HomeMy WebLinkAbout1986-1999.Kent.89-01-25EMPLOY& 06 ‘4 COURONNE
DE LoNTARrO
CPMMISSION DE
SETTLEMENT REGLEMENT
DES GRIEFS
Between:
Before:
For the Grievor:
1999/86
IN THE MATTER OF AN ARBITRATION
under
THE CROWN EMPLOYEES COLLECTIVE BAR6AININ6 ACT
before
THE GRIEVANCE SETTLEMENT BOARD
For the Employer:
OPSEU (J. Kent)
and
The Crown in Right of Ontario
(Ministry of Correctional Services)
M.V. Watters Vice-Chairperson
F. Collom Member
M. O'Toole Member
P. Lukasiewicz
Counsel
Gowling & Henderson
Barristers and Solicitors
G.F.J. Lee
Senior Staff Relations Officer
Staff Relations Branch
Ministry of Correctional Services
Grievor I
Employer I
Hearing: December 12, 1988
DECISION
This proceeding arises from the grievance of James Kent
dated January 28, 1987. It concerns the grievor’s enti!lement to
sick pay when he was unable to work certain scheduled shifts on
statutory holidays due to a non-compensable illness. At the
hearing the parties filed the following Agr,eed Statement of
i Facts:
” 1 . The grievor, Mr. James Kent, commenced employment vith
the Ministry of Correctional Services in June, 1973.
At the time of the grievance he was a classified
Correctional Officer 2 at Lindsay Jail.
2. Mr. Kent during the time of the events giving rise to
this grievance was working a compressed work week of
12 hours per day.
3. Mr. Kent was scheduled to work 12 hour days on Oct. 13,
Nov. 11, Dec.~ 25 and 26, 1986, vhich were holidays under
Article 48 of the Collective Agreement but was unable
t’o work’these days because of illness, booking off sick
on September 29, 1986 and continued to be off sick
during the period of time in question.
. Mr. Kent received 8 hours holiday pay. for each of the
above noted holidays in accordance with the requirements
of Article 19.02.
5.
6.
In addition, as the grievor was scheduled to work a 12
hour day, the Ministry paid him 4 hours sick pay for
each day pursuant to Article 52.1.
The grievbr, Mr. Kent, is seeking to have the absences
for the four days in question to be adjusted to reflect
12 hours sick leave for each day as per Article 52.1
and be credited with four days compensating leave as
per Article 19.2 for the 4 holidays in question.”
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The provisions of the collective agreement relevant to the
resolution of this dispute read as follows:
ARTICLE 19 - HOLIDAY PAYMENT
.19.1 Where an employee works a holiday included under
Article 48 (Holidays), he shall be paid at the rate
of.two (2) times his basic hourly rate for all hours
worked with a minimum credit of seven and one-quarter
(7-1141, eight (8). or the number of regularly
scheduled hours, as applicable.
19.2 In addition to the payment provided by section 19.1, an
employee shall receive either seven and one-quarter
(7-l/4) or eight (8) hours pay as applicable at his
basic hourly ‘ra.te or compensating leave of seven and
one-quarter (7-l/4) or eight (8) hours as applicable,
provided the employee opts for compensating leave prior
to the holiday.
ARTICLE 48 - HOLIDAYS
48.1 An employee shall be entitled to the following holidays
each year:
New Year’s Day
Easter Monday
Canada Day
Labour Day
Remembrance Day
Boxing Day
Good Friday
Victoria Day
Civic Holiday
Thanksgiving Day
Christmas Day
Any special holiday as proclaimed by the Governor
General or Lieutenant Governor.
ARTICLE 52 - SHORT TERM SICKNESS PLAN
52.1 An employee who is unable to attend to his duties
due to sickness or injury ,is entitled to leave-of-
absence with pay as follows:
(i) with
work
regular salary for the first six (6)
ing days of absence,
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(ii) with seventy-five percent (75%) of regular
salary for an additional one hundred and
.twenty-four (124) working days of absence,
in each calendar year.
ARTICLE 54 - WORKERS COMPENSATION
54.1 Where an employee is absent by reason of an injury
or an industrial disease for which a claim is made
under The Workers’ Compensation Act, his salary shall
continue to be paid for a period not exceeding
thirty (30) days. If an award is not made, any
payments made under the foregoing provisions in
excess of that to which he is entitled under sections
,’
( 52.1 and 52.6 of Article 52 (Short Term Sickness Plan)
shall be an amount owing by the employee to the
employer.
It was the. position of the union that the grievor was
entitled to a further eight (8) hours~ of sick pay for each of the
statutory holidays that he was unable to work. Simply put, its
claim was that the grievor was entitled to compensation under
both article 19.2 and article 52.1 in respect of the days in
question. In this regard, it relied on the award in Charbonneau,
544/81 where the board determined that an employee unable to work
a scheduled shift on a statutory holiday because of a compensable
injury or illness was entitled to payment under both articles
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19.2 and 54.1 of the collective agreement. Counsel submitted
that an analogous approach should be adopted by this board in
this instance.
It was the position of the employer, in response, that the
claim advanced by the union had been previously rejected by the
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,
board in Bergsma, 126186; Robertson, 0641/85; Pavlovski, 0042/86
and Mandar. 1815/87. Counsel argued that this line of
jurisprudence made it clear that the grievor was only entitled to
the amounts actually paid by the employer. Pursuant to the
reasoning expressed in Blake et al, 1276, 1342, 1858, 1887, 1888,
1889, 1890, 1891, 1892, 2292/87, it was submitted that
exceptional circumstances did not exist so as to justify a
departure from the board’s past treatment of the issue.
This panel has.considered the awards referred to by the
parties. We agree~with the submission expressed by counsel for
the employer that the issue now before us has been previously
decided by this board.
