An arbitrator has ruled that North Bay Regional Health Centre cannot refuse to offer weekend call-in shifts to part-time employees simply because working those shifts would trigger premium pay entitlements.
The decision stems from a dispute involving I.W., a permanent part-time ambulance communications officer who was passed over for a Saturday shift in favour of a more junior casual employee. The hospital’s manager admitted he did not offer the shift to I.W. “because if the Grievor worked the shift in question, he would be entitled to third weekend premium.”
Seniority rights take precedence
Arbitrator Patrick Kelly found the hospital violated its collective agreement with Canadian Union of Public Employees (CUPE) Local 139 by failing to follow seniority rules when distributing additional shifts to part-time workers.
The collective agreement clearly states that “additional available hours (beyond the minimum requirement) will then be offered to the most senior part-time until their maximum of 75 hours per two-week period has been accrued and so on down the list of part-time staff in the department.”
I.W. had worked 56.25 hours in the relevant two-week period as of Oct. 31, 2024, well below the 75-hour maximum. He was also the most senior part-time employee when the Nov. 9, 2024 weekend shift became available. Instead of offering it to him, the hospital gave the shift to R.S., a casual employee.
Hospital’s cost-saving argument rejected
The hospital argued it was justified in avoiding shifts that would trigger premium payments, pointing to another arbitration decision that identified the purpose of weekend premium provisions as discouraging employers from scheduling less desirable hours.
Kelly rejected this reasoning, noting the language in the collective agreement regarding shift distribution “is clear and unambiguous.” He found no provision that would allow the hospital to bypass seniority rules to avoid premium pay obligations.
“There is no countervailing provision in the Collective Agreement that, on its face, clearly and expressly modifies the distribution of additional available hours by seniority, or otherwise abridges, truncates or forfeits the right of the most senior employee to the work in issue,” Kelly wrote.
Third weekend premium provisions
Under the collective agreement, employees must receive time-and-a-half pay for regular hours worked on a third consecutive weekend, with limited exceptions for situations where the employee requested the weekend work or agreed to shift exchanges.
The arbitrator noted this premium pay system serves dual purposes: compensating employees for working less desirable hours and discouraging employers from requiring such schedules.
However, Kelly emphasized that even if the weekend premium provision aims to discourage less desirable scheduling, “that is not a prohibition.” The deterrent effect cannot override the clear seniority-based distribution requirements for additional shifts.
Seniority as fundamental right
Kelly stressed the critical importance of seniority rights in the collective agreement, noting they provide “vital job security protections as well as career and financial opportunities to the bargaining unit employees.”
He cited established arbitration principles requiring that seniority rights “should only be affected by very clear language in the collective agreement and arbitrators should construe the collective agreement with the utmost strictness wherever it is contended that an employees’ seniority has been forfeited, truncated or abridged.”
The arbitrator found the hospital failed to meet this high standard for limiting seniority rights, as the collective agreement contained no express language allowing the employer to bypass seniority when distributing shifts that might trigger premium pay.
Distinguishing previous cases
The hospital relied on a previous arbitration award involving the same parties that discussed the purpose of weekend premium provisions. However, Kelly distinguished that case, noting it dealt with whether premium pay was owed after an employee worked a weekend shift, not how weekend work should be distributed among employees.
“The issue in this case is not about whether the premium is payable, but rather, about how the work that attracts the premium is distributed among part time employees,” the union argued successfully.
Kelly agreed, finding the previous arbitrator’s comments about the purpose of premium pay provisions were not central to that decision and did not establish a precedent allowing employers to avoid offering shifts that would trigger premium payments.
Broader implications for shift distribution
The ruling establishes that employers cannot use potential premium pay obligations as grounds for circumventing established seniority-based shift distribution systems, even when the shifts in question are considered less desirable.
Kelly noted that under the shift distribution provision, the hospital “ought to have offered the Grievor the additional available hours (the November 9 weekend shift) because there is clear and unambiguous language in Article P.02(b)(i) that he was entitled by virtue of his seniority to claim (or decline) that shift irrespective of its desirability.”
This means senior employees retain the right to accept or decline additional shifts based on their seniority, regardless of whether those shifts would result in premium pay obligations for the employer.
Outstanding issues
The hospital has reserved the right to raise an estoppel argument, suggesting it may claim the union previously accepted or acquiesced to the practice of avoiding premium-triggering shifts. Kelly directed the hospital to inform the parties by June 26, 2025, whether it intends to pursue this issue, which could lead to additional hearings.
For more information, see North Bay Regional Health Centre v Canadian Union of Public Employees, Local 139, 2025 CanLII 51618 (ON LA).
