HomeMy WebLinkAbout1987-1815.Mandar.88-07-20EMPLOY& DE LA CO”RONNE OEL’ONTAR,O
CQMMISSION DE
REGLEMENT
DES GRIEFS
Between:
1815/87
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPiOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (H. Mandar)
Grievor
- - The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
Before:
For the Grievor:
G.J. Brandt Vice Chairman
J. McManus Member
C. Linton Member
R. Ross Wells
Counsel
Gowling & Henderson
Barristers and Solicitors
For the Employer: J.F. Benedict
Manager
Staff Relations and Compensation
Ministry of Correctional Services
Hearing: April 18, 1988
DECISIOIJ-
This grievance claims that the employer vi0 lated the
collective agreement by “denying me the accumulation of eight
hours of lieu time credits for the holiday on August 3, 1987."
2
The specific relief requested is “that an adjustment be made to
my accumulated lieu time credits and my attendance credits, that
eight hours be added to my lieu time credits and that eight hours
be deducted from my attendance credits.”
The facts are not in dispute and may be summarized as
follows. The grievor is employed as a Correctional Officer at the
Metro West Detention Centre. He was scheduled to work an 8 hour
shift on August 3, 1987, which is one of the holi
in Article-,-~48 of the collective agreement.
certainmedical problems he was hospitalised for
days referred to
As a result of
the period from
August 1 to August 9, 1987 and was, consequently, unable to work
his scheduled shift on the holiday.
He was paid eight hours pay at straight time. There is some
dispute between the parties as to the basis upon which that
payment was made. The Union takes the position that it was made
pursuant to Article 19.2 of the agreement. The Employer takes
the position that Article 19.2 has no application in the case
where an employee does not actually work on the scheduled
holiday. In view of the result in this case it is.unnecessary to
deal with this issue. It is sufficient to note that in the cases
which have come before the Board on the application of the
holiday pay provisions it has generally been assumed that payment
3
of holiday pay for employees not scheduled to work derives from
Article 19.2. The only exception to that is Rw 730/83 where
the Board reasoned that, since Article 19.1 clearly applies only
where employees actually work the holiday, and since Article 19.2
begins with the words “in addition to the payment provided by
section 19.1. .I’, it must follow that an employee cannot qualify
under Article 19.2 unless and until he or she has qualified under
Article 19.1.
It is unnecessary for us to address this question since
there is no dispute here as to whether the grievor was entitled
to the holiday pay which he received. Rather the dispute is
whether or not, in addition to that holiday pay, he ought also to
have been given the benefits provided for under the short term
sickness benefit plan in Arti.cle 52. Article 52 provides that
- -
“an employee who is unable to attend to his duties due to
sickness or injury is entitled to leave of absence with pay
for the first six (6) working days of . ..with regular salary
absence. ‘*
Since August 3rd fe
the
Art
art
for
11 within the first six worklng days of
grievor’s absence commencing on August 1st it is claimed that
cle 52 applled and that he should be compensated under that
cle in addltion to his entitlement to the benefits provided
under Article 19.
The issue of the entitlement of an employee to both holiday
payment under Article 19 and benefits under the sickness plan or
benefits payable as a result of a compensable accident has arisen
. 4 5
in a number of other cases before the Board. Thus, the issue as
to whether or not an employee may claim hoiiday payment under
Article 19 in circumstances where he or she is unable to work as
scheduled for reasons of illness has come before the Board in the
following cases. (CooDer, 145/77, Martin, 434/81, Robertscn,
641/85, and Berasma, 126/86 I A similar issue has arisen in
situations where the employee is unable to work the scheduled
holiday because of a compensable accident. (Cm, 544/81,
-4, 366/83, and Walberq, 704/85)
The problem which arises in these cases is that the Board
has reached different conclusions depending on whether or not the
inability to work th.e scheduled holiday derives from an illness
or from a compensable accident. In the “illness” cases, the
Board has -held that an employee who is scheduled to work the
holidaybut does not actually work it is entitled only to the
holiday pay under Article 19.2 and no more. In the “accident”
cases the Board has treated the holiday pay provisions and the
benefits provided under Article 54 in respect of Workers’
Compensation as independent of each other such that they may be
enjoyed simultaneously.
Counsel for the Union argues
taken by the Board in these two lines
and irreconcileable. Specifically
that the different approach
of cases is both irrational
t is claimed that, while a
distinction may legitimately be maintained between employees who
work the holiday and those who do not, a distinction which it is
submitted is reflected in Articles 19.1 and 19.2 respectively, a
further distinction between employees who do not work the holiday
for reasons of illness and for reasons of accident, cannot be
defended. Thus, it is claimed that no intelligent distinction
can be drawn between the employee who, for example, sprains an
ankle at work and is unable to work a scheduled holiday, and the
employee who sprains an ankle at home and is equally disabled
from working the holiday.
