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HomeMy WebLinkAbout1992-0566.Young.93-03-24 ,. f (. ONTARIO 't, EMPLOYES DE LA COURONNE 'i. ?t" CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2700, TORONTO. ONTARIO. M5G 7Z8 TELEPHONElTi~LePHONE (476) 326-7388 180. RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO} M5G lZ8 FACSIMILE ITeLf!COPIE (416} 326-7396 566/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE S~TLEMENT BOARD BETWEEN OPSEU (Young) Grievor - and - I The Crown in Right of Ontario (Ministry of Health) Emp1.oyer BEFORE: W Kaplan Vice-Chairperson M. Lyons Member I D. Montrose Member FOR THE J Paul UNION Grievance Officer Ontario Public Service Employees Union FOR THE M Quick EMPLOYER Counsel Legal Services Branch Ministry of Health HEARING December 3, 1992 January 19, 1993 ~_.._.. - rf ( 2 C' ."i' Introduction By a grievance dated April 10, 1992, Susan Young, a Registered Nursing Assistant employed at the Whitby Psychiatric Hospital, grieves that she was unjustly transferred and seeks, by way of remedy, return to her former position The case proceeded to a hearing in Toronto, at which time evidence and argument were heard. In brief, it is the union's position that the employer has violated Article A of the Collective Agreement as well as Article 50 6 1 The union alleges that these provisions were violated as a result of the employer transfernng the grievor to a new position upon her return from maternity leave The employer took the position that there had been no violation of any Collective Agreement provision and that the grievance should, accordingly, be dismissed Before turning to the evidence and argument, it is useful to set out the Collective Agreement provisions at issue in this case ARTICLE A - NO DISCRIMINATION/EMPLOYMENT EQUITY A 1 There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 91 of the Ontario Human Rights Code.. (OHRC) ARTICLE 50 - PREGNANCY LEAVE 50 6 1 A female employee returning from a leave-of-absence under section 50 1 or 50 5 to the ministry in which she was employed immediately prior to such leave shall be assigned to her former position and be paid at the step in the salary range that she would have attained had she worked during the .'1 ( 3 ( " leave-of-absence The Evidence Ms. Young testified first. She has been employed at the Whitby Psychiatric Hospital (hereafter "the Hospital") since August 1987 Prior to her maternity leave the grievor worked in the Psychotherapy Unit. Ms Young went on maternity leave in October 1991, and returned to work in April 1992 Prior to beginning her leave, Ms. Young discussed her impending leave with Bernadette Bradley, the Nursing Manager of the Psychotherapy Unit She advised Ms Bradley that she wished to return to that unit following her leave Ms Bradley advised her that she wanted the grievor to return to that unit, but that this could not be guaranteed, and that in the past, some employees had been transferred to other units following maternity leave The grievor testified that she liked working on the Psychotherapy Unit, that she had cordial relations with Ms. Bradley and her co-workers, and that her performance appraisal<\ were uniformly positive During the grievor's maternity leave she was contacted by Ms Bradley, who advised her that she would not be returning to the Psychotherapy Unit at the conclusion of her maternity leave The grievor was advised in March 1992 by Ms Bradley that she was being transferred for staffing complement reasons. The grievor then contacted Ms. Victoria Halpenny, the Nursing Staff Coordinator, and the two met on March 27, 1992 Ms. Young made it clear to Ms. Halpenny that she did not wish to be transferred. Ms. Halpenny advised her that the transfer was due to staffing requirements and that she, Ms Young, was the most logical person to be transferred from the Psychotherapy Unit because she was on maternity leave The grievor advised Ms. Halpenny that she did not wish to be transferred, and on April 3, --- ---- --. --- --~----_.,------- =-=--------,--~=_c==_~ ----'----=-'-=-~_=____ =--- -- _ - _._--~- _ _ ___ _._ ___ __ ____ .- '" ( 4 ( 1992 she sent her a letter to that effect. The letter stated, in part. During our conversation, you informed me that it had become apparent to you that P T U can reduce its staffing number I was chosen to be transferred as I was considered the most logical person because 1 had already been away from the ward on a maternity and parental leave You acknowledged and understood my not wanting to be transferred, however you maintained that the transfer would be taking place upon my date of return I would like it to be so noted that: I am not in agreement with the above noted transfer; and request to return to the position on P T U , I held prior to my maternity leave. ;'~ Ms. Halpenny replied to this letter on April 3, 1992, and maintained her decision to transfer the grievor, stating, in part, that she was "sorry that you do not agree with your assignment following maternity and parental leave " Introduced into evidence were the minutes of a staff meeting held in the Psychotherapy Unit on March 18, 1992 Under the heading "Staffing" the .