HomeMy WebLinkAbout1987-0228.Mattison.88-09-29EMPLOV&DEu\ CO”RONNE
OE “ONONTARIO
CPMMISSION DE
REGLEMENT
DES GRIEFS
Between:
Before:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOAR0
DPSEU (Fi. Mattison)
and
The Crown in Right of Ontario
(Ministry of Correctional Services)
TELEPHONE/TELh’ONE
,‘16,)598-0688
E. Ratushny Vice-Chairperson
I. Freedman Member
P.D. Camp Member
For the Grievor: M. Cherney
Counsel
Gowling and Henderson
Barristers and Solicitor: .-
For the Employer: J. Wallen
Regional Personnel Administrator
Metro Region
Ministry of Correctional Services
0228/87
Grievor
Employer
Hearina: February 4, 1988
DECISION
The Grievor is employed at the Toronto East Detention
Centre as a Correctional Officer 2. She has been employed by the
Ministry of Correctional Services since September, 1978.
The Grievor was injured at work on June 16, 1986 and was
subsequently off work intermittently until July 28th and then
continuously from that date to the date of this hearing. An
award was made by the Workers'~ Compensation Board. Her periods
of absence may be categorized in relation to the Collective
Agreement as follows:
(1) The first sixty-five (65) working days of absence which
ended on October 7, 1986. During this period, the
Grievor received her full salary pursuant to Article 54.2
which provides:
Where an employee is absent by reason of an injury or an industrial disease for which an award is made under The Workers' Compensation Act, his salary shall continue to be paid for a period not exceeding three (3) consecutive months or a total of sixty-five (65) working days where such
absences are intermittent, following the date of the first absence because of the injury or industrial disease, and any absence in respect of the injury or industrial disease shall not be charged against his credits,.
(2) The period from October 8, 1986, to April 7, 1987, during
which the Grievor was compensated for working days of
absence pursuant to Article 52.1 which provides:
An employee who is unable to attend to his duties due to sickness or injury is entitled to leave-of-absence with pays-as follows:
(ij with regular salary for the first six, (6) working days of absence,
(ii) with seventy-five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days of absence,
each calendar year.
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i (During this period her compensation was partially
supplemented by accumulated credits pursuant to Article
52.6 but this is not relevant to the present grievance).
(3) The period from April 8, 1987, when the Grievor qualified
for coverage under the Long Term Income Protection plan
(L.T.I.P.) under Article 42. However, since the Workers'
Compensation Benefits exceeded those provided by the
L.T.I.P., the Grievor was removed from the Ministry
payroll and began receiving Workers': Compensation
Benefits directly from the Workers' Compensation Board.
The issues in this case relate to the appropriate
compensation or equivalent lieu days for the holidays which fell
within each of these periods.
During each of the first two periods, the Grievor was
recorded as being scheduled off during the statutory holidays
which fell within those periods. She received eight hours pay
for each.such statutory holiday. No credit was provided by the
Ministry for holidays falling within the third period, during
which all compensation was received directly from the Workers'
Compensation Board.
Previous Grievance Settlement Board decisions in this
area have caused concern for other panels and they cause us
concern as well. We are particularly conscious of the comments
of Chairman Shime in Blake et al and Amalgamated Transit Union et
al (1276/87 et al) to the effect that the Board is one entity - --
where a decision by an individual panel becomes a decision of the
Board so that the standard of "manifest error" is an insufficient
basis for departing from earlier decisions. He added:
. . .we recognize that there may be exceptional
circumstances where an earlier decision of this board might [have] to be reviewed. At this point we are not
prepared to delineate what constitutes exceptional circumstances and the fleshing out of that standard will
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; be determined on a case by case basis. The onus will be on the party seeking review to establish exceptional circumstances. (p.9)
While it is tempting'simply to return to the relevant provisions
of the Collective Agreement and ignore the decisions interpreting
them, "exceptional circumstances" have not been demonstrated in
this case. It is, therefore necessary to come to our conclusions
in the context of the relevant earlier decisions of this Board.
Much of the controversy in this area stems from the
decision in Parsons (31178, Pritchard) and its subsequent
interpretation in Charbonneau (544/81, Barton).
