Long-term care facility doesn’t have to hire more nurses: Arbitrator

Employer breached collective agreement, but declines to order employer to hire more RNs
|Canadian Labour Reporter|Last Updated: 07/04/2013

Simply hiring more staff offers no guarantee that attendance will always match regulated staffing levels, an arbitrator has ruled.

On 11 occasions in 2012, the 252-bed Shepherd Village long-term care facility in Toronto failed to meet its regulated staffing obligations.

The Ontario Nurses’ Association (ONA) grieved, arguing that language on staffing levels negotiated in the collective agreement required the employer to post job vacancies when it was unable to comply with regulated staffing levels.

Shepherd Village was subject to the conditions of its license and to regulations made under the Long-Term Care Homes Act, 2007 (LTCHA).

Included in those regulations was the requirement that the operator of the home ensure at least one registered nurse (RN) — who was both an employee of the licensee and a member of the regular nursing staff — was present at the home and on duty at all times.

Article 2.06 of the collective agreement between the parties referenced the employer’s regulatory obligation in this way:

"Employer undertakes to maintain the standard of nursing care required by Provincial Regulatory Authorities. The Employer agrees to employ sufficient Registered Nurses to meet the staffing needs that may be set from time to time by statute and/or regulation and will comply with the staffing requirements in the service agreement. In the event that there is insufficient staffing to meet this undertaking, the Employer will post vacancies in accordance with Article 9.06 so that any unmet care undertaking will be satisfied."

Staff complement of RNs at Shepherd Village included three full-time, four regular part-time and 17 casuals.

No exceptions to regulation

Though such a practice was not sanctioned by the LTCHA, the parties had a protocol to allow for the use of casual or agency nurses to cover shifts when no regular member of the nursing staff was available.

In those cases, it was agreed the employer would compensate the regular staff RNs who had been denied overtime call-ins as a result.

Following 11 instances in 2012 when the employer was unable to comply with regulated staffing requirements at the facility, the union grieved.

The union said the legislation allowed for no exceptions to the staffing requirements in the regulations: a regular member of the nursing staff was required to be on duty at all times. The employer violated the regulations 11 times in 2012, the union said. It was obvious the employer did not have enough staff to meet its statutory and contractual obligations, it charged. The appropriate solution, the union said, was for the employer to post two full-time positions for RNs to ensure all shifts were covered according to the requirements of the regulations.

Ambiguous contract language

The employer said it had met its staffing requirements 99 per cent of the time in 2012. On the few occasions when the employer was unable to staff the home with a regular staff member, the employer took steps to ensure an RN was on duty according to the protocol it had worked out with the union.

The employer said it did employ enough staff. The cost of employing more staff was substantial, the employer said, and there was no guarantee hiring more staff would ensure 100 per cent compliance with the regulated staffing requirements.

The arbitrator agreed, in part.

The employer was in violation of the collective agreement, the arbitrator said, but the employer was not obliged to hire more full-time nurses as requested by the union.

"As the employer observed in its submissions, the addition of two full-time nurses to the roster, the remedy claimed by the union, would provide no certainty that deficiencies would be avoided. Even with a doubling or trebling of the number of full-time nurses, it would be quite within the realm of possibility that more than one of them would be ill or otherwise unavailable on a particular shift, leaving the employer with having to try to fill the vacant shift through recourse to the call-in protocol."

Article 2.06 was ambiguous, the arbitrator said. While the union’s interpretation of the employer’s obligation in the circumstances was not inconsistent with the language used by the parties, the solution posed by the union was not reasonable.

"The reason I have chosen to reject the union’s interpretation is that it would leave the employer in the impossible situation of constantly being at risk of having to add more and more staff, as a result of circumstances beyond its control. This would be such an unusual and unreasonable result that I cannot accept that this is what the parties intended."

The arbitrator acknowledged the employer was in breach of Article 2.06 but declined to make any order.

"In my view, the final sentence in Article 2.06 simply means that, if the complement of nurses is insufficient, under even the most favourable circumstances, to meet the employer’s undertaking, it will be required to post vacancies."

Reference: Shepherd Village Inc. and Ontario Nurses Association. Michael Bendel — Sole Arbitrator. Sandy Donaldson for the union. Malcolm Winter for the employer. May 30, 2013. 14pp.