~. following appears "Would any staff like to volunteer to be transferred to another ward ie STAT Our staff presently on leave will be returning and will be reassigned unless another staff wishes to transfer" The word "STAT" refers to the Short Term Assessment and Treatment ward The reference to "our staff" was to the grievor None of the other employees on the Psychotherapy Unit volunteered for the transfer The grievor testified that she had worked in the Psychotherapy Unit for five years and enjoyed her work. She feels that she has made a contribution to the unit, and that she works well with patients in the unit. Indeed, she G' C .," ,,' 5 .. ! ;~: testified that Ms. Bradley expressed pleasure with her work performance on many occasions. The grievor liked the fact that the Psychotherapy Unit is a long-term treatment unit, for this provided her with an opportunity to develop good working relationships with patients, and to assist them in dealing with their problems and disabilities Employees assigned to the Psychotherapy Unit provide more than conventional nursing duties, they also help patients with hygiene, life skills, grooming and nutrition The grievor testified that she found this work to be fulfilling Upon her return from maternity leave the grievor was transferred to the STAT ward She testified that she did not like working on this ward as ,:; much as her previous assignment, and that one distinguishing characteristic was the fact that she is now involved in physically restraining patients She did not have to do this in the Psychotherapy Unit. She also testified that staff morale at her old ward was much higher than at her new ward, and that her old ward also provided her with more opportunities for professional growth The grievor told the Board that there was very little "'1.. movement out of the Psychotherapy Unit. ':'",. In cross-examination, the grievor agreed that it was possible that when she was hired she was told that there was a possibility that she would be transferred from one ward to another Ms Young was shown a copy of her position specification and it was pointed out to her that it refers to 122 Psychiatric Nursing Assistant ("PNA") positions at the Hospital The grievor agreed that she occupied one of these positions, and also agreed that the Hospital has, in the past, transferred employees in the case of staff shortages, because of patient numbers and other factors relevant to patient care Ms. Young testified that anyone who is hired as a Psychiatric (.... I (J" ./1.~ . It'; C , 6 Nursing Assistant can be assigned to any ward in the Hospital to meet health care needs. The grievor was asked some questions about the Psychotherapy Unit, and she testified that many of the patients on the ward had been voluntarily admitted By and large, these patients suffered from personality disorders such as depression The average length of stay for these individuals is eight months Psychiatric Nursing Assistants on the unit work with these patients as either the primary or associate nurse, and they are assigned to patients for the entire period of their stay in the unit. Ms. Young agreed that establishing a relationship with these patients was critical to their therapy There are now three Psychiatric Nursing Assistants in the Psychotherapy Unit, and one nurse Before the grievor went on maternity leave there were .- four Psychiatric Nursing Assistants assigned to the unit. In terms of seniority, the Qrievor and one of the other Psychiatric Nursing Assistants, Bev Moran, have equal hospital seniority as they began work on the same day However, the grievor has more Psychotherapy Unit seniority than Ms Moran Ms. Young testified that to the best of her knowledge she was not replaced while on maternity leave, and she agreed that one of the reasons provided to her for her transfer was the fact that the Hospital determined during her leave that it could function quite well with a lower unit complement. Ms Young did not recall Ms Bradley advising her that her impending transfer was because of ,patient needs, but she did recall Ms Halpenny' telling her before she returned to work that she was the most logical person to be I i' ( 7 C transferred as she was on maternity leave Ms. Halpenny also told her that this transfer made sense for reasons of patient care including nursing continuity Ms Young took 1 7 weeks of maternity leave followed by a 1 O-week parental leave Ms Young agreed with employer counsel that continuity in patient care was important. J The grievor was shown a copy of the Hospital's Staffing Policy It provides, in part. When an employee's return is indeterminate~ (more than four (4) weeks) their time will be recorded in the Nursing Office. Upon return to duty the employee will be assigned according to needs and may spend" some time on float. This applies to Maternity Leave also, as return to the same ward is not guaranteed. The grievor was not, however, familiar with this document. The grievor testified that she was given a choice of wards to transfer to, and stated that she is doing a good job on the STAT ward She is earning the same pay, and has the same classification and seniority in re-examination, the grievor testified that wilen she left on maternity leave the Hospital knew the exact date of her return. Ms. Victoria Halpenny testified on behalf of the Hospital Ms. Halpenny is the Nursing Staff Coordinator, and has held that position for ten years. She has thirty-four years of nursing experience, and she is responsible for coordinating staffing throughout the Hospital This responsibility includes 1" ( 8 C recruitment, interviewing, selection, assignment and transfers When hiring employees Ms Halpenny advises them that they are not hired for work on a particular