Arbitrator Upholds Hospital’s Decision Not to Post Full-Time Position Following Departure of Incumbent

Recently, Emond Harnden’s own Porter Heffernan and Negeen Yazdani were successful in helping their client, the Cornwall Community Hospital (the “Hospital”), secure the dismissal of a series of grievances at arbitration. The case in question involved nine individual grievances and one policy grievance, each challenging the Hospital’s decision not to post a full-time pharmacy technician position.

Background

Up until February 26, 2021, the Hospital had eight full-time pharmacy technicians working on its premises. On that date, the incumbent of one of those positions left her job in order to take on a different role within the Hospital. While the Hospital was operating with eight full-time pharmacy technicians, only one part-time pharmacy technician was being scheduled for an average of at least 24 hours per week, with the remaining part-time employees being scheduled for less than an average of that.

In early February, several weeks before the departure of the incumbent, the Supervisor of Pharmacy Services (the “Supervisor”) had held impromptu individual discussions with three of the seven part-time pharmacy technicians during which she inquired into how many shifts they would each like to work. One responded that she would like as many shifts as possible, another advised that she would prefer eight or more shifts, and yet another indicated that she would like seven or eight shifts during the two-week pay period.

The following week, a staff meeting took place in which the Supervisor announced the upcoming departure of the incumbent, as well as the elimination of the full-time position she held. On the same day as the meeting, the Supervisor indicated in an email to all full-time and part-time staff that no shifts would be cut and that the incumbent’s shifts would be filled, but by part-time pharmacy technicians in order to provide them with more hours. Following the departure of the incumbent, only one part-time pharmacy technician was scheduled in excess of an average of 24 hours per week, although others did ultimately work more than that as additional shifts became available or were assigned for various reasons.

Germane to this case is the fact that the Ontario Public Service Employees Union (the “Union”) is the bargaining agent for employees holding various full-time and part-time positions at the Hospital, including pharmacy technicians. As a result, the Hospital and the Union are parties to a collective agreement comprised of both centrally-negotiated provisions and an Appendix of Local Issues (the “Appendix”).

Shortly after the February staff meeting, the Union filed the grievances on behalf of a combination of full-time and part-time pharmacy technicians at the Hospital. Several provisions in the collective agreement are relevant to the dispute between the parties, including under Article 13 (Job Posting, Promotion and Transfer) of the centrally-negotiated provisions, as well as under Article 2 (Management Rights) and Article 5 (Hours of Work and Overtime) of the Appendix:

Article 13.01(a) Where a vacancy exists, or where the Hospital creates a new position in the bargaining unit, such vacancy shall be posted for a period of seven (7) calendar days. Applications for such vacancies shall be made in writing within the seven (7) day period referenced herein.

Appendix, Article 2.01 The Union acknowledges that it is the exclusive function of the Hospital subject to the terms of this Agreement to:

a) Maintain order, discipline and efficiency;

b) Hire, discharge, direct, classify, transfer, promote, demote, layoff and suspend or otherwise discipline employees for just cause provided that a claim of discriminatory classification, promotion, demotion or transfer or a claim that an employee has been unjustly discharged or disciplined may be the subject of a grievance and dealt with in accordance with the grievance procedure;

c) Establish and enforce rules and regulations to be observed by the employees provided that they are not inconsistent with the provisions of this Agreement;

d) Generally to manage and operate the Hospital in all respects in accordance with its obligations and without restricting the generality of the foregoing, to determine the kinds and locations of machines, equipment to be used, the allocation and number of employees required from time to time, the standards of performance for all employees and all other matters concerning the Hospital’s operation, not otherwise specifically dealt with elsewhere in this Agreement.

Appendix, Article 5.5 The Employer will endeavor to schedule a regular part-time employee to work at least twenty-four (24) hours per week. Any hours beyond 24 hours shall be offered equitably to regular part-time employees up to 37.5 hours on the basis of seniority, it being understood that the Employer may schedule the most junior qualified employee on a rotational basis for required hours if there are insufficient volunteers. Casual employees, if available, will be asked to fill the shift prior to the scheduling of the most junior qualified part-time employee.

