Premium weekend pay depends on definition of ‘request’

Indicating availability for shift not an actual request: Arbitrator

Sandra Morgan — a registered nurse working at the William Osler Health System’s site  in Etobicoke, Ont.— was denied premium pay after working consecutive weekends.

According to the employer, Morgan had requested the weekend work and was, therefore, not entitled to the premium.
Morgan’s union — the Ontario Nurses’ Association — filed a grievance on her behalf.

The employer used KRONOS, a computerized centralized scheduling system that allows workers to input their availability to take on additional shifts at specific times. Morgan used KRONOS to record that she was available to work on all weekends for which she was not regularly scheduled. She did this at the beginning of the year.

Because Morgan was the most senior nurse in her unit, Morgan was the first nurse called to take on a shift if she was listed as being available.

Under the parties’ collective agreement, employees required to work three weekends in a row would receive premium pay.

In an effort to procure as much premium pay as possible, Morgan listed herself as available for any weekend shifts she was not regularly scheduled for to ensure she would be called should the need for an employee arise.

Morgan had no obligation to accept such shifts even if she had previously indicated in KRONOS that she would be available for a shift.

The parties’ collective agreement also stipulated that employees requesting weekend work would not receive the premium rate of pay. The employer argued that because Morgan listed herself as available for those weekend shifts she was not already scheduled for, she was requesting those shifts.

As a result, the employer said, Morgan was not entitled to premium pay.

The purpose of the premium was to compensate nurses for the inconvenience of working a shift they might not wish to work, the employer argued. If the nurse expressed an interest in accepting that shift, no such purpose was served by payment of the premium.

The union, however, submitted that indicating availability was not synonymous with requesting work. When Morgan indicated her availability for weekend shifts in KRONOS, the union said, she was under no obligation to accept those shifts should they become available.

Arbitrator James Hayes agreed with the union, saying he was unable to conclude that merely by entering her availability in KRONOS, Morgan was actually requesting to work any particular shift, let alone every overtime weekend shift that might possibly become available.

“If indicating availability were to be construed as equivalent to an actual request by a nurse to work each and every shift later identified as actually available, it would be reasonable to assume a reciprocal employer expectation that the nurse must accept that shift if and when offered,” Hayes said.

“But that is not the case.”

The grievance was allowed and Hayes remained seized in the event of any dispute about the remedy.

Reference: William Osler Health System and the Ontario Nurses’ Association. James Hayes — arbitrator. Robert Little for the employer, Vanessa Kee Yanagawa for the union. April 15, 2016.

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