Healthcare Update – January/February 2024

a)   Evidence – Step 2 Grievance response is admissible

Humber River Hospital v NOWU (Johnston, December 18, 2023)

The union argued that Clerical Support Associates (“CSAs”) should be paid at the same rate as the Clerical Coordinators, which was approximately $4.00 higher than the CSA rate.

In support of its position, the union sought to rely on a document from a previous grievance of a similar nature that had been settled in the grievor’s favour in 2021. The document in question was a Step 2 response from the Hospital. It did not contain the words “without prejudice”.

The Hospital argued that past settlements are privileged, whether or not the phrase “without prejudice” is written on the document.

Arbitrator Johnston found that while “communications in the grievance procedure are generally privileged and not admissible in an arbitration proceeding”, Step 2 grievance responses are something of an exception to that rule. Step 2 grievance responses that settle a grievance by reducing discipline may be relied upon in future grievances in which there is a dispute regarding an employee’s disciplinary record.

Whether a Step 2 grievance response is privileged is a matter of context. The fact that the Hospital continues to write “without prejudice” on its Step 2 responses implies that the phrase holds some significance. Not all Step 2 responses are considered privileged by default, and the question of privilege must be decided on a case-by-case basis.

Barring parties from relying on a Step 2 grievance response would have the result of forcing parties to relitigate matters that had already been settled. In this case, Arbitrator Johnston found that the Step 2 grievance response was admissible into evidence.

b)   Termination and Severance  Pay Grievance – Employee entitled to termination and severance pay where contract was frustrated

Unity Health v ONA (Albertyn, December 19, 2023)

The grievor had been terminated for innocent absenteeism. She had a serious of prolonged absences that were related to illnesses and injuries but did not suffer from any underlying disability. The parties disagreed on whether the grievor was entitled under the Employment Standards Act, 2000 (“ESA”) to be paid termination pay and severance pay following her termination.

Under Regulation 288/01 of the ESA, employees are not entitled to termination or severance pay where their contract of employment has become frustrated or impossible to perform. This exception, however, does not apply where the impossibility of performance relates to “an illness or injury” suffered by the employee.

Arbitrator Albertyn found that the regulation does not require that employees be suffering from an ongoing disability in order to be entitled to termination and severance pay. Where an employment contract is frustrated due to illness or injury, including a combination of a number of illnesses or injuries, the employee will be entitled to termination and severance pay.

c)   Interest Arbitration – Weekend premium

Royal Ottawa Health Care Group v ONA (Price, January 12, 2024)

At interest arbitration, the only language in dispute related to weekend scheduling. The current collective agreement language guaranteed nurses 2 in every 4 weekends off. Working additional weekends entitles nurses to premium pay. Nurses are not entitled to premium pay where they requested the extra weekend work.

ONA proposed amending the collective agreement language to specify that the clause would apply to part-time casual nurses. They further proposed amending this clause so that nurses would lose their premium pay entitlement only if the request to work weekends was made in writing to the manager.

The Hospital has never paid the weekend premium for part-time casual nurses.

Arbitrator Price denied ONA’s proposal. There was no evidence that other hospitals’ local agreements contained language similar to ONA’s proposal, and the employer led evidence that at least 4 other hospitals do not pay weekend premiums for part time casual nurses.

d)   Bill 124 Reopener Implementation – Interest on retroactive payments

Ontario Hospital Association v OCHU/CUPE (Kaplan, January 16, 2024)

This case concerned the implementation of a Bill 124 reopener decision.

Cornwall Hospital was required to make retroactive wage payments to its employees by September 11, 2023.  It was unable to do so, as a massive data breach had rendered the hospital’s payroll systems inoperable. This delayed the retroactive payments by several weeks. The union argued that the employees should be awarded interest on their retroactive payments for the period after September 11th during which the hospital was unable to process the retroactive payments.

A similar grievance arose in connection to Health Sciences North. Due to a changeover in payroll systems, the retroactive payments were several weeks delayed. The union sought interest payments for the period of the delay. The union also sought interest payments for employees on leave, who were only provided with their retroactive payments once they returned to work. Finally, the union requested additional information on how the retroactive payments were calculated.

Arbitrator Kaplan found that the employees were not entitled to interest payments for the period in which payroll was not functioning at either hospital. The delay was too short to either substantially prejudice the employees, or to enrich the hospitals. The hospitals made good-faith efforts to get the retroactive payments to the employees as quickly as possible. The hospitals substantially complied with their obligations pursuant to the reopener award.