ward, but could end up working anywhere in the Hospital on any shift. The grievor was hired as a Psychiatric Nursing Assistant, and Ms. Halpenny testified that there are 122 such positions in the Hospital Introduced into evidence was an extract from the Ontario Manual of Administration It defines "position" as \ A grouping of duties and responsibilities * established by management, and * performed by an individual or group of individuals with a specific organizational unit; and * established in the IPPEBS Ms. Halpenny was familiar with this definition, and she also identified the Hospital's Staffing Policy earlier introduced Into evidence ~ Ms Halpenny is responsible for coordinating staffing while employees are on leave, and she does so by considering patient and ward needs, the number of staff available and other relevant factors In her experience, staff on leave return to the ward they were working on prior to their leave approximately fifty percent of the time In general, maternity leaves last for 11 9 days. Four weeks prior to the end of the maternity leave, an employee can request an additional ten weeks of leave, and this period can be extended one more time for a further ten weeks. In Ms. Halpenny's experience, employees frequently ask to extend their leaves, although ('"' 9 (- sometimes they ask to come back earlier than originally expected Ms. Halpenny testified that she applies the same principles in dealing with all types of leave requests. Ms. Halpenny was asked about "multi-incumbent" positions, and she testified that these are nursing assistant positions for which nursing assistants can be interchangeably assigned in order to meet Hospital needs Ms Halpenny is required to transfer staff on a daily basis, although transfers of permanently assigned staff are much less frequent. In her view, it is important to have flexibility in assigning employees, and if I employees like the grievor were permanently assigned to a specific ward she would lose that flexibility Ms. Halpenny testified about the Psychotherapy Unit. Many of the patients on that unit suffer from severe psychological problems, and some of them are psychopaths Nursing Assistants assigned to that unit do a lot of one-to-one care, and in her experience the average patient remains on that .., unit for nine months. She testified that it can take a long time for patients .~ to develop trust in nursing staff, and that the situation in the Psychotherapy Unit is somewhat different than elsewhere in the Hospital where the need for continuity in nursing care is slightly less important. Ms Halpenny recalled discussing the matter of the grievor's leave prior to its commencement. She testified that the Hospital originally intended to replace the grievor while she was away, but after the grievor objected, and after she persuaded the Hospital that it could manage without hiring a replacement, the decision was reached to do just that As it turned out, the Hospital then learned that it could function with one less employee, and so . ~ - -~_.- --.--- - .----- - (~ ( ,... J:: 10 for this reason as well as budgetary concerns, the decision was made to transfer one employee to a different ward Ms Halpenny described her March 27, 1992 meeting with the grievor, at which time she advised her that since she had been away for approximately eight months, she would be -- reassigned. Ms. Halpenny told the Board that the grievor was not treated \ any differently than any other employee who might have been away on leave, such as, for example, an employee away on educational leave In cross-examination, Ms Halpenny testified that she has transferred employees returning from maternity leave on many occasions Ms Halpenny was aware that the grievor's co-workers in the Psychotherapy Unit were ,.'; given the opportunity to voluntarily transfer, and she agreed that the grievor was not given this opportunity Ms. Halpenny was then asked how she could say that grievor was treated the same as everyone else, and she replied that she was treated the same as everyone else returning from leave Ms. Halpenny was asked what she would have done if the grievor had not been away on maternity leave and the decision was reached to reduce the complement by one on the Psychotherapy Unit. She replied that she would have looked at patient needs and nursing skill levels, and she would have also considered seniority in making her selection If the two most junior employees had equal hospital seniority, then Ms. Halpenny would have probably looked at ward seniority in deciding which of the two should be reassigned Ms. Halpenny, however, did not think that she had to take this factor into account when she made this decision because the grievor was not working on the unit at that time {, 11 ( j. ~ Ms Halpenny testified that it takes some weeks for a Psychiatric Nursing Assistant to effectively separate from his or her nursing relationships, and \ this was another factor influencing her decision to transfer the grievor upon her return In re-examination, Ms. Halpenny testified that the most important factor in transferring a Psychiatric Nursing Assistant was patient care, not seniority Mr Carl Sumner also testified on behalf of the employer Mr Sumner is the Regional Personnel Administrator He is based in Whitby, and has more than "...; seven years of experience in the Ontario Public Service -Mr Sumner testified generally about the purpose of the classification system, and