Healthcare Update – March 2022

a)   Mobility Clause: Arbitrator’s decision that the hospital could unilaterally alter an employee’s designated “home” worksite is reasonable

·       Canadian Union of Public Employees, Local 5852 v. Scarborough Health Network (Divisional Court, January 27, 2022)

The hospital network was created out of the merger of three different campuses (General, Birchmount and Centenary). In a post-merger interest arbitration award of Arbitrator Gedalof, the arbitrator accepted the hospital’s proposed mobility language which allowed the hospital to assign employees to different worksites. Following receipt of this decision, the hospital centralized its finance department and all finance employees who previously worked at the Birchmount, or General campuses were relocated to the Centenary site. The union filed a grievance arguing that the mobility clause did not permit the hospital to unilaterally change an employee’s designated worksite. Arbitrator Fishbein disagreed, finding that the hospital had the right to unilaterally change the employees’ home worksites in these circumstances as part of its explicit management rights. Further, the union could not point to anything in the collective agreement constraining the hospital’s right to transfer employees to a nearby, reasonably accessible location for legitimate business reasons.

The union sought judicial review.  The Divisional Court dismissed the union’s application, finding Arbitrator Fishbein’s decision was sound, clearly articulated, internally consistent and gave the language of the collective agreement a meaning the words could reasonably bear; it was therefore reasonable.

b)   Innocent Absenteeism: the hospital has no obligation to accommodate undue absenteeism, not occasioned by an underlying disability, where there is no future prospect of regular future attendance

·       Unity Health v Ontario Nurses’ Association (Albertyn, February 25, 2022)

The hospital’s Attendance Support Program defined satisfactory attendance as having less than 5 shifts or 4 incidents of absence in a 6-month period. The grievor first entered the Program in 2012 and emerged in 2016. She re-entered the Program in 2016 and was terminated in January 2020 after accumulating 149 sick days and 26 separate incidents in the 36-month period prior to her termination. The union field a grievance challenging the way the Program was applied between 2016-2019. The union sought to have some of the illnesses for that period excluded from the grievor’s absence record. The hospital argued that it had discussed the grievor’s excessive absence record with her on at least 10 occasions and at no stage during the period of consideration did the grievor request an accommodation on the grounds of disability. Further, none of the grievor’s absences was occasioned by a disability as described in the collective agreement. Arbitrator Albertyn dismissed the grievance, finding that the Program had been fairly administered, the grievor had undue absenteeism not occasioned by an underlying disability, and there was no reasonable prospect of regular future attendance.

c)    Extrinsic Evidence: Extrinsic evidence regarding the parties’ negotiation history can be considered however, the arbitrator has no jurisdiction to alter the scope clause, despite what the evidence reveals

·       Ontario Nurses Association v Royal Victoria Regional Health Centre (Trachuck, March 2, 2022)

The union filed two grievances alleging that the hospital violated the collective agreement when it failed to include the Professional Practice Leader- Respiratory Therapy (PPL-RT) position in the bargaining unit and allowed someone outside the bargaining unit (the PPL-RT) to do bargaining unit work. In a preliminary hearing, the union sought to include evidence of negotiation history and the role of the PPL-RT prior to the first collective agreement. The hospital argued that the matter could be decided based on the language of the collective agreement and evidence about the work performed by the PPL-RT, after the parties negotiated the collective agreement. Arbitrator Trachuk found that evidence regarding the history of the PPL-RT role was relevant to the understanding of whether the PPL-RT classification was separate from the RRT. However, the negotiation history evidence was generally admissible only where it could provide context, contribute to a factual matrix, or disclose and resolve a latent ambiguity in the collective agreement language.

In this case, the parties’ scope clause was not patently ambiguous; it clearly listed the classifications that were included in the bargaining unit.  Whatever the extrinsic evidence revealed, it would be beyond the arbitrator’s jurisdiction to add another classification to the classification specific scope clause. In the end, Arbitrator Trachuk permitted the union to present evidence about the history of the PPL-RT role, its treatment during and subsequent to certification, and relevant negotiation history. However, this was not a determination about the amount of weight, if any, that she would attribute to any of that evidence.

d)   Overtime: arbitrator’s decision that overtime should be compensated based on hours actually worked is reasonable

·       OPSEU, Local 329 v. Waypoint Centre for Mental Health Care (Divisional Court, March 14, 2022)

Under the parties’ collective agreement, the hospital paid its employees time and a half for work in excess of 37.5 hours a week. There were two ways to award overtime pay: 1) For work done in excess of the 37.5 hours scheduled for an employee in the relevant week; and 2) For work done in excess of 37.5 hours actually worked that week. Using the first formula, an employee scheduled to work more than 37.5 hours would be entitled to overtime for the excess scheduled hours even if he called in sick for a scheduled shift and did not actually work more than 37.5 hours. In the second formula, the employee would not be paid overtime only if the hours worked exceeded 37.5.

The hospitals’ practice was to compensate full-time employees based on the first formula and part-time employees based on the second. Management decided to begin compensating everyone on the second formula. The union grieved.

In a labour arbitration decision, Arbitrator Stout had interpreted the collective agreement as paying overtime based on hours actually worked, not scheduled. If the parties had intended otherwise, he concluded that they would have stated so in much clearer language.

The union sought judicial review of arbitrator Stout’s decision. The Divisional Court dismissed the union’s application, finding that arbitrator Stout’s decision fell within a reasonable range of results and was justified on the law and the facts.

e)    Jurisdiction: Claims for damages arising from compensable workplace injury are barred by the Workplace Safety and Insurance Act

·       Ottawa Hospital v Ontario Nurses’ Association (Slotnick, March 22, 2022)

See:  https://hunterlegal.ca/the-curious-case-of-the-bat-and-the-lost-honeymoon/