Employees denied education leave pay for voluntary coursework
International Union of Operating Engineers. [IUOE Local 772] v Kemptville District Hospital (McIntyre, October 29, 2024)
Overview
This decision dealt with an education and training group grievance.
This case arose from a claim for payment for time spent by the two grievors in completing a course in wound care. This training prepared the grievors to provide an advanced level of wound care that had previously been provided by a Registered Nurse wound care consultant who came to the hospital as necessary. While the hospital paid for the tuition and textbooks for the course, it denied the grievors’ requests for paid time off and/or reimbursement for the personal time that they spent on the course. The Union filed a group grievance on behalf of the grievors to seek this addition compensation.
Facts
The Hospital brought in an external RN wound care consultant to provide advanced wound care services to patients. The Hospital wanted to be able to provide these services in-house and was willing to pay for up to three of its staff members to take a specialized course for this purpose. Management sent out an email to this effect and invited interested RNs and RPNs to apply for the opportunity to take the course.
Two RPNs responded and expressed their interest in taking the course. They asked if they could receive paid time off under the education leave provisions under the collective agreement. Management responded by email, saying that while the course and all related course materials would be paid for, the education leave provisions would not apply. There would be no compensation for time spent taking the course or time taken off concerning the course. Management emphasized that the course was voluntary and would be taken on their own time.
A few weeks into the course, the RPNs contacted management to express their concern that it was more demanding and time-intensive than anticipated. They asked again whether they could be compensated for their time taking the course. Management reiterated that the course was voluntary and would not be compensated. In addition, management advised them that if they did not want to continue with the course, they could quit by a specific deadline, allowing the Hospital to send other staff members to take the course a few months later. The RPNs chose to stay in and complete the course.
Arguments
The Union took the position that the Hospital’s refusal to pay the RPNs for their time spent on the course constituted a violation of the education leave provision under the collective agreement or, in the alternative, that the employer violated the ESA. The Union’s evidence was that the RPNs had each spent anywhere from 25-30 hours a week on average of their time regarding the course, on evenings and weekends, and that they should be compensated for this time.
The Hospital took the position that there was no violation of the collective agreement or the ESA. The course was voluntary and the RPNs could have chosen to quit after the initial few weeks with no consequence, as management indicated at that time and in writing.
Decision
The Arbitrator found in favour of the Hospital. The Arbitrator’s decision focused on the voluntary nature of the course, and the fact that management had clearly indicated there would be no compensation for time spent in respect of the course – it was agreed that it would be done during the RPNs personal time. Further, there was no evidence that the Hospital had threatened or induced them to take the course, or that they feared reprisal if they didn’t.
Arbitrator McIntyre found that the Hospital was not obligated to pay the grievors for their time spent in training under either the collective agreement or the ESA. The grievance was dismissed.
Arbitrator orders reinstatement as remedy for termination related to COVID-19 vaccination policy
Humber River Hospital v Teamsters Local Union No. 419 (Parmar, October 10, 2024)
Background
The parties returned before arbitrator Parmar to determine the issue of remedy after the union successfully argued that the termination of two unvaccinated employees was not justified on either disciplinary (termination for cause) or non-culpable (frustration of contract) grounds (Humber River Hospital v Teamsters Local Union No. 419 (Parmar, March 11, 2024) (the “March 2024 decision”). We previously reported on the March 2024 decision here. The March 2024 decision was a sharp contrast compared to other arbitral jurisprudence like in Lakeridge Health v CUPE , Local 6364, 2023 CanLII 33942 (ON LA) where Arbitrator Herman upheld the disciplinary termination of unvaccinated employees (find a full summary here).
At the time of the March 2024 decision the Policy was in place and the grievor’s had indicated their desire to not return to work at the Hospital. Importantly, the Hospital revoked its Vaccination Policy (the “Policy”) that required all Hospital staff to be vaccinated against Covid-19 in July 2024.
Arguments
Arbitrator Parmar was tasked with determining the appropriate remedy in the circumstances.