the class standard for the Psychiatric Nursing Assistants was introduced into evidence He also reviewed the grievor's position specification, and testified that it was a multi-incumbent position, and that there were 122 such positions at the Hospital, although there was variance with respect to specific assignments. This position specification provided the employer and the employee with a general-description of duties and responsibilities, but also ensured that there was operational flexibility Mr Sumner was asked about Article 50 6 1 of the Collective Agreement, and he testified that he interpreted the word "position" in that article as any Nursing Assistant position He testified that this has been the Hospital's consistent interpretation of the Article, and that all new recruits are advised that they could be assigned to any job in the Hospital. Mr Sumner testified that he arrived at this interpretation by his experience with the Collective Agreement, and he made reference to other uses of the word --..-- ( 12 (" "position" throughout that Agreement. He also arrived at that interpretation through his review of the Crown Employees Collective Bargaining Act and the Manual of Administration Union Argument Mr Paul began his argument with the submission that the employer had failed to properly interpret Article 50 6 1 of the Collective Agreement, and that it had, moreover, violated Article A 1 Turning to his second submission first, Mr Paul argued that the evidence established a violation of Article A.1 In his view, the employer had directly discriminated against the grievor in transferring her upon her return from maternity leave, it had engaged in adverse impact discrimination by treating her the same as other employees on leave, and had also improperly exercised its discretion in its interpretation of the maternity leave provisions. As the underlying authority for a number of his propositions, Mr Paul referred the Board to Kimmel/Leaf 1391/90 (Kaplan) Mr Paul noted that while the grievor was away on maternity leave, her co-workers in the Psychotherapy Unit were given the opportunity to volunteer to transfer The grievor was not given this opportunity, and a transfer was, in the result, imposed on her because she was a woman and because she had been pregnant. Mr Paul pointed to the Hospital's Staffing Policy and argued that it was, on its face, discriminatory and constituted direct discrimination Further evidence of direct discrimination was, in Mr Paul's submission, provided by the grievor who testified that Ms. Halpenny advised her that she had been chosen for the transfer because she was on maternity leave ( ( . '. 13 With respect to adverse impact discrimination, Mr Paul argued that it too had been established in evidence The grievor was selected for transfer because she was on maternity leave A penalty was, accordingly, associated with the status of being a woman on maternity leave, and none of the other employees in the Psychotherapy Unit were subject to that penalty Indeed, the other employees, in Mr Paul's submission, received preferential treatment as they were accorded the opportunity to volunteer to transfer, while the grievor was simply told that she was being transferred Instead of accommodating the grievor, the employer transferred her, and this, in the union's submission, violated Article A 1 With respect to improper exercise of discretion, Mr Paul argued that the employer had fettered- its discretion, and he referred the Board to the Kuynties 513/84 (Verity) decision That decision sets out four factors which the employer must consider in exercising discretion, and these require, among other things, that the decision be made "in good fait~ and without discrimination," and that consideration be "given to the merits of the individual application under review" Mr Paul suggested that the decision in the instant case did not meet the requirements of the Kuynties .~. decision in that it was discriminatory and that the Hospital had not given proper consideration to the grievor's position Ultimately, with respect to the violation of Article A 1, Mr Paul suggested that the important question to ask was where would the grievor be today if she had not been away on maternity leave when the decision to transfer her was made? i ( 14 ( With respect to the alleged violation of Article 50 6 1, Mr Paul argued that a plain reading of that provision indicated that the parties intended that women on maternity leave not suffer in any way from having gone on maternity leave upon their return to work In Mr Paul's submission, to give v effect to that intention, the words "her former position" must be interpreted to mean the particular job that the woman held before leaving on maternity leave In the instant case, the grievor's "former position" was the job she held in the Psychotherapy Unit. Although employer witnesses testified that there were '22 Psychiatric Nursing Assistant positions at the Hospital, Mr Paul argued that the evidence demonstrated that these positions were not the same as an employee's former position. While the employer could and did - transfer employees to meet operational needs, for example if an employee was sick and another employee was needed to fill in, the evidence also established that employees occupied permanent positions on assigned wards The grievor, for example, had been in her job for some years. This job was, accordingly, her "former position " Mr Paul referred