Healthcare Update – July/August 2024

a)   Termination for failure to vaccinate just cause but entitled to ESA notice and severance

William Osler Health System v Canadian Union of Public Employees and its Local 145 (Stout, August 21, 2024)

The union filed a policy grievance relating to employees who were terminated with cause for failing to comply with the hospital’s mandatory vaccination policy.

The vaccination policy in question required employees to receive two doses of the COVID-19 vaccine. Non-compliance led to suspension and eventual termination. 42 bargaining unit members were suspended, 40 of whom were then terminated.

Arbitrator Stout considered the case under section 50 of the Labour Relations Act, 1995, and issued a brief award to resolve the grievances. The award is “without prejudice to any position either party may take in any other matter.”   

Arbitrator Stout found that the employees were terminated for “just cause.”  Arbitrator Stout acknowledged the awards of other arbitrators who found termination for refusing to be vaccinated unjust or unjust in certain circumstances.  He did not find the cases to be persuasive “in the unique circumstances of this matter.”

Arbitrator Stout went on to find that while the terminations were for just cause, the grievors’ actions did not constitute “wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer” pursuant to the Employment Standards Act, 2000. As such, the individual grievors were entitled to statutory notice and severance pay.

b)   Grievance about “incomplete” contracting out of housekeeping and dietary services meets prima facie threshold and will proceed

Partners Community Health v SEIU Local 1 Canada (Waddingham, July 12, 2024)

The collective agreement between Partners Community Health (PCH) and the SEIU expressly permits contracting out if no PCH employees are laid off as a result.  However, the SEIU filed a grievance when PCH announced that it would be contracting some housekeeping and dietary services to Compass.  PCH brought a preliminary motion to dismiss the grievance.  For the purposes of the motion, the facts as asserted by the SEIU were accepted as true. 

PCH operates Wellbrook Place (Wellbrook), a long-term care facility in Mississauga.  PCH acquired Camilla Care Community in November 2021.  The new Wellbrook facility was built, and Camilla’s patients and staff were transitioned to Wellbrook in November 2023.  The Camilla facility was subsequently closed.  All staff from Camilla retained their employment at Wellbrook.

PCH contracted with Compass to provide housekeeping and dietary services on floors two through eight of the Wellbrook facility with on-site management support.  Compass employees are represented by LIUNA Local 183.  PCH employees (SEIU members) provide housekeeping and dietary services on the first and second floors of Wellbrook.  Members of the SEIU serve the food prepared by the Compass employees on floors two to eight.  

The SEIU asserted that Wellbrook, Compass, and PCH employees work under PCH’s direction and control, following rules and procedures established by PCH.  Further, there is no clear separation between the tasks performed by Compass staff in the home areas and PCH employees on the main floor.  PCH employees will intermingle and overlap with Compass employees, working side by side and performing the same tasks SEIU members previously did at Camilla.

The SEIU argued that, based on the asserted facts, the contracting out was “incomplete” and that PCH continued to control the work.  To put the argument another way, the SEIU asserted that for a contracting out to be permitted in the collective agreement, the employer must completely disavow itself of the contracted function.  Where employees of PCH continued to perform the same work and where there could be an “intermingling” of Compass and PCH employees in the performance of that work, the SEIU had a prima facie argument for a breach of the collective agreement.

Arbitrator Waddingham agreed with the SEIU and dismissed PCH’s motion.

c)    Vaccination Policy – No discrimination or reprisal

Cassell v. ConnectWell Community Health (HRTO) (Barker, July 30, 2024)

The Applicant alleged that they faced discrimination and reprisal when she refused to comply with the employer’s mandatory vaccination policy. The Applicant alleged that she faced discrimination on the basis of creed. The case was decided based on written submissions after the HRTO identified that the application may fall outside of the tribunal’s jurisdiction. 

The HRTO member adopted the Human Rights Commission of Ontario policy recommending that the following characteristics are relevant when determining if a belief system is a creed under the Code:

A creed:

The applicant submitted the following in support of her application:

• I am holistic based and will treat with natural products to get ailments in control. I only use pharmaceuticals that run their course in a short amount of time when ailments are severe, and as soon as possible remove them for natural products because of the side effects that occur.

• While the term “creed” is often associated with religious or formal belief systems, in a broader sense, it can be used to describe a set of guiding principles or values that shape my approach to life.

• Being a part of my holistic community helps me to self-reflect and explore my personal beliefs and values, helps me have a deeper understanding of my identity. It guides me to check labels for damaging chemicals and/or ingredients, to not consume these factors and cook, can and grow my own food, find alternatives to pharmaceuticals with alternative therapies, being apart of a community that supports through meaningful relationships, and overall to educate others in the pursuit for the same.

