February 2022 Healthcare Update

COVID-19 Related Cases of Interest

a)   Mandatory Vaccination Policy: Disciplinary termination provision of the policy violates the terms of the Collective Agreement

·       Chartwell Housing Reit (The Westmount, the Wynfield, the Woodhaven and the Waterford) v Healthcare, Office and Professional Employees Union, Local 2220 (Misra, February 7, 2022)

In May 2021, the Minister of Long-Term Care issued a Directive requiring all long-term care (“LTC”) homes to have a COVID-19 Immunization Policy for staff. In June 2021, the employer implemented a vaccination policy which encouraged vaccination. In August 2021, the employer revised its policy and made COVID-19 vaccination mandatory for all staff, subject only to authorized medical exemptions. Those not fully vaccinated would be placed on an unpaid administrative leave of absence which could result in termination of employment. In October 2021, the Minister directed all LTC homes to have a mandatory COVID-19 vaccination policy which held out of work any unvaccinated individuals. In November 2021, the employer advised unvaccinated employees that if they remained non-compliant with the policy, their employment would be terminated. In December 2021, the employee terminated 14 non-compliant employees for just cause.

The union accepted the employer’s right to introduce a mandatory vaccination policy pursuant to the Minister’s Directives. The union’s grievance however, argued that the portion of the policy making failure to get vaccinated a disciplinary offence leading to dismissal, was unreasonable and a violation of the consultative provisions of the collective agreement. Termination was not required by the Directive and there was no legitimate management interest in discharging employees who could have remained on administrative leave for a period akin to a layoff. The employer argued that indefinite leaves of absences were not a reasonable alternative to termination. Furthermore, employees non-compliant with reasonable workplace rules regarding vaccination were engaging in misconduct and were subject to termination of employment.

Arbitrator Misra found that the employer breached the collective agreement when it moved to a mandatory vaccination policy with the option of termination for unvaccinated employees, without first discussing the significant change with the union or providing the union with a copy of the policy. The employer had also breached another clause in the collective agreement when it chose to impose the disciplinary penalty of discharge for noncompliance, instead of the existing beneficial penalty of an unpaid leave, without the union’s agreement.  The clause in question provided as follows:

18.5  Existing rights, privileges, benefits, practices and working conditions shall be continued to the extent that they are more beneficial and not inconsistent with the terms of this Collective Agreement unless modified by mutual agreement of the Employer and the Union.

The employer had a past practice of excluding, not terminating, employees who could not work due to noncompliance with a workplace requirement.  Specifically, employees who could not work because they were not vaccinated for the flu, or employees who could not work because their credentials lapsed. Arbitrator Misra found that there was evidence of an existing practice for addressing circumstances where employees were disqualified from working that was more beneficial as per article 18.5. She ordered the termination language struck from the policy. Given her findings that the policy was inconsistent with specific provisions of the collective agreement, Arbitrator Misra concluded that the policy’s automatic application of discharge to noncompliant employees was unreasonable. However, she also commented that the employer was not obliged to leave a non-compliant employee on leave indefinitely.  She also found that the employer retained its management right to terminate an employee for just cause at the appropriate time.

Healthcare Related Cases of Interest

a)   Retroactive Pay and Statutory Severance: arbitrators have no jurisdiction to consider grievances after limitation period

·       Mon Sheong Scarborough Long-term Care v Canadian Union of Public Employees, Local 2725-01 (Luborsky, Blackadder, McGarvey, January 28, 2022)

The grievor was terminated from her employment for alleged misconduct in January 2017. The resulting termination grievance was denied by a board of arbitration chaired by Arbitrator Paula Knopf (“Knopf Board”) in April 2018. After the grievor’s discharge, an interest board of arbitration chaired by Arbitrator Robert Herman (“Herman Board”), issued a decision in August 2018 awarding, among other things, retroactive pay to former employees arising out of wage increases backdated to July 1, 2015. The grievor did not file a claim within the time limits stipulated in the Herman Award and the employer did not provide her with retroactive compensation totalling $1,259.65. The union claimed that notwithstanding the decision of the Knopf Board, the grievor was still owed statutory notice and/or severance pay as mandated by the ESA. The union also claimed that the employer’s denial of retroactive pay to the grievor was unjust. The employer brought preliminary objections disputing the Board’s jurisdiction to hear the Severance and Retroactivity grievances.

The Board found that the grievor failed to indicate her acceptance of the retroactive pay within 30 days of her receipt of the employer’s notice as required by the Herman Board. The Board further held that the grievor had abandoned any claim to the retroactive payment in a voice mail to the employer. There was no prima facie case for the employer to meet and the Retroactivity Grievance was dismissed. With respect to the Severance Grievance, the grievor had been terminated on January 25, 2017, and the two-year limitation period for bring a complaint alleging a contravention of the ESA had expired on January 25, 2019. The Board was barred from hearing a grievance claiming statutory notice and/or severance pay beyond the mandatory time limit under the ESA. Due to the doctrines of res judicata and abuse of process, the Board also had no jurisdiction to determine the question which should have been raised before the Knopf Board. The Severance Grievance was dismissed.

b)   Double Time: the term “Overtime shift” is not defined as a 7.5-hour block and can apply to shifts of shorter duration which can trigger a double time payment obligation

·       Campbellford Memorial Hospital v Canadian Union of Public Employees, Local 2247 (Parmar, Sutcliffe, Herbert, February 11, 2022)

The grievor was a part-time RPN and was scheduled to work from 11:30 PM until 7:30 AM. She was asked to work four hours of overtime from 7:30 AM to 11:30 PM, prior to the start of her scheduled shift and two additional hours of overtime from 7:30 AM to 9:30 AM after her scheduled shift. In total, she worked 14 hours with 45 minutes of unpaid time for breaks. She filed a grievance alleging that the two hours of overtime she worked after her scheduled shift was incorrectly paid as time and one-half instead of double time. The collective agreement provided for double time if the employee was “required to work additional overtime contiguous to an overtime shift within a twenty-four (24) hour period.” The board of arbitration allowed the grievance finding that the four hours the grievor worked before her scheduled shift was an “overtime shift” since the collective agreement did not define a “shift” as a 7.5-hour block as argued by the employer. The grievor had been required to work two additional overtime hours contiguous to her four-hour overtime shift and was entitled to double time for those two hours of work.