The Court of Appeal of Alberta has allowed an appeal from Alberta Health Services (AHS) regarding a decision by the Alberta Labour Relations Board about the use of outside agency nurses at the Breton Continuing Care Centre.
According to court documents, AHS is appealing an Alberta Labour Relations Board decision that sets aside a decision of an arbitration board and remit a group grievance to a new arbitration board.
The issue before both the arbitration board and the Labour Relations Board was whether Alberta Health’s utilization of outside agency nurses at the 24-bed Breton Continuing Care Centre for periods between May 2018 and March 2019 constituted “contracting-out” or “contracting-in” on a “true employer” analysis.
At that time, the centre employed 20 registered nurses at full complement, all of whom worked less than full time. It was also required by law to maintain at least one registered nurse on site 24 hours per day, which was a challenge due to its small size and remote location, officials say.
The facts laid out in the appeal documents say in early 2018, there were seven vacancies at the care centre and postings received few applicants, which led to nursing staff being asked to work on days off, vacations being impacted and staff considering leaving.
The Breton Care Centre then turned to Select Medical Connections in British Columbia to provide temporary nurses for the following periods in an effort to address the challenge:
(a) KS: May 23, 2018, to September 4, 2018, later extended to March 31, 2019.
(b) MC: December 22, 2018, to January 4, 2019.
(c) TG: September 15, 2018, to November 30, 2018, and January 17, 2019, to February 28, 2019.
(d) KR: December 3, 2018, to January 15, 2019.
According to court documents, the arbitration board determined the utilization of agency nurses constituted good faith contracting out and was not in breach of the collective agreement between Alberta Health and United Nurses. They say there were no clear qualifications in the 2017-2020 agreement prohibiting the use of agency nurses, setting a definition of work, or prohibiting true contracting out.
The Court of Appeal findings further indicate the Labour Relations Board accepted that the arbitration board was entitled to utilize a true employer analysis, but said it failed to place sufficient importance on the duration of employment of those nurses.
The Labour Relations Board found the arbitration board’s decision “not a justifiable conclusion” given its rationale, disagreeing that the contracted nurses were only hired for “relatively short periods of time,” and therefore distinguishing the situation from the cases used as precedent in the arbitrators’ decision.
The question before the Alberta Court of Appeal was whether the Labour Relations Board was correct in its determination that the arbitration board’s decision was unreasonable; it determined the Labour Relations Board was not correct in its decision.
It found that the arbitration board fairly utilized relevant criteria from past cases, and its decision was “justified, transparent, and intelligible. It was rational and logical. It accounted for the central issues and concerns of the parties.” Specifically, the court says, the arbitration board did indicate its knowledge of the duration of the services in its decision and weighed that factor against relevant criteria.
With the AHS appeal being allowed, the decision of the Labour Relations Board is overturned, and the decision of the arbitration board is reinstated.
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