the Board to the Furniss 602/86 (Slone) decision in support of his submissions with respect to the proper interpretation of the term "former position" The Furniss case concerned the meaning to be given to the word "position" in the context of a claim made by a seasonal employee who grieved that he was not recalled to his "position" Unlike the instant case, the union in Furniss urged that the Board, again in the context of the seasonal recall provisions of the Collective Agreement, adopt a broad definition of the word position and find that an employee who occupied essentially the same job in three different provincial parks over the course (' 15 ( of three consecutive summer seasons had a right to return to his "position" The employer in Furniss, like the union in the instant case, urged that the Board adopt a narrow interpretation of the word "position," and argued that it referred to a specific location within a specific organizational branch The Board in Furniss reviewed the pros and cons of each party's position at some length in its reasons for decision. What is important for the instant case, however, is that this discussion focused on each party's interests with respect to the operation of the recall provision. Both party's in Furniss referred the Board to other Collective Agreement provisions where the word "position" was used. After reviewing those provisions the Board concluded that the word "position" was not "used in all contexts to mean precisely the same thing It is not a term of art. One can draw support for both competing positions from other Articles within the Collective Agreement, and we therefore find this approach to be not too helpful" (at 9) The Board also found that the definition of the word "position" in the Manual of Administration was of no assistance to it in interpreting the recall provision at issue in that case Mr Paul urged the Board to follow the approach taken In Furniss, and interpret the word "position" within the context of the maternity leave provisions not within the context of the Collective Agreement considered as a whole Mr Paul suggested that Mr Sumner's evidence was simply his opinion, and that the Board in this case, as in Furniss, should not, and could not be bound by the interpretation of the word "position" found in the Manual of Administration, or in the Hospital's policy ---~-~ --- - - - -~-- -~-- -- ------ ~- - - -.- ----- -"- ------ ( 16 ( r~ In Mr Paul's view, the jurisprudence supported the proposition that the word "position" has to be interpreted within the factual context at issue in each particular case (see Union Grievance 1623/87 (Samuels)) In the instant case, Mr Paul argued that the evidence established that the grievor worked in a particular "position" and had done so for some years This was a permanent position in the sense that the grievor returned to exactly the same ward and the same duties and responsibilities day after day, year after year It did not make any sense, in his submission, in these circumstances to suggest that the grievor's position was any of 122 PNA positions lound throughout the Hospital Indeed, the fact that the Hospital - did have specific positions was illustrated by the fact that the grievor was transferred to one such position, the STAT ward, upon her return from maternity leave, and that this transfer was a permanent one Further evidence of the permanent nature of various positions was provided by Ms. Halpenny's evidence that transfers from the Psychotherapy Unit are not a regularly occurring event, and that one important factor in making these transfers was seniority Very simply, in the union's submission, the grievor's position was on the Psychotherapy Unit, and it was to that position that she should have been returned to following her maternity leave Mr Paul argued that the whole purpose of Article 50 6 1 was to ensure that female employees did not suffer as a result of taking maternity leave That is why it was written, and to uphold the employer's position with respect to the word "position" would completely undermine the purpose of the provision, for such a result would be contrary to its remedial intention Following the h~aring, Mr Paul supplied the Board with relevant extracts from the Employment Standards Act In 1990, the relevant Employment - ( 17 ( Standards Act provision stated that. An employee who intends to resume her employment on the expiration of a leave of absence granted to her under this Part shall so advise her employer anQ on her return to her work her employer shall reinstate the employee to her position or provide her with alternative work of a comparable nature at not less than her wages at the time her leave of absence began and without loss of seniority or benefits accrued to the commencement of her leave of absence On January 1, 1991 a new provision came into effect, and it was the provis~onin effect at the time the grievance was filed and heard It provides The employer of an employee who has taken pregnancy leave or paternal leave shall reinstate the employee when the leave ends to the pOSition the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not. Mr Paul pointed out in his argument that the Collective Agreement provided simply for the right of a female employee to return to her position following maternity leave, not to any comparable position The applicable Collective Agreement did not provide for a return to one's classification following maternity leave, as was the case in the prior Collective ,Agreement. This change was further evidence of the intention of the parties Mr Paul asked the Board to find that the Collective Agreement had been violated, and to make an order returning the grievor to the Psychotherapy Unit. Mr Paul requested that the Board remain seized with respect to the implementation of Its award ~'" . 