Employer wanted schedule flexibility with two positions
A part-time nurse working at a Nova Scotia hospital tried to apply for a second part-time position but management refused to consider her application.
Kelly MacPhee became a permanent part-time licenced practical nurse (LPN) in 2008 at the All Saints Springhill Hospital in Springhill, N.S., after one of the full-time LPNs, Cindy Misken, became disabled and had to switch to an accommodated part-time position.
Before the disability, there were five full-time positions at the hospital. Misken’s disability transformed her position into two part-time LPNs.
The shifts were organized to coordinate evenly with each other so neither nurse was working at the same time.
In August 2015, Misken’s position became vacant and it was posted as a part-time job.
On Sept. 4, MacPhee applied for the position and wrote in an application letter that if she was hired into the position, “This would enable me to work full-time hours on the restorative care unit. In no circumstance do the two positions conflict, as I am working the other half.”
At the time, MacPhee was working a temporary full-time position to replace another LPN who had left, but she wanted to work the part-time shifts.
On Sept. 16, she emailed James Pritchett, patient care manager, and added a note that read: “I understand you do not wish to combine the two .5 positions but I did already apply and was wondering if I will be re-interviewed in the top five or will my last interview be counted, as I would like the experience.”
The following day, Pritchett responded: “Since I will not be combining the positions, re-interviewing you for the position would be moot. We do not interview candidates who are not being considered for the position.”
Pritchett testified the hospital wanted to maintain the two part-time positions as separate to help manage its scheduling.
But MacPhee replied on Sept. 19 and grieved the decision, saying, “I was not given the opportunity to interview or even be considered for this position. I feel this is unfair and unjust.”
The grievance was denied and Laura Holloway, the only other candidate, was awarded the position on Oct. 26, despite having only one year of seniority to MacPhee’s nine years.
The Nova Scotia Nurses’ Union grieved the appointment and argued the right of seniority is paramount in hiring decisions, and it wasn’t respected in this case.
In upholding the grievance, arbitrator Augustus Richardson ordered the employer to consider MacPhee’s application and if she was successful, the two positions wouldn’t be combined into one.
“The two part-time positions were created out of a complex scheduling system that had been in place for a long time. In the absence of any compelling reason to the contrary, I see nothing in the collective agreement or the history of scheduling on the unit that requires a conclusion that an employee who held both these particular part-time positions would convert the two into one full-time position,” said Richardson.
Because there was nothing in the collective agreement that would allow the employer to reject a candidate, MacPhee’s application had to be considered, said the arbitrator.
“Clear wording in a collective agreement would be required to bar an employee from applying for and holding two positions at the same time, at least where there would be no conflict in two work schedules, or where no serious operational concerns would be raised by such a situation,” said Richardson.
MacPhee’s unique position in the schedule made her a worthy candidate, he said.
“MacPhee was arguably the only part-time employee who would be in a position to combine an existing part-time position with the posted position. That was because her existing schedule was one that had been created with the express purpose of matching the other ‘half’ of the line on the schedule,” said Richardson.
Reference: Nova Scotia Health Authority and Nova Scotia Nurses’ Union. Augustus Richardson — arbitrator. Tracy McPhee for the employer. Jillian Houlihan for the employee. Sept. 18, 2017.
