Healthcare Related Cases of Interest
a) Reduction of Hours Constituting Layoff – the proper remedy for failing to give an employee proper notice of layoff does not include topping up pension contributions that the employee would otherwise not have earned
Quinte Healthcare Corporation v Ontario Nurses’ Association (Albertyn, September 28, 2023)
This case comes as a follow-up to an earlier decision in which the arbitrator found that a reduction in the grievor’s hours constituted a layoff. The grievor, a nurse, had her hours reduced in 2015 and was not given notice of layoff at that time. She kept working until 2017, at which point she retired. Had the grievor been given notice of layoff in 2015, she would have elected to take the early retirement allowance provided in the collective agreement rather than continue working reduced hours for the following two years.
This decision dealt with the question of what the appropriate remedy ought to be.
ONA argued that the Hospital should pay the nurse: (a) the amount of the early retirement allowance she would have received if she had been given notice of layoff, and; (b) additional pension contributions to compensate for the shortened hours she worked over the past two years.
The Hospital disagreed that it should have to pay additional pension contributions, and that the income earned by the grievor from 2015-2017 should be considered mitigation income and set-off against the retirement allowance.
The arbitrator found that the grievor was not entitled to additional pension contributions, since she had suffered no losses to her pension as a result of the breach of the collective agreement. The two years of additional service had the effect of increasing the grievor’s pension, which would not have occurred had she taken early retirement.
The arbitrator did not count the grievor’s earnings as mitigation income. The retirement allowance was not considered pay in lieu of working notice and is not tied to any work that a nurse may perform after the payment is made. The hospital was ordered to pay the full retirement allowance of just over $30,000.00.
b) Pay in Lieu of Fringe Benefits- nurses’ entitlements to pay in lieu of fringe benefits are not reduced during pregnancy and parental leave
Ontario Nurses’ Association v Quinte Health Care Corporation (Albertyn, October 11, 2023)
This decision dealt with an individual grievance and a policy grievance concerning a nurse’s entitlement to pay in lieu of fringe benefits during pregnancy and parental leave.
Part-time nurses enrolled in the HOOPP Pension Plan were entitled to payments equivalent to 9% of their straight-time hourly rate in lieu of fringe benefits.
The collective agreement stated that employees on pregnancy and parental leave are entitled to a Supplemental Unemployment Benefit “equivalent to the difference between eighty-four percent (84%) of their regular weekly earnings and the sum of their weekly Employment Insurance benefits and any other earnings.”
The grievor went on two periods of pregnancy and parental leave between 2021 and 2023. ONA claimed that the grievor ought to be paid 100% of her regular entitlement to pay in lieu of fringe benefits during this time. The Hospital argued that pursuant to the collective agreement, the grievor should only be paid 84% of her regular entitlement to pay in lieu of fringe benefits.
Arbitrator Albertyn agreed with ONA:
[7] Two considerations favour the conclusion, advanced by the Union, that the payment must be at 100%, and not at 84%. The first is that the provision making clear that the in lieu payments continue during pregnancy and parental leaves is separate from the provision explaining how the SUB Plan operates. The second is that the pension contributions made by the Hospital and the nurse continue to be made at the full amount that is deductible from the employee’s normal weekly hours, and so continue unreduced by the application of the 84% of the SUB Plan.
Since the provision concerning lieu payments for fringe benefits was included in a separate part of the collective agreement than the provision concerning the Supplemental Unemployment Benefit, and since the grievor and the Hospital continued to make their full pension contribution payments, Arbitrator Albertyn determined that the grievor was entitled to 100% of her fringe benefits lieu payments.
c) Discharge Grievance – medical lab technician’s employment was terminated for incompetence where she failed to learn and refused to accept criticism
Hamilton Health Sciences v OPSEU/SEFPO Local 273 (Misra, October 12, 2023)
The grievor was a Medical Laboratory Technologist (“MLT”) who had been dismissed for incompetence resulting in the poor and unsafe performance of her duties. As an MLT, the grievor was responsible for processing and handling various tissue samples obtained during surgery. The grievor had two years of service at the time of dismissal.
The grievor was born and raised in China but has lived in Canada for the past 30 years. She received her post-secondary education in Ontario and is currently pursuing her PhD. The grievor worked in English for the entirety of her tenure at the Hospital. The grievor had been placed on a learning plan for the last 4 or 5 months of her employment.
The Union filed a grievance claiming that the grievor had been discharged without just cause and that the termination amounted to discrimination based on the grievor’s place of origin. The Union also claimed that the Hospital had harassed the grievor when it put her on a learning plan.