However, Arbitrator Kaplan found that Health Sciences North had no justification for withholding payments from employees on leave and ordered that they be paid amounts owing subject to interest as prescribed in the Courts of Justice Act. Arbitrator Kaplan further ordered that all Health Sciences North employees were entitled to full particulars on how their retroactivity was calculated.

e)  Discrimination Grievance – Arbitrator had jurisdiction to hear grievance regarding a probationary termination where there was a prima face case of discrimination related to a language barrier

Health Sciences North v Ontario Nurses’ Association (Abramsky, January 17, 2024)

The Hospital ended the employment of a nurse who was still in her probationary period, pursuant to the collective agreement. ONA argued that the nurse was discharged in violation of the Human Rights Code. The Hospital argued that there was no prima facie case of discrimination, and that Arbitrator Abramsky therefore had no jurisdiction to hear the grievance.

Arbitrator Abramsky found that there was a prima facie case of discrimination, and that she did have jurisdiction to hear the grievance.

The Grievor was an internationally trained nurse and an immigrant to Canada. English was not her first language. The Grievor experienced challenges at work related to this language barrier.

The Grievor’s language barrier led to her being unsure of what room she was in, having issues taking direction, understanding telephone conversations, interacting with patients and doctors, and administering medications. The Grievor was noted to say, “Yes, I understand” despite not understanding what was being said.

The Grievor was placed on a learning plan that required her to have “incident-free employment” on her floor. The plan also referenced a communications and language barrier, in that it required that all charting must be legible and require no corrections.

The Hospital extended the nurse’s probationary period, claiming that due to the significant communications barrier and understaffing on the unit, she required significant support. The Grievor’s employment was eventually terminated.

Arbitrator Abramsky set out the test for prima facie discrimination as follows:

(1)   Does the employee have a characteristic protected from discrimination under the Code?

(2)   If so, has the employee experienced an adverse impact with respect to their employment?

(3)   If so, is the protected characteristic a factor in the adverse impact.

Arbitrator Abramsky found that the Grievor had a language barrier that was related to her place of origin, a protected ground under the Code. She found that there was an adverse impact on the Grievor – the termination of her employment, and that the Grievor’s language difficulties were a factor in her termination.

While it is true that proficiency in English is a bona fide occupational requirement, that does not change the fact that a prima facie case of discrimination had been established.

As such, Arbitrator Abramsky did have jurisdiction over this issue, and the grievance was not dismissed on a preliminary basis.

f)    Fraudulent Concealment – Claim denied for abuse of process

Catherine Baker v William Osler Health Centre (OLRB, January 30, 2024)

The Applicant, along with other members of the Hospital’s Infection Prevention and Control (“IPAC”) team, had not been receiving their proper premium pay for on-call shifts. The Applicant successfully received an order for payment of unpaid wages from an Employment Standards Officer, however, the Officer declined to order payment of wages dating back beyond the 2-year limitation period.

The Applicant subsequently discovered that another IPAC team member had been successful in her claim for unpaid wages from beyond the limitation period, by claiming fraudulent concealment.

The Applicant filed a second claim seeking unpaid wages dating back to 2014, on the basis of fraudulent concealment. She claimed that the Hospital had concealed the existence of the policy that entitled her to on-call pay. The Applicant further alleged that the Hospital discouraged the IPAC team from filing a complaint with the Ministry of Labour, and had told them that any claim filed with the Ministry would be unsuccessful.

The Employment Standards Officer denied this claim, finding that the doctrine of fraudulent concealment did not apply in the circumstances. The Applicant applied to the Labour Board for a review of the Officer’s denial.

This Application was dismissed for delay, however, Vice-Chair McGilvery provided detailed reasons in the alternative.

Vice-Chair McGilvery found that even if the Applicant had not been delayed in filing her application, it would have been dismissed as an abuse of process. The Applicant sought retroactive pay from prior to the start of the limitation period in her first claim. The actions upon which the Applicant based her claim of fraudulent concealment occurred prior to her filing the first claim. The claim for unpaid wages was squarely before the Employment Standards Officer. The Applicant did not learn any new information between the filing of her first and second claims with the Employment Standards Officer that could have affected the outcome of her claim.

The Applicant was not entitled to re-litigate the issue of her unpaid wages, simply because she discovered that her colleague had used an argument successfully. Allowing the Applicant to re-litigate the Employment Standards Officer’s decision would undermine the principles of “finality, fairness and the integrity of the administration of justice”.

g)   Motion for Production – Unions who bargain centrally are not entitled to compel evidence from other hospitals in local grievances

OPSEU v Niagara Health System, Joseph Brant Hospital, Lakeridge Health, Quinte Health Care, Baycrest, and Thunder Bay Regional Health Sciences Centre (McIntyre, February 6, 2024)

OPSEU alleged that the job duties of Dieticians had fundamentally changed at six hospitals. These six hospitals had all engaged in central bargaining, with OPSEU, as part of a larger group of 52 participating hospitals.

