Healthcare Update April/May 2024

a)   Termination Grievance – Termination for mis-dosing upheld, but grievor entitled to statutory termination and severance pay

Michael Garron Hospital v Service Employees International Union, Local 1 Canada (Luborsky, March 27, 2024)

The Grievor was responsible for treating a patient who had been prescribed immediate release morphine on an as-needed basis. The Grievor, believing the patient to have issues with substance-abuse, changed the dosage of the morphine prescribed by the doctor. Instead of giving the patient 40mg of morphine, as prescribed, the Grievor gave him just 2.5mg, which she erroneously recorded on his chart as 0.5mg. The Grievor deliberately did not tell the patient that he had been underdosed.

During an investigative meeting, the Grievor defended her actions stating that (1) there wasn’t enough morphine in the cabinet and she didn’t want to take time away from her other duties to get more; (2) the patient was “smiling and laughing” and probably didn’t need more morphine, and; (3) the patient was a drug abuser and as such was “like a baby crying, you give a soother” and “unaware of how much you give.”

The Hospital rejected all of the Grievor’s explanations. There were other courses of action that could have been taken to secure the dose for her patient. Furthermore, it was not within the Grievor’s scope of practice to change a patient’s dosage.

The Hospital terminated the Grievor for cause, stating that due to her wilful misconduct, the Grievor was not entitled to statutory termination and severance pay.

The Union argued that the Hospital did not have just cause to terminate the Grievor’s employment, and that even if there was cause for termination, the Grievor should still have received her statutory termination entitlements.

At the time of termination, the Grievor had 5 disciplinary notations on record, including a 1-day suspension. The Grievor was subject to a Learning Plan for which she had failed to complete key deliverables.

Arbitrator Luborsky found that the Grievor engaged in very serious misconduct:

[91] Thus applying the foregoing principles to the facts before me, I conclude that the Grievor committed a very serious offence by acting outside the scope of her practice when she failed to administer the full dose of immediate release morphine prescribed by the attending physician, which she then compounded with inaccurate charting of the actual dose given, and further undermined the confidence that the Hospital could have in trusting her to properly fulfill her responsibilities in the future by comparing Patient C to a “baby” in need of a “soother” in rationalizing her misconduct towards a patient with a drug dependency, and while knowing that she was acting outside the scope of her practice as an RPN offered the explanation for her misconduct that,  “Scope of practice is nice, but when you have no-one around, understaffed and meds aren’t available, who takes care of the patient?”

The Arbitrator found that the Grievor initially intended to provide the patient with his full dose, despite his drug abuse, but then declined to do so when there was no more morphine in the unit. Furthermore, the unit was understaffed and the Grievor struggled to keep up. These were considered to be mitigating factors.

As a standalone event, the Grievor’s misconduct would likely not have justified termination, however, the termination was justified by the Grievor’s disciplinary record. The Grievor’s record outlined a pattern of performance deficiencies that places termination within a reasonable range of outcomes.

The Arbitrator declined to substitute a lesser form of discipline; the Grievor denied her wrongdoing when she was first confronted with the Hospital’s allegations and refused to offer an apology or accept full accountability at the hearing.

Arbitrator Luborsky found that the Grievor was entitled to statutory termination and severance pay. The Grievor’s actions likely stemmed from an error in judgement or carelessness, and not from “judgementalism” towards the patient. Furthermore, the fact that the Grievor’s coworkers and clinical lead did not immediately react to the Grievor’s mis-dosing the patient indicates that the Grievor’s misconduct was not viewed as overly significant. This misconduct does not rise to the level required to deprive the Grievor of her entitlements to statutory notice and severance pay.

The termination was upheld, and the Hospital was ordered to pay the Grievor her statutory termination and severance pay entitlements.

b)   Job Competition – Grievor not entitled to vacancy despite seniority

Ontario Nurses’ Association v The Simcoe Muskoka District Health Unit (Webb, April 5, 2024)

The Union grieved the Health Unit’s decision not to award the Grievor a full-time Public Health Nurse position in the Health Unit’s Sexual Health Program.