In short, it was submitted that this Board should reconcile
these two lines of cases by applying the wbonneu line of
cases to the situation of an inability to work a scheduled
holiday for reasons of illness and to treat the Martin line of
cases as w_rongly decided.
In reviewing the earlier lVillness” line of cases It is clear
- ._ that they.do not expressly address the issue which has been
brought before this panel. In both Martin and in COODer the I
claim was for holiday payment under Article 19.1 in addition to
that which was paid the grievor under Article 19.2. In both cases
the claim was dismissed for the reason that, in order to qualify
under Article 19.1, i t was necessary for the employee to “work”
the holiday. Thus, nei ther of those cases really addresses the
claim which is made here, viz, that there is an entitlement to
the sickness benefit over an
19.2
However, in the later “1
above the holiday pay under Article
llness” cases, Bobertson and Berasma
the claim made was for payment under the sick leave provisions.
Furthermore, they are cases which, unlike Martin and Coooer, were
6
decided after the decision of the Board in Charbonneau and
McDermid and which therefore had an opportunity to consider the
application of that line of cases to the situation of an employee
unable to work a scheduled holiday for reasons of illness.
Indeed the panel in Robertson was chaired by the same vice
chairman as that which had earlier decided ~&E?L&&.
In each . of Robertson and E!~JIEL the Board considered the
anomaly created by the two lines of cases. Yet in neither case
was the Board prepared to correct that anomaly. As the Board
stated’ in Robertson
” . . ..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; 3wwever;
flpws 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 employees who were ill.”
Similarly, in w the Board, after reviewing the cases
stated :
n . ..At first blush there seems to be a difference in
which the older cases (especially -1 and the newer
cases (wonneau have decided the issue. . ..However.
nartin and Charbonneau are not irreconcileable as long
as Cbarbonneau is limited to W.C.B. cases. For non-WCB
cases, the principles in partin should still apply in
that the arguments made by the Union in this case
mirror their arguments in &&ln. These arguments were
rejected in Martin, and for the purpose of maintaining
certainty in the field of labour relations, nartin
should be followed.
?-
; 7
We agree with counsel for the union that there is no
rational basis upon which the distinction in the two ,lines of
cases can be maintained. However, we are also unpersuaded that
the approach taken by the “illness” cases is manifestly wrong and
should therefore be overruled. The Board has frequently stated
that, in the interests of promoting certainty and guidance to the
parties in the administration of the collective agreement, it
ought not to depart from its earlier decisions, except where they
are “manifestly wrong”.
A similar attempt was made by the employer in McDermiP to
persuade the Board to overrule its decision in charbonneau. The
Board declined, stating that the fact that the Board had reached
a different interpretation of the collective agreement in the
“illness” _~i cases was not by itself a suf f ici,ent basis for
- - concluding that its decision in B was manifestly wrong.
Rather the Board stated that, given the lack of clarity in the
collective agreement, the issue was such that the Board could
give the agreement different, yet reasonable interpretations and
that, considering that the Board in Charbonneau had dealt with
the very issue before it in mermid., it would be unwise for the
Board to reach a different conclusion than that reached in the
earlier case.
In the case at bar there are two prior decisions, IQ&&G&D
and Rerasma, 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
8
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 are we reluctant to overrule Bobertson and
BerclSma. 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.
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.
Consequently, we regard the matter before us to be disposed
of in the sFme manner as the Board has dealt with this issue in
&&rt&n ax in pe:rasma. In the result the grievance is
dismissed.
Dated at LONDON, Ont. this 20th day of JU~V . 1988
G. J. Brandt, Vice Chair
kr, @wAQ.
-Attached)
J. McManus,~Member
I
c. Ikton, Member
ADDENDUM
1815/87
I have read the final award in this matter and I have concurred
with the majority, but with a certain amount of reluctance,
after having read the dissent of Mr. L. Robinson in Martin
434/81 (Delisle) I find myself with a great deal of sympathy -------
with the argument proposed therein. My concurrance, therefore,
is basd soley on the past practice of the board of not departing
from earlier decisions except when they are "manifestly"
wrong.
Vice Chairman Brandt at page 8 states "as noted above we
agree the the result is anomalous, however, the remedy to
correct that anomaly must lie with the parties." ---_------~~-----~-~~-----
Also Bergsma__;l26/86 Vice Chairman Fisher notes "there comes
a point-in l&gating an issue when enough is enough". I
believe this could apply to this line of cases, perhaps as
suggested above the remedy lies with the parties, at the ------
bargaining table, that to me is where this inconsistancy --- ------------
should be addressed and a final solution found.
J.D. MCManus -