To assess whether the Dietician job duties had fundamentally changed, OPSEU requested production of policies, procedures and directives relating to the dietician job class from all 52 participating hospitals. The participating hospitals opposed the production of documents from hospitals that were not party to the grievance.

While there is a method to bring a central grievance, involving all participating hospitals, OPSEU had brought six individual grievances at six individual hospitals. This was not a central grievance, and so most of the participating hospitals were not party to the dispute.

Arbitrator McIntyre found that since most of the participating hospitals were not party to the proceeding, she could not order production of their documents.

h)   Pandemic Pay – Monetary entitlement does not depend on hours worked

The Participating Hospitals v OPSEU (Kaplan, February 6, 2024)

In his Bill 124 reopener decision, Arbitrator Kaplan ordered the Participating Hospitals to implement a one-time lump-sum payment for employees who did not receive pandemic pay under a government program. Full-time, part-time, and casual employees were each entitled to different amounts.

The parties disputed the meaning of the term “full-time”. ONA argued that employees who were working the equivalent of full-time hours, but who didn’t have full-time status, should receive the full-time pandemic pay entitlement. The Participating Hospitals argued that the wording of the collective agreement determined which employees had full-time or part-time status, regardless of the hours worked during the pandemic.

Arbitrator Kaplan clarified that the reopener award was meant to retroactively compensate bargaining unit members who did not receive special government payments during the pandemic. The discrete amounts set out in the award were meant to “avoid the imposition of an administrative burden on hospitals of recreating who was where and doing what during an incredibly stressful, hectic and demanding period, and the ensuing disputes that would inevitably occur.”

Therefore, eligibility for pandemic pay did not depend on actual hours worked, but on an employee’s status as a member of the bargaining unit at the relevant time: “It mattered only that they maintained formal employee status within the bargaining unit on that date. That formal status determined both eligibility and amount received.”

i)     Failure to Post – Employer required to post vacancies

Unity Health Toronto v Canadian Union of Public Employees, Local 5441 (Kugler, February 14, 2024)

Two health record clerks retired at the end of December 2022. Notice of retirement had been posted 3 months prior. The Hospital was required by the collective agreement to post vacant positions within 30 days of the position becoming vacant, unless it provides the union with notice of its intention to eliminate the position.

The Hospital provided such notice in May 2023, 4 months after the vacancy began. The union claimed that the Hospital continued to have the work performed by employees outside of the bargaining unit.

The Hospital was ordered to pay the union $2,500. The arbitrator ordered the parties to meet and discuss the work being performed by the Health Record Clerks, after which the union may file a subsequent grievance if it remains unsatisfied.

j)     Premium Pay – Nurse entitled to premium pay for hours worked prior to shift

The Ottawa Hospital v Ontario Nurses’ Association (Flaherty, February 14, 2024)

The Grievor, an RN, agreed to work 5 additional hours prior to her regularly scheduled shift. She was compensated for this as follows: (a) 4 hours at time and a half, and (b) one hour at double time. ONA argued that she was entitled to be paid at double time for all 5 hours under the call-in provision of the central agreement.

The Hospital argued that the 5 additional hours were an “extension” of the Grievor’s shift and that the local language of their collective agreement applied, not the call-in provision.

The local agreement stated:

Extensions of shifts are not additional shifts. In the event that the extension results in overtime, it will be offered to staff working the shift to be extended on the basis of seniority notwithstanding circumstances where continuity of care requirements require otherwise.

Arbitrator Flaherty disagreed and found that the word “extends” “can only refer to prolonging the work the nurse is called in to do at the end of that period.” The only way that a shift can extend into another is if one shift is lengthened at the end to the point that it overlaps with the next shift. She found that the parties did not intend to preclude premium pay for hours worked prior to the start of a shift.

The Grievor was entitled to be paid at double time for all 5 additional hours worked.

k)   Harassment and Discrimination Grievance – No harassment where employee was treated fairly

Hamilton Health Sciences v OPSEU/SEFPO Local 273 (Misra, February 5, 2024)

The Grievor, a part-time Respiratory Technician, alleged that he was discriminated against and harassed at work a number of times over the course of a year.

In a 120-page decision, Arbitrator Misra addressed each of the incidents in which the Grievor claimed he was being discriminated against, harassed, or otherwise treated differently than his coworkers.