The Health Unit’s collective agreement contains the following language:

In cases where performance, ability and qualifications are approximately equal, seniority shall be the deciding factor when decisions are made with regard to promotion, transfer or demotion.

The collective agreement did not set out criteria for assessing performance, ability, or qualifications.

The Health Unit used a scored system to determine the merits of each candidate’s application. The Health Unit determined that based on the candidates’ applications, the Grievor and the successful candidate were approximately equal in performance and qualifications.

In interviews, the Hospital further assessed candidates’ abilities using a scored system based on a job scenario, a PowerPoint presentation that the candidates were asked to deliver, and a written test.

The Health Unit used the following system to determine the successful candidate based on these scores:

1. The Health Unit established a minimum threshold and declined to consider candidates who scored below 60%.
2. The Health Unit considered scores which were within 10% of the highest-scoring candidate.
3. The Health Unit selected the employee with the highest seniority who was within 10% of the highest scoring candidate.

The Grievor had the greatest seniority of all the applicants, however, she obtained the lowest score in the Health Unit’s assessment of the candidates. The Grievor’s overall score was 59.3%, and the successful candidate obtained an overall score of 67%. The highest score obtained by any candidate was 72.4%.

The Health Unit did not award the position to the Grievor as she neither scored above the 60% minimum threshold, nor did she score within 10% of the highest-scoring candidate.

The Union claimed that by imposing the minimum threshold of 60%, it arbitrarily excluded the Grievor from the job competition.

The Union further alleged that the Health Unit erred in assessing ability, as it should not have assessed interview performance in isolation from past performance data and should have given more weight to the Grievor’s positive performance reviews.

Finally, the Union claimed that the Health Unit should have given the Grievor a higher score than the successful candidate for her experience with the LGBTQ community and working with youths. All candidates who had experience working with youths or the LGBTQ community got full marks, but the Union argued that the score should be weighted according to the quality of the experience.

Arbitrator Webb found that the Health Unit erred in applying a 60% minimum threshold:

In failing to waive the cutoff for the Grievor, the Health Unit disqualified her from being considered for a job that she could already do as demonstrated by her performance appraisal. The Grievor’s performance appraisal indicated that she met the expectations of a Public Health Nurse in the Sexual Health Program.  Further, the Grievor performed the job on a full-time, temporary basis for seven months.

However, Arbitrator Webb found that even if the minimum threshold had been waived, the Grievor would still not have been found to be of “approximately equal” ability to the successful candidate, as the Grievor’s score was more than 10% below the highest score.

Arbitrator Webb found that the Health Unit’s process was “rigorous, well constructed and confirmed to recommendations cited in arbitral caselaw.” The process was transparent in its review of qualifications and performance, and of its scoring of ability.

Not all factors must be weighted equally, if each factor is “considered and given some weight”. The Health Unit’s assessment of the Grievor’s ability was not improper, nor was its weighting of the Grievor’s experience with youths and the LBGTQ community.

Arbitrator Webb concluded that while the Health Unit should not have applied the minimum threshold to the Grievor, it did not err in declining to award her the role. The grievance was dismissed.

c)    Mandatory Vaccination Policy – HRTO application deferred where grievances held in abeyance

Wasmund v. Pembroke Regional Hospital (HRTO Member Ghanam, April 2, 2024)

The Applicant brought an application to the Human Rights Tribunal of Ontario (HRTO) alleging that the Hospital’s mandatory vaccination policy discriminated against them on the basis of creed, disability, and record of offences. The Applicant had been placed an unpaid leave and then terminated as a result of non-compliance.

The Applicant had filed a grievance with their union. The grievance was being held in abeyance, pursuant to an agreement between the union and the Hospital, “pending consultation with their regional partners and developments with respect to six (6) similar grievances”.

The Hospital argued that the human rights complaint should be deferred, as the matter was already subject to grievance proceedings.