In unjust termination cases, reinstatement is the presumptive remedy, which the Union itself recognized. The Union took the position that the employment relationship was irreparably broken and thus damages in lieu of reinstatement was appropriate. The Union was seeking damages in lieu of reinstatement and termination and severance pay under the Employment Standards Act., 2000. Should reinstatement be ordered, the Union argued in the alternative that the grievors should be compensated for lost wages from when the Policy was revoked (July 2024) until they were recalled into work.
The Union relied on the Hospital seeking judicial review of the March 2024 decision as evidence that the Hospital did not accept that its termination decision was unjust and that it considered the actions of the grievors to be blameworthy.
It was the Hospital’s position that this is not a case that supports deviating away from the presumptive remedy of reinstatement and that the employees should, now that the policy was no longer in place, return to work.
The Hospital also denied that the employment relationship had been irrevocably broken. Instead, seeking a judicial review was exercising its legal rights. The Hospital argued that since the grievors expressed in January 2024 their intention not to return to work this supports a conclusion that the grievors resigned.
Decision
Arbitrator Parmar declined to find that the grievors had resigned but sided with the Hospital in finding that reinstatement, without compensation for lost wages, was the appropriate remedy in this case. In coming to this decision, Arbitrator Parmar provided as follows (paras. 24-25):
In my view, there is no basis in this case to depart from the presumptive remedy of reinstatement in termination cases. While arbitral jurisprudence has recognized that damages in lieu of reinstatement may be the appropriate remedy in exceptional circumstances, there is nothing to indicate that such a remedy is appropriate in the present case. In fact, the Union has not pointed to any facts that would distinguish the present case from the numerous other arbitration cases where arbitrators concluded reinstatement was the appropriate remedy where employees were unlawfully terminated as a result of non-compliance with COVID-19 vaccination policies.
The Union’s suggestion that the employment relationship is not viable seems to be premised solely on the fact the Hospital expressed its intention to seek judicial review. That is the Hospital’s legal right. The exercise of that legal right is no basis to conclude that the Hospital will not abide by its legal obligations in its employment relationship with the grievors.
In other words, the Union had not provided any facts that would compel the Arbitrator to stray from the usual remedy of reinstatement in response to an unjust termination in this case. There were no exceptional circumstances. This case was similar to many others concerning similar situations, where reinstatement had been ordered in response to an unjust termination in relation to a COVID-19 policy.
In the final disposition of the case at paragraph 33, arbitrator Parmar ordered:
The grievors are to be reinstated to their employment without loss of seniority on the following condition: the grievors provide written confirmation to the Hospital, through the Union, no later than seven days after the date of this award of their intention to return to work for the Hospital. If they fail to do so, they will be deemed to have resigned their employment effective the date of this award. If the grievors provide such confirmation, the Hospital is directed to facilitate their expeditious return to the workplace.
Vacation entitlement under collective agreement to be calculated using “dump method” rather than “accrual method”
Unity Health Toronto v Canadian Union of Public Employees, Local 5441 (Randazzo, October 1, 2024)
Overview
This case involved the interpretation of the vacation entitlement provisions of a collective agreement.
The Union grieved how the Employer had allocated full-time employees’ vacation entitlement. The Union contended that, per the provision in question (the “Provision”), employees were entitled to a “bump” or increase in their vacation entitlement on their “anniversary date.” The Employer denied any violation of the Provision, claiming their “accrual” method of calculating vacation entitlement complied with the collective agreement.
Arguments
The Union argued that the language of the Provision was clear and unambiguous. The Union argued that the Provision required the Employer to grant an annual “dump” of vacation entitlement on the employee’s anniversary date and did not support the Employer’s accrual method of vacation entitlement. The Union contended that this language had been the subject of arbitral interpretation and that the resulting arbitral jurisprudence supported the Union’s views.
The Employer argued that the Provision was “silent” regarding how time is added to an employee’s vacation bank. Therefore, it was open for the Employer to use any model of vacation time allotment so long as the employee has the required number of weeks available to them. The Employer argued that the “Accrual Method,” which sees employees earning a vacation credit for each month of employment, provides each employee with the appropriate amount of vacation. The Employer posited that the Arbitrator was not bound by arbitration decisions relied upon by the Union and suggested that some of those decisions had been wrongly decided.