The Hospital’s witnesses testified that the grievor had been dismissed for incompetence. The grievor was less productive than she ought to have been, taking an entire hour to complete a half hour’s work. She had repeatedly failed to follow the standard operating procedures; the grievor reused plastic gloves for multiple samples, poured chemicals down the sink, carried multiple samples at a time, mislabelled or confused samples, and continuously skipped certain procedural steps. The grievor was not responsive to continuous coaching. At the hearing, the grievor maintained that her performance was fine and that the criticisms of her work were unwarranted. She further claimed that “other MLTs” made a lot of mistakes as well but were never corrected.
The Union argued that the grievor was not given an adequate chance to improve. The Union further argued that employers cannot demand perfection of their employees. Further, it argued that racial or ethnic discrimination factored into the implementation of the learning plans and the decision to terminate the grievor’s employment. As evidence of discrimination, the Union pointed to the grievor’s testimony that her supervisor spoke less to her than he did to the Senior MLT, who was White.
In response to the allegations of discrimination, the arbitrator found that the grievor’s supervisor had been the one to hire her, while being aware of her ethnicity, and that there was no evidence that similar incompetence had been tolerated in other MLTs. The decision to terminate the grievor’s employment was not related to her proficiency in English or her place of origin.
The arbitrator set out the following test to be met by an employer seeking to terminate an employee for non-culpable reasons:
- The employer must define the level of job performance required.
- The employer must establish that the standard expected was communicated to the employee.
- The employer must show it gave reasonable supervision and instruction to the employee and afforded the employee a reasonable opportunity to meet the standard.
- The employer must establish an inability on the part of the employee to meet the requisite standard to an extent that renders her incapable of performing the job and that reasonable efforts were made to find alternate employment within the competence of the employee.
- The employer must disclose that reasonable warnings were given to the employee that a failure to meet the standard could result in dismissal.
While an employer cannot expect “perfection” from its employees, the employer should assess whether the employee meets the standard of “reasonably able, skillful and efficient” employee in the same classification.
In this case, the Hospital had clearly expressed its expectations to the grievor on several occasions and went to “great lengths” to provide the grievor with instruction and supervision. The evidence demonstrates that the grievor never reached the required level of proficiency, despite this training. This level of incompetence was not acceptable in a hospital environment:
[286] Ms. Zhu worked in a hospital environment where her job entailed the daily handling of tissue specimens from patients who may have serious illnesses like cancer, tuberculosis, hepatitis, or any of a myriad of other diseases… The grievor did not appear to understand that her actions could have a negative impact on patient outcomes.
[287] She also did not comprehend that as a worker in an environment in which there was a high risk from working with patient tissue that may have communicable diseases, and working with volatile and carcinogenic chemicals, she had a responsibility to protect both herself and her fellow workers by following the health and safety requirements of the workplace. Ms. Zhu was also oblivious in her testimony to the impact that her slow and poor work habits had on her fellow MLTs as the lab workers were a team, and they were collectively responsible for completing a specified amount of work every day.
Despite multiple warnings, the grievor’s performance did not improve, and so termination was justified.
d) Premium Pay – nurses are entitled to call-in premiums when their call-in shift begins less than 24 hours after the end of their regularly scheduled shift
Brant Community Healthcare System v Ontario Nurses Association (Gedalof, October 18, 2023)
The grievor, a nurse, worked two night shifts in a row, and then was called in to work the next night shift. The Hospital classified this third shift as overtime pursuant to the ONA central agreement, entitling the grievor to time-and-a-half pay for the third shift. ONA argued that because the grievor was called in within 24 hours of her regular shift, she was properly entitled to be paid at a call-in premium of double time. The Hospital argued that call-in pay should be reserved for urgent circumstances, or, in the alternative, for cases in which a nurse agrees to work an extra shift that begins no less than 24 hours after the start (as opposed to the end) of their last shift.
Relying on past case law, Arbitrator Gedalof disagreed with the Hospital’s position that the call-in premium is payable only when a nurse is ordered in for an urgent shift. The premium is available when the nurse is asked to come in and agrees, whether or not the nurse was ordered to do so.
Arbitrator Gedalof found that the 24-hour period contemplated by Article 14.06 begins at the end of a nurse’s shift, not the beginning:
[54] …The notion of returning to something is tied to the notion of having left it. To “return” within 24 hours, absent some other temporal direction, clearly means to return within 24 hours of having left. To state the obvious, until one leaves, the concept of returning simply has no meaning. Had the parties intended that the countdown start at some earlier point, it would have been a simple matter to stipulate that the premium is payable if the nurse returns “within 24 hours of the start of her or his prior shift”, or some such direction. But without such a temporal direction, the 24-hour period, linked as it is to the word “returns”, must be counted from the time the nurse leaves their prior shift, not the time they started it.
In order to qualify for the call-in premium, the nurse must have finished a “regularly scheduled shift” (as set out in Article 13.01 of the ONA central agreement) less than 24 hours before the start of the call-in shift.
The grievor was entitled to be paid at the call-in premium rate.