Cases of Interest
True Employer Declaration – Ontario Labour Relations Board declines to decide an application challenging the use of agency nurses
Ontario Nurses’ Association v Ontario Hospital Association (OLRB, Vice-Chair McCrory, October 16, 2023)
In these two applications before the Ontario Labour Relations Board (“OLRB” or the “Board”), ONA challenged the use of agency nurses by the responding hospitals. In the first application, ONA asserted that the use of agency nurses by the multiple hospital respondents, as well as the unilateral nature of decisions made concerning terms and conditions of employment and the consequent impact on bargaining unit members, undermines and interferes with its role as the exclusive bargaining agent (the “Unfair Labour Practice”). Several remedies were sought in the first application, including:
- orders that bargaining unit employees be compensated at the higher rates of pay, which are said to be paid to agency nurses
- that the responding parties equitably apply any enhanced compensation or benefits to all bargaining unit members following negotiation
- an order that agency nurses working at the Hospitals are employees whom the terms and conditions of the applicable collective agreement must govern.
In the second application, ONA sought a declaration that the responding parties are the “true employers” of the agency nurses and that the latter are “employees” (the “Status Application”) for the purposes of the Labour Relations Act, 1995.
ONA acknowledged that the central collective agreement does contemplate recourse to temporary agency nurses. However, the Hospitals have exceeded contractual limitations.
The Responding parties asserted that the issues raised in the Unfair Labour Practice relate to the application of the collective agreement and bargaining and, therefore, ought to be deferred to those processes. They made the alternative submission for dismissal for failing to disclose a prima facie case.
In the Status Application, the Responding Parties’ primary submission was that the pleadings did not engage the Board’s jurisdiction, so it should be dismissed.
ONA’s attempt to characterize the dispute as whether the agency nurses were “employees” within the meaning of the Labour Relations Act, 1995 failed. The Board found the real issue in dispute was whether the agency nurses should be included in the bargaining unit. This issue is within the jurisdiction of a labour arbitrator, not the OLRB. This question would not be answered by deciding whether the agency nurses had employee status:
[40] …a finding, by the Board, that the agency nurses are employees within the meaning of the Act, does not, based on the pleadings, put the applicant any farther ahead than it is now. As the grievances filed by it and the caselaw attest, the applicant must still convince an arbitrator that the agency nurses are properly within the scope of its bargaining unit.
As such, the Status Application was dismissed.
Concerning the Unfair Labour Practice, the OLRB declined to find that it was “inextricably bound” to the Status Dispute and ordered case management to determine a process for the efficient and timely adjudication of that application.
Deemed Termination –PSW failed to return from emergency leave
Service Employees International Union, Local 1 Canada v Baycrest Centre for Geriatric Care (Hart, November 14, 2023)
The Grievor, a PSW, took an approved emergency leave to go to India to care for her ailing mother-in-law living in a refugee camp. She contacted her human resources department at the start of November 2021 and requested emergency leave until the end of March 2022.
The Human Resource Coordinator advised that the Grievor could have her time off coded as vacation and then as emergency leave once her vacation entitlement was exhausted. The Coordinator advised that “if the Grievor or someone in the Grievor’s department could advise as to the first day on which the Grievor wouldn’t be using vacation or stat time, then Baycrest could place the Grievor on a leave of absence starting on that day” (emphasis added).
The Grievor spoke to the Human Resources Coordinator in person the next day and left that meeting under the impression that her emergency leave was approved.
The Grievor left for India in November 2021 and only returned to Canada in May 2022, two months later than initially planned. She did not contact the hospital to inform them about the extension of her trip.
In late January 2022, the hospital sent a letter to the Grievor indicating that she was expected back at work at the end of February 2022. The Grievor, who was in India then, did not receive this letter. This letter was also sent to the Grievor via email. Though she could access her email, she did not read this letter.
In April, the hospital attempted to contact the Grievor and warn her that missing three consecutive shifts without satisfactory explanation will result in her employment termination. The hospital sent two letters to the Grievor’s home, warning her to contact her manager. The Grievor received neither of those letters.
The hospital sent the Grievor a termination letter on May 3, 2022, to her home and email address. The Grievor did not return to Canada until three days later, on May 6th.
Arbitrator Hart stated that a deemed termination is functionally different from a termination for just cause:
[28] …“Where a ‘deemed termination’ clause exists, an arbitrator does not have the statutory or collective agreement discretion to consider alteration of the penalty even where there are sympathetic or mitigating circumstances. The question for an arbitrator in cases where there are ‘deemed termination’ clauses is simply to determine whether the company is [sic] correct in the application or evocation of such a clause.”
The terms of the collective agreement set out the following conditions for a deemed termination:
a) That the employee must have been absent from scheduled work for a period of three (3) or more consecutive working days; and either
b) That the employee must not have a satisfactory reason for this absence; or
c) That the employee must not have notified Baycrest of such absence.
Though the Grievor had a satisfactory reason for being absent from work, she did not notify the hospital of her absence. She was gone for two months longer than the period for which her leave was approved and did not contact the hospital. This satisfies the deemed termination provisions of the collective agreement.
The fact that the hospital was remiss in its efforts to communicate with the Grievor was irrelevant; the Grievor never attempted to contact the hospital to extend her leave and, therefore, still would have been subject to a deemed termination even if the hospital’s communication with the Grievor had been perfect.