Decision
Arbitrator Randazzo sided with the Union and found that the language of the Provision was clear and unambiguous on the issue of vacation entitlement. Specifically, Arbitrator Randazzo provided as follows:
[17] The intended meaning and application of [the Provision] is clear. An employee who has completed one year of service but less than two years of service is entitled to two weeks of paid vacation. An employee who has completed two years of service but less than five years of service is entitled to three weeks of paid vacation. This process continues until the employee has reached the maximum seven weeks of paid vacation which is triggered when the employee achieves twenty-eight continuous years of service. The bump in paid vacation time is triggered by the employee’s continuous service and the employee becomes entitled to the bump on their anniversary date. This method of allocation or entitlement is described, in both the Royal Ottawa Health Care Group and CUPE, 942, supra, and Queensway Carleton Hospital and CUPE, Local 2875, supra, as well in the parties’ submissions, as a ‘dump method’ of vacation entitlement. How the allocation is described is not particularly important. What is important and most relevant, is that an employee’s entitlement to a bump in additional paid vacation time is triggered on their continuous service anniversary as directed by [the Provision].
Arbitrator Randazzo acknowledged that earlier decisions were not binding, but they were persuasive in this case and not wrongly decided. Accordingly, it was held that the Provision should be interpreted so as to reflect an annual “dump” in vacation entitlement on the date of the employee’s anniversary rather than the “Accrual Method” that had been used by the Employer.
Food service representatives entitled to wages for time spent obtaining food handling certification
Canadian Union of Public Employees, Local 5180 v Trillium Health Partners (McConnell, October 2, 2024)
Background
The Hospital required all food service representatives (FSR) to hold a valid food handling certificate. The issue in this grievance was whether FSRs are entitled to wages while completing the recertification program.
This issue arose some years after a hospital amalgamation. At one location, the practice was for FSRs to obtain their food handling certification on their own time and without pay, although the Employer would pay for the cost of the certification. At another location, the practice had been for FSRs to obtain their certification during company time, and they would be paid for this time.
Decision
The Union argued that there was no statutory or clear requirement in the collective agreement for FSRs to all have their food handling certifications; rather, it was required by the hospital. As such, wages should be paid for the work performed in obtaining the certification. Arbitrator McConnell accepted this position and provided as follows in this regard (paras. 27-28):
I agree with the Union that in the absence of specific collective agreement language, wages are owed. This is clearly articulated in the recent award of Arbitrator Flaherty, as she then was, in TDSB:
… The arbitral case law is clear on this issue: I cannot infer from the Collective Agreement’s silence that the parties intended that employees would not be compensated for employer demands on their time, including training requirements outside of regular work hours. Setting aside, for the moment, whether this would be permissible under employment standards legislation, I could only reach such conclusion in the presence of clear language exempting the Board from the requirement to pay employees for demands it makes on their time outside of regular work hours. This Collective agreement contains no such language. (para 38).
It is a cornerstone of the employment relationship that employees will be paid for demands the employer makes on their time – it is an economic exchange of work for pay.
Based on the above and other reasons, the Arbitrator allowed the grievance and ordered that the FSRs be compensated for their time obtaining the food handling certifications.
HRTO finds clinic did not discriminate against trans patient
Thorne v. Good Health Walk-In Clinic (HRTO) (Daud, October 18, 2024)
Overview
In this recent decision from the Human Rights Tribunal of Ontario (HRTO), the Tribunal addressed a sensitive issue concerning discrimination claims related to gender identity and expression. The case provides helpful insights into the evidentiary requirements needed to establish a prima facie case of discrimination and the challenges that can arise in claims involving protected grounds under the Human Rights Code (the “Code“).