• My holistic community is a diverse and inclusive group of individuals who share a common interest in holistic approaches to health, a respect for individual choice, well-being, and life in general. This community often embraces the idea that individuals are more than just physical bodies and that mental, emotional, and spiritual aspects play crucial roles in overall health. Ultimately, my holistic creed reflects my values and perspectives on leading a balanced and fulfilling life.

The Tribunal found that the Applicant was not discriminated against based on creed:

[14] I find that the applicant’s creed with respect to their personal beliefs about vaccinations lacks an overarching systemic component. The submissions are devoid of the kinds of details which might support that this belief was broad-based and overarching.

[15]      The Tribunal has previously held that while an applicant espouses these ideas as part of their belief system, singular beliefs objecting to the COVID-19 vaccine, no matter how sincerely held, do not meet the definition of creed under the Code…

The Applicant’s personal beliefs did not amount to a creed, and therefore were not subject to the jurisdiction of the Human Rights Tribunal.

The Tribunal further found that the Applicant had not faced a reprisal for failing to comply with the employer’s policy:

[19] …the actions described by the applicant are that of the employer managing employees by requiring compliance with COVID-19 masking and vaccinations policies. If the applicant felt targeted by these COVID-19 policies, I find that targeting related to the applicant not complying with the policies rather than the employer intending to take specific action against the applicant because they attempted to enforce their Code rights.

The employer healthcare provider was entitled to enforce its vaccination policies. This enforcement is not in itself a reprisal against the Applicant; the employer was entitled to require its employees to either comply with its policy or seek an exemption.

d)   Shortchange Premium – Premium applies to call-in shifts

Health Sciences North v Ontario Nurses’ Association (Albertyn, July 9, 2024)

The Union alleged that the Hospital was not correctly paying its nurses their “shortchange premium.” The collective agreement guaranteed that nurses would be scheduled with at least 16 consecutive hours off between shifts, or else a premium would apply.

The parties disputed whether nurses who had accepted additional hours of work offered by the Hospital beyond those that were prescheduled were entitled to the shortchange premium.

Arbitrator Albertyn determined that a call-in shift is a “scheduled” shift within the meaning of the collective agreement:

[20] All call-in shifts are scheduled in that, for the nurse to be paid for working the shift, they must have been scheduled to do so. As ONA argues, a nurse has been “scheduled” to work once they accept a shift at the request of management, regardless of how far in advance that request is made or the reason for which the request was made.

As such, Arbitrator Albertyn determined that the shortchange premium applied to shifts offered to and accepted by the nurses beyond those prescheduled. However, Arbitrator Albertyn also found that the premium did not apply for the whole shift but merely those hours for which the nurse had been shortchanged. The premium was only payable for the hours of the shift that would have been part of the nurse’s scheduled 16 hours off.

e)    LTD Grievance – No LTD benefits where employee failed to seek psychiatric care

Ontario Nurses’ Association v Health Sciences North (Wacyk, July 12, 2024)

The Grievor, a clinical nurse lead/specialist, was injured in 2009 when hit by a snowmobile. Following her injury, the grievor underwent physiotherapy and treatment with a psychologist and returned to work. For part of this time, the Grievor worked in an accommodated role as a Diabetes Educator and then transitioned back to her original clinical nurse lead/specialist role.  In October 2011, she returned to the role of Nurse Clinician.  In 2013, the Grievor went off work. The Union alleged that the Grievor went off work in 2013 due to a disability caused by the 2009 accident. She received LTD benefits for two years.

The applicable LTD plan was HOODIP 1980, which the hospital contracted with Sun Life to provide. The issue in dispute was whether the Grievor could perform the essential duties of “any occupation” for which she could reasonably become qualified.  The plan provided that a member must be “following appropriate treatment for the disabling condition since the onset of the condition” to qualify for benefits.

The Grievor reported ongoing issues with concentration and recall, affecting her daily functioning, along with residual dizziness, headaches, irritability, etc. Certain medical professionals suggested that the Grievor should receive psychiatric care. The Grievor sought continued care for her traumatic brain injury (“TBI”) but did not seek out a treatment plan for any psychiatric issues.

The decision summarized a large body of medical evidence reported by numerous therapists, doctors, and assessors over the years.

ONA relied on various reports to argue that due to the TBI, the Grievor’s cognitive deficits did not allow her to work in a clinical setting. The Union argued that the Grievor’s cognition and comprehension issues were barriers to reemployment.

The Hospital adopted Sun Life’s assessment that there was a lack of evidence to support a finding of cognitive impairment due to a TBI. Furthermore, the Hospital argued that if there were ongoing cognitive impairment arising from any psychological conditions suffered by the Grievor, then the Grievor had not sought or obtained appropriate treatment. 

