Reinstatement judgment made by arbitrator bumps Ontario worker from new position

An Ontario hospital worker does not have the right to stay in a position that a fired employee previously held after the hospital was ordered to reinstate the fired employee following a grievance, an arbitrator has ruled.

The Humber River Hospital is located in Toronto. On Dec. 9, 2020, the hospital terminated the employment of a porter in the patient transport department. The union grieved the dismissal and the matter went to arbitration.

Before the arbitration case was concluded, the hospital posted the vacant porter position along with two other porter positions. Christopher Clarke was an environmental attendant in the hospital’s housekeeping department who applied for the job.

After an interview, the hospital hired Clarke for the porter position on Jan. 15, 2021. Clarke worked in the position for several months without any problems. He initially worked the 12 p.m. shift and was then reassigned to the 9 a.m. shift.

However, on June 10, an arbitrator ruled in the favour of the dismissed employee who had previously filled the porter position. The arbitrator ordered the hospital to reinstate the employee to his old job on the 12 p.m. shift.

The union raised the concern that the hospital didn’t reinstate the dismissed employee to his old job in accordance with the arbitrator’s intention and the arbitrator specified that the employee was entitled to be reinstated to his “previously assigned permanent porter’s position,” adding that the posting and filling of the position didn’t prevent the reinstatement because the hospital should have known that there was a possibility that the employee could be reinstated.

“The vacancy resulting from the termination does not become permanent until the arbitration process had determined whether the termination was just,” said the arbitrator.

As a result, the hospital reinstated the dismissed employee and returned Clarke to his previous job as an environmental attendant.

Clarke then filed a grievance of his own, arguing that there were three permanent porter positions posted by the hospital and he applied for any of them. In addition, the dismissed employee’s original position was the 12 p.m. shift and, after beginning his tenure at that time, Clarke had shifted to the 9 a.m. shift. He noted that the 9 a.m. shift he had worked in was currently being filled in by part-time employees.

The hospital countered that it was the start time of the position that had changed, not just Clarke’s. This meant that the original position had shifted from 12 p.m. to 9 a.m. and that was the position that Clarke was filling and to which the dismissed employee had to be reinstated.

The second arbitrator noted that the dismissed employee was entitled to be reinstated to his previously assigned porter’s position. When the hospital posted the position as a permanent vacancy, it acted too soon and it didn’t bar the dismissed employee from being reinstated to it, the second arbitrator said.

The second arbitrator found that Clarke wasn’t entitled to any porter’s position because his shift time changed, agreeing with the hospital that the time change didn’t change Clarke’s status as the dismissed employee’s replacement.

The union didn’t provide any evidence that the 9 a.m. shift was a newly created position, so the second arbitrator determined that it was the dismissed employee’s original position.

The second arbitrator also found that it didn’t matter if part-time employees were filling in for the 9 a.m. shift at the time. The issue was restricted to whether Clarke had a right to remain in the dismissed employee’s porter position, which he did not.

The arbitrator ordered that Clarke be returned to his original position as an environmental attendant in the hospital’s housekeeping department.