When a nurse opts for a pre-retirement option under section 10.14, the collective agreement provides that for each year of service, up to a maximum salary of 52 weeks, she receives a pension of two weeks` salary at a maximum of 52 weeks. In support of this interpretation, Adjudicator Reilly found that, in the development of the collective agreement, the parties agreed to separate sections with different rights in the event of long-term dismissal. He explained that Adjudicator Reilly`s decision gives hospital employers some optimism about the redundancies provisions in the NAOS collective agreement and the obligations to pay retirement and separation benefits. Prior to Adjudicator Reilly`s decision, arbitrators always held that a nurse was entitled to an old age and/or separation allowance, even if positions were vacant elsewhere in the hospital concerned, as soon as the provisions of the COLLECTIVE agreement ONA had been triggered. The resulting costs to hospitals have been considerable. Adjudicator Reilly found that the case law relied upon by the NIA was of no use in this case. In each arbitration proceeding submitted by the ONA, the parties were linked to the question of whether workers were entitled to offers of retirement options in accordance with Article 10.14 language. In each of these cases, there was little information on the reasons for the dismissals. The application of section 10.14 was not the subject of direct challenge or attention by the arbitrator.
None of the cases dealt with the key issue of this case – when are workers entitled to the risk of applying Article 10.14? In the absence of arbitration on the application of section 10.14, Adjudicator Reilly was required to base his decision on an interpretation of the relevant provisions of the collective agreement. The collective agreement between the Ontario Seniors Association (NIA) and St. Michael`s Hospital (the hospital) also applies to most unionized nurses in the province. It requires hospitals to present a number of benefit options to nurses who are subject to long-term layoffs. Section 10.09 of the collective agreement provides opportunities for these nurses: in November 2008, St. Michael`s Hospital announced long-term layoffs for the union and seven nurses who were in the hospital. The termination had been scheduled due to the rationalization and reallocation of certain aspects of I.V. therapy. The parties agreed that the proposed eviction of the nursing staff concerned constituted dismissal under the collective agreement. At the time of the outings, the hospital was in recruitment mode and was actively looking for nurses outside the hospital to fill vacancies. Nurses affected by the dismissal were able to move into these positions.
Ontario Arbitrator Frank Reilly recently dismissed a complaint by the Ontario Human Rights Association that the employer, St. Michael`s Hospital in Toronto, violated the collective agreement by failing to include retirement or separation benefits in the benefits options for nurses who are laid off. At St. Michael`s Hospital and the Ontario Nurses Association (April 2010), Adjudicator Reilly applied the traditional canons of conventional interpretation to the collective agreement and decided that the benefits provided to licensed nurses vary according to the grounds for dismissal.