Each of the claims brought by the Grievor were dismissed:

  • The Grievor claimed that he faced religious discrimination when he was scheduled to work on Christmas Eve 2019. Arbitrator Misra determined that the Grievor did not inform the Hospital of the need for religious accommodation until it was too late to ask them to change the schedule, and that in fact the Grievor’s desire to attend Midnight Mass in Michigan with his family was a preference, and not a religious obligation.
  • The Grievor opposed and then refused to participate in the Hospital’s “self-scheduling” system. The Grievor then claimed that he was being discriminated against in scheduling. Arbitrator Misra said that there was “not a shred of evidence” of unfairness in scheduling and that this complaint showcased the Grievor’s “propensity to misrepresent facts when telling his own version of an incident, and to only admit to the shortcomings in his version when they were put to him.”
  • The Grievor did not provide his vacation availability, despite being prompted many times for months by his supervisor. In early December, he requested 7 days off during the holiday period. This request was rejected. The Grievor then complained when he was told that his vacation would be scheduled unilaterally and claimed that his supervisor intentionally misled him when she mistakenly said that the scheduling requirements were found in the collective agreement, rather than in the Hospital’s policies. Arbitrator Misra found that it was reasonable for the supervisor to refuse the Grievor’s last-minute vacation requests for December 2019, as he had the opportunity to request vacation in this period as early as March 2019 and did not do so. She also found that the supervisor made a reasonable effort to answer the Grievor’s questions about vacation scheduling and did not intend to mislead him.
  • The Grievor submitted a form complaining about his workload on shift. 7 months later, he complained that his supervisor never responded to the form. Arbitrator Misra found that the most likely explanation for the missing form is that it got “lost in cyberspace”, and not that the Grievor was being intentionally ignored.
  • The Grievor submitted an incident report regarding a ventilator that had been improperly left running while not in use. His manager asked him some follow-up questions but did not inform him of any resolution of the matter. The Grievor felt that his complaint was not taken seriously. Arbitrator Misra found that the manager had no obligation to “report back” to the Grievor about the outcome of his report. Furthermore, if he expected follow-up, the Grievor could have contacted his manager with questions.
  • The Grievor applied for a temporary full-time job posting, however, this posting was then taken down by the department and was not reposted. The Grievor alleged that it was taken down as retaliation against him for complaining about the self-scheduling system. Arbitrator Misra accepted the Hospital’s explanation that it was not retaliating against the Grievor but was ensuring there were enough hours for the part-time staff.
  • The Grievor had another full-time job with an air ambulance that involved international travel, at a time when the Hospital imposed a 14-day isolation period for staff who travelled outside the country. The Grievor claimed that his supervisor was more communicative about this issue with a similarly situated coworker than she was with the Grievor. Arbitrator Misra found that the only reason the supervisor exchanged more emails with the coworker was because the coworker engaged in more self-advocacy than the Grievor. There was no differential treatment at play.
  • The Grievor complained that he was not being offered shifts above his 4-shift complement and that these shifts were instead being offered to casual workers. Arbitrator Misra found that the Grievor had not been scheduled as he had not signed a form authorizing the Hospital to pre-schedule him for shifts above his complement.
  • The Grievor put forward a suggestion that part-time workers should only have to work 1 shift, rather than 2, during the Christmas holidays. He claimed that his supervisor ignored his suggestion. Arbitrator Misra found that the Grievor did not do his part to put his idea before the rest of the staff when he was invited to do so by his supervisor.
  • The Hospital conducted an in-depth investigation into the Grievor’s harassment complaint. The Grievor complained that the investigator was biased against him. Arbitrator Misra found that the Hospital followed its regular protocols in conducting the investigation and that there was no evidence of any bad faith on the part of the investigator. The harassment investigation was not flawed.

Arbitrator Misra found that the Grievor was not treated differently or worse than his colleagues. His supervisor was not ignoring him; in fact, she was unfailingly polite despite his myriad of complaints. The Grievor’s issues were not the fault of his supervisor or the Hospital, but of the Grievor’s own skewed expectations:

[515] In my view the grievor’s feeling about how little attention he felt Ms. Riggs paid to the concerns he raised is not evidence of harassment:  It is evidence of the grievor’s disproportionate focus on his own concerns and an effort on his part to find fault.  In any case, as I have outlined above, I have found that Ms. Riggs paid a lot of attention to this grievor’s concerns, but the problem was that Mr. Coelho did not like what she told him as he was not always getting his own way.

As such, the Grievor’s allegations of discrimination and harassment were dismissed.