. . I I \_..N,’
In Bergsma, the grievor was scheduled to work the
afternoon shift of December 25th and 26th, 1985. He was unable,
however, to work the latter shift as a consequence of illness.
The grievor was paid eight hours for this shift. He claimed an
additional eight hours of pay under the sick leave provisions.
The board rejected this claim and found that the grievor was only
entitled to the pay provided for under article 19.2 of the
collective agreement. It followed the approach taken in Martin,
434101. In arriv.ing, at its conclusion, the board stated at page
4 of the award:
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“At first blush there seems to be a difference in
which the older cases (especially Martin) and the
newer cases (Charbonneau) have decided the issue.
However, there is an important distinction between
the cases, namely whether the illness is work related
so that section 52.2 (now 54.2) applies.
Eowever, Martin and Charbonneau are not irreconcilable,
as long as Charbonneau is limited to W.C.B. cases. For
non-W.C.B. cases, the prin?iples in Martin should still
apply in that the arguments made by the union in this
case mirror their arguments in Martin. Those arguments
were rejected in Martin and for the purpose of maintain-
ing certainty in the field of labour relations, Martin
should be followed.”
In Robertson, the board was confronted with an identical
fact situation to the one presented in this case. The grievor
was a Correctional Officer employed at the Lindsay Jail and at
the time was working a compressed work week of twelve hours per
day. Be was unable to work the Victoria Day Roliday because of a
non-compensable illness. The employer, in accordance with a
practice dating back to at least the early 1970’s. paid him on
the basis that he had taken the May 20th holiday, namely eight
hours holiday pay as provided for by article 19.2. The employer,
in recognition of the fact that had he not been ill the grievor
would have worked a twelve hour day, also paid him four hours of
sick pay pursuant to article 52.1. It was the union’s contention
that instead of this arrangement, the grievor should have
received twelve hours of sick pay. This contention was rejected
by the board which concluded that:
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“We are satisfied that in the instant case we should
follow the past understanding of the parties and the
board, namely that the entitlement of an employee off
work due to illness is to be.found only under article 19.
We view this as a reasonable interpretation of the
collective agreement. We recognise that as a result of
our conclusion employees scheduled to work a holiday,
but unable to do so, will be treated differently
depending on whether they are off vork ion workers’
compensation or because of a non work-related illness.
This result, however, flows from the fact that the
board, vhen dealing vith an employee off work on
workers’ compensation in Charbonneau, adopted a
different interpretation of the collective agreement
than the parties and the board had previously applied
to employees who were ill.
In line vith our reasoning set out above, we are
satisfied that an employee who does not work a holiday
on account of illness is entitled to receive holiday pay
under article 19.2. Be is not entitled to the receipt
of further amounts under article 51 (now article 52)
with respect to the 8 hours covered by article 19.2.
Given that the grievor would actually have worked a
12 hour day on Victoria Day, had he not been ill,
logically he was entitled to 4 hours sick pay, which
amount he did receive. The grievor is no~t entitled
any additional payment. The grievance is, according
hereby dismissed.” (page 131
to
lY,
It is to be noted that the union in Robertson made‘the same
argument as it did before this board as to the desired extension
of the Charbonneau award. Such argument was obviously
unsuccessful.
unab e due to illness to work~his scheduled.shift one Remembrance
Day, 1985. Pursuant to the practice noted in Robertson, he wasp
paid on the basis that he had taken the holiday. The grievor
In Pavlovski, the grievor, a Correctional Officer, was !
claimed that he was also entitled to receive sick pay for the day.
Such claim was rejected by the board. In this regard, the board
stated:
“In the instant case the union seeks to apply the
reasoning adopted in Charbonneau to the grievor,
vho was off work due to a non work-related illness.
This is the very approach which was expressly rejected
by the board in both Robertson and Berg-sma. In the
interests of consistency, ve are also not prepared to
adopt it in the instant case. The grievor was entitled
to receive holiday pay under article 19.2 for November
11, 1985, which amount he did receive. We are satisfied
that he was not entitled to receive any additional
payment for the day....” (page IO)
In Handar, the grievor who w.as also a Correctional Officer
was unable through illness to work his scheduled eight hour shift
on August 3, 1987. He was paid eight hours of pay at the
straight t.ime rate. He claimed that he ought also to have been
given the benefits provided for under article 52. As in the
cases cited above, this claim was not accepted. After a review
of the relevant jurisprudence, the Chairman concluded:
“In the case at bar there are two prior decisions,
Robertson and Bergsma, which are directly on point
and on which the board has reached the conclusion that
the grievances should fail. Moreover, as indicated, the
board in each of those cases has expressly rejected the
invitation to resolve the inconsistency between the two
lines of cases by overruling one of them.
Just as the board was reluctant in McDermid to overrule
Charbonneau so we are reluctant to overrule Robertson
and Bergsma. Indeed, if anything, the case against
overruling these two cases’is stronger in that the board
in those cases specifically entertained and rejected the
very argument which has been put before us.
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As noted above, we agree that the result is anomalous.
However, the remedy to correct that anomaly must lie with
the parties and should not be accomplished by the board
disturbing a settled line of cases.” (pager 7-8)
In the final analysis, we are not prepared to depart from
the logic expressed in the above-cited awards. In the
circumstances of this case, they clear~ly limit entitlement to the
payment provided for by article 19.2 plus the a’dditional four’
hours of sick leave under article 52.1. We have not been
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\ persuaded that the earlier line of awards are manifestly wrong or
that exceptional circumstances exist which would justify a
refusal on our part to follow same.
For all of these reasons, the grievance is denied.
Dated at Windsor, Ontario, this 25 day of January, 1989.
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