Denied their vacation requests in the face of staffing shortages, two nurses with at least 20 years’ experience grieved, arguing that the hospital was obliged to follow its past practice of permitting two full-time nurses and one part-time nurse to schedule vacations at the same time. Denying the nurses their requested vacation days despite past practice was unreasonable and a violation of the collective agreement, the union argued.
The union acknowledged that there was no specific language in the collective agreement concerning the practice; however, it took the view that given the long-standing nature of practice there was no need to codify it.
The third most senior nurse on the Pediatrics unit, Y.V.L. was denied a number of vacation requests in 2009. At that time — from June to December of that year — the employer’s staff compliment was short two regular part-time employees.
Y.V.L. acknowledged the hospital’s obligation to provide proper staff coverage in order to ensure quality patient care and the collective agreement provision committing nurses “to work together with the hospital to secure the best possible nursing care and health protection for patients.”
However, Y.V.L. asserted that never before had she been denied a vacation request when she was the most, or second-to-most senior person bidding for a particular vacation slot.
In the circumstances, it was unreasonable now for the hospital to limit to one the number of full-time nurses in the Pediatrics unit allowed to take vacation at one time, the union said.
The arbitrator accepted that the vacation requests of the grievors had never before been denied and that the employer had followed its established practice of apportioning vacation time as they alleged. However, while the grievors were able to say what had happened in the past, they were not able to establish “why.”
“I have no direct evidence regarding the factors or considerations taken into account historically by the hospital in approving vacation requests. The union has the onus in this case of proving that the employer’s policy is as they have stated it to be and that onus has not been met.”
The arbitrator noted the fact that the hospital was experiencing staff shortages during the time in question and made reference to specific language in the collective agreement regarding the scheduling of vacations.
No automatic right
The fact that the employer’s contract commitment to accommodating vacation requests was subject to the right of the employer to ensure the efficient operation of the hospital, “makes it very clear that there is no automatic right on the part of employees to certain vacation time …” the arbitrator said.
Moreover, new language in the collective agreement requiring nurses to list their first, second and third choices for vacation time underscored that point. “Why have the option to indicate more than one choice for vacation time, if the first request is never denied? By expressing the need for alternative choices, the language contemplates the fact that nurses might not always get their first or second choice,” the arbitrator said.
That the grievors were denied their vacation requests was unfortunate, the arbitrator said. However, the hospital was short staffed and the employer was unable to approve the vacation requests of the grievors. The grievances were dismissed.
Reference: Brant Community Healthcare System and Ontario Nurses Association. Janice Johnston — Sole Arbitrator. D. Brent Labord the Employer and Rob Dobrucki for the Union. March 1, 2010. 21 pp.