a) Permanent Wage Enhancement – OR Attendants are not engaged in direct support work
CUPE Local 5180 v Trillium Health Partners (Waddingham, August 15, 2024)
In April 2022, the province implemented a permanent wage enhancement for Personal Support Workers and Direct Support Workers. Eligible hospital employees were entitled to a premium of $2.00 for every hour worked.
In the hospital sector, employees are considered eligible for this wage enhancement if they spend at least 50% of their working hours providing “Direct Personal Care Services” to patients.
The union brought a grievance claiming that Operating Room Attendants (“ORAs”) were entitled to the wage enhancement. ORAs are responsible for assisting the surgical team in the Operating Room.
The Hospital denied that the ORAs were engaged in providing Direct Personal Care Services to patients.
Direct Personal Care Services is defined by the government’s guidelines as, “Directly assisting a person by providing personal care, such as assisting a person with eating, dressing, personal hygiene, and toileting.”
The union claimed that the ORAs performed the following duties, among others, that constituted Direct Personal Care of patients:
- Escorting patients to the operating room;
- Transferring patients to and from the operating table;
- Ensuring that the patient was comfortably positioned;
- Holding patients’ limbs during surgery;
- Monitoring the volume of fluid in the catheter bag;
- Transferring patients to the ICU following surgery;
- Preparing deceased patients for the morgue or for viewing by family members;
- Holding and positioning patients during epidurals, and;
- Assisting in changing patients’ soiled briefs.
The hospital disputed that the ORAs performed some of these duties and denied that the ORAs were engaged in Direct Personal Care Services. The hospital’s witnesses testified that the ORAs spent only a small portion of their time engaging directly with patients.
Arbitrator Waddingham determined that the ORAs did not spend at least 50% of their working hours providing Direct Personal Care Services to patients and so were not eligible for the wage enhancement.
The bulk of the duties identified by the union did not constitute “Direct Personal Care Services.” Government guidelines defined Direct Personal Care Services quite narrowly:
[73] …tasks sought to be included in “providing personal care” must be closely akin to (or of the same nature as) “assisting a person with eating, dressing, personal hygiene, and toileting”. For the reasons articulated by the Employer, I find that the majority of the tasks the Union seeks to characterize as “providing personal care” cannot be so characterized.
Arbitrator Waddingham agreed with the hospital that the tasks enumerated in the guideline are all associated with the routines of “daily living”:
[74] The actions set out at the end of the definition (“eating, dressing, personal hygiene, and toileting) are all associated with routine “daily living”. They are actions that a person would do (whether independently or with assistance) regardless of where they are, or what situation they are in. Other actions that are of the same nature were adverted to in the evidence and argument (for example, grooming, putting on makeup, putting on jewelry). Such actions are not connected to a person being in hospital, awaiting, undergoing, or recovering from a medical procedure – that is, to being a “patient”. They are connected to a person simply being a “person”.
Notably, the terms of the Permanent Wage Enhancement program are narrower than those of the Temporary Wage Enhancement program introduced by the government earlier in the pandemic.
The tasks identified by the union were all closely associated with the patient’s medical procedure and not with their daily living. These were “patient care” rather than “personal care” tasks.
Even if the ORAs provide or assist with some personal care tasks, such as changing a patient’s soiled briefs or assisting them with donning a hospital gown, the union’s witnesses testified that these tasks take up only a small portion of their working time and much less than the 50% required by the guidelines.
As the ORAs did not spend at least 50% of their working hours engaged in Direct Patient Care Services, they were not entitled to the wage enhancement.
b) Summary Hearing – HRTO complaint had no reasonable prospect of success
Kabonge v. Humber River Hospital (HRTO) (Mason, August 21, 2024)
The Applicant was employed by the hospital’s volunteer association and worked at a Tim Horton’s franchise operated by the hospital.
The Applicant brought an Application against the hospital and the volunteer association alleging he had been discriminated against and sexually harassed by his supervisor during his employment and that his employment was terminated for discriminatory reasons.
The Applicant brought a request to add three individual respondents as parties. The request to add two individuals – the volunteer association’s Retail Manager and the hospital’s Recruitment Specialist – was dismissed, as the corporate respondents were vicariously liable for any of their actions and prepared to assume financial responsibility. Furthermore, adding these individual respondents would create undue delay.
The Applicant requested to have the Tim Horton’s manager added as a respondent. The Application contained specific allegations of sexual harassment on the part of the manager. The most recent incident of sexual harassment was alleged to have occurred in September 2018. The request to add the manager as a respondent was made in March 2020, almost two years after this last incident. It was not clear that the manager had received particulars of the allegations against him until well over four years after the alleged sexual harassment took place. This delay would substantially prejudice the manager’s ability to bring a full defence to the allegations against him.
One of the allegations outlined in the Application was that the Applicant had received less pay than his female coworker for the same work. He had submitted a complaint to the Employment Standards Officer. The HRTO found that the issue of discrimination in pay, and the issue of the Applicant’s termination of employment were adequately addressed by the ESO. These allegations were dismissed, as they had been appropriately dealt with in another proceeding.
