HomeMy WebLinkAbout1986-0126.Bergsma.88-01-21MAR311988 i 126186
IN THE MATTER OF AN ARBITRATION
under
before
Between:
Before:
THE GRIEVANCE SETTLEMENT BOARD
OPSELI (Pete Bergsma)
and
The Crown in Right of OnCario
(Ministry of Health)
B. Fisher Vice Chairman
I. Freedman Member
G.J. Milley Member
For the Grievor: C. Dassios
Counsel
Gowling & Henderson
Barristers & Solicitors
For the Employer: A. McChesney
Staff Relations Officer
Staff Relations Section
MZU-~~FXIIWX Board of Cabinet
Hearing: Seprember 10, 1987
Grievor
Employer
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This case involves +L?E relationship between payment for statutory holidays LIIC~~I-
Article 19.1 and payment for short term sicJa?ess urder Article 52.
.Tne parties presented this Board with an agreed statement of facts as follows.
1. Thegriwor, Peter& Eerqsm, ix3ganeuploymentwiththeMinisQyof
Health on Monday, tGa?xh 25, 1985 as sn Ambulance Dispatcher.
He was and is
classified as aRadio operator2 withthe LDtion central Ambulance Cmrmicatioris
Centre, Ministry of Health, 205 York Street, London, Ontario.
2. Mr.BeIg&ams schezbledtoworkthe afternoon shift of:
(a) w&-Jay, lX+&sr 25, 1985;
(W .rr.ursdayt !&cembr 26, 1985;
(cl FriaaY, Deceker 27, 1985.
3. -25thard- 26th are the ck5stms Day and Boxing Da}
statitcry holidays under Article 48.1 of the Collective'~t between the
Union and the Ebployer.
4. Mr. E!eqmnawOrkedhis shift of Wednesday, December 25, 1985 and G.ZS
capmated in accordance with Articles 19.1 and 19.2 of t&z Collective
M-J===-.
5. Mr. Rpmstra was ill on Dnmday, December 26, 1985 and did not report
to work that day. He worked on Friday, December 27, 1985.
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6. Mr. Bergs@ was paid 8 hours' pay for his shift of Thursday, Decerlm
26, 1985. For payrcll pupxes he was recorded as having a statutory
holiday on that date.
7. Mr. Eergsma is assignedtohours OfworkSchedule 4.7. Hisnormal
hoursofworkare4Ohmrsperweekand8hoursperday.
Thegriworclaim that he is entitledto anadditional hours' payundertie
sick leave provisions.
Tne follcwing cases, in chronolcgical order according t&their decision dates,
were presentedtothe B3ardby the parties.
1. Farsons 31/J8 (Richard)
In this case the bard held that Articles 19.01 and 19.02 provide
"a relatively cmprehensive code of entitlema+ to holiday paydealingwithbothpersonswfioare~toworkand
those not mqb-e3 to work on statutory holidaysl'.
me Eoardheldthatthe anplcyeetiomrkedwas entitled to paynentm&rSection
19.01 and 19.02 but not also tier Article 9 (now 48.1). This case did not
involve anemployeewhowas illontheholidaywhmhexas scheduledtoworkthat
2. caoaer 145/77 (swan)
In this casethegriworworkedpart of a statutoryholidaybuthad to leave
before the emi of the shift due to illness. me Board held that Article 19.1 m.%s
not applicable to the portion of the day that the grievor was ill and not
working, thus he was only entitled to his 8 hours under 19.2 plus his portion of
the daythathe a&uallyworbdunder19.1. No reference was made in the case to
an entit.lemntunderArticle 52.
3.
~..
&J&J 434/81 (Delisle)
meg-riworwas scheduledto~rkonaholidaybutdidnotdosobecause of a
non-work related urgency. He was only paid tier 19.2 and not paid under 19.1 as
he did not actually work. This fact situation is exactly the same as the present
grievance. Inthat -theUnion also referredto the sickness provisions in
Article 51 (nox 52) as they have done in the present case and argued that
Vxgular~salary" means the salaryhewouldhave received hadhemrked on the
holiday, in other words, the pay u&r 19.01 gJ 19.02.
me Ecaxd held in that
case that the grievor was only entitled to a payment u&r 19.02. me Beard also
referred to Article 21 (non Fyramidixg) as grounds for denying the griwor imre
than 8 hours'pay.
4. CharboMeau 544/81 (Barton)
me grievor in this case was on Workers' Cmpansation benefits on a holiday @n
whichhewas s&&&d towork. me Beard held in that case that Section 53.2
(nm Article 54) created a separate e&tlementto pay so that the grievor
received 8 hcurs' pay under Section 53.2 & 8 hours' pay for Section 19.2. T!le
factsinthepresantcaseareidmticalto chartxnuleau, except that the illness
in this case was not aqxmsable by W.C.B.
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5. Walbarg 0704/85 @lisle)
mis - involvedthesaue factsituationas i.nCharbonneau, inotherwords, a
W.C.B. injury. me Board followed charbanneau.
6.
NSarmid 366/83 (Springate)
This case involvedthe - factsituationas Charbonneau, inotherwords, a
W.C.B. injury. me Board followed Cbarbonneau but made the followirg comment,
WI (3mrkanneau, the Ecarddealtwiththevery issue now before us, namely the holiday entitlement of an employee scheduled to work a holiday but unable to do so because of a
xqensable injury. menejorityaward inCharbo-uwas judiciallyreviewedbythe Divisional court, which declined
to quash it. In the Merests of a uniform approach to the issue, weprqosetoapplythereasoning inthemajority in Charbmneautotheyrievance bafore.us. In doino so, we
exoressnoooinionastowhetherthe reasonins in Charbonneau should be aoolied to eoolwees who are off work due to a non-
uxxnsable illness. (enphasis added)
Atfirstblushtbereseermtobeadifference inwhich the oldercases
(especially Martin) arxdthenewercases (marbonneau) havedecidedtheissue.
However, there is an ingzortztntdistinctionbetweenthe cases, nanelywhether the
illness is work related so that Section 52.2 applies.
Howwer,MartintiCha&xmsauarenot irraconalable, aslongas Charbonneau is
limited to W.C.B. cases. For non-W.C.B. cases, theprirsiples inMartin should
still apply inthattbe arguwrtsnMebytheUnion in this -mirrortheir
arguments inMartin. Those argumantswere reject& inMartin, and for the
purpose of maintaining certainty in the field of labour relations, Martin should
be followed.
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Aswassaid inwalbery,
"It is trite to obse?xe that finality in decision-makiq is
an attribute mch to be prized. Cmnsel for the Minktry
doesnotsaythatcertainfadsorlawswereinadvertently
notbrcughttothe attmtionofthe Board inCharkomu.
Counsel dces not saythedecisionwas rexkr&per kmriam.
Ri&heritseekstoazguesiq~lythatc%arbomuwaswrcolgly
decided. Finding the Vightvl answer, the Vight"
interpretation, is obviouslyourpxsuitbutthere ames a
pointin.litigatingan issuewhen enough is emnqh. As a
brake againstrepeat&lyre-openiqanissuetbiska.rdasks
whether an earlier decision on the point is %anifestly
wrong."; see e.g. m, 684/83 (Samuels). Unless the earlier
decisionismnifestlywrongthe Board shouldbeconsistent
and adopt its reasmirx~.~~
The~g-riwance is therefore dismissed.
thjs 17th.day of March, 1988
G. Milley, Menber
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