HomeMy WebLinkAbout1986-2492.Sheppard.92-06-03EMPLO”ESDEL* COUROMVE DEL’ONIAWJ COMM,SS,DN DE
RkGLEMENT
DES GRIEFS
IN THE NATTER OF AN ARBITRATION
under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETNBEN
OPSEU (Sheppard)
- and -
Grievor
The Crown in Right of Ontario
(Ministry of Government Services)
Employer
BEFORE: E. Slone Vice-Chairperson
F. Taylor Member
F. Collict Member
FOR THE
GRIEVOR.
T. Hadwen
Counsel
Cavalluzzo, Hayes & Shitlon
Barristers & Solicitors
FOR THE
EMPLOYER
D. Brown
Director
Crown Law office - Civil
Ministry of the Attorney General
.
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SLJPPLEMENTARY AWARD
This panel issued an award on March 10, 1988, reinstating the grievor to a
probationary position as a maintenance carpenter at the Queen’s Park Legislative
Buildings. He had been released by the Deputy Minister near the end of his
probationary period, on the recommendation of his supervisor, for poor attendance. The
wrinkle had been that most of his poor attendance record was as a result of a seven-
week stress-related illness that began within a month of his job starting. To make a long
story short, this panel felt that there was a considerable unfairness in the grievor being
released under these circumstances; nevertheless, we also felt that the grievor’s
probationary period had been cut short and ought to be extended by the seven weeks
that he had missed. At p.19 of our original award, we said:
“....In a contest between two blameless parties we are incfirted to require the
Grievor to bear the loss. We therefore order that seveti weeks be added to the
Grievor’s probationary period. We also order that seven weeks of salaty and
benefits be denied ro him out of the compensation that he will receive as a
result of this award By this formula, we achieve a result that fi equivalent to
the Grievor having asked for and been awanied a seven week unpaid leave of
absence. *’
We expressly retained jurisdiction to deal with matters of implementation.
We are aware that the term extending the probationary period proved
controvenial. The award was taken to judicial review, which I believe was unsuccessful,
but on the narrow ground that the matter had become academic, since the grievor had
already completed his probation. In any event, the award stands.
Surprisingly the matter has resurfaced.
It appears that during the seven week illness, the grievor received sick leave
benefits, which paid him 75% of his salary. He was required to top up the remaining
‘25% by using vacation days. Eight vacation days were used - one-quarter day per day of
2
absence. .He now claims that he should have these eight days returned to him, since, to
quote his counsel’s written submission:
“the use of vacation days does not accord with being on an unpaid leave of
absence. . . . . Vacation’ credits would not have been drawn during such a
leave. Therefore, the grievor is entitled to a return of the eight days
vacation credits.”
The retort by Employer’s counsel is:
“If this submission is correct then the payment by the employer of the
short-term sickness benefit does not accord with an ‘unpaid~ leave of
absence’. It is our submission that if the eight days are owing then so is
the monies representing the benefit paid to Mr. Sheppard during his
absence.”
We do not perceive any unfairness to the grievor; on the contrary, there is some
force in the Employer’s argument that he ought not to have received the 75% salary
under the sickness benefit!
The eight vacation days were taken from the grievor, but in return he received
eight days of salary that he would not have received had he not been required, or able,
to cash in those vacation days. The fact that he had probably not yet accrued those days
would have put him into a deficit position in his vacation bank, which he then had to
make up. But the fact remains that he received full value for those days. In the
grievor’s submission there is no offer to repay that money; we wonder how enthusiastic
he would be to buy hack his eight days of vacation with cold cash.
We are aware that vacations serve an important purpose, in giving employees time
off to recharge their batteries and enjoy their lives. It is perhaps unfortunate that they
are required to be cashed in to top up the sickness plan, but this does not disadvantage
the grievor any more than it does any other employee who has received cash instead of
vacation time. .Without so ordering, it seems fair that if the grievor wants to recover
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eight days to be enjoyed as vacation he could be given the time off as an unpaid leave.
However, we are inclined to leave this up to the Employer.
In the result, the grievor’s request is denied, and matters ought to remain as they
are.
Dated at TORONTO this 3rd day of June. , 1992.
(3a?--
Eric K. Slone, Vice-Chairperson