While the Parsons case was not specifically argued before
us, it is referred to in other cases which were presented to us
including Charbonneau. In Parsons, the Grievor worked on a
statutory holiday and sought the following compensation:
(1) Eight hours pay under Article 9 (currently Article 48);
(2) Eight hours at time and one-half under Article 19.1
(currently the same Article number but now providing for double
time); and,
(3) Eight hours or a lieu day under Article 19.2 (currently the
same).
The Board concluded that the Grievor was only entitled to payment
under Articles 19.1 and.19.2 and not under Article 9.
It appears as though the Board was seeking the source of
holiday pay in the Collective Agreement and concluded that it
could not be found in Article 9. (Similarly, the current Article
48 makes no reference to compensation but merely sets out which
days are to be considered holidays). The Board then examined
Articles 19.1 and 19.2 which provide:
19.1 Where an employee works on 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 l/4), eight (81, or the
___ ~~~~_ ~~~
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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 rate compensating leave of seven and one-quarter T; l/4) or eight (8) hours as applicable, provided the employee opts for compensating leave prior to the holiday.
Although the Board commented that the wording of the provisions
was less than satisfactory, it concluded that:
. ..the better interpretation of Article 19 is that it is a relatively comprehensive code of entitlement to holiday pay dealing with both persons who are required to work
and those not required to work on statutory holidays.
(p.8)
In other words, every employee is entitled to holiday pay under
Article 19.2 and those who actively work on a holiday are
entitled to the additional payment under Article 19.1.
This interpretation of Articles 19.1 and 19.2 was applied
in Martin (434/81, Delisle). There, the Grievor had been
scheduled to work on a holiday but was prevented from doing so by
a non-work related illness. He received payment for eight hours
but also claimed the payment under Article 19.1 on the basis that
the reference to "regular salary" in Article 51 (now Article 52.1
quoted earlier) meant what he would have earned if he had not
been prevented from working by the illness. The Board rejected
this contention, in effect, limiting the interpretation of
"regular salary" in relation to holiday pay to that provided for
in Article 19.2.
.-
This interpretation of Article 19.2 has been the subject
of criticism in other Board decisions. When section 19 is viewed
in isolation, this criticism is attractive. The words: "In
addition to the payment provided by section 19.1..." suggest that
a payment under Article 19.2 is contingent upon a payment which
is required under Article 19.1. The specific wording suggests
that 19.2 is not to be read as standing alone. On the other hand,
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if the basic objective is to locate the source in the Collective
Agreement for requiring regular pay during a holiday on which the
employee does not work, Article 19 must be read in this larger
context. In our view, that was the basis on which the Board
proceeded in Parsons and we are in agreement with that approach
and consequent interpretation.
In Charbonneau, the majority of the Board disagreed with
Parsons but applied it nevertheless. In the words of
Vice-Chairman Barton:
The Grievor is entitled to eight hours pay or a lieu day under 19.2. I might add that were it not that Vice-Chairman [sic] Pritchard and Delisle seem to accept Article 19.2 asstanding apart from Article 19.1, I would not have so found. (p.8).
However, in addition, the majority interpreted Article 53 (now
Article 54, quoted earlier) as also being the source of regular
holiday pay where it is applicable. We would not have applied
Parsons in this manner. Our view is that if the Parsons
interpretation is adopted, Article 19.2 must be accepted as the
sole source of regular holiday pay. A second source should not
be adopted and applied in addition to Article 19.2.
The facts in Charbonneau are similar to those during the
first period of the case before us. In 1981, Mr. Charbonneau was
originally scheduled to work on April 17 (Good Friday) and April
20 '(Easter Monday). He was injured at work on April 7. A
Workmen's Compensation award was made on April 8. He continued
to be off work through the holidays in question. As indicated
earlier, the majority of the Board held that the ,Grievor was
.entitled to be paid his regular salary for the two holidays and,
in addition, to receive eight hours' pay for each of the days or
compensating time off.