In the grievances, the Union alleged that the Hospital had breached Article 13.01 of the collective agreement and Article 2.01 of the Appendix by failing to post a full-time vacancy upon the departure of the incumbent. For its part, the Hospital took the position that it had the right to determine whether or not a vacancy even existed before Article 13.01 would be engaged, and that as a result of the elimination of the incumbent’s position, the Hospital had determined that no such vacancy existed. Accordingly, it argued that Article 13.01 was not engaged.

Decision

At arbitration, the question at issue before Arbitrator Nairn was whether the Hospital violated Article 13.01 of the collective agreement and/or Article 2.01 of the Appendix by eliminating the position previously held by the incumbent instead of posting it as a vacancy.

Briefly, it was the Union’s position that when the incumbent resigned, a “vacancy” existed. The work performed by the incumbent continued to be required. As a result, the Union argued that further to Article 13.01, the Hospital was required to post and fill the full-time vacancy. The Union also argued that Article 10.2 of the Appendix – a provision defining “regular part-time employee” and including a stipulation that the provision would not be used to avoid employing employees on a full-time basis – reflected the priority that the parties had given to full-time employment over part-time employment and/or that part-time employment was not to undermine the employment of full-time staff. It claimed that this was consistent with the Union’s asserted obligation on the Hospital to post the full-time vacancy. Read together with Article 5.5 of the Appendix, the Union argued that these provisions allowed the Hospital to schedule part-time staff up to 37.5 hours per week except when doing so would avoid the employment of staff on a full-time basis.

For its part, the Hospital argued that no vacancy existed following the departure of the incumbent. It asserted that it was within its management rights to redistribute the available hours to part-time pharmacy technicians for legitimate business reasons and in accordance with the terms of the collective agreement, leaving no vacancy requiring posting. In respect of Article 10.2, the Hospital replied that the section of the provision on which the Union was attempting to rely could not be read as limiting its management rights for the purposes of determining whether there was a vacancy.

Arbitrator Nairn acknowledged the historical debate that has surrounded the nature of an employer’s obligation stemming from the posting language in various collective agreements, as evidenced by the voluminous case law cited by both parties. She determined that the best way to proceed in light of this case law was to compare the analysis in Re Maplewood Nursing Home Ltd. Tilsonburg (Maple Manor) and London & District Service Workers Union, Loc 220. with that in Service Employees International Union Local 1, Canada v. Corporation of the County of Elgin (“Elgin County”), as well as the cases cited therein.

After reviewing the case law, Arbitrator Nairn preferred the analysis undertaken in Elgin County, particularly given the structure of the bargaining unit – i.e., a single unit comprised of both full-time and part-time employees – and the particular language of Article 13.01(a) of the collective agreement. Article 13.01(a) does not define the term “vacancy”. As a result, Arbitrator Nairn held that whether a vacancy actually exists is a matter for the Hospital to determine as part of the exercise of its management rights. Moreover, she held that it is only once a vacancy is determined to exist that it is required to be posted pursuant to Article 13.01. Accordingly, she concluded that the Hospital did not violate Article 13.01 of the collective agreement in choosing not to post a full-time vacancy following the departure of the incumbent.

Turning then to the remaining issue raised by the grievances – which was whether the Hospital, in determining that there was no vacancy to be posted, had exercised its discretion in a manner that was not arbitrary, discriminatory or in bad faith – Arbitrator Nairn concluded that it was within the Hospital’s reasonable exercise of its management rights to consider Article 5.5 of the Appendix and to re-allocate the number of employees required in support of its commitment therein. She further found that even assuming that Article 10.2 did impose some limit on the Hospital’s discretion as was alleged by the Union, it was not relevant to the case before her. 

In Our View

Words matter, and Arbitrator Nairn’s decision highlights how important it is for careful thought to go into the drafting of collective agreement language. In the event of a dispute under a collective agreement, it is the arbitrator’s job to interpret and apply the terms of the agreement before him or her as drafted by the parties. Although the case law may provide some guidance, the arbitrator will ultimately be required to ascertain the parties’ intention through the specific language they chose to include in their agreement.

For more information, please contact Porter Heffernan at 613-940-2764 or Negeen Yazdani at 613-355-2642.

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