Nurses lose Supreme Court of Canada appeal on leave entitlement
Newfoundland and Labrador Nurses’ Union president Debbie Forward said the union is disappointed to lose a Supreme Court of Canada appeal over casual nurses and leave entitlement. — File photo by Keith Gosse/The Telegram
The Newfoundland and Labrador Nurses’ Union (NLNU) has lost an appeal to the Supreme Court of Canada and must pay costs.
The court heard arguments in October in the appeal launched by the NLNU, relating to an arbitration decision on whether casual service should be counted toward annual leave entitlement for nurses when they become permanent employees.
The arbitrator agreed with the employer — Labrador-Grenfell Health Board — that it shouldn’t be counted.
“Arbitration allows the parties to the agreement to resolve disputes as quickly as possible knowing that there is the relieving prospect not of judicial review, but of negotiating a new collective agreement with different terms at the end of two or three years.
This process would be paralyzed if arbitrators were expected to respond to every argument or line of possible analysis,” the Supreme Court of Canada said in a unanimous ruling released Thursday.
“In this case, the reasons showed that the arbitrator was alive to the question at issue and came to a result well within the range of reasonable outcomes.”
NLNU president Debbie Forward said the union would have preferred to win the case, obviously, but it is taking solace in the fact the country’s top court even gave it leave to appeal, proving there was something to be argued.
“I’m proud of our staff who were involved in it. It was a first for us,” Forward said Thursday.
“As I said to the staff, ‘We’ll get ’em next time.’”
Forward said there’s still opportunity for the union to pursue a change in contract language in future negotiations.
As for costs, Forward said the union knew going into the case that was a risk.
According to a court summary of the case, the union grievance initially argued an employer had improperly deducted annual leave hours for a group of nurses.
The health authority claimed there had been an error in the original calculation of the nurses’ leave entitlement because their casual work had been improperly included.
The arbitrator concluded, under the terms of the nurses’ collective agreement, they couldn’t use their years of service as casual employees for the purpose of calculating vacation entitlement once they became permanent employees.
Under the definition of casual employee in the NLNU agreement, casual employees are not entitled to certain benefits, including entitlement to vacation with pay. Instead, casual employees receive a 20 per cent wage premium.
The NLNU said this clause doesn’t deal with the service issue and entitlement to annual leave when nurses who were casual are hired on a permanent basis. In asking for a judicial review, the union claimed vacation entitlement should be calculated on the basis of service, including hours worked as a casual employee.
The arbitration decision was initially appealed by the NLNU in the Newfoundland Supreme Court Trial Division, on the basis the arbitrator didn’t provide sufficient reasons for the decision. The court agreed there were no reasons in the award to justify the outcome and ordered a new arbitration hearing.
The employer, however, appealed that ruling and the Newfoundland Court of Appeal subsequently ruled in its favour, concluding there were sufficient reasons in the arbitrator’s decision to justify denying the grievance.