Arbitrator Wacyk explained that to succeed in its grievance, the Union must show that (1) as of two years after the start of her disability leave, the Grievor was “continuously unable… to pursue any employment for which she is or may become reasonably qualified for by education, training or experience”, and (2) that “the Grievor receiving appropriate treatment for the disabling condition since the onset of the condition.”

Arbitrator Wacyk concluded that based on the medical evidence before her, it is not clear that the Grievor suffered from a moderate to severe TBI. Initial assessments following the Grievor’s accident concluded that her memory and cognition were functioning well despite her mild TBI. While the Grievor may have suffered some issues with cognition as a result of her TBI, these issues did not play a significant role in her leaving her position at the Hospital. The Grievor’s cognitive symptoms, as reported by her, worsened over time, which is inconsistent with the effects of a TBI. Arbitrator Wacyk concluded that the primary issues driving the Grievor’s absence from work at the time she left her role in 2013 were her depression and adjustment disorders.

Some of the medical reports relied on as evidence indicated that the Grievor’s perception of her ability to function may be different than her actual abilities. For example, when the Grievor reported that she suffered from difficulty finding words, the physicians did not observe any such difficulties.  Other doctors did not observe issues with the Grievor’s alertness or conversational abilities and noted that her reported long-term memory loss was highly atypical. The Grievor performed poorly on cognitive tests. However, her performance on these tests was not consistent with the doctors’ observations of her abilities outside of the testing context. Witnesses who worked with the Grievor at the Hospital prior to her leave did not notice any issues with the Grievor’s cognition and found her to be a highly effective nurse. Though Arbitrator Wacyk noted these inconsistencies, the Hospital did not dispute that the Grievor had been disabled from the essential duties of her role as a nurse clinician in 2013 when she began her leave.

Though the Grievor was not successful in her return to work because of her depression and adjustment disorder, she did not seek the recommended assistance from a psychotherapist. She also did not pursue the recommended continued physio or occupational therapy. As such, Arbitrator Wacyk determined that the Grievor did not seek appropriate treatment or make attempts to return to work:

[775] Accordingly, while it may have been the case the Grievor, with a treatment plan squarely focussed on her mental health challenges, provided by a psychiatrist with a number of treatment modalities available at their disposal, would have been able to sort out her various stressors i.e. family/ relationship, work and rehabilitation, and find a position less challenging and stressful which she could do – with or without accommodation.  However, this was never explored because the Grievor never sought or received the appropriate treatment or made any attempts to return to work.

The Grievor did not seek out appropriate treatment, as required under HOODIP 1980/the Sun Life insurance policy. The fact that the Grievor underwent certain testing was insufficient; to meet the requirements of the policy, the Grievor would have to have received “the usual and reasonable treatment for the condition and must be provided as frequently as is usually required by the condition.”

Though the Grievor denied that she was depressed, there was no other valid medical reason for her issues, which would also disqualify her from receiving benefits under the policy.

Arbitrator Wacyk concluded that the Grievor’s issues with functioning were not the result of a TBI but of depression and an adjustment disorder. The Grievor’s continued refusal to be treated by a psychiatrist constituted a failure to comply with the conditions of the policy.

Furthermore, due to the Grievor’s “invalid and unreliable test results, as well the inconsistency of her self-reported difficulties with the observations of her assessors,” Arbitrator Wacyk could not conclude that the Grievor was disabled from returning to any occupation for which she could reasonably become qualified.

The Grievor did not qualify for long-term disability benefits. The grievance was dismissed.

f)     Unfair Labour Practice – Agency nurse issues deferred to grievance arbitration

Ontario Nurses’ Association v Ontario Hospital Association (OLRB) (McCrory, June 26, 2024)

ONA filed an unfair labour practice application against the Ontario Hospital Association (“OHA”) and a number of hospitals (the “Hospitals”), alleging that the Hospitals’ use of agency nurses, and the exclusion of agency nurses from the bargaining unit, violated the Labour Relations Act. ONA alleged that the Hospitals’ actions undermined and interfered with ONA’s role as the exclusive bargaining agent for the hospitals. ONA further alleged that the Hospitals’ actions constituted bargaining directly with the agency nurses. The OHA requested that ONA’s application be dismissed, as it did not disclose a prima facie case.

ONA alleged that the Hospitals had developed a separate structure for agency nurses and, in some cases, offered agency nurses opportunities over bargaining unit nurses. ONA claimed that agency nurses were being paid more than the maximum rates for bargaining unit nurses, and were not subject to the same scheduling provisions as the bargaining unit nurses. ONA further alleged that some of the Hospitals had provided incentives and bonuses to agency nurses that they had not provided to bargaining unit nurses.