The HRTO accepted the Hospital’s argument. The same issue was raised in the grievance and in the application to the HRTO. The HRTO declined to have a grievance and an application running concurrently regarding the same issue.

The application was deferred pending the outcome of the grievance.

d)   Mandatory Vaccination Policy – HRTO application deferred where grievance arbitration underway

Losier v. Bluewater Health (HRTO Member Ghanam, April 4, 2024)

The Applicant was terminated for non-compliance with the Hospital’s mandatory vaccination policy. The Applicant brought an application to the HRTO alleging that the termination was discriminatory on the basis of creed, disability, sex, gender identity, association, and reprisal in employment.

The Union filed a termination grievance in January 2022. The grievance was first heard by an arbitrator in November 2023, and arbitration was still ongoing as of the date of this decision. The Applicant alleged that the Union discriminated against them on the basis of creed through their alleged mishandling of the Applicant’s grievance.

The HRTO found that the allegations raised in the application were identical to those raised in the grievance. As such, the Tribunal deferred the application pending the outcome of the grievance arbitration.

e)    Weekend Premium – Premium earned where more than 6 weekends in 9 worked

Quinte Healthcare Corporation v Ontario Nurses’ Association (Albertyn, April 3, 2024)

The local agreement between the parties provides that nurses are to be provided with 3 weekends off in every 9-week period and will be entitled to premium pay for each additional weekend scheduled.

The collective agreement language read as follows:

An employee working the ‘4 on 5 off’ eleven and one-quarter (11.25) hours extended tour schedule shall receive three (3) weekends off in a nine (9) week schedule. Premium will be paid, (as per Article 14.03) for all hours worked on weekends in excess of six (6) in a nine (9) week schedule…

The parties disagreed over how the 9-week period is calculated.

The Union argued that the 9 weeks refers to any rolling 9-week period.

The Hospital advanced 3 possible interpretations of the premium language:

1. In its written submissions, the Hospital argued that the local agreement referred to a defined 9-week period, referencing each of 2 halves of the 18-week master schedule.
2. In oral argument, the Hospital argued that each 9-week period begins, going forward, when a nurse accepts a weekend call-in shift beyond their regularly scheduled shifts.
3. The Hospital advanced another position whereby the picked-up shift is treated as the ninth week in a rolling schedule, and the premium can therefore never be applied going forward.

Arbitrator Albertyn rejected the Union’s position as resulting in a disproportionally great consequence for a single picked-up shift:

The Union’s rolling 9-week interpretation of the language wants the picked-up worked weekend to be included in any combination of 9-weeks that it is a part of. So, using the Employer’s example of Weekend 10 as the picked-up shift, the calculation would include every weekend from Weekend 2 to Weekend 18, and only Weekends 5 and 6 would avoid the more-than-6-in-9 premium. That is an excessive consequence for a single picked-up weekend shift. It is also not what the parties agreed to, as it effectively converts the parties’ agreement of a 9-week schedule calculation into a 17-week schedule calculation.

The Union’s position would result in the premium being paid “six times over” for a single worked shift.

Arbitrator Albertyn further rejected the Hospital’s position that the picked-up shift should be considered the 9^th shift in the cycle, as the Union would never have agreed to a clause that would prevent the premium from being fully realized.

Arbitrator Albertyn set out some guiding principles in understanding the collective agreement language:

• Any picked-up weekend shift should result in the premium, as nurses are already scheduled to work 6 weekends in every 9 weeks, per the master schedule.
• The premium should be paid on only 1 weekend’s work for each occasion on which a shift is picked up.
• There is a rolling 9-week period, in order to ensure that the principles above are applied.
• The premium always applies to the 7^th weekend worked following the picked-up shift. This means that the calculation is applied to each picked-up shift going forward.

