CUPE 1909 and Ross Memorial Hospital (Voluntary Exit Grievances) Award Dated February 7, 2018
CUPE 5180.1 and SteriPro (Notice of Layoff) Award Dated May 30, 2017
CUPE Local 5180.1 is the bargaining agent for employees of SteriPro, many of whom were transferred to SteriPro from the Hospital in a previous Article 10.02 arrangement. When the Hospital decided to end its contracting out arrangement with SteriPro and take the work back, SteriPro failed to provide notice of layoff to the affected employees, contrary to the requirements of Article 9.08(A). SteriPro sought to rationalize its conduct by arguing that there was an ongoing need for the work and that actual layoffs eventually proved to be unnecessary because employees had resigned. The Union argued that the Hospital's rationale found no basis in the Collective Agreement. The Board of Arbitration, chaired by Russell Goodfellow, agreed with the Union. He confirmed that Article 9.08(A) operates "proactively or prospectively", meaning that notice of layoff must be provided five months in advance, and the Hospital is not entitled to follow a 'wait and see' approach where it can await resignations "and later argue that actual layoffs were unnecessary because employees quit." This case confirms that the full panoply of Article 9.08(A) rights apply to subcontractors who come to stand in the place of the Hospital for the purposes of the collective agreement under Article 10.02. It also reiterates the fundamental purpose of the fivemonth notice period, namely to "set in train" the rights triggered by notice of layoff, including offers of early retirement and voluntary exit packages.
CUPE 1909 v. Ross Memorial Hospital (Displacement Through Bumping) Award Date April 12, 2017
This case raised similar issues to the St. Joseph's Healthcare Hamilton case described above an included at Tab 9A. The Board of Arbitration, Chaired by Eli Gedalof, reached the same conclusion, confirming once again that employees displaced through bumping cannot be reassigned, but must be given notice of layoff under Article 9.08(A), and that early retirement and voluntary exit packages must be offered to the affected classification prior to providing notice of layoff.
CUPE Local 786 v. St. Joseph's Healthcare Hamilton (Displacement Through Bumping) Award Date April 11, 2017
In this case, the Hospital sought to reassign employees displaced by a bumping, contrary to the requirements of Article 9.09(d) which provides that displaced employees "shall be deemed to have been laid off and entitled to notice in accordance with Article 9.08(A)(a)." The case law is clear that the Hospital is required to offer displaced employees notice of layoff in these circumstances, and also make offers of early retirement and voluntary exit to employees in the affected classification. Indeed, one of those cases arose out of the very Hospital that was a responding party in these proceedings. The Board of Arbitration, Chaired by Christine Schmidt, upheld the grievance, thereby confirming, once again, that displaced employees cannot be reassigned but must be provided with notice of layoff, and that early retirement and voluntary exit packages must be offered prior to issuing the notice of layoff. OCHU's involvement in this case (and in the Ross Memorial Hospital case described below and included at Tab 1 0A) was critical to protect the rights of displaced employees and its prior jurisprudential gains against a strategic result orchestrated by the OHA.
CUPE 139 v. North Bay Regional Health Centre (Pharmacy Assistants) Award Date April 18, 2017
The Hospital required all of its Pharmacy Assistants to upgrade to the new regulated classification of Pharmacy Technician to maintain employment at the Hospital. Some of the affected employees were unable to meet the regulatory requirements. As a result, the Hospital fired them. It was the Union's position that the Hospital was required to provide these employees with notice of layoff under Article 9.08(A). The Hospital took the position that the employees in question had been terminated for (non-disciplinary) cause, not laid off. The Board of Arbitration, chaired by Russell Goodfellow, agreed with the Union. He found that their were different responsibilities and accountabilities associated with the roles of Pharmacy Assistant and Pharmacy Technician, and as such these were different positions. What the Hospital had done was eliminate the Pharmacy Assistant positions and create new Pharmacy Technician ones, with the result that the former Pharmacy Assistants had been laid off within the meaning of Article 9.08(A). This case confirms the broad reach of the notice requirements in Article 9.08(A). It makes it clear that when a Hospital chooses to fundamentally alter the requirements of a position, for regulatory reasons or otherwise, it must provide notices of layoff if those positions are occupied. The Award puts to rest the Hospital's theory of termination for 'non-disciplinary cause' - which, in this era of ever changing regulatory requirements, could have undermined the rights protected by Article 9.08(A).