Background
The applicant in this case was a Black trans-male who had undergone gender reassignment surgery in November 2017. The applicant had attended at the respondent clinic (the “clinic”) in December 2017 to seek care in relation to his recovery from his surgery as well as other health concerns he was experiencing, such as anxiety. The facts in this case were in dispute, however, the agreed statement of facts that was filed jointly by the parties did agree on the following facts:
- the applicant attended the clinic to seek care;
- this was the applicant’s first visit to the clinic;
- upon his arrival, the applicant interacted with the receptionist;
- the applicant was seen in an exam room by a doctor, and there was a confrontation between them;
- the doctor left the exam room and returned with the receptionist;
- the applicant and the receptionist returned to the reception area, where they had a confrontation relating to the applicant’s preferred use of pronouns; and
- the applicant left the clinic and did not return.
The HRTO Proceedings
The applicant filed an application with the HRTO alleging discrimination based on gender identity and gender expression. He said he had been misgendered by clinic staff and denied necessary medical services. He argued that these actions amounted to discriminatory treatment violating the Code.
The Tribunal was required to determine whether:
- the applicant faced any alleged discrimination due to gender identity or expression;
- the respondent’s alleged refusal to prescribe certain controlled drugs or examine his surgical wound amounted to discrimination based on gender identity or expression; and
- the respondent discriminated against the applicant by allegedly misgendering him.
Ultimately, the Tribunal dismissed the application, ruling that the applicant had failed to establish that he had experienced discrimination based on gender identity or expression. The following key points informed the tribunal’s decision:
- No Evidence of Adverse Treatment Due to Gender Identity: The Tribunal found that the clinic’s policy of not prescribing narcotics to walk-in patients applied universally, regardless of gender identity or expression. This policy, the Tribunal held, did not target the applicant specifically.
- Inadvertent Misgendering: While acknowledging the incidents of misgendering, the Tribunal concluded that these were inadvertent and not indicative of discriminatory intent. It also highlighted the clinic’s willingness to improve processes by updating forms to include preferred pronouns.
- Credibility and Reliability of Evidence: The tribunal assessed the testimonies from both the applicant and the clinic staff, ultimately finding the clinic’s evidence more credible. The clinic’s records and witness statements consistently demonstrated that the situation’s outcome was based on clinic policy rather than bias against the applicant.
Conclusion
This case reaffirms that establishing a prima facie case of discrimination requires more than demonstrating membership in a protected group under the Code. Applicants must also show that adverse treatment resulted from that protected characteristic. The Tribunal emphasized that service denial based on a general clinic policy, absent specific targeting of the applicant’s gender identity or expression, did not satisfy the requirements for establishing discrimination under the Code.
Factual basis with link to alleged discrimination required for HRTO to have jurisdiction in COVID-19 vaccination policy case
Cates v. Bluewater Health (HRTO) (Ghanam, October 17, 2024)
Overview
This case involved an employee who had been terminated for their refusal to comply with the employer’s COVID-19 vaccination policy. The employee requested an accommodation in respect of the policy, but didn’t follow up to provide any of the necessary supporting information. In its decision, the Tribunal provides valuable guidance on handling accommodation requests in the context of mandatory workplace vaccination policies.
The HRTO Proceedings
The applicant filed an Application alleging discrimination based on creed, disability (medical), sex, association with a person identified by a protected ground, and reprisal with respect to employment, goods and services, and contracts, contrary to the Code. Specifically, the applicant alleged that the respondents discriminated against her when they instituted a mandatory COVID-19 vaccine policy and terminated the applicant’s employment for failure to comply with this policy.
The Tribunal sent the applicant a Notice of Intent to Dismiss the Application (the “Notice”) dated August 1, 2023, advising that the Application appeared to be outside of the Tribunal’s jurisdiction because the narrative setting out the incidents of alleged discrimination failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondents. Further, the Notice required the applicant to identify her creed, and her disability and/or medical condition within the meaning of the Code and explain how these interfere with her ability to be vaccinated for COVID-19. Finally, the Notice required the applicant to explain how the respondents had reprised against her by clarifying how she was claiming or enforcing a right under the Code; instituting or participating in proceedings under the Code; or refusing to infringe the right of another person under the Code.
After receiving submissions in response to the Notice, which disputed the Tribunal’s ability to request either medical evidence in support of a disability or medical condition or additional information with respect to the applicant’s creed and to clarify how these precluded the applicant from receiving a COVID-19 vaccination, the Tribunal sent a Case Assessment Direction (“CAD”) to the applicant. The CAD again directed the applicant to provide medical evidence to support the claim of inability to be vaccinated because of her medical condition (pregnancy and nursing) and information related to her creed beliefs.
