even if all the PT employees had
satisfied their mandated availability requirements, that may not have had a sufficient
enough impact to lessen the staffing pressures that the Employer encountered
throughout this period.
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With respect to the Union's reference to the Employer's failure to obtain the
elimination of the CPT designation in the last round of bargaining, insufficient facts were
presented to determine what weight, if any, should be given to that particular argument.
In terms of the authorities relied upon by the Union, the only case that had any
relevance to the issue in dispute was the decision of the Arbitrator Slotnick in Trillium
Health Partners, supra. In that case, the hospital unilaterally imposed limitations on
employees' ability to exchange shifts. The relevant language of the collective agreement
suggested that while the Employer had to approve the shift exchange, such approval
“would not be unreasonably withheld”. Significantly, in contrast to the case at hand, the
“would not be unreasonably withheld” obligation that applied to the employer ’s decision-
making in that case was not qualified by the phrase “subject to operational
requirements”.
In conclusion, based on the particular facts that were in existence at the time that
the Employer made the relevant decisions, it has been determined that the Employer
satisfied the onus of establishing that its operational requirements justified its decision
to deny the employees involved a change in status to CPTs. Accordingly, the grievance
is hereby dismissed.
This Award is issued in Mississauga on this 26th day of July 2024.
________________________
Brian Sheehan