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HomeMy WebLinkAbout1987-2594.Union et al.88-07-25EMPLOY& DE LA COURONNE OEL’ONTARIO CQMMISSION DE REGLEMENT DES GRIEFS 2594167, 14/88 IN THE MATTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: OPSEU (Union, et al) and The Crown in Right of Ontario (Ministry of Correctional Services) J.W. Samuels Vice Chairman I. Freedman Member M. O'Toole Member C. Paliare Counsel Gowling & Henderson Barristers & Solicitors For the Employer: M. Farson Counsel Sanderson, Laing Barristers & Solicitors Hearing: July 6, 1988 Grievor Employer 2 ,* DECISI,ON : Article 52.1 provides for a short term sickness plan as follows: An employee who is unable to attend to his duties due to $ickness or injury is entitled to leave-of- absence with pay as follows. [i) with regular salary for the first six 16) working days of absence, (ii] withseventy-five percent(75%lof regular ?&XV for an additional one hundred and twenty-four (124) working days of absence, in each calendar year. Article 52.6 then goes on to provide a method whereby an employee can top up the 75% of salary set out in Article 52.l(ii), if the employee has “accumulated credits”. Article 52.6 reads: An empkwae w, leaveof-absence ~1333 subsection 52.lCfi) of this Article may, at his option, have one- quarter 04) of a day deducted from his accumulated credits. (attendance. vacation or overtime credits) for each such day of absence and receive regular Pay. The issue in this case is whether or not Article 52.6 enables an employee to use credits accumulated under Articles 19.2, 19.3 and 19.4 (compensating leave for statutory holidays worked). The Union argues that any “accumulated credits” may be used under Article 52.6. The Ministry argues that only the three types of credit mentioned within the brackets can be used to top up the sick leave benefits. Under the collective agreement, an employee can accumulate leave credits under several articles---Article 13 (as compensating leave for overtime), Article 47.5 (for unused vacations), Articles 3.8.1 and 3.31.1 (attendance credits for unclassified .staff and seasonal employees), and Article 19.2:19.4 (as compensating leave for statutory holidays worked). In each case, these credits are never lost. With respect to the credit for unused vacations, the employee must reduce’ the ‘accumulation to a maximum of one year’s accrual by .December 31 of each year (Article j 47.5). Unused~ compensating leave for overtime in a calendar year will be paid out on March 31 of the following year (Article 13.6). Accumulated attendance credits are paid out on termination (Article 53.1). And unused compensating leave for statutory holidays worked.in a calendar year is paid . 3 ,! ;, : out on March 31 of the following year (Article 19.5). Thus, once these credits are accumulated, their value is vested in the employee and will be materialized according to the collective agreement. Can the employee use Article 19 credits to top up sick leave benefits sunder Article 52.6? In our view, the answer is “yes”. Article 52.6 is not elegantly drafted, particularly with the insertion of the comma before the critical bracketed section “(attendance, vacation or overtime credits)“. But what seems most important to us is that, if the parties had intended to permit the use of these three credits &y , thenthey would have said “......may at his option, have one quarter (l/4) of a day deducted from his attendance, vacation or overtime credits...“. There is simply no point in adding the words “accumulated credits”, and then putting the three particular types of credit in brackets, unless the parties intended to add meaning by adding words. The most reasonable interpretation of Article 52.6 is to consider the contents of ‘the brackets as examples of the “accumulated credits” which can be used to to? up the sick leave benefits. Thus, we accept the Union’s interpretation of Article 52.6 and we so declare. Henceforth, an employee may use credits accumulated sunder Article 19 to top up sick leave benefits, pursuant to Article 52.6. Having come to this conclusion, we remain uncertain why this matter ever came to arbitration. The employees really gain very little from our ruling. They get no greater financial benefit. The Article 19 credits were always there for their use or would be received in payment under Article 19.5. Now, instead of waiting for this payment until March 31 of the following year, in some cases, an employee may be able to take out some of the credit as top-up under the sick leave plan, And our ruling would appear to be of little real importance to, the Ministry. Now the Ministry will have to pay out some of the Article 19 credits a bit earlier. However . 4 ~6 .; one looks at it, there appears to have been very little at stake in this case, either in principle, or in monetary terms. Done at London, Ontario, this 25th day of July , 1988. uels, Vice-Chairman I. Freedman, Member OlyA fi. O’Toole, Member P