CUPE Local 2119 v. Perth and Smith Falls District Hospital (Job Posting) Award Date February 9, 2017
This case involved a challenge to the Hospital's practice, when posting notice of a job vacancy, of listing "day/evening/night" or "days/evenings/weekends" as the shift for a position, instead of specifying the actual shift to be worked. The Union argued that this contravened Article 9.05(b) of the Collective Agreement, which provides that the job posting "shall stipulate the ... shift." The Board of Arbitration, chaired by Christopher Albertyn, allowed the grievance. It found that the "plain language reading of Article 9.0S(b) requires that the actual shift to be worked must be posted." Moreover, by not posting information about the actual shift to be worked, the Hospital was depriving employees of the right to use their seniority to make an informed decision on whether to apply for a position. To quote from the award, "seniority is a fundamental collective agreement right," and knowing which "shift a vacant job posting is for ensures that all employees across the bargaining unit have an equal opportunity to use their seniority to make an informed decision on whether to apply." As a result, the Board declared that Article 9.0S(b) of the collective agreement requires the Hospital to specify the actual shift to be worked in its job postings and directed the Hospital to post the actual shift times of the vacancy. This award has significant precedential value. In an attempt to avoid accountability for altering shift schedules, many hospitals have adopted the practice of describing shift schedules in overly broad terms. This case should put an end to that practice. More generally, the award acknowledges the importance of scheduling to employee's personal circumstances, and the value of seniority as "a fundamental collective agreement right" that employees have relied on "to bid on shifts that fit more conveniently with their family and other needs."
CUPE Local 2119 v. Perth and Smith Falls District Hospital (HOODIP) Award Date February 6, 2017
This case involved a challenge to certain terms of the 1992 Hospitals of Ontario Disability Income Plan ("HOODIP") that deal with the reinstatement of short-term sick pay benefits for employees returning to work from sick leave. The relevant terms provide that if an employee returns to work for three continuous weeks on regular duties, then their benefits will be reinstated in full. However, an employee who returns to work on a modified work plan ("MWP") will not qualify for the reinstatement of their benefits, and in fact will continue to deplete their benefits. The Union argued that these terms of HOODIP are discriminatory and thus violate Articles 3.01 of the Collective Agreement as well the Ontario Human Rights Code. The Board of Arbitration, chaired by Arbitrator Ken Petryshen, allowed the grievance. The Board found that the relevant terms of HOODIP discriminate against disabled employees who return to work on modified duties by not reinstating their benefits after three weeks of employment. This is in contrast to employees who return to regular duties for more than three weeks, whose benefits are reinstated. In coming to its decision, the Board considered and followed the applicable case law, including Ottawa Hospital v. OPSEU, Local 464,  OLAA No. 266 (Keller), upheld on judicial review in 2009 CanLII 9389 (Ont. Div. Ct.) and Rouge Valley Health System v. ONA, 2014 CarswellOnt6431 (Trachuk), noting that these cases "find that the HOODIP terms that preclude disabled employees returning to work on a MWP from having their short term sick leave benefits reinstated constitute discriminatory treatment within the meaning of the Code." In the result, the Board declared the relevant terms of HOOD IP to be discriminatory and directed the Hospital to "consider and comply with its Code obligations when dealing with employees on modified duties who are disabled as defined by the Code." This case is a useful precedent. There are several examples of hospitals refusing to follow the Ottawa Hospital and Rouge Valley decisions, which were litigated by OPSEU and ONA respectively, to members of CUPE. This case should ensure that all CUPErepresented employees are treated equally and equitably under HOODIP.