The Board found that dismissal for lack of a prima facie case should only occur in the clearest of cases. That bar was not met; it was not clear that the Hospitals had not been interfering with the administration of the union, or that the Hospitals had not been bargaining directly with the agency nurses.

The OHA requested that the application be dismissed as against the OHA. The OHA is not a party to any of the collective agreements with ONA, nor does it employ agency nurses. ONA’s pleadings sought specific remedies against the OHA. The Board found that the OHA has been party to similar applications of this kind and declined to dismiss the application against the OHA.

The OHA and the Hospital requested that the Board defer the application to be determined through the grievance process or collective bargaining. In considering this request, the Board took a number of considerations into account:

• It is more efficient for each hospital to address the application individually. Early decisions against one hospital may provide guidance to the others.
• The issues at play are contractual, not statutory issues. The question of whether agency nurses are employees can be dealt with through grievance arbitration, particularly given that the terms of the collective agreement allow for the use of agency nurses and provide for a remedy when the use of agency nurses exceeds permitted levels.
• The requests that bargaining unit employees be compensated at a higher hourly rate, or that they receive compensation for hours of work lost to agency nurses, can properly be dealt with through collective bargaining and grievance arbitration.

The Board concluded that it would be most appropriate to defer the issue of whether the OHA and the Hospitals had interfered with the bargaining unit to grievance arbitration and collective agreement negotiation. That being the case, the Board opted to defer the question of whether the OHA and Hospitals bargained directly with the agency nurses rather than bifurcating the application.

The Board concluded by noting that ONA was aware and/or involved when several impugned practices were implemented. The parties’ internal dispute mechanisms are the most appropriate way to deal with these allegations.

g)   Inclusion of Template Agreement in Collective Agreement – Union invited to make additional submissions

Service Employees International Union, Local 1 Canada v West Haldimand General Hospital (OLRB) (Kitchen, June 27, 2024)

The Hospital and the Union engaged in collective bargaining for the renewal of their collective agreement. Prior to bargaining, the parties had both signed a letter of understanding (“LOU”). The LOU contained a blank template to be used when entering into extended shift arrangements.

During negotiations, the parties had agreed to renew the LOU, with one sentence modified. After negotiations, the Hospital indicated that it was unwilling to sign onto the LOU.

The Union claimed that the Hospital’s refusal to sign onto the LOU was an attempt to undermine the Union’s case at arbitration, thereby undermining its membership representation. The Union argued that the LOU was a portion of the collective agreement and could not be left unsigned.

The Hospital argued that the Union’s application failed to establish a prima facie case against the Hospital. The Hospital agreed that the LOU formed part of the agreement but argued that it was simply a template that would only be signed when an extended shift arrangement was put in place.

The Board invited the Union to make additional submissions on this matter before making any preliminary decision.

h)   Hiring Discrimination – Application dismissed on two grounds, proceeds on one ground

Teshale v. Sunnybrook Health Sciences Centre (HRTO) (Lamers, July 23, 2024)

The Applicant worked in the IT sector for 21 years before her previous employer moved its operations out of the country.

At 58 years old, the Applicant began working for the Hospital as a housekeeper. About five months after being hired by the Hospital, the Applicant applied for an entry-level position in the Hospital’s IT department.

The Applicant had a phone interview with a manager from the Hospital’s IT team. During this interview, she was asked if she would be comfortable working with the manager’s “very young team.” The Applicant was not awarded the position. The Hospital told the Applicant that “while you are very qualified, we strongly believe that your skills are at a much higher level for this entry-level position.” The Hospital did not fill the IT position at that time.

Some months later, the Applicant was once again unsuccessful in her application for another IT position with the Hospital. The Applicant alleges that the successful candidate for the position was male, considerably younger, and less qualified.

The Applicant alleged that she was discriminated against on the basis of age, sex, and race. The Hospital asked that the Application be summarily dismissed, as it did not have a reasonable chance of success.

The Tribunal found that the Application had no reasonable chance of success on the grounds of race and sex. No candidate was hired in the first job competition, and there was no evidence relating to the second job competition that would point to discrimination on the basis of race or sex. The Tribunal noted that “the mere fact that the successful candidate may be of a different race or general, is not evidence that the respondent’s failure to hire the applicant was based, even in part, on race or sex and is not enough to provide the required factual basis.”

However, the Tribunal declined to find that the Application had no reasonable chance of success on the grounds of age.

_{The article in this update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hunter Legal LLP and may not be reproduced in any form, in whole or in part, without the express permission of Hunter Legal LLP.}