Employer in hot water over posting for cook position

Heart of the Valley Long Term Care Centre in Nova Scotia found itself in hot water after it replaced a full-time cook position with a number of part-time positions.

The long-term care facility posted three permanent part-time positions after a full-time dietary aide/cook position was vacated. The Canadian Union of Public Employees local 3410 grieved the move, alleging the split breached the parties’ collective agreement.

The employer, however, argued the decision was permissible under the agreement’s management rights clause. The employer also made a preliminary objection, arguing the grievance was filed beyond the time constraints.

Sick leave

In late 2011, the care facility’s full-time non-journeyman cook went off on sick leave. Another employee — employed as a full-time dietary aide/cook — was the successful applicant to replace the non-journeyman cook on a temporary basis. This appointment left the full-time dietary aide/cook position vacant, which the employer posted as two temporary part-time positions.

The union raised the issue of the employer’s decision to create the two temporary part-time positions, but did not grieve the split as it was temporary.

In early 2014, however, the employee off on sick leave advised the employer she would not be returning. Her resignation meant the dietary aide/cook’s appointment to non-journeyman cook was no longer temporary. The employer advised the union it would be permanently changing the full-time dietary aide/cook position into three part-time positions to allow for more flexibility in scheduling.

The union filed its grievance on Feb. 6, 2014. The union requested an order requiring the employer to post the full-time position and any residual part-time positions.

According to the employer, the opposition was too little, too late. The full-time position had been split into part-time positions in February 2012. The union was well aware of the employer’s actions but did not file a grievance until almost two years later, in February 2014.

The union argued it was not disputing the temporary part-time positions created to fill the void left by a full-time employee’s sick leave, but the permanent part-time positions created by the employer in 2014 after the former non-journeyman cook resigned.

Arbitrator looks at grievance

Considering the submissions of both parties, arbitrator Augustus Richardson was satisfied the union’s grievance was filed within the time limits specified by the collective agreement.

Addressing the grievance itself, the union argued the employer was not entitled to avoid a posting requirement by chopping a full-time position into a number of part-time positions.

If a full-time position was vacant, that work should be performed by a full-time employee.

The employer argued there was no clause in the collective agreement that required it to have a set number of full-time or part-time positions, or any ratio of one to the other.

Richardson found that the union’s interpretation of the posting clause created an obligation on the employer to always fill a vacated full-time position with another full-time position, reading into the collective agreement a restriction that does not exist.

"It would, in effect, create a fixed number of full-time positions whose hours could never be redistributed — even though the collective agreement itself says nothing about the number of full-time positions, nor provides any ratio of full-time to part-time employees," Richardson said.

"To do so would be to restrict the employer to organizing its operations in such a way that it must always have the same number of full-time positions. Had the parties intended that result, they would have said so expressly. They did not."