The Tribunal turned to the other allegations in the Application and determined that the Application had no reasonable prospect of success.
The Applicant alleged that he received death threats from coworkers on two occasions. However, he had no evidence to suggest that these threats were uttered based on one of the Applicant’s protected characteristics. Though the Applicant claimed that his complaints about this incident were not investigated due to his race and status as a recent immigrant, these claims were speculative. There was no evidence to indicate that the alleged threats were connected to a ground protected by the Human Rights Code.
The Applicant further alleged that the volunteer organization prevented him from getting hired by the hospital for the positions for which he applied. This allegation was also unlinked to any enumerated grounds under the Code.
The Tribunal recognized that the volunteer organization had a duty to ensure that the Applicant was provided with a workplace free from harassment. The organization was informed of the harassment by a letter sent by the Applicant after his termination. Within three weeks, the organization had engaged a third-party investigator to look into the sexual harassment allegations.
The sexual harassment allegation had no prospect of success, as the organization was not informed of the allegations until after the Applicant was terminated, and conducted an investigation promptly.
The Tribunal dismissed the allegations the Employment Standards Officer dealt with and found that none of the remaining allegations had any prospect of success. The Application was dismissed in its entirety.
c) Foreign Medical Certificate – Rejection of medical note from abroad was not discriminatory
Moustabchir v. Monfort Hospital (HRTO) (Ghanam, August 26, 2024)
The Application alleged that the Applicant required surgery while on vacation in Morocco. The Applicant alleged that he was on sick leave and sent the hospital a medical note explaining his absence. The hospital rejected the medical note, as it was from outside of Canada.
The Tribunal found that this complaint did not fall within its jurisdiction. The hospital’s decision to reject the note was unconnected to the Applicant’s place of origin. Furthermore, the hospital would have applied the same treatment to any note written outside of Canada; its decision was not connected to the note’s specific origins in Morrocco.
The Application was dismissed.
d) No Jurisdiction – HRTO has no jurisdiction to enforce the OHSA
Dadabhoy v. Ontario Shores Centre for Mental Health Sciences (HRTO) (McNair, September 9, 2024)
The Applicant was employed by the hospital as a Quality Improvement Advisor.
There were several incidents in which the Applicant had some conflict with management. On one occasion, the Applicant came to work late, and on two occasions, he refused to come to work because of bad driving weather.
On one of the occasions that the Applicant refused to come into work, he cancelled a “patient safety walkaround” that he had been scheduled to conduct for the hospital’s executives. The following day, the Applicant came into the office and informed his supervisor that he would like to take short-term disability leave due to his back pain. The Applicant’s supervisor only wanted to discuss the previous day’s events. The Applicant claimed as follows:
When we met formally the same afternoon, she didn’t even talk about our morning conversation but focused on the matters that ensued the previous day. Her bone of contention was that I should report to work regardless of weather conditions. Her exact words were, “everyone came.” Again, the implication was no matter how severe the weather is, I should risk my safety for work.
The following day, the Applicant’s employment with the hospital was terminated. The Applicant claimed his termination was a reprisal for refusing to come to work when the weather was bad. The Tribunal rejected the Applicant’s reprisal claim, as it was unconnected to any protected grounds under the Human Rights Code. The Applicant’s claim is more properly related to workplace safety under the Occupational Health and Safety Act, which the Tribunal has no jurisdiction to interpret or enforce.
The Application did not disclose any specific claims of discrimination based on a protected ground.
The Applicant, by his estimation, does not have a disability.
The Application asserted that the Applicant was discriminated against based on his colour, place of origin, and ethnic origin. The Applicant, who is of Indian and Pakistani origin, alleged that the hospital’s treatment of him would have been much more accommodating had he had a fairer complexion.
The only evidence the Applicant brought of discriminatory treatment was an anecdote in which a white colleague attempted to share an answer sheet with the Applicant and was not disciplined for doing so. The Applicant did not bring any evidence that colleagues of a different ethnicity would have been disciplined for the same infraction.
The Tribunal found that the Applicant had not experienced any adverse treatment based on his colour, place of origin, and ethnic origin. The Application was dismissed.
e) Preliminary Objection – Union entitled to narrow scope of grievance at hearing
Unity Health Toronto v Canadian Union of Public Employees (Lawrence) (September 17, 2024)
This preliminary issue arose in the context of a policy grievance concerning overtime premiums for employees scheduled for two shifts in a day. The grievance alleged that:
The Employer has violated the CUPE Clerical and Service Collective Agreement including but limited to Article B, Article N.6(a), Article O.2, and any other relevant articles and appendices by not scheduling Employees with two shifts off in a 24-hour period and failing to pay overtime when N.6(a) is not being adhered to.
At a Step 2 meeting between the parties, the union presented many examples of situations in which an employee might work two shifts daily.
The day before the hearing, the employer and the union had a conversation in which the union indicated that it only intended to present arguments about full-time employees. The employer argued that since the union had, at the Step 2 meeting, brought examples relating to full-time and part-time employees, the union was now improperly expanding its grievance.
