ARBITRATOR DETERMINES RN NOT WORKING IN A NURSING CAPACITY

January 8, 2009

Evans, Philp recently assisted a Hospital to maintain the exclusion of an Anaesthesia Assistant (AA) position held by a Registered Nurse (RN) from the bargaining unit covering the Hospital’s nurses. A key issue was the meaning of the term “working in a nursing capacity”.

The AA was a new position that was additional to the existing staff complement in the operating room. The Hospital viewed the position as falling outside of its collective agreement with the Ontario Nurses’ Association (ONA). The posting required applicants to be registered with either the College of Respiratory Therapists or the College of Nurses, to have completed additional specified training and to have acquired additional speciality certificates. 

The successful applicant was an RN who previously had held a nursing position in the operating room. As the AA, she continued to be a part of the operating room healthcare team. In her new role, she drew upon her nursing skills and experience, as appropriate, when responding as a member of the team to patient care requirements.

ONA filed a grievance claiming that the AA position fell within the collective agreement. ONA argued that the employee continued to work within the scope of her practice as an RN since she drew upon her nursing skills and experience in the AA position. ONA also noted that the employee, due to her training and experience as an RN, had continued to perform nursing functions, which functions could not be performed by a Respiratory Therapist (RT) holding the AA position. ONA argued that an RN who works within the scope of his/her practice necessarily works in a nursing capacity and hence, is covered by the ONA collective agreement.

The Hospital argued that as an AA, the employee was not scheduled to work in a nursing capacity and that accordingly, her position fell outside the scope of the ONA collective agreement. The Hospital argued that the nursing duties upon which ONA had focussed were incidental to the core duties of the AA position and were performed by the employee simply because, as a health care professional, she was expected, like any other health care professional, to draw upon the full scope of her knowledge, training and experience when dealing with patient care requirements. The Hospital argued that it was the additional training and speciality certificates specified in the posting that qualified the applicant for the AA position and that the requirement for an underlying RN (or RT) designation was simply a prerequisite for such additional certificates and training.

Arbitrator Nimal Dissanayake agreed with the Hospital. The focus of his analysis was on the core requirements of the posted position as opposed to any incidental or ancillary functions or duties. The Arbitrator found that although the employee continued to perform some RN functions, she had not been scheduled to work as an RN. Rather, the Arbitrator stated that the employee’s continued performance of some RN functions was simply the result of her professional obligation as an RN (as set out in the Standards of Practice for RN’s) to perform the full scope of her practice in situations where there was an emergency or when the scheduled nurse on the healthcare team was not immediately available to perform such nursing functions. The Arbitrator agreed with the Hospital that where healthcare professionals work as part of a team in an acute care setting, it is not unexpected for them to assume responsibilities that are ancillary or additional to the core responsibilities of their positions. The Arbitrator also found that the employee undertook nursing functions only when it did not impact upon her primary role as an AA.

This case reaffirms the principle that an RN who works in a healthcare position is not automatically deemed to be “working in a nursing capacity” for collective agreement purposes, even where the RN’s professional obligations require him/her to continue performing nursing functions from time-to-time. That is, the Standards of Practice for nurses are not determinative of whether an RN actually is working as an RN within the scope of a collective agreement that covers nurses. While an arbitrator might presume that a position requiring an RN designation entails “working in a nursing capacity”, such presumption may be rebutted by evidence regarding the core functions of the position.

Members of our Labour and Employment Law Practice would be pleased to assist if you have any questions.