Informed that they were not eligible for the Lump Sum Payments made to other nurses because their time on parental or maternity leave did not constitute paid hours, a number of part-time and casual nurses grieved.
Under the terms of a Letter of Understanding, Lump Sum Payments of up to $3,256 were payable to employees based on their employment status on February 7, 2008.
However, whereas full-time employees with less than two years service were entitled to a flat $799, regular part-time and casual part-time employees were eligible for a sum based on $0.41 per hour paid in the previous calendar year.
When part-time and casual nurses who were off work for all or most of the 2007 calendar year were informed that their time on leave did count as paid hours for the purposes calculating the Lump Sum Payment, the union grieved.
Met the service requirements
Before the Arbitrator, the union argued that the nurses met the service requirement specified by the letter of understanding. The nurses were employees on the date specified by the letter of understanding and referenced accordingly on the salary grid. The nature of the entitlement to the Lump Sum Payment was service driven rather than work driven and it could not be diminished by time on leave, the union said.
This was evident because the lump sum payable to full-time nurses was not reduced because of time on leave. Absent specific language to explain such differential treatment, there could be no justification for treating regular part-time and casual nurses differently in this regard.
The Lump Sum Payment was a benefit that was service driven and the workers were entitled to the full amount unreduced by time off work on leave, the union said.
While the employer agreed that the nurses were on staff on the date specified by the letter of understanding, the issue was the amount of the sum payable. Where the letter provided for flat dollar amounts payable to full-time nurses based on their years of service, the calculation for casual and part-time nurses was different.
The sum payable to part-time and casual nurses was a figure based on cents per hour paid in 2007. Time on leave did not constitute paid hours, the employer said.
The Arbitrator agreed. “There is no dispute in this matter that the regular part-time and casual nurses … meet the service requirement. The issue to be decided … has nothing to do with service but rather with the quantum of the payment.”
That payment, the Arbitrator said, was to be based on “hours paid.” Hours paid include not only the hours an employee actually works but also hours on vacation and statutory holidays that are based on hours paid.
No salary
“[H]ours paid are those in respect of which an employee receives his/her rate from the employer for work or as if at work. If the generally accepted meaning of the term “hours paid” was not known to the negotiators of the Central Agreement, which is doubtful, they surely knew that it had long been determined under this same Central Agreement that time on pregnancy/parental leave while in receipt of SUB [Supplemental Unemployment Benefits] constitutes an absence without pay during which ‘no salary is received … because there is no payment of wages …,’ ” the Arbitrator said.
“I am satisfied that the negotiators of the Central Agreement made a purposeful distinction between hours paid and hours worked in setting the formula for the calculation of the quantum of the lump sum payment owed to a regular part-time or casual nurse and that they did so on the basis of their commonly understood meanings … Accordingly, I am compelled to find that the time spent on pregnancy/ parental leave in receipt of SUB payments does not constitute ‘hours paid’ within the meaning of the formula for calculating the lump sum payment owed to regular part-time or casual nurses under the Letter of Understanding …”
The grievance was dismissed.