The union denied that it expanded its grievance. The collective agreement clauses referenced in the grievances related to full-time employees. The union argued that it was now entitled to narrow its arguments based on the employer’s representations at the Step 2 meeting.
Based on the union’s arguments at Step 2, the arbitrator found that it was unsurprising that the employer was unprepared for the union’s arguments. However, the union had not expanded the grievance:
[22] …I am satisfied that the Union’s argument as advanced at the hearing is captured on the face of the grievance forms as filed, and that the argument being advanced was encompassed (albeit summarily) within the discussion held by the parties at Step 2 meeting… While there is no doubt that the Union has abandoned a large part of the arguments from, and the examples given at, the Step 2 meeting, a wide-ranging discussion at Step 2 should not preclude the Union from proceeding on a narrower portion of the issues inherent and identified in the original grievances… What the Employer characterizes as an expansion of the scope of the grievance is really a significant narrowing of the grievance.
The union was not expanding its grievance but narrowing it. It was entitled to do so.
f) Classification Grievance – Hospitals entitled to amend job duties
Orillia Soldiers’ Memorial Hospital v Ontario Nurses Association (Hayes, September 23, 2023)
The union alleged that new responsibilities added to Nurse Practitioners effectively created a new classification, necessitating new job profiles and salary scales. The Way Home Program helps transition hospital patients back into the community. Nurse Practitioners working in the Way Home Program were the Most Responsible Providers for the patients, holding primary responsibility for the patients.
Before 2021, the Most Responsible Provider for a patient was always a patient’s family doctor, a hospital physician, a psychiatrist, or a midwife.
The arbitrator rejected the union’s argument, citing Sudbury Regional Hospital, 2009 CarswellOnt 8799 (Surdykowski):
In the absence of clear specific collective agreement there is no proprietary or other employee right to a particular job or bundle of duties and responsibilities in a job or classification, nor any prohibition against altering duties or responsibilities of a job or classification. A job classification scheme in a collective agreement does not end in and of itself fetter an employer’s right to add to or subtract from any particular bundling of job duties and responsibilities, and doing so will not necessarily create a new classification….When it comes to medical health professionals the addition or reallocation of duties or responsibilities within the basic scope of practice will generally not amount to a substantial change for job classification purposes.
The hospital has the right to amend its employees’ job duties. This does not create a new classification. If the union seeks additional compensation, it should do so at the bargaining table.
g) Implementation Award – Physicians entitled to ‘catch-up’ increases
R v Ontario Medical Association (Kaplan, September 12, 2024)
This implementation award addresses the question of appropriate wage increases for physicians.
The Ontario Medical Association (“OMA”) proposed a wage increase of 22.9% for the first year of the collective agreement. In addition to normative increases, the OMA sought to address rising inflation, account for increases received by other groups, and redress low wage increases from previous years.
Conversely, the Ministry proposed a normative increase of 3%, with no additional amounts to address the alleged issues presented by the OMA.
Both parties brought up several key issues affecting compensation. The arbitrator addressed each issue, including the two critical issues summarized below.
Recruitment and Retention
OMA argued that there were major backlogs and shortages in the Ontario health system, leaving many Ontarians without a family doctor or otherwise unable to access health care. The Ministry disputed that there were recruitment and retention challenges – medical schools had no issue attracting applicants, and graduates overwhelmingly chose to apply for residencies in Ontario. The Ministry pointed out that the number of doctors in the province was increasing. OMA noted that the number of doctors was not keeping pace with Ontario’s dramatic increase in population.
OMA pointed to long emergency room wait times as evidence of insufficient compensation. The Ministry argued that these wait times were largely due to nursing shortages and insufficient hospital beds.
The arbitrator found recruitment and retention issues for doctors, particularly in family medicine, though not nearly as significant as those facing the nursing sector. The arbitrator accepted that increasing compensation was a partial, though not a total, answer to addressing these issues.
Bill 124
While doctors’ wages were not directly limited by Bill 124, OMA argued that due to limitations across the sector, “negotiating increases beyond [1% per year] was simply not possible. The Ministry claimed that Bill 124 was not applicable and that all increases had been freely negotiated.
The arbitrator agreed that Bill 124 affected the initial agreement, so compensation increased by 1% in the first two years of the collective agreement. While there were additional increases since, these increases did not account for normative wage increases as well as for a surge in inflation.
This justifies an increase in physician compensation the same way increases in compensation were justified for other healthcare workers:
In our view, and in the same way that it would have been completely inappropriate for Ontario doctors to have received increases well beyond other health care workers when Bill 124 was in effect – a point that was made perfectly clear in the bargaining that led to their negotiated agreement – it would be equally inappropriate and unjustifiable for them not to be treated generally the same when Bill 124 was successfully challenged and then repealed. Achieving some symmetry is required by replication.
Conclusion
The arbitrator concluded that the physicians were entitled to a 3% normative increase and an additional catch-up increase of 6.95%, to account for the impact of inflation and Bill 124.
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