CUPE Local 942 v. Royal Ottawa Health Care Group (Reassignment) Award Date January 16, 2017
This case involved a challenge to the Hospital's misuse of the reassignment provisions of the Collective Agreement (Article 9.08(A)(b)). The Hospital wished to use the reassignment provisions to avoid layoffs. However, rather than first reass1gmng employees with the least seniority within the classification identified for redeployment, the Hospital began the reassignment process by targeting those with the most seniority. Further, rather than allowing reassigned employees to select from available vacancies in order of seniority, the Hospital placed employees into positions based on scheduling considerations alone. The Board of Arbitration, chaired by Arbitrator Michelle Flaherty, declared that the Hospital was required to meet all the requirements of Article 9.08(A)(b), which means first reassigning those with the least seniority, as per Article 9.08(A)(b)(I) and allowing those employees to select from available vacancies in order of seniority as per Article 9.08(A)(b)(VI). The Board of Arbitration further ordered that the Employer must provide employees who are in receipt of layoff notices with all information necessary to exercise their bumping rights, including complete and accurate seniority lists and information about classifications, as well as further relevant information upon request. This Award confirmed that the reassignment provisions of the Collective Agreement cannot be used to avoid the critical seniority protections that not only govern the reassignment process, but which underpin redeployment as a whole.
CUPE Local 4540 v. Bruyere Continuing Care (Calculation of Vacation Pay) Award Date December 19, 2016
This award follows a previous one issued on January 5, 2016, in which the Board of Arbitration, chaired by Arbitrator David Starkman, held that the Hospital violated the collective agreement by calculating vacation entitlement and vacation pay for regular part-time and casual members based on their regular straight time rate of pay rather than on their "gross earnings" within the meaning of the Local' s collective agreement. In this case, the issue was what forms of payments are included in the calculation of an employee's "gross earnings." The Hospital conceded that gross earnings include overtime pay, premium pay, holiday pay, premiums (standby, shifts and weekend) and percentages in lieu of benefits, but denied that gross earnings include vacation pay. In this December 19 award, the same panel allowed the grievance and ordered the Hospital to include vacation pay in its calculation of gross earnings for regular part-time and casual members. Its damage award is retroactive to April 1, 2014, resulting in over two years of retroactive payments to the affected members. This case provides additional clarity as to the interpretation of the term "gross earnings", a term which is not found in the Central Collective Agreement but which is common in local agreements across the province.
CUPE Local 5180 v. Trillium Health Partners (estoppel) Award Dated December 7, 2016
This case deals with the question of when a hospital can be "estopped" from backing away from representations made regarding the seniority and service of employees in a contracting out. The Hospital in this case had contracted out sterilization services to a third-party contractor, Steripro. A number of hospital employees decided to transfer to Steripro after the Hospital had advised the Union in a meeting that employees transferring to Steripro would maintain their Hospital service and seniority for a period of four years from the date of transfer. The Hospital then terminated its contract with Steripro before the fouryear period had elapsed, and three of the transferred employees returned to the Hospital. However, the employees were not given credit for their past service and seniority as the Hospital had indicated. The Union grieved the Hospital's failure to recognize the returned employees' service and seniority under Article 9.07 of the Collective Agreement and as an estoppel. The Union's Article 9.07 grievance was dismissed in an earlier award dated September 14, 2015. This December 2016 award addressed the Union's estoppel argument. The Board of Arbitration, chaired by Russell Goodfellow, allowed the grievance, holding that the Hospital was from backing away from the representations that it had made. It found that the elements of an estoppel had been made out: the parties have a collective bargaining relationship, the Hospital had made a clear representation by which it intended to be bound, and the Union and the returning employees relied on that representation to their detriment. In the result, the Hospital was ordered to credit the three returning employees with their previously accumulated seniority and service with the Hospital. This case is yet another installment in the Steripro-related litigation that has been supported by OCHU in recent years. More broadly, it serves as an important reminder to hospitals contemplating contracting out arrangements of the special vulnerability of affected employees and the importance of clear communication on matters as critical as seniority.
