Employees can be 'newly hired only once': Arbitrator
When she was promoted to be a vocational rehabilitation counsellor (VRC) at a Whitby, Ont., psychiatric hospital, Lauren Novak was denied higher compensation for an experience credit.
Novak was hired by the Ontario Shores Centre for Mental Health Sciences as a vocational instructor in March 2014. At the time, she didn’t feel like she deserved the experience credit, so she didn’t make an application for it to be recognized as a part of her pay package.
The collective agreement stated: “Claim for recent related experience, if any, shall be made in writing by the employee at the time of hiring on the application for employment or otherwise.”
On Oct. 15, 2015, after she was awarded the VRC position, Novak sent in an application for experience credit.
But when the hospital denied the application, it claimed that the clause only applied to newly hired workers, not those with previous experience at the hospital, such as Novak.
The union, Ontario Public Service Employees’ Union (OPSEU), Local 331, grieved the decision and argued the phrase “or otherwise” meant Novak should have been considered for the extra credit when she was hired into a new position.
It argued that because the meaning of the word “otherwise” does not include any time limit, it should be given more weight in interpreting this case in favour of Novak.
The employer argued that Novak was endorsed for the new position under the promotion-to-higher-rated-classification, which provides an employee successfully integrated into the new classification with a higher salary, and the experience credit should not be part of the decision.
Arbitrator Christine Schmidt dismissed the grievance.
“In light of the language of article 36.02, as well as the use of other language in those other clauses reproduced above, it is clear to me that the parties to this collective agreement have clearly expressed an intent that experience credit claims are to be made by newly hired employees at the time of their hiring on their applications for employment to the hospital or by some other written vehicle at some other time shortly before or within a reasonable period after accepting employment,” said Schmidt.
"What that time line might be is within the hospital’s discretion and must be reasonable on the facts of any particular case. That issue did not arise on the facts before me,” said Schmidt.
Because the collective agreement added the phrase “newly hired,” it trumped the “otherwise” meaning in its plain language interpretation, she said.
“Moreover, the union’s argument fails to take account of the third sentence of article 36.02, which states: ‘The centre will credit the employee with an appropriate increment level on the salary grid such that a newly hired employee will not receive more than one grid increment for each year of recent relevant experience,'” said Schmidt.
"The reference to ‘newly hired’ in this sentence reinforces that the parties meant to provide employees an opportunity to claim experience credit only at the time of their initial hire,” said Schmidt.
“Employees are not newly hired every time they successfully compete for a new position with the same employer. They are newly hired only once: At the time of their hire to the hospital, and it is at that time that the employee must claim experience credit on the application for employment (or otherwise).”
Reference: Ontario Shores Centre For Mental Health Sciences and Ontario Public Service Employees’ Union, Local 331. Christine Schmidt — arbitrator. Craig Rix for the employer. Tim Mulhall, Jonathan Leung for the employee. Oct. 18, 2017.
