Capital District Health Authority v. Nova Scotia Government and General Employees Union

Capital District Health Authority v. Nova Scotia Government and General Employees Union Court Supreme Court Date 2005-10-12 Citation 2005 NSSC 300 Docket S H 236029 Judge/Registrar/Adjudicator Richard, K. Peter (Honourable Justice) Document Type Decision Relations Library Sheet - Capital District Health Authority v. Nova Scotia Government and General Employees Union - 2005 NSSC 300 - 2005-10-12 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Capital District Health Authority v. Nova Scotia Government and General Employees Union, 2005 NSSC 300 Date: 20051012 Docket: S.H.-236029 Registry: Halifax Between: Capital District Health Authority Plaintiff v. The Nova Scotia Government and General Employees Union Defendant DECISION Judge: The Honourable Justice K. Peter Richard Heard: October 12, 2005, in Halifax, Nova Scotia Written Decision: November 3, 2005 Counsel: Eric Durnford, for the Plaintiff Raymond Larkin,, for the Defendant By the Court: [1] With this application, the Applicant Capital District Health Authority seeks an order “setting aside the Award of Arbitrator Bruce Archibald dated September 22, 2004. At the termination of the hearing I stated that I would allow the application and quash the arbitrator’s award. The material facts are set our in the award and replicated in Applicant’s brief; Donna Steele was hired as a nurse by the Victoria General Hospital in Halifax on August 23, 1983. The Grievor continued her employment as an O.R. nurse when the V.G. hospital became part of the Queen Elizabeth II Health Sciences Centre (the Q.E. II) by legislation proclaimed on February 28th, 1996. However, Ms. Steele stated that she decided to resign for personal and family reasons and because of the morale issues at the hospital. She determined she would work at home for a telemarketing organization. Working as an independent contractor allowed her to be at home with her children and had certain tax advantages. Her last day worked at the QE II was August 27, 1999 but she was persuaded by the hospital management personnel to “go casual”, rather than to formally resign on August 29, 1999. However, she did not work for the hospital for the next 12 months, and this resulted through the application of normal rules under the Collective Agreement in the formal termination of her “casual” employment status on September 26, 2000. This was fine with the Grievor. She thought she was gone for good and had cashed out, or rolled into an RRSP the pension benefits which she had been entitled under the operative collective agreement at the time. The Collective Agreement was signed by the CDHA and NSGEU on September 24, 2001. It was this Collective Agreement which governed the terms of the Grievor’s rehire on November 13, 2001. Ms. Steele had determined that working from home was not as satisfying as anticipated. She also heard that there was a 9 to 5 weekday position available as a nurse in the Employer’s Ophthalmology Clinic. She applied for the position and got it - she was, in fact, the only applicant. Interestingly enough, on rehire she was given a employee number (820040900) which indicated her original date of hire at the V.G. in 1982. However, as she well knew, she had lost her seniority by her resignation, and the nursing seniority list described her status as NUR QE2 2001-11-13, indicating that her new seniority date was as of her rehire on November 13, 2001. On her rehire, the Grievor had probationary status for 12 months, and was placed on the second highest salary step, rather than on the highest, where she no doubt would have been had she not resigned. The Grievor reapplied for admission to the pension plan and applied for various other employee benefits available under the CDHA collective Agreement. What she did not discuss upon rehire, however, was her vacation entitlement. After 17 years accumulated at the V.G. and the QEII, that is in 1999, the Grievor had become entitled to 5 weeks of annual vacation. The Grievor wanted some holidays at Christmas upon her return to nursing in November 2001, and was told by the Employer’s Human Resources staff that she was entitled to only 3 weeks vacation at that point (emphasis added).. [2] The critical time line in this matter is as follows: 1.- 28 February 1996 - The grievor, Steele was an employee at the Victoria General Hospital when it became a part of the Queen Elizabeth Health Services Centre. 2.- 26 September 1999 - The date upon which Steele’s casual status ceased in accordance with the terms of the collective agreement. She resigned her employment effective 29 August 1999 and did she did not work at the hospital for the ensuing 12 months. The arbitrator found that Steele “thought she was gone for good” - she cashed out her accumulated pension benefits to which she was entitled under the agreement. 3.- 1 January 2001 - The Hospital, by legislation, was placed under the aegis of the Applicant. 4.- 24 September 2001 - A new Collective Agreement was signed by the Applicant and the NSGEU, the certified bargaining agent of the employees. 5.