Right doesn’t end when work commences: arbitrator
An Ontario employer breached its collective agreement when it didn’t pay a worker for a full shift for which the worker was called in after the shift began, an arbitrator has ruled.
The North West Local Health Integration Network (LHIN) is a regional public health authority for the Northwestern part of Ontario, based in Thunder Bay.
The collective agreement it had with its nurses’ union, the Ontario Nurses’ Association (ONA), included an article — part of a section dealing with “premium pay and other allowances” — that stipulated “where an employee is called in to work less than two hours prior to the commencement of the shift and arrives within one hour of the commencement, she will be paid for a full shift provided that she works until the normal completion of the shift.”
On Jan. 17, 2020, a worker’s manager texted her to see if she was available to work that day. The shift to be covered ran from 8:30 a.m. to 4:30 p.m., but the text didn’t come until 8:42 a.m. The worker accepted and arrived at 9:30 a.m., one hour after the start of the shift. She worked until the end of the shift at 4:30 p.m.
The LHIN paid the worker 6.5 hours at her regular rate of pay for working the shift, accounting for a 30-minute unpaid break. ONA filed a grievance, claiming that the worker was entitled to 7.5 hours of pay under the collective agreement.
ONA argued that the collective agreement required the LHIN to pay the worker for a full shift, as calling someone in after the start of a shift counted as less than two hours prior to the start of the shift. However, the LHIN disagreed, countering that the collective agreement only required payment for a full shift if the worker was called before the shift — the conditions for such payment were a call less than two hours before the shift and the worker had to show up within one hour of the start of the shift. The worker was called and started work after the start of the shift, so the collective agreement article in question didn’t apply, said the LHIN.
The arbitrator found that the purpose of the article was to compensate a worker for interrupting whatever they were doing and report for work on short notice. In addition, the article in question was part of a section providing for premium pay and allowances, so the purpose was to provide a benefit to both sides — the LHIN got coverage of a shift on short notice and the worker got compensation for the inconvenience of attending at work on short notice.
The arbitrator also found that the article established the time period for the worker to be eligible for the full-shift allowance. The words “two hours prior to the commencement of the shift” indicated when the time period started and the condition that the employee arrive within one hour of the start of the shift was the end of the period. There was no language that ended the period of qualifying call-ins at the commencement of the shift, said the arbitrator, adding that such an interpretation would require additional words so the article would state: “called in to work less than two hours prior to the commencement of the shift but not after the commencement of the shift itself.”
“The parties have in effect agreed that the disruption of being called in less than two hours before the commencement of the shift is deserving of the additional allowance while the disruption of being called in more than two hours before the commencement of the shift is not,” said the arbitrator in ruling that the LHIN breached the collective agreement and should pay the worker for the full shift.