CUPE Local 2198 v. Arnprior Regional Health (Fiscal Advisory Committee), Award Dated September 30, 2016
This case raised issues relating to a hospital's obligations under Article 21 of the Collective Agreement (Fiscal Advisory Committee). While the Board of Arbitration, chaired by Russell Goodfellow, did not find a breach of Article 21 on the specific facts of the case, it did make some useful comments about the scope of hospitals' Article 21 obligations generally that will undoubtedly be of use in future cases: "Article 21 is obviously an important and complex provision that clearly recognizes the value of the Union's input on behalf of employees through the budgetary process on matters that may impact the Union's members. It further contemplates that the Union will be consulted when unforeseen circumstances lead to changes or revisions to the budget. It also contemplates timely production of financial and staffing information to the Union at, or, where possible, in advance of, scheduled F AC or equivalent meetings. Finally, the article contemplates that an employee participating at an F AC or equivalent meeting shall be paid at his or her regular or premium rate as may be applicable. Transparency is important in labour relations and this article is designed to support that value."
CUPE Local 2875 v. Queensway Carlton Hospital (Attendance Management) Award Dated September 2, 2016
This was a policy grievance relating to the Hospital's "Attendance Support Program" (ASP). The Union had a number of concerns related to the number of employees on the program, the length of time they were spending on the program and the inconsistencies between the program and Article 3.02 of the Collective Agreement (Attendance Management). The Board of Arbitration, chaired by William Kaplan, made a number of orders that addressed the Union's concerns. First, with respect to the number of employees on the ASP and the length of time spent on the program, the Board amended the ASP to include an "annual reconciliation" method for exiting the program. The method allowed employees whose absences fall short of an annual attendance threshold to exit from or move to a lower stage of the program. Second, with respect to the discrepancies between the ASP and Article 3.02, the Board made it clear that absences for any reason listed in Article 3.02 shall not count for any purpose under the ASP. (Article 3.02 prohibits hospitals from counting certain types of absences for attendance management purposes, including absences arising out of a medically-established serious chronic condition, an ongoing treatment, a catastrophic event, medically necessary surgical interventions, a confirmed communicable disease requiring the employee to be absent under the hospital or public health authority protocol, absences for which WSIB benefits are payable or leaves covered by the Employment Standards Act or Article 12 of the Collective Agreement.) The Board also ordered the Hospital to provide the Union with information necessary to monitor the Hospital's compliance with its orders, including data related to the program and to the movement of employees within the program. For its part, the employees were reminded of their obligation to advise management if an absence is related to the listed grounds in Article 3.02 and to provide medical documentation upon request. This is the first award addressing Article 3.02, a provision first negotiated in the 2014- 2017 central collective agreement. It confirms that absences for the reasons listed in that section cannot be counted for the purposes of attendance management programs. The case has already had a significant impact on the affected bargaining unit. Prior to the award, approximately half the bargaining unit had been placed on the ASP. Since the award, over half of these employees have been taken off the program.
HOSPITAL DISCRIMINATES AGAINST DISABLED EMPLOYEES: ARBITRATOR Major win by Local 1623 in Sudbury will affect all employees in Hospitals of Ontario Disability Insurance Plan (HOODIP)
CUPE won an important decision for all health care employees covered by the Hospitals of Ontario Disability Income Program (“HOODIP”).
Under HOODIP, employees returning to work on accommodation or an approved modified work program, are not considered to be “actively at work”. Rather, these employees are deducted sick leave while working with accommodations.
CUPE, Local 1623, challenged the practice on the basis that excluding employees performing modified work as not being “actively at work” was inherently discriminatory and perpetuates the stereotype that work performed by employees with disabilities is not real or valuable.
Arbitrator Trachuk agreed with CUPE, and in her award, issued on February 21, 2017, confirmed that “treating an employee with a disability as being not “actively at work” when they are actually actively at work is prima facie discriminatory.” She added “it is discriminatory because that person is working but is being treated differently because their disability requires modifications for them to work.” The Arbitrator concluded that “[e]mployees on modified duties are entitled to be treated like other employees […] and not having to use up their sick benefits while working.”
CUPE, Local 1623, is a proud member of the Ontario Council of Hospital Unions (“OCHU”) and is proud to advance health care workers’ rights across the province.