- 13 November 2001 - The date of her retire after Steele was successful in gaining employment with the Applicant. She was rehired as a probationary employee and maintained that status for a full year with the second highest salary category. According to the findings of the arbitrator, Steele “reapplied for admission to the pension plan and applied for various other employee benefits available under the subject Collective Agreement”. [3] The material section of the collective agreement is Section 1.02(a): “1.02 For the purposes of this Agreement, “service” means: (a) (i) the service with which an employee was credited with (sic) as an employee was credited with as an employee of a Predecessor Employer immediately prior to Memorandum of Agreement between the Nova Scotia Government Employees Association and the QEII Health Sciences Centre.... [4] The Employer takes the position that the operative word in this section is “employee” and the grievor held no such status at the time the agreement was entered into by the parties. I agree with the applicant. The applicant further posits that for the grievor to benefit from this section it would have to read “For the purposes of this Agreement, “service” means....the service, broken or unbroken with which an employee was credited with as an existing or former employee...” [5] The clear wording of the agreement admits to only one interpretation - any person claiming rights under this section had to be an “employee” at the time the agreement came into effect. Collective Agreements are negotiated between employer and bargaining agent to govern the employer/employee relationship for a fixed time. Any perceived defects or shortcomings in such agreements usually become a subject for the next “round” of negotiations. The grievance procedure, culminating in final settlement of disputes by “arbitration or otherwise” is the legislated mechanism whereby differences are resolved without stoppage of work. Under Art.26.06 of the subject agreement the arbitrator is constrained by the words of the agreement and “may not alter, modify or amend any part of the Agreement”. [6] In my view, the Arbitrator made a reviewable error when he attributed a patently unreasonable meaning to the otherwise clear and unambiguous clause in the Collective Agreement, thereby changing the definition of “employee”. The full Article 26.06 reads: All arbitration awards shall be final and binding as provided by Section 42 of the Trade Union Act. An arbitrator may not alter, modify or amend any part of this agreement but shall the power to modify or set aside any unjust penalty of discharge, suspension or discipline imposed by the employer or employee. Further, in Articles 1.02(d) is an exclusionary clause that states, in part - “except as otherwise provided in this Agreement, no service and therefore no service related benefits shall be credited to an employee who does not receive salary for in excess of ten (10) days during that calendar month”. Art. 9.02 specifically provides for employees who rejoin the employers service. There are no specific exceptions in 1.02 [7] Having determined that an ambiguity existed in Art. 1.02 the arbitrator, in the next thirty-five pages or so of the award, went on the support this finding by invoking past practice and past negotiating history as extrinsic evidence to clarify and ambiguity which he found in Section 1.02. He did this in spite of his own comments at page eleven of his award;. “Counsel for the Employer no doubt took some understandable enjoyment from citing the following passage from my decision in Municipal Association of Police Personnel and Halifax Regional Municipality....” And I quote: Considerable reluctance is often shown by arbitrators in admitting evidence of past practice and negotiating history: see, for example, Re Camp Hill Medical Centre and Nova Scotia Government Employees Association etc. There is good reason for this. It is not fair for parties to avoid the language to which they have agreed by re-opening the negotiations or resurrecting old ways in the arbitral forum when these have been purportedly put to rest at the signing of the agreement. Moreover, the evidence of past practice and negotiating history is often lengthy, inconclusive and capable of distracting the parties and the arbitrator from the real issues. Hearing this kind of evidence can sometimes create a useless, time-consuming side show.”(underscoring mine) And, in my respectful opinion, that is precisely what this arbitrator went on to do. [8] Having found that the arbitrator exceed his jurisdiction by altering the clear meaning of Art. 1.02 there is no reason for me to enter into a discussion, or analysis of that portion of the award relating to the resolution of an ambiguity in a collective agreement. [9] I am mindful of the deference which the courts acknowledge when reviewing the awards of consensual arbitrators. The Appeal Division of this court (as it then was) put the matter quite succinctly in Liquor Commission (N.S.) V. Nova Scotia Government Employees Union, Local 470, (1990), 97 N.S.R.(2d) 55, at pp 57-58; Thus, in applying the test it is, in the last analysis, for the court to make a judgement call on the reasonableness of the decision under review. In doing so, it must exercise restraint and the jurisdiction to set aside such a decision will be sparingly used. Where, however, the court’s evaluation of the decision leads to the conclusion that rather than having interpreted the agreement, the arbitrator has amended it, added to it or overlooked material provisions in it, the threshold is reached. Conscious of these restraints, it is necessary to review the merits of the arbitrator’s award. [10] As previously indicated, my “evaluation of the decision leads to the conclusion that rather than having interpreted the agreement, the arbitrator has amended it, added to it.” Therefore , the “threshold is reached.” In the result, the arbitrator’s award is quashed and an order will issue setting aside the award. By agreement of the parties costs are set at $1500.00. Judgment accordingly,