18 ( .. Employer Argument Employer counsel argued that the words "former position" did not refer to a specific job, but referred to all 122 Psychiatric Nursing Assistant positions within the Hospital In counsel's submission, the Furniss decision !i directly applied to the instant case. Counsel argued that that decision - stood for the proposition that where the duties and responsibilities of an individual were, by and large, the same, then notwithstanding the fact that that individual worked in two or more different worksites, he or she was still working in the same position Applying this principle to the instant case, counsel argued that the grievor was still, by and large, doing the same } job as she had in the past, and that, accordingly, she was occupying the same position that she had occupied in the past. Counsel urged the Board to dismiss the grievance on this basis alone Employer counsel also referred the Board to the Smith 2315/87 (Oissanayake) award, where the Board held that in "determining whether a position is the grievor's former position some latitude must be allowed for minor differences In our view the appropriate test is whether or not the substance of the duties and responsibilities are sufficient similar This will be a question of fact in each case (at 9) Simply put, in counsel's submission, this case stood for the proposition that so long as two jobs were substantially similar in their duties and responsibilities, they qualified as one and the same "former position" (See also Anderson 471/86 (Roberts), and Brand 1516/87 (Stewart)) Counsel argued that these and other cases stood for the proposition that the Board has consistently given the word "position" a broad interpretation, and that it should also do so in the instant case Counsel suggested that this approach was also the one followed in the private sector indicating its general acceptance and ( 19 (,. '. applicability (see Re De Havilland Aircraft of Canada Ltd. and UAW. Local 673 5 L.A.C. (3d) 147 (Palmer) In addition, counsel argued that as a general matter, the Board should interpret the word "position" in a consistent manner, and one aid to its proper interpretation was its use elsewhere in the Collective Agreement. . Counsel referred to its use both in the recall provisions for seasonal employees, as discussed in the case law, as well as its use in the health and safety provisions and in the surplus provisions By way of example, ~ counsel suggested that if the union's narrow interpretation of the word "position" was found to govern, then it would act to the detriment of surplused employees under Article 24 16 1 And this, counsel suggested, would not reflect the intention of the parties With respect to the allegation of discrimination, counsel argued that the evidence established that there had been no discrimination in this case. The grievor had been returned to her position, and so she could not claim that she had been discriminated against on the basis of gender Counsel argued that the evidence established that the grievor had been treated no differently than anyone else on leave, and so, in her view, the claims of direct and adverse impact discrimination must fail Counsel further argued that the grievor had been treated in accordance with the employer's long established policy, and that she was transferred for legitimate operational needs Nevertheless, her position did not change Union Reply In reply, Mr Paul argued that the Board found in Furniss that the word "position" was not a state-of-the-art term, and that it had to be k 20 C . interpreted within the context of each different article of the Collective Agreement. It would be interpreted one way for the recall rights of seasonal and surplused employees, and another way for determining the rights of employees returning from maternity leave And one reason in support of these differing interpretations was the fact that the recall rights of seasonal and surplused employees were based on seniority, while those of employees returning from maternity leave were not. This reason alone, in Mr Paul's submission, justified the two different approaches to interpreting the term. Seasonal and surplused employees were in a much different situation than employees on maternity leave, for employees on r maternity leave are guaranteed their job upon their return to work. Decision Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that the grievance must be upheld In our view, the employer h~s failed to properly apply Article 506 1 of the Collective Agreement. We find that the words "former position" refer, in the context of this Article and the facts of this case, to the specific position held by the grievor prior to her maternity leave In general, we agree with employer counsel that the rUles of statutory interpretation favour assigning the same meaning to the same word used in the same statute In general, this prinCiple undoubtedly applies to the construction of collective agreements We do not, however, find that it applies in this case because a review of the use of the word "position" throughout