Practice changed after HR department scrutiny
Despite being the most senior person in her department eligible for overtime, a supervisor at a Yorkton, Sask., hospital was not offered extra shifts on multiple occasions.
Donna Brenner, home-care scheduling supervisor at the Sunrise Regional Health Authority (SRHA), filed a grievance on Oct. 7, 2016, after discovering she was not offered overtime shifts in September on three days (20, 25 and 30).
Brenner, who had worked for the employer more than 20 years, including 10 years as a supervisor, was advised by Pearl Blommaert, president of Canadian Union of Public Employees (CUPE), Local 4980, in December 2015 that overtime was to be offered to the most senior person in that department when it came up.
Article 27.10, overtime rates of pay, of the collective agreement said: “All employees shall be eligible for overtime in their department and all overtime shall be offered in order of seniority.”
For about a year, Brenner testified, she had been offered overtime which she accepted on multiple occasions as a scheduler in a non-supervisory classification.
Each time, Brenner was paid her supervisor rate when she worked as a scheduler.
But when the human resources department was notified of the practice, it ruled that overtime should be offered to schedulers who were inside the classification.
Brenner was not in the classification as she was a supervisor.
Blommaert testified that the same issue had been previously raised by the union and grieved, however no resolutions were reached.
But Glen-mary Christopher, home-care manager, Yorkton assessment and scheduling, argued that if the ruling succeeded, other classifications would be affected and this would result in “absurd” outcomes.
If, for example, a licensed practical nurse (LPN) missed a shift, a continuing-care assistant (CCA) could be asked to work as an LPN as both jobs were in the same department.
But, a CCA did not necessarily have the proper qualifications of an LPN, said Christopher.
Compounding this, said Donna McLeod, manager of scheduling services, was that schedulers could not know who was qualified to perform certain duties, so offering overtime to all workers in the same department — instead of in the same classification — would make scheduling much more complicated and it might compromise patient safety.
The employer submitted that the wording must be taken into context within the greater meaning of the collective agreement, despite its actual wording.
But CUPE countered and argued past practice and the “clear and unambiguous language” in the article must be followed.
Arbitrator chair Kenneth Stevenson (backed by arbitrator Sharleen Rayner and Eric Sarauer) disagreed with the union and dismissed the grievance.
Despite past practices, the employer “has the right to organize the workforce and to assign or reassign duties and, in so doing, to rely on classification,” according to the arbitrator, and SRHA can continue to offer overtime within the same classification first.
“Work within the bargaining unit is typically assigned based on classification. The employer has many departments where there are a number of different classifications” said Stevenson.
If overtime was offered on the basis of ‘ability and qualifications to perform the work,’ this could create a chaotic situation in making a determination as to which employees within classifications, other than the one to be replaced, might be able to perform the required work” said Stevenson. "We acknowledge that in these circumstances, (Brenner) had the ability to perform the work, but the employer is entitled to determine the classification required to perform the overtime work.”
Brenner recently worked some overtime shifts, which shows the employer had not shut her out from receiving the benefit, according to the arbitrator.
"Notwithstanding this, it is apparent that Brenner does get overtime opportunities as a scheduler when no other employee within the scheduling classification is available. In the last month, Brenner says she received three full days of overtime,” said Stevenson.
“The evidence supports the employer’s assertion that the assignment was made for good business/operational reasons.”
Reference: Sunrise Regional Health Authority and Canadian Union of Public Employees (CUPE), Local 4980. Kenneth Stevenson — arbitrator. Jolene Horejda for the employer. Sachia Longo for the employee. Dec. 21, 2017. 2017 CarswellSask 645
