Knollcrest Lodge should have promoted acting cook into full-time role: Arbitrator
The United Food and Commercial Workers (UFCW) filed a grievance after Knollcrest Lodge, a long-term care facility in Milverton, Ont., failed to move an acting cook into the position of permanent, full-time cook when the job became open.
B.H. began working at the long-term care facility in 2006. In 2009, the extended absence of the facility’s permanent, full-time cook caused the employer to create the position of temporary full-time cook.
As the only applicant for the job, B.H. became the facility’s temporary full-time cook in 2009.
In July 2010, the government of Ontario amended Regulation 79/10 made under the Long-Term Care Homes Act, 2007.
Amendments to section 76 upped the level of training and credentials required for cooks to qualify to work at long-term care facilities in the province.
In 2012, the still-absent cook resigned her position. The employer posted the position of permanent, full-time cook on Dec. 21. The posting specifically referenced the enhanced qualifications outlined in the amended regulation as a prerequisite.
B.H. applied for the job, but she didn’t get it. The employer said B.H. was not properly qualified and instead hired another internal candidate with less seniority. The union grieved.
New regulatory requirements
The employer maintained B.H. was not qualified for the job. The employer said the regulation required that workers “hired” into the position after July 1, 2010, were required to satisfy the requirements set out in the regulation.
The employer said B.H. was qualified to perform the job as the temporary full-time cook because she satisfied the pre-2010 regulatory requirements. However, the employer took the view B.H. could not be hired into the permanent, full-time position after 2010 in light of the new regulatory requirements.
UFCW said B.H. was qualified. Given her experience, there was no argument B.H. had the skills and the ability to perform the job. While she lacked a diploma, she had completed two food service training programs after 2010.
In any event, the union said, as the incumbent in the position, her qualifications were grandfathered when the new regulations came into effect. B.H. was the candidate with the most seniority. In the circumstances, the union said, the employer had clearly violated the collective agreement provisions that spelled out how seniority was to be factored into decisions respecting vacations, layoffs, promotions, recalls and job vacancies. The union said that B.H. should be given the job and compensated for lost wages.
The arbitrator agreed.
‘Grandparented’
The new regulations — including the requirement for a diploma — applied to workers “hired” after 2010, the arbitrator said. Workers with lesser qualifications who were employed at the facility prior to July 1, 2010, had been “grandparented.”
Grandparenting serves the interests of both workers and employers, the arbitrator said.
“It protects those employees who have already been employed in a cook’s position at the home from being removed from their position. It also protects the employer from the disruption of having to replace existing experienced and able employees and search for new ones. In my view, the employer has interpreted the word ‘hire’ too narrowly. Having already been ‘employed’ in a cook position prior to July 2010, the grievor is only required to exhibit the grandparented qualifications in subsection (3) in order to continue in a cook’s position, or to exercise her seniority to either bump into another cook position or to apply for a vacancy in another cook position.”
The employer had violated the collective agreement.
“I find that the employer did indeed violate Articles 14.02 and 14.06 of the collective agreement by deeming the grievor to be unqualified and by failing to give the required weight to seniority when it awarded the position to [the candidate with less seniority. I agree with the position of the union that the position should have been awarded to the grievor.”
The employer was ordered to place B.H. in the position of permanent full-time cook and to compensate her for lost wages.
Reference: United Food and Commercial Workers International Union, Local 175 and Knollcrest Lodge. Norm Jesin — Sole Arbitrator. Billeh Hamud for the Union. Malcolm Winter for the Employer. May 16, 2013. 8pp.
B.H. began working at the long-term care facility in 2006. In 2009, the extended absence of the facility’s permanent, full-time cook caused the employer to create the position of temporary full-time cook.
As the only applicant for the job, B.H. became the facility’s temporary full-time cook in 2009.
In July 2010, the government of Ontario amended Regulation 79/10 made under the Long-Term Care Homes Act, 2007.
Amendments to section 76 upped the level of training and credentials required for cooks to qualify to work at long-term care facilities in the province.
In 2012, the still-absent cook resigned her position. The employer posted the position of permanent, full-time cook on Dec. 21. The posting specifically referenced the enhanced qualifications outlined in the amended regulation as a prerequisite.
B.H. applied for the job, but she didn’t get it. The employer said B.H. was not properly qualified and instead hired another internal candidate with less seniority. The union grieved.
New regulatory requirements
The employer maintained B.H. was not qualified for the job. The employer said the regulation required that workers “hired” into the position after July 1, 2010, were required to satisfy the requirements set out in the regulation.
The employer said B.H. was qualified to perform the job as the temporary full-time cook because she satisfied the pre-2010 regulatory requirements. However, the employer took the view B.H. could not be hired into the permanent, full-time position after 2010 in light of the new regulatory requirements.
UFCW said B.H. was qualified. Given her experience, there was no argument B.H. had the skills and the ability to perform the job. While she lacked a diploma, she had completed two food service training programs after 2010.
In any event, the union said, as the incumbent in the position, her qualifications were grandfathered when the new regulations came into effect. B.H. was the candidate with the most seniority. In the circumstances, the union said, the employer had clearly violated the collective agreement provisions that spelled out how seniority was to be factored into decisions respecting vacations, layoffs, promotions, recalls and job vacancies. The union said that B.H. should be given the job and compensated for lost wages.
The arbitrator agreed.
‘Grandparented’
The new regulations — including the requirement for a diploma — applied to workers “hired” after 2010, the arbitrator said. Workers with lesser qualifications who were employed at the facility prior to July 1, 2010, had been “grandparented.”
Grandparenting serves the interests of both workers and employers, the arbitrator said.
“It protects those employees who have already been employed in a cook’s position at the home from being removed from their position. It also protects the employer from the disruption of having to replace existing experienced and able employees and search for new ones. In my view, the employer has interpreted the word ‘hire’ too narrowly. Having already been ‘employed’ in a cook position prior to July 2010, the grievor is only required to exhibit the grandparented qualifications in subsection (3) in order to continue in a cook’s position, or to exercise her seniority to either bump into another cook position or to apply for a vacancy in another cook position.”
The employer had violated the collective agreement.
“I find that the employer did indeed violate Articles 14.02 and 14.06 of the collective agreement by deeming the grievor to be unqualified and by failing to give the required weight to seniority when it awarded the position to [the candidate with less seniority. I agree with the position of the union that the position should have been awarded to the grievor.”
The employer was ordered to place B.H. in the position of permanent full-time cook and to compensate her for lost wages.
Reference: United Food and Commercial Workers International Union, Local 175 and Knollcrest Lodge. Norm Jesin — Sole Arbitrator. Billeh Hamud for the Union. Malcolm Winter for the Employer. May 16, 2013. 8pp.