In the absence of the Charbonneau decision, we would
begin with the meaning of "salary" in Article 54.2. Since
Article 54.2 makes no reference to holiday payment, reference
then would be made to Article 19 which does deal with holiday
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payment. According to the Parsons decision, Article 19.2
provides that the salary of every employee is to include eight
(8) hours (in our circumstances) pay or equivalent compensating
leave. In other words, the source of regular holiday pay is not
in Article 54.2 but in Article 19.2 The holiday pay required by
Article 19.2 is applicable to every employee whether that
employee works on the day in question or does not. If the
employee does not work, it is still available equally whether or
not the employee was scheduled to work or whether the reason the
employee was unable to work was because of illness or injury
whether work-related or not.
Nevertheless, we have concluded that the comments of
Chairman Shime in Blake and the reasons of Vice-Chairman
Springate in McDermid (366/83) compel us to apply the Charbonneau
decision to the first period in the case before us. In McDermid,
a unanimous panel of the Board stated:
In Charbonneau, the Board dealt with the very issue now
before us, namely the holiday entitlement of an employee scheduled to work a holiday but unable to do so because of a compensable injury... In the interests of a uniform
approach to the issue, we propose to apply the reasoning in the majority in Charbonneau to the grievance before
us. In doing so, we express no opinion as to whether the reasoning in Charbonneau should be applied to employees who are off work due to a non-compensable illness,
(P.16).
Accordingly, the Grievor in our case is entitled to be paid her
regular salary under Article 54.2 for the statutory holidays
which fell on August 4th and September lst, 1986, as well as the
eight hours pay for each day or compensating leave under Article
19.2.
The issue of the application of Charbonneau to employees
who are off work due to a non-compensable illness arose in
Robertson (641/85) in which Vice-Chairman Springate also
participated. Mr. Robertson was scheduled to work a twelve hour
day on May 20, 1985 which was Victoria Day. However, he was
unable to work that day because of sickness. As a result, he
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received eight hours holiday pay pursuadt to Article 19.2. In
addition, he received four hours sick pa? pursuant to Article 51
(now 52.1, quoted earlier) to cover the e!&ra four hours which he
would have worked had he not been ill.
The Board refused to extend the application of
Charbonneau to require further holiday payments (beyond Article
19.2) under Article 51 (now 52.1):
In McDermid, the Board, in the interests of a consistent
approach to employees off on (workers' compensation, followed the reasoning in Charbonneau. The desire for consistency does not, however produce the same result with respect to employees off work due to a non-work related illness.
We are satisfied that in the instant case we should follow the past understanding o'f 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 1 interpretation of the collective agreement. We recognize 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 work on workers' compensation or because of a non work-related illness. This result, however flows from the fact that the Board, when dealing
with 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 parties who were ill. (pp.lZ-3).
The distinction drawn is between employees off work on Workers'
compensation and those off work due to a non work-related
illness.
In our view, Charbonneau should I. be more narrowly
restricted to the facts on which that decision was made, namely,
to where the holidays in question fall&thin a period to which
section 54.2 applies. In other words, CF!arbonneau should not be
extended to a claim for holiday pay ur!der section 52.1, even
though the injury in question may have been work-related.
Accordingly, the Grievor in our case i?! not entitled to extra
holiday pay or lieu time for holidays fakling within the period
.
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from October 8, 1986, to April 7, 1987, for each of which she has
already received eight (8) hours pay pursuant to Article 19.2.
With respect to the period after April 7, 1987, it
follows that the Grievor is not entitled to extra holiday pay
under Article 42. Is she entitled to regular holiday pay for
this period under Article 19.2? The Board received little
argument on this issue apart from the counsel for the Grievor
taking the position that she was still an employee and counsel
for the employer taking the position that she was no longer on
the payroll. The Board was simply informed that the Grievor
receives a bi-weekly cheque from the Workers' Compensation Board
without any indication as to whether it includes compensation for
holidays and that the payments received exceed those provided by
the L.T.I.P. plan under section 42. In these limited
circumstances, we are unable to make an order for payment under
Article 19.2.
In sum, the grievance succeeds but only in relation to
the two holidays falling within the period to which Article 54.2
applies. The Grievor is entitled to her regular salary for those
two days in addition to the eight (8) hours pay already received
for each of those days. In all other respects, the grievance is
dismissed. We will remain seized of this matter in the event
that the parties are unable to agree upon the actual monetary
compensation and/or compensating leave owing to the Grievor.
DATED at Ottawa this 29th day of Xieptember;~1988.
I. Freedman,