Arbitrator Albertyn adopted a combination of the Hospital’s first and second proposed interpretations – the shift premium applied going forward from the picked-up shift, but within the context of the 18-week master schedule:

In light of these findings, and in answer to the issue referred by the parties, I conclude Article D.19(c)(i) contemplates that weekends worked in excess of 6 in 9 are calculated on a rolling basis according to the principles set out above. As explained, the 6-in-9 calculation must be applied on a rolling basis, but within the context of the fixed 18-week schedule (divided into two repeating 9-week blocks).

f)     Abuse of Process – Grievance dismissed where grievor failed to produce documents

Humber River Hospital v Ontario Nurses’ Association (Gedalof, April 16, 2024)

The Grievor claimed that she ought to have been awarded a full-time position. At issue were the Grievor’s attendance records. Arbitrator Gedalof had ordered, in an interim decision, that the Union and the Grievor must provide the Hospital with consent to disclose her occupational health file along with other arguably relevant documents.

The Union only partially complied with this order. The Grievor provided the relevant consent (though she did so a month and a half late), however, the Union did not provide other required documents and particulars. Arbitrator Gedalof found that the Grievor had not been responsive to the Union’s efforts to gather the required documents.

At the date of the decision, grievance litigation had been ongoing for six years. Arbitrator Gedalof found that since the Grievor had not been responsive to efforts to move the litigation along, allowing the grievance process to continue would constitute abuse of process.  The grievance was dismissed.

g)   Mandatory Vaccination Policy – Inappropriate to name public health officials as respondents

Butler v. Bluewater Health (HRTO Member Ghanam, April 17, 2024)

This HRTO complaint relates to the Applicant’s termination for failure to comply with the Hospital’s mandatory Covid-19 vaccination policy. The Application was deferred pending the outcome of a related grievance procedure.

In addition to the Hospital, a number of other individual and organizational respondents were named as parties to these proceedings. These individual and organizational respondents sought to have themselves removed as parties.

The Office of Ontario’s Chief Medical Officer of Health (the “OCMOH”) and Dr. Keiran Moore were named as respondents to the application. Dr. Moore is the current Chief Medical Officer of Health of Ontario. The OCMOH issued directives during the pandemic relating to the vaccination status of hospital employees.

The OCMOH and Dr. Moore argued that they should be removed as parties, since they did not play a part in the Hospital’s decision to terminate employees for non-compliance with its mandatory vaccination policy. The HRTO agreed with the OCMOH and Dr. Moore:

…it is my view that this is a case where the conduct of the personal respondent, Dr. Keiran Moore, is not a central issue in the proceeding, such that it is appropriate to exercise the Tribunal’s discretion to remove them.

Further, I am not persuaded that it is necessary nor appropriate to name the Ministry of Health in order to ensure the fair, just, and expeditious resolution of this Application.  [His Majesty the King in Right of Ontario], as represented by the Ministry of Health, has not violated the applicant’s right to be free from discrimination. There is no compelling reason to continue this Application as against that respondent, as the applicant had no direct relationship with them. The employer and/or the union respondents are the only ones who may have taken actions that have directly impacted the applicant.

The OCMOH and Dr. Moore were removed as parties in the proceedings.

The Applicant further named a number of members of the Hospital’s management as personal respondents. The Tribunal removed these individuals as parties as well, stating,

[At] all times, they were acting in the course of employment, rather than in a personal capacity. Further, the employer respondent has indicated that “there is also no issue with the Hospital’s ability to respond to or remedy the alleged Code infringement that would be affected by the removal of the Personal Respondent.”

For similar reasons, the College of Nurses of Ontario was also removed as a respondent in these proceedings.

h)   Implementation Grievance – Flattened wage grids are valid

The Participating Hospitals v ONA (Kaplan, October 16, 2024)

The award reached by the board of arbitration in July 2023 set out a new wage grid for RNs, but was silent on the application of the grid changes to other classifications. The award stated that the general wage increase applied to all Nurse Practitioner rates.

As a result, when the award was implemented, some of the affected wage grids experienced some “backsliding” or “flattening” between wage steps. In some instances, there was a marginal decline in wages between certain wage steps.

