Canadian Employment Law Today

Indicating availability not a request for work: Arbitrator Employees who requested specific weekend shifts weren't entitled to premium pay, but those who simply indicated availability were BY JEFFREY R. SMITH AN ONTARIO arbitrator has determined that a nurse who indicated availability to work weekends did not request to work those weekends and is entitled to overtime pay under the collective agreement. Sandra Morgan was a registered nurse in the women's and children's program of the William Osler Health System in Etobicoke, Ont. With 36 years of service, Morgan was the most senior nurse in her unit. Her sched- ule, usually set months in advance, involved working alternate weekends. Four-week work schedules were required to be posted at least two weeks in advance. e hospital used a computerized schedul- ing system that allowed employees to enter their availability to work at specific times in the calendar. Morgan used the system to indi- cate she was available to work on all weekends for which she wasn't normally scheduled to work. She did this at the beginning of the cal- endar year, as was normal policy, and wasn't obligated to work any of the time she indicat- ed she was available if asked by the hospital. e hospital's collective agreement with the union — the Ontario Nurses' Associa- tion (ONA) — stipulated that any employee who was required to work three weekends in a row must be paid premium pay — time- and-a-half — for the third and subsequent weekends, except where "such employee has requested weekend work," was making up for days off, or exchanged shifts with a co-worker. e collective agreement also indicated that if overtime shifts were available, they would be offered to employees by seniority "who have indicated their availability." Em- ployees who requested changes to the posted schedule were not eligible for premium pay. When Morgan was offered extra shifts during weekends she had indicated she was available, the hospital told her she would be paid her normal rate as the work didn't qualify for overtime pay because she had re- quested the extra shifts on weekends. e ONA filed a grievance, arguing that Morgan had not requested the extra weekend shifts, but rather had just indicated her avail- ability for them. She had no obligation to ac- cept any offer of extra weekend work, nor did the hospital have to provide any such work. However, if the hospital offered extra week- end work, it was a request for her to work by the hospital, not Morgan or any other em- ployee in a similar situation. erefore, she was entitled to premium pay, said the ONA. e hospital countered that the purpose of the premium was to compensate a nurse for the inconvenience of working a shift that she might not want to work. By expressing an interest in working extra weekend, Morgan was not inconvenienced and her interest was for personal reasons, argued the hospital. Its position was that indicating availability and an interest in extra weekend work should be treated as a request for such work. e arbitrator found a number of previ- ous arbitration decisions that were useful in determining a decision, including a 2007 de- cision — Sunnybrook Health Sciences Cen- tre — that found a nurse who indicated her availability to work on a weekend was say- ing she would like to work on the weekend, if such work existed. She was called to work because she requested the weekend work due to her own personal interests. However, a more recent decision in 2016 — University Health Network — resulted in a different finding, that a "request" was like "an offer" in contract and if the hospital didn't have someone who specifically requested a premium shift— and therefore didn't ex- pect the premium — it could call anyone who made themselves available to offer the shift. In such circumstances, someone who made themselves available was not an offer to work, but rather a "pre-contractual rep- resentation." e arbitrator found that as the most se- nior nurse in her unit, Morgan had first call on any opportunity to work overtime in her unit. She entered her availability for all week- ends she wasn't working before the hospital identified any specific overtime shifts and she had no obligation to accept offers of any specific shifts. erefore, Morgan wasn't requesting to work any specific overtime shifts, said the arbitrator. "I am unable to conclude that, merely by entering weekend availability in (the sched- uling system), nurses are actually requesting to work any particular shift — let alone every weekend shift that possibly might become available," said the arbitrator. "If 'indicating availability' were to be construed as equiva- lent to an actual 'request' by a nurse to work each and every shift later identified as 'actu- ally available,' it would be reasonable to as- sume a reciprocal employer expectation that the nurse must accept that shift if and when offered. But that is not the case." e arbitrator found that it was the hospi- tal that makes the offer about a specific over- time shift when it decided one was needed. If a nurse accepted the offer, it qualified as a requirement to work under the collective agreement's provision for premium pay. In such circumstances, there was no request on the part of the nurse to work. e arbitrator noted that without this in- terpretation, the term "request" wouldn't be consistent with that of other provisions in the collective agreement, such as requesting days off or a specific shift schedule. e col- lective agreement allowed nurses to request specific weekend work that may be available "at the cost of weekend premium denial," but if the hospital offered it without a specific re- quest, the weekend premium was in effect, said the arbitrator. e grievance was allowed and the hospi- tal was required to pay Morgan — and other nurses — the weekend premium when it of- fered overtime weekend shifts for time she had indicated availability. For more information see: • William Osler Health System and ONA (Morgan), Re, 2016 CarswellOnt 5757 (Ont. Arb.). • Sunnybrook Health Sciences Centre and ONA (Bethell), Re, 2007 CarswellOnt 10600 (Ont. Arb.). • University Health Network and ONA (Mc- Caughey), Re, 2016 CarswellOnt 2183 (Ont. Arb.). Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as handling risky terminations, drugs and alcohol in the workplace, employee off-duty conduct, and workplace investigations. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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