The hospital was accommodating an injured worker with half-shifts in her previous employment and half-shifts outside the bargaining unit. Her status was changed to part-time. The arbitrator ruled that she was still "engaged in a nursing capacity" and part of the bargaining unit.
A hospital employer accommodated a returning nurse’s disability by providing her with a less demanding part-time job outside the bargaining unit in order to supplement the half-time hours she was logging at her regular job.
When the employer changed the nurse’s status to part-time, the union grieved.
Before she became disabled, N.D. worked full-time in the hospital’s Special Care Nursery. She returned to work in February 2010. However, because of the physical demands of the job, she was only able to work four-hour shifts.
The employer accommodated N.D. by assigning her four additional hours per day working at a more sedentary job outside the bargaining unit in the hospital’s BirthNet program.
As a result of the change, the employer said N.D. was no longer a full-time nurse according to the terms of the collective agreement. N.D.’s wages and entitlements to benefits were reduced.
The union grieved.
The union said the employer’s alteration of N.D.’s status was both a violation of the collective agreement and of her rights under the Human Rights Code.
Unilateral change to status
The employer could not subject N.D. to terms and conditions of employment that had not been negotiated, the union said. The elements of N.D.’s employment continued to meet the definition of a full-time nurse according to the collective agreement and the employer could not act unilaterally to change her status and defeat N.D.’s seniority rights.
Moreover, the employer’s actions clearly constituted a prima facie case of discrimination under the terms of the Human Rights Code by treating N.D. differently than other nurses because of her disability. There was no cause for the employer to treat N.D. the way it did, the union said. Under the collective agreement, the employer was empowered to create a special classification for workers in N.D.’s situation.
The employer said it was under no obligation to retain N.D. as a full-time member of the bargaining unit if she was only working four hours per shift in the unit. The collective agreement was applicable within the scope of defined boundaries. N.D.’s hours outside the unit did not qualify, the employer said.
The standard governing its duty to accommodate under the Human Rights Code was “reasonable accommodation,” not perfect accommodation, the employer said. To extend the provisions of the collective agreement to cover a non-union position would be to confer on N.D. greater rights than those of non-disabled employees.
Engaged in a nursing capacity
The key question, the Arbitrator said, was whether or not N.D.’s work in the BirthNet program prevented her from being treated as a full-time nurse under the collective agreement. It did not, the Arbitrator said.
It was not necessary for N.D. to use the skills and training of a nurse exclusively in order to be “engaged in a nursing capacity” under the terms of the collective agreement. “[A] Nurse can be engaged in a nursing capacity and therefore in the bargaining unit even though skills other than typical nursing skills are required in the performance of his or her duties,” the Arbitrator said.
The fact that the employer in this case chose to partition N.D.’s work into two separate, part-time jobs was not particularly persuasive, the Arbitrator said.
“Another employer, faced with the exact same situation of an employee performing two unrelated sets of duties, might very well have decided to treat the employee as occupying one atypical position on a full-time basis.” Indeed, the Arbitrator said, the employer in this case had the option of creating such a special classification to address this situation.
The Arbitrator acknowledged the employer’s authority under the collective agreement to assign and classify workers.
However, the Arbitrator said, “I simply point out that the exercise of the power to classify or assign, like other management powers, cannot be allowed to undermine the rights granted to employees by the collective agreement.”
It was clear there were elements of nursing in N.D.’s work in the BirthNet program, the Arbitrator said. “When this is added to the corresponding component of her work in the Special Care Nursery, it is difficult to avoid the conclusion that she is engaged in a nursing capacity. The requirement to use skills other than nursing skills, in my view, would not remove her employment from the scope of the bargaining unit…”
The grievance was allowed.
