In this groundbreaking, precedent-setting case, a majority of a panel chaired by arbitrator Christine Smith ruled that any reduction in the hours of pre-scheduled part-timers, regardless ofhow small, can amount to a layoff, triggering the layoff protections in Article 9.08.
This case arose out of a reorganization in which three classifications of part time employees had their hours reduced in relatively small proportions: Operating Room Assistants were reduced by 2.5 hours per week or a 10.5% decrease; Environmental Services employees by 0.4 hours per week or 2%; and Patient Access Clerks by 1.9 hours per week or 7.2%. The Union grieved, arguing that these reductions in the hours of pre-scheduled part-timers, however small, amounted to layoffs which triggered the protections in Article 9.08. The Union relied on jurisprudence that included St. Vincent De Paul Hospital and CUPE Local 2491, [2006] OLAA No. 615 (Devlin), which first established that a reduction in the hours of part-timers could amount to a layoff. The Hospital disagreed with the Union’s position, claiming that these reductions in hours failed to meet what it argued was a necessary threshold of significance. The arbitrator agreed with the Union and allowed the grievance.
The majority reasoned that the ‘threshold of significance’ being put forward by the Hospital found no support in the collective agreement. To the contrary, Article 9.08(A)(b)(iii), which sets out preconditions for a reassignment to not be considered a layoff, requires that there be no “reduction in the employees wage rates or hours of work.” The majority accepted the view, expressed in Scarborough Hospital and CUPE Local 1487 (January 17, 2006) (Burkett), that Article 9.08(A)(b)(iii) contains a “bright line requirement” that leaves no room for judgement of the reduction of an employee’s hours of work (or wage rate).
Further, the panel did not find that a ‘threshold of significance’ in the jurisprudence. While the reduction of hours St. Vincent De Paul Hospital did happen to be more significant than the reductions here, this was incidental to the rationale of the case. Further, the panel distinguished the case of Kingston General Hospital and CUPE, Local 1974, 2014 CarswellOnt 8534 (Goodfellow) on the basis that in that case, the union had not demonstrated or even attempted to demonstrate that any particular individual had suffered a reduction in hours. In contrast, in this case, there was no dispute that a number of identified individuals had suffered a reduction in hours.
The panel also noted that in a collective agreement where seniority for part-time employees accrues on an hourly basis, any reduction in their hours compromises their seniority rights and is therefore significant.
This case is of fundamental precedential importance. It addresses an increasingly common practice of Hospitals playing a layoff ‘shell game’, where the impact of job loss is distributed among many part-timers in the form of small reductions in hours, and thus purportedly hidden and shielded from the job security protections in the collective agreement. This case stands for the proposition that as long as these hours reductions are borne by identifiable individuals, they will be considered layoffs, regardless of how significant or insignificant the hours reductions are.
This case is also useful in a broader sense because it supports the expansion of the definition of layoff in accordance with the preconditions in Article 9.08(A)(b) (reassignment). The panel in this case appears to accept that if a reassignment must meet the 9.08(A)(b) preconditions in order to not be considered a layoff, then so must a direct change to a person’s job. Thus, this case could be relied on to support an argument that a relocation to a job site that is not “nearby” within the meaning of Article 9.08(A)(iv) or a shift change that is not “substantially similar” within the meaning of Article 9.08(A)(v) qualifies as a layoff.