the Collective Agreement leads one inescapably to the conclusion that it is used to mean different things in different sections. This is hardly surprising given the size of the bargaining unit, and the ( 21 ( ~ :~ countless positions throughout the Ontario Public Service Moreover, it is hardly surprising that the word should mean one thing to an employee returning to her job from maternity leave and another thing to a seasonal employee relying on his or her seniority rights to return to work at the start of another season Our finding in this case is buttressed by the change in language in the Collective Agreement, which in turn reflects the changes in the Employment Standards Act. Article 50 6 1 of the predecessor Collective Agreement (January 1, 1989 to December 31, 1991) provides that "A female employee returning from a leave-of-absence under section 50 1 or 50 5 to the "~;. ministry in which she was employed immediately prior to such leave shall be assigned to her former classification. " (emphasis ours) Article 50 6 1 of the Collective Agreement applicable in the instant case (January ~ 1, 1992 to December 31, 1993) provides that "An employee returning from a , leave-of-absence under section 50 1 or 50 5 to the ministry in which she was employed immediately prior to such leave shall be assigned to her former position " (emphasis ours) Obviously, the word "classification" was changed to the word "position" for a reason, and that reason must be to enhance the protections afforded to pregnant employees taking maternity leave Moreover, the conclusion is inescapable that the change was made as a result of the raising of the minimum standards in the Employment Standards Act. The law now requires that an employer reinstate an employee returning from her maternity leave to her position if it still exists. We found, in the instant case, that Ms. Young's position continues to exist and that the Collective Agreement mandates that she be returned to it ------- - -~~- --.---- - --- --- ~-- - -- (. 22 ( ~ . Our interpretation of the Collective Agreement is supported by the Board's . jurisprudence In Smith, referred to by employer counsel, the Board held A Classification includes a bundle of duties and responsibilities, usually requiring similar qualifications, skills and abilities A classification is broader than a position A single classification may encompass a number of positions. Each position may include some combination of the duties from within the bundle of duties in that classification Thus two employees may be identically classified but may be performing completely different duties In article 3 20 1 the employee's right to recall is to his "former position" The word "classification" is one well known to parties and it has been used in numerous other places in the collective agreement. If the parties intended to extend a right of recall to any position in the classification in which the employee had previously worked different - language would have been used The article as it is presently worded cannot reasonably be interpreted in that manner (at 8) 0 likewise, we find in the instant case that in referring to the employee's former position, the parties intended to refer to a specific position where such a position can be associated with a particular employee Obviously, there WIll be cases where no such position can be identified as belonging to a particular employee These cases will, therefore, to some measure, turn on their par.ticular facts. The facts of the instant case make it clear that the grievor had a specific job And it was that job that she should have been returned to following the conclusion of her maternity lecJVe -- ( 23 ( ~ . Our finding is explicitly supported by the wording of Article 50 6 1 and the I grievance can be upheld on this basis alone However, it is necessary in I this case to make some further findings with respect to Article A That provision guarantees employees freedom from discrimination on the basis, among other grounds, of gender Article A requires a purposive interpretation, and its purpose is to eliminate discrimination on prohibited grounds in the workplace. We cannot help but find In this case that the grievor was directly discriminated against on the basis of her gender Had she not been a woman, and had she not been on maternity leave, the employer would not necessarily have transferred her to a different job It might have transferred her, but if it did, the evidence indicates that it I" would not have done so on prohibited grounds Moreover, had the grievor not "- been a woman, and had she not been on maternity leave, she would have been afforded the same opportunity as everyone else who worked on the Psychotherapy Unit to volunteer to transfer to another ward. She was not given that opportunity and the evidence indicates that she was not because she was away on maternity leave Accordingly, we are left with no choice but to find a violation of Article A on the grounds of direct discrimination against the grievor It is also necessary in this case to make some findings with resp~ct to adverse impact discrimination The Hospital in this case has a policy that it uniformly applies with respect to return from leave The policy applies to everyone, and it is to the effect that upon return from leave employees mayor may not be assigned to their previous wards. This policy is neutral on its face in that it applies to everyone equally However, the policy has an adverse impact on women who become pregnant and go on maternity leave Protection from discrimination based on gender is guaranteed in ~ .