The Union argued that the wage grids should be compressed so that the offending steps were removed, and wages always increased as nurses moved through the wage grid.

Arbitrator Kaplan, on behalf of the board, found that there was no implementation issue. The effects on the wage grids were foreseeable. The elimination of steps would accelerate the job rate, which is contrary to the purpose of the wage grid. While flattening grids is not ideal, this is how the parties have resolved the wage issue. The Union can address this issue in future rounds of bargaining.

i)      Sale of Business – Conflicting agreements

United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers) v Health Sciences North (OLRB VC McCrory, April 16, 2024)

In a previous decision, the Ontario Labour Relations Board (OLRB or the “Board”) found that there was a sale of business from Garda Canada Security Corporation to the Hospital. Security guards working at the Hospital were previously represented by the United Steelworkers. The Hospital, having acquired the business of Garda, was bound by the collective agreement with the United Steelworkers.

The Hospital was already party to a collective agreement with CUPE. CUPE represented an “all employee” bargaining unit at the Hospital.

A conflict existed between the two collective agreements; the security guards were properly included in the bargaining units of both CUPE and the United Steelworkers.

The Hospital and the unions agreed that the security guards would be represented solely by CUPE, going forward. The Board gave effect to the terms of this agreement.

j)      Classification Grievance – Short-term pandemic nurses are casual employees

Simcoe Muskoka District Health Unit v Ontario Nurses’ Association (Wright, May 2, 2024)

A number of nurses were hired to help manage the COVID-19 pandemic. They were hired on a casual, rather than permanent, basis. The Union argued that the nurses should have been hired on a permanent basis, and should have been entitled to higher rates of pay, additional compensation, and benefits. The Health Unit argued that the nurses were properly classified as casual, since they were hired specifically to manage the pandemic, and not on an indefinite basis.

The Union argued that the nurses did not fit the definition of “Casual Nurse” set out in the collective agreement as: “A nurse who is required to work on an irregular basis (called in as needed) and whose hours may not be predictable over an indefinite period of time or hired on a term and task basis.”

Arbitrator Wright agreed with the Health Unit that the definition of casual nurse referred to either (1) a nurse who is required to work on an irregular basis whose hours may not be predictable, or (2) who is hired on a term and task basis.

The nurses were hired on a “term and task” basis.

The nurses were hired on a “term” basis since the Health Unit hired them for a limited, fixed term. Their contracts all had an end date, though some contracts were extended due to the extended duration of the pandemic. It was clear at the time the nurses were hired, based on the limited government funding specifically provided for the pandemic, that the nurses’ employment would have to come to an end once the crisis had been managed.

The nurses were hired on a “task” basis since they were hired for the specific task of helping the Health Unit respond to the pandemic.

The nurses could not be hired as “temporary” nurses, as urged by the Union, since temporary positions are only created when a permanent nurse is absent from their regular position.

The grievance was dismissed.

k)    Use of Agency Nurses – Contracting in undermines bargaining unit

Canadian Union of Public Employees, Local 2119 v Perth and Smiths Falls District Hospital (Trachuk, May 10, 2024)

Due to staffing challenges, the Hospital contracted work from registered practical nurses through a nursing agency. These nurses worked at the Hospital, often alongside the Hospital’s unionized employees. The Union argued that the agency nurses should have been subject to the terms of the collective agreement.

Arbitrator Trachuk noted that while contracting out is generally permissible unless prohibited by the terms of a collective agreement, contracting in (i.e. effectively acquiring new workers without applying the collective agreement to them) is not permissible.

Arbitrator Trachuk identified seven factors used to distinguish between true contracting out and contracting in:

1. The party exercising direction and controlover the employees performing the work
2. The party bearing the burden of remuneration
3. The party imposing discipline
4. The party hiringthe employees
5. The party with the authority to dismissthe employees
6. The party who is perceived to be the employerby the employees
7. The existence of an intention to create the relationship of employer and employee.