Decision
The Tribunal dismissed the application as outside its jurisdiction. The applicant had failed to: “provide some factual basis beyond a bald assertion which [would link her] ground(s) to the respondents’ actions”; and “explain why [she thought] these actions [were] discriminatory in nature.” Specifically, the Tribunal found as follows:
- Medical Condition and Pregnancy as Grounds for Exemption: The applicant argued that her pregnancy and breastfeeding status constituted a disability, preventing her from receiving the vaccine. However, the Tribunal held that while these conditions do engage the ground of sex under the Code, they do not automatically qualify as disabilities. Furthermore, the applicant failed to provide any medical evidence to support her claim that vaccination was contraindicated due to these conditions, a step the tribunal deemed essential for such an accommodation request.
- Creed-Based Exemption: The applicant also listed creed as a reason for refusing vaccination but declined to provide details about her beliefs. The Tribunal reaffirmed that while applicants are entitled to request accommodations, they are also responsible for participating in the process by supplying relevant information. The applicant’s refusal to elaborate on her creed-based beliefs prevented her employer from thoroughly evaluating her request, and the Tribunal consequently ruled that the claim was lacking on a factual basis.
- Claim of Reprisal: The applicant alleged that her termination constituted reprisal for asserting her rights. However, the Tribunal found no evidence that the employer acted with retaliatory intent. Instead, her termination resulted from non-compliance with the COVID-19 vaccination policy after the applicant failed to provide sufficient grounds for exemption.
Navigating workplace investigations with sensitivity to disability
Buckel v. St. Joseph’s Healthcare Hamilton (HRTO) (Simon, September 26, 2024)
Overview
In this notable decision, the HRTO ruled in favor of the applicant in her claim of disability-based discrimination despite finding that “the applicant’s employment was terminated for time theft and that at least from the respondent’s perspective, the decision was not knowingly motivated in any respect, by the applicant’s disability or disability-related absences.” Vice-Chair Leah Simon found that because some of the absences that formed the basis of the employer’s decision that the applicant had engaged in time theft were related to her disability, that was sufficient to say that her disability was a factor in the decision to terminate, and thus discriminatory. This case underscores the importance of rigorous procedural standards in workplace investigations, particularly when an employee’s disability is or could be a factor.
Background
The applicant, a long-serving employee of the respondent hospital, alleged that her termination was due to discrimination based on disability. The applicant had been undergoing treatment for chronic pain conditions and a frozen shoulder. She argued that her disability-related absences played a role in her dismissal. The respondent maintained that her termination was based on “time theft” findings after a workplace investigation revealed discrepancies in her timekeeping records.
Key Findings of the Tribunal
- Flawed Investigation Process: The Tribunal noted several procedural errors in the respondent’s investigation. These errors included:
- Lack of proper communication regarding the applicant’s managers and reporting expectations;
- Inadequate review of the time records as a result of which some disability-related absences were characterized as time theft; and
- Failure to provide the applicant with an opportunity to review and respond to the investigation’s findings before her termination.
- Insufficient Consideration of Disability: While the respondent argued that the investigation was solely about time theft, the Tribunal found that roughly 10% of the absences categorized as time theft were actually related to the applicant’s documented disability. Additionally, the applicant had reported these absences in advance.
- Compensation for Injury to Dignity: The Tribunal awarded the applicant $15,000 in general damages for injury to her dignity, feelings, and self-respect. The Tribunal emphasized the significant emotional toll of unjustly characterizing some disability-related absences as time theft.
Takeaways
The findings in this case that the employer’s termination decision was entirely motivated by addressing time theft did not determine the case’s outcome. The HRTO was troubled by what it found to be “errors” in the investigation where absences that should have been treated as non-culpable were characterized as time theft. As a result, an employee who likely engaged in time theft was awarded compensation. The case highlights that caution is required when terminating an employee with a disability to ensure that the disability is not a direct or indirect factor in decision-making.
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