July’s update includes a grievance dismissed due to lack of cooperation by the grievor, a job posting grievance deemed moot when the grievor resigned, a case about the assignment of work and “type and volume”, and a case about who can administer medical certificates. We finish with an old fashioned “scope of the bargaining unit” case involving a Resident Assessment Instrument position in long term care.
a) Production: A grievor’s continual refusal to comply with an arbitrator’s interim production orders undermines the integrity of the dispute resolution process and justifies dismissal of the grievance
· Specialty Care Inc. Bradford Valley v Ontario Nurses’ Association, (McNamee, June 13, 2022)
The employer introduced a mandatory vaccination policy in the workplace. The grievor was initially reluctant to receive any vaccinations and was suspended from work. Eventually, the grievor consented and received two vaccination doses. However, the grievor refused to communicate with the employer to establish a return-to-work date and on December 22, 2021, was advised that the employment relationship was ended due to her abandonment of her position.
On December 23, 2021, the grievor presented a medical note advising that she was unable to return to work until March 2022 due to the stress caused by a death in her family. At the first hearing date, the union argued that the grievor’s failure to respond to the employer was also due to stress. The employer sought and received a production order for medical records substantiating the grievor’s inability to work from December 2021 until March 2022. The grievor did not provide the required production and Arbitrator McNamee issued another production order requiring the grievor to comply. The grievor did not comply with the second production order and the grievance was dismissed. The arbitrator noted that allowing the grievance to continue when the grievor refused to cooperate would damage the integrity of the labour arbitration process.
b) Work of the Bargaining Unit: Clause protecting bargaining unit work does not prohibit moving work to another location with the same employer
· Royal Ottawa Health Care Centre (Brockville Mental Health Centre) v Ontario Public Service Employees’ Union, Local 439 (Paramedic Unit and Service/office & Clerical Unit) (Knopf, June 8, 2022)
Prior to the filing of the grievance, the Brockville Mental Health Centre (Brockville), which was part of the Royal Ottawa Health Care Group (Ottawa), had an Assertive Community Treatment Team for clients with Dual Diagnosis (ACTT-DD). For operational and clinical reasons, the employer changed its method of providing services to clients. The employer adopted an out-patient, multi-disciplinary Flexible Assertive Community Treatment Team for Persons Dually Diagnosed (FACTT-DD). Clients who had been receiving care from the Brockville ACTT-DD Team were to be transferred to the care of Ottawa’s FACTT-DD Team. While only one client had been moved, the Union estimated that the change could result in as much as 23% of Brockville clients eventually moving to the Ottawa Team.
The union filed a policy grievance alleging the employer violated the collective agreement by transferring bargaining unit work to other bargaining units and changing the “type and volume” of duties normally assigned to bargaining unit members in Brockville. The employer conceded there would be a change to the type and volume of work for the members of the bargaining unit on the Brockville FACTT-DD Team. However, the employer argued that the Collective Agreement placed no restrictions on the internal transfer of bargaining unit work to a location not covered by the Agreement. The relevant Collective Agreement provisions read as follows:
2.01 Recognition
The Employer recognizes the Union as the sole bargaining agent of all paramedical staff [and service/office & clerical] staff employed by The Royal Ottawa Health Care Group employed at or administered from the Brockville Mental Health Centre save and except Chiefs, Managers, Co-ordinators, Supervisors and persons above the rank of Chief, Manager, Co-ordinator or Supervisor, and Hospital QA Coordinator/Program Evaluator and persons already represented by a bargaining agent
24.01 Work of the Bargaining Unit
Supervisors or Managers or other persons excluded from the bargaining unit shall not perform duties normally performed by members of the bargaining unit, except in exigencies of patient care.