Applying these factors, Arbitrator Trachuk came to the following conclusions:

1. The Hospital exercised majority direction and control over the nurses’ work. Though nurses feeling ill had to call in sick to the nursing agency, the Hospital was the sole supervisor of the nurses’ work and provided them with their daily assignments. Nurses were subject to the Hospital’s policies.
2. The Hospital bore the burden of remuneration when it paid the nurses through the nursing agency.
3. Though the Hospital did not discipline the nurses directly, it could speak directly to the nurses if there were issues and could have a nurse removed from their assignment with the Hospital.
4. The Hospital selected which agency nurses will come work at the Hospital, based on resumes sent over by the agency.
5. The Hospital could prevent a nurse from working at the hospital but could not dismiss a nurse from the agency’s roster.
6. It was not clear whom the nurses perceived to be their employer. The nurses had contracts with the agency that stipulated that they were independent contractors. The nurses were aware that they were paid by the agency. However, they also took direction from the Hospital.
7. It is unlikely that the nurses intended to create an employment relationship with the Hospital; they had contacts stating that they were independent contractors and only moved to the area to complete the contract. The Hospital only retained the nurses to fill gaps in staffing and did not intend to create a permanent employment relationship.

Additional relevant considerations included:

• the training that the Hospital provided to the nurses;
• the Hospital did not evaluate the agency nurses;
• the Hospital exercised the most control over the work;
• the Hospital controlled the day-to-day aspects of the work;
• the agency nurses were integrated into the workforce, with the same access to the Hospital’s systems, and possessing Hospital IDs;
• the agency nurses worked directly with the unionized nurses;
• the agency nurses were guaranteed a minimum number of hours of work but were not included in the master schedule;
• Hospital managers did not cultivate the same relationships with the agency nurses as they did with the unionized nurses; and,
• the nurses worked for the Hospital for months at a time, sometimes longer.

Arbitrator Trachuk concluded that the Hospital had contracted in the nurses in violation of the collective agreement. The agency nurses were paid substantially more than the amounts set out in the collective agreement, for extended periods of time. This undermined the bargaining unit even though no bargaining unit employees were disadvantaged using agency nurses.  The fact that the Hospital had little choice but to use agency nurses since all if its recruiting efforts had been unsuccessful did not change the outcome.

The Hospital was ordered to pay union dues for all the agency nurses. The Hospital was not ordered to pay damages, as it faced genuine issues with recruiting. The Hospital could not unilaterally increase the rates of pay for its unionized nurses, as these rates were set during central bargaining.

The issue of how the agency nurses should be treated going forward was remitted back to the parties.

Arbitrator Trachuk further found that the Hospital violated the collective agreement by directly asking unionized nurses how they felt about bringing in agency nurses. This constituted bargaining directly with the bargaining unit members.

l)      Interest Arbitration – wage increases for nurses

Participating Nursing Homes v Ontario Nurses’ Association (Price, May 21, 2024)

A new central wage grid for RNs was determined at interest arbitration. The ONA RN wages for 2024 are:

Other positions will receive wage increases of 3% effective July 1, 2024 and 3% effective July 1, 2025.

m) Record of Offences – termination based on criminal record does not violate Human Rights Code

Heater v. Sioux Lookout Meno Ya Win Health Centre (HRTO Member Ladhani, May 8, 2024)

The Applicant was terminated from his employment with the Hospital based on the results of his vulnerable sector check. The record check disclosed the Applicant’s non-conviction information – i.e. it disclosed that he had been charged with a crime but not convicted.

The Applicant filed a complaint with the Human Rights Tribunal alleging that his termination was discriminatory.

The Tribunal found that the decision to terminate the Applicant’s employment did not violate the Human Rights Code.

Non-conviction information does not fall within the “record of offences” protected by the Code. Discrimination for possessing a record of offences only applies where a person has been pardoned for an offence under the Criminal Code or where they have been convicted of an offence under provincial law.

There is no Human Rights Code protection for persons charged with a crime, but not convicted.