The arbitrator did not have the discretion to alter the employer’s penalty where the conditions for deemed termination had been met.
Vacation Grievance – No remedy where issue is moot
Hamilton Health Sciences Corporation v Ontario Public Service Employees Union, Local 273 (Wright, December 8, 2023)
The hospital conceded that it had breached the collective agreement when it denied the Grievor’s vacation request in December 2022.
In the grievance form, the Grievor asked that his “vacation request for the week of December 19, 2022, be approved” and requested any other remedy that the arbitrator deemed appropriate. The Hospital argued that there was no remedy available, and that the grievance was moot.
Arbitrator Wright agreed with the hospital. The purpose of a remedy is to make the Grievor whole. In this case, the Grievor did not need to be made whole as he still received his full vacation entitlement and was given ample time to make new vacation plans. Furthermore, since the hospital conceded that it had breached the collective agreement, no interpretive issue remained between the parties that would require an arbitral decision.
The union sought further production to explore whether the hospital had violated other collective agreement provisions, such as the seniority provisions. Arbitrator Wright declined to order production to allow the union to expand the issue set out in the grievance unilaterally.
The grievance was dismissed, as there could be no useful labour relations reason to hear it on its merits.
Collective Agreement Interpretation – Pandemic pay not incorporated in wage adjustment
Halton Healthcare Services v Ontario Public Service Employees Union, Local 296 (Parmar, November 24, 2023)
The parties dispute the implementation of an interest arbitration award. The award contained the following provision concerning wage increases:
April 1, 2020: 0.75% (in addition to the 1% already agreed to)
April 1, 2021: 0.75% (in addition to the 1% already agreed to)
April 1, 2022: OPSEU Central wage adjustment (less the 1% already agreed to) (including any lump sum payment)
The OPSEU central agreement, subsequently awarded by Arbitrator Kaplan, contained the following provision:
After hearing the submissions, we direct that the collective agreement be amended to provide for the following increases in addition to the 1% initially awarded:
April 1, 2022: 3.75%
April 1, 2023: 2.5%
April 1, 2024: 2.0%
Pandemic Pay
A one-time lump sum payment to all full-time, part-time and casual employees in the bargaining unit as of August 13, 2020, and who did not receive pandemic pay under the government program, as follows: $1,750 full-time, $1,250 part-time, and $750 casual. Payments to be made within sixty days less deductions required by law.
The union argued that the lump-sum pandemic pay included in the Kaplan award should be incorporated in implementing the interest arbitration award.
The board of arbitration determined that the lump-sum pandemic payments were not included in the interest arbitration award. The provision related to lump-sum payments in the interest award only referred to Central Agreement payments specific to the 2022 wage adjustment. As the Kaplan award treated wage adjustments and pandemic pay as separate issues, this lump-sum payment was not part of the 2022 wage increase.
Rest Periods – Hospital entitled to require grievor to take lunch breaks in her work area
North York General Hospital v Service Employees’ International Union Local 1, Canada (Johnston, December 8, 2023)
The Grievor is a switchboard operator at the hospital. Each shift, she was entitled to one 30-minute unpaid lunch break and two 15-minute paid breaks to wash up. Since she was the only switchboard operator on duty, the Grievor was not allowed to leave her work area during her breaks, which included a kitchenette, washroom, and sitting area.
The grievance concerns the Grievor’s inability to leave her work area during breaks. The union alleges that the requirement to stay in the work area violates Grievor’s right to uninterrupted work breaks under the collective agreement. The union further alleges that the Grievor should be entitled to overtime pay for the time she is required to stay in her work area.
Arbitrator Johnston found that the collective agreement only guaranteed the right to uninterrupted breaks for the 30-minute lunch period, not for the 15-minute paid breaks.
Arbitrator Johnson further found that absent provisions to the contrary, “an employer is entitled to retain some degree of control over employees on break if the breaks are paid.” The hospital was entitled to require the Grievor to take her lunch break at her work station and was not required to pay her a premium for doing so.
Interest Arbitrations
Implementation of 2 Day, 2 Night schedule
Brightshores Health System v Ontario Nurses’ Association (Price, December 6, 2023)
Following mediation-arbitration, the board of arbitration directed that the collective agreement between the parties be renewed with the following amendments:
- An adjustment to the wage grid, effective April 1, 2023 and April 1, 2024;
- Staffing units may develop and implement a 2 Day, 2 Night (“2D2N”) scheduling model, where agreed to by the union and the hospital, subject to a 6-month trial period in any unit in which this is implemented.
- Nurses working a 2D2N schedule shall receive premium pay for work performed on a 5th consecutive shift.
- Nurses will receive premium pay for a 4th consecutive and any subsequent consecutive weekend worked, until they receive a weekend off, subject to conditions.
Changes ordered to scheduling provisions
Michael Garron Hospital v Ontario Nurses’ Association (Price, December 7, 2023)
The collective agreement between the parties was renewed with the following terms:
- Nurses who work evening or night shifts may be occasionally scheduled to work day shifts as required for assessment, training, or orientation purposes.
- Employees are entitled to a weekend off before 2 vacation periods of 1 week or more. A provision providing that employees shall, at their written request, be provided with a weekend off before 2 additional vacation periods was removed.
- Nurses who are called in and work a minimum of 4 hours or work past 3:30am and are scheduled for a shift the following day are entitled to leave with pay for part of the next shift to allow for an 8-hour rest period between shifts.