~. ~._.~ (, 24 <.. f . Article A. The Hospital's policy, because of its adverse impact on women, violates that provision, and may fail to meet the mint mum standards set out in the Employment Standards Act A finding of adverse impact discrimination imposes a duty on the employer to accommodate to the point of undue hardship. In the instant case, the employer's accommodation obligation is spelled out in Article 50 6 1 It requires the employer to return the grievor to her former position at the conclusion of her maternity leave Our award, therefore, does nothing more than enforce the bargain reached by the parties. Very simply, the Hospital's return from leave policy impacts on employees ;(i: on maternity leave because they are women, and the parties have agreed that there w!ll be no discrimination based on gender The policy is in violation of the Collective Agreement, and to the extent that it has an adverse impact on women returning from maternity leave we declare it to be of no effect. ~~ It is not necessary, given our disposition and given the facts of this case, to make any findings with respect to the exercise of the employer's discretion However, it is appropriate to make some general findings with respect to the employer's conduct in this case there is no evidence of any bad faith on the part oJ Ms. Halpenny or any Other member of management. This is a case of first impression, and the evidence indicates that the Hospital applied its long.,.established policy in the manner that it had been applied without incident or complaint on countless previous occasions. It was clear from her evidence that Ms. Halpenny made decisions in what she considered to be the best interests of the Hospital - _. (,," ( "';''- 25 --:;,. 1. -; Additional Observations A few additional observations are in order It is important to bear in mind that maternity leaves are not like other leaves, and notwithstanding the employer's Staffing Policy, they should not and cannot be treated in the same way Maternity leaves are special because of the detailed provisions of the Collective Agreement, and because of the overriding implications of Article A. It is also worth noting in passing that the evidence did not establish that returning the grievor to the Psychotherapy Unit would have had any damaging effect on patient care In her evidence in chief, Ms Halpenny spoke about the needs of patients in the Psychotherapy Unit, and testified that continuity in patient care was only slightly more important on that ward than on other Hospital wards. Indeed, there was no evidence before us that there would have been any damaging consequences of returning the grievor to her position. While the evidence indicates that it can take several weeks to separate from a nursing relationship, the evidence also indicates that the Hospital knew when the grievor was coming back and so could have planned for this in advance Conclusion For the foregoing reasons, the gnevance is upheld The Hospital is directed to reinstate the grievor to her former position on the Psychotherapy Unit with the ward seniority she would have had had she been returned to that I unit at the conclusion of her maternity leave Put another way, she is to suffer no loss of seniority for either the period that she was away from the ward while on maternity leave or the period from her return to work at the Hospital to the date of the implementation of this award ( 26 (\, , ;'>.j I~' Implementation of this Award We foresee certain difficulties with respect to the implementation of this award - In making this award we are not, obviously, directing the employer to increase the staff complement on the Psychotherapy Unit. All we are doing is finding that the Hospital should have returned the grievor to her former position on that unit at the conclusion of her maternity leave A t that time the employer would have had every right to transfer one or more employees - The Hospital still has that right. Indeed, the Union never disputed the employer's entitlement to reduce complement on this ward The focus of its dispute with the employer was the manner in which that decision was executed The Hospital may now decide who to transfer out of that ward, but it cannot, in our view, make that decision in such a manner so as to discriminate against the grievor for being away while on maternity leave It must make that decision as if the grievor had not been away And it must make that decision as if the grievor had returned to the ward following the completion of her maternity leave Accordingly, we direct the Hospital to reinstate the grievor to her former positionio the Psychotherapy Unit with the ward seniority she would have had had she been properly returned to her former position in the first place The Hospital is directed to implement this award within four weeks of its date of issue (and in that way have enough time in order to properly prepare the patients in the Psychotherapy Unit for this change) or as mutually agreed upon by the parties (;:"~ (:" \ 27 ........' . ~~ (j. We remain seized with respect to the implementation of this award DATED at Toronto this 24th day of March, 1993 IN IL ----------------- "I Dissent" (dissent to follow) ----------------- D Montrose Member :~ "- ~"1} - - - -- ---- - - --- - ........,--_. -- ------ ----