24.02 Contracting Out
The Hospital shall not contract out work currently performed by members of this bargaining unit if, as a result of the contracting out, a layoff of any employees other than casual part-time employees results from such contracting out…
Arbitrator Knopf found that the scope clause in the union’s collective agreement covered the employees employed by “The Royal Ottawa Health Care Group employed at or administered from the Brockville Mental Health Centre. Article 24.01 ensured that bargaining unit work could not be transferred or reassigned to any excluded employees or other bargaining unit employees at or administered by the Brockville Mental Health Centre. However, the Collective agreement contained no language protecting bargaining unit work from being moved to another geographic location, unless that work was contracted out. The employer could therefore internally transfer work outside of Brockville unless the union could show that the transfer was a ploy to erode the union’s bargaining rights. Since the employer had valid operational reasons for the transfer of work, the grievance was dismissed.
c) Job Posting: Where the passage of time and a change in circumstances means a grievance decision will have no practical effect on the rights of the parties, the grievance is moot
· Canadian Mental Health Association, Waterloo Wellington Dufferin v OPSEU Local 291, (Misra, June 9, 2022)
The union filed two job posting grievances in 2019 following which the grievor resigned from her position with the employer to accept a job with another organization. On the first day of the grievance hearing, the grievor stated that she was seeking an apology from the employer and a declaration that the employer breached the collective agreement. The employer brought a motion to dismiss the grievance on the basis of mootness, arguing that proceeding with the grievances would expend considerable resources without any practical impact on the parties. The union argued that the live issue was the way the two job competitions had been carried out and the decision would be valuable for future job competitions. Arbitrator Misra found that continuing with the hearing would require the parties to expend considerable litigation costs when there was no live controversy, since the grievor was no longer employed by the employer and no longer wanted either position. There was also nothing particular about the two grievances that could not be litigated in another job posting grievance and no collateral consequences in the potential outcome that required the arbitrator to exercise her discretion to hear the matter. Arbitrator Misra upheld the employer’s motion and dismissed the grievances.
d) Privacy: Unless there are restrictions in the collective agreement, an employer can appoint any person appropriate in the circumstances to review medical certificates relating to employee absences
· Royal Ottawa Mental Health Centre v Canadian Union of Public Employees Local 942, (Jesin, June 21, 2022)
The union filed two policy grievances alleging the employer had violated the collective agreement, the Human rights Code, the Personal Health Information Protection Act (“PHIPA”) and the Public Hospital’s Act, by allowing non-medical and non-nursing staff to review and administer medical certificates and files in the employer’s Occupational Health Department. The union argued that between October 2020 and April 2021, the hospital engaged a “vocational rehabilitation professional” to review medical certificates and communicate with employees about their absence and return-to-work. The employer argued that a registered nurse in the department still reviewed the submitted medical notes and that nothing in the collective agreement prevented the employer some assigning any person it deemed appropriate to review medical notes. Arbitrator Jesin found that nothing in the collective agreement restricted the employer’s ability to determine who could administer medical certificate issues and communicate with employees regarding those issues. The grievances were dismissed.
e) Work of the Bargaining Unit: Whether the RAI Coordinator position belongs to the RPN bargaining unit depends on the specific language of the collective agreement and the relevant factual circumstances
· Southampton Nursing Home v Service Employees International Union, Local 1 Canada (Luborsky, July 11, 2022)
The union filed a grievance alleging the employer violated the collective agreement by excluding the Resident Assessment Instrument (“RAI”) Coordinator position/work from the RPN bargaining unit. The employer argued that it was within its management rights to assign the RAI Coordinator function as part of the duties and responsibilities of the Co-Director of Care – an RN not in the union’s bargaining unit. The RAI program is a resident assessment tool introduced by the Ministry of Health and Long-Term Care in or about 2009 for mandatory use at all provincial long-term care (“LTC”) facilities. The program helps develop individual care plans for each resident and informs government about the performance and funding requirements at a particular LTC. The RAI Coordinator oversees and ensures the completeness of the RAI program. The position has been subject to previous arbitral jurisprudence which generally found that in the absence of express language in a collective agreement, no union has an ownership interest in the RAI Coordinator position.
The union argued that the RAI duties fell within the RPN role and thus within the “all employee” bargaining unit. The employer argued that the incumbent in the role was required to have the RN qualification and since Registered Nurses were excluded from the bargaining unit, the RAI Coordinator position did not belong in the bargaining unit. Arbitrator Luborsky reviewed the duties of the RAI Coordinator position and the applicable scope clause and concluded that the position was properly excluded from the bargaining unit. The employer was within its management rights to require the RAI Coordinator hold an RN designation. Furthermore, the RAI Coordinator utilized the skills, judgement and/or experience of a Registered Nurse in the performance of their duties. Since RN’s were excluded by virtue of the bargaining unit’s scope clause, the RAI Coordinator was properly excluded. The grievance was dismissed.