HomeMy WebLinkAbout1988-0900.Tichinoff.90-01-09900/88
IN THE MATTER OF AN ARBITRATION
Under
TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
OPSEU (Tichinoff)
Grievor
- and -.
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
J.D. McCamus
J. Anderson
I. Cowan
Vice-Chairperson
Member
Member
For the Grievor: M. Bevan
Grievance Officer
Ontario Public Service
Employees Union
For the Emplover:
M. Galway
Staff Relations Officer
Ministry of Correctional Services
Hearinq: January 20, 1989
DECISION
2
This grievance raises a relatively narrow question of
interpretation of the Collective Agreement. The grievor claims
entitlement to sick pay benefits during a period of time when she
was on a leave-of-absence without pay. Thus, the Board.is required
to determine whether an employee who has been granted leave-of-
absence without pay status under Article 29..1 of the Agreement
remains entitled to sick pay benef'its under the Short Term Sickness
Plan set out in Article 52 of the Agreement, notwithstanding the
fact that such an employee may be said to have withdrawn from
active employment status.
The facts underlying the present grievance are not in dispute.
The grievor 1-s a Probation/Parole, Youth Worker employed by the
Ministry in Timmins, Ontario. On April 20th, 1988, the Grievor
filed an Application for leave-of-absence without pay to commence
May Sth, 1908 and to conclude on June 30th, 1908, (Exhibit 2). As
the application form itself indicated, the Grievor's purpose in
seeking leave was to be able to look after her children during a
period of time which constituted a gap between the completion of
the contract of employment of a domestic care worker who was until
then employed by the Grievor, and the commencement of the period of
employment of another individual to be employed by the Grievor for
this purpose. Although no evidence was lad on this point, we do
not question that the Grievor determined to provide'care herself
during this period rather than to employ a short-term third
3
employee during this period for reasons which 'were good and
sufficient from the Grievor's perspective. Accordingly, the
circumstance6 of the application for leave may be said to be
attractive or, indeed, compelling. On the application forin itself,
the applicant is required to indicate the "type of leave"
requested. The Grievor- ticked the box marked "Discretionary", as
is indeed appropriate when a leave-of-absence without pay is
requested pursuant to Article 29. That Article provides:
29.1 Leave-of-absence without pay and without the
accumulation of credits may be granted to an
employee by his Deputy Minister.
In due course, the application was granted by the Deputy Minister
and the Grievor commenced the period of leave-of-absence without
pay on May Sth, 1900. On June 15th, 1900, the Grievor suffered a
back injury. ,-Although no evidence was led on this point, it was
asserted on the Grievor's behalf that the injury incapacitated the
Grievor, and prevented her from being able to look after her
children. This statement was not challenged in these proceedings
by the Employer. Sometime thereafter (though the precise date is
not agreed to by the-parties, it is agreed that this event occurred
during the course of the leave-of-absence), the Grievor contacted
the Employer and sought to cancel the leave-of-absence without pay
and to apply for short-term sickness benefits pursuant to the
scheme set forth in Article 52, of the Agreement. The material
provisions of Article 52 stipulate as follows:
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:
52.2
4
(i) 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.
in each calendar year.
An employee is not entitled to leave-of-absence with
pay under section 52.1 of this Article until he has
completed twenty (20) consecutive working days of
employment.
. . . .
The Employer. denied the Grievor's claim for sickness benefits at
this point on the stated ground that she was then on an unpaid
leave-of-absence. The Employer did state, however, that the
Grievor would be eligible for short-term sickness benefits once the
leave-of-absence without pay expired on June 30th, 1988. In due
course, the Employer acted on this view and placed the Grievor on
short-term sickness benefits as of June 30th, 1988. The Grievor
received such benefits from that point in time until. she returned
to work on August.2Oth, 1988. Although the substance of the issue
in dispute thus relates to an entitlement for sick pay only for a
relatively abort period, of nine working days, the principle in
.issue is obviously one which is of potentially 'considerable
significance.
.On behalf of the Grievor, it has been argued that there are
essentially two issues raised by this dispute. First, it must be
determined whether an individual who is on a leave-of-absence
without pay pursuant to Article 29 of the Agreement possesses a
5
unilateral right to cancel that leave-of-absence. Second, and we
wish to signal our concern that this may well not be an independent ..-
issue, the question is raised as to whether employees on a leave-
of-absence without pay pursuant to that~ Article are eligible for
short-term sickness benefits under Article 52 of the Agreement.
On behalf of the Grievor, the Union has urged upon us that an
affirmative answer should be given to both of these guestions.~ We
consider them in turn.
A. Does an individual on a leave-of-absence without pay possess
a unilateral right to cancel that leave?
The answer to this question turns, in our view, on the
essential nature of the status of leave-of-absence without pay as
it- is envisaged in Article 29.1 of the Agreement and, as well, on
the practical implications of the view contended for by the Union
in this case. More particularly, we.note that the granting of
Leave-of-absence without pay status by the Employer is entirely
discretionary as far as the Agreement itself is concerned. There
is no meaningful sense in which an employee may be said to be
~~entitledq~ to this status, however long or short the employment
history of the particular employee and no matter how compelling or
compassionate the circumstances giving rise to the request. We do
not wish to be taken to have adopted the view that there is no
possible means of reviewing an arbitrary or capricious exercise of
the discretion conferred upon the Deputy Minister by Article 29.
6
It is simply unnecessary for us to consider this point.
Nonetheless, it is clear that the Agreement in itself does not .'
confine or structure this discre.tion in any way. Moreover, there
are obvious practical reasons for the discretionary character of
this arrangement. A unilateral right on the part of the employees
to opt for leave-of-absence without pay status could be extremely
disruptive of the organization of the work place. It is
understandable that the Employer might find it quite unattractive
to be unable to assume that its regular employees will be available
for work on a continuing and indefinite basis. Intermittent and
unpredictable absences would complicate the task of organizing the
Ministry's work in a variety of ways, including the need to hire
short-term employees to fill in for those who had opted for leave-
of-absence wi.thout pay status, the need to adjust the work load of
other employees and so on. Thus, while it is not impossible to
conceive of provisions in a collective agreement that might
constrain the exercise of a discretion of this kind or. in some
other way create entitlements of some kind to this status, it is
not particularly surprising that the present Collective Agreement
does not appear to do so.
In exercising its discretion to grant applications for leave-
of-absence without pay, the Employer may take into account a range
of factors which might include such considerations as the
Employer's ability to satisfactorily reorganize its workload in
light of the length of time requested, the feasibility of hiring
a short-term employee or reorganizing the workload of others, the
time of year for which the leave is requested, the implications of
this latter fact with respect to the workload of the particular
unit, a concern for consistency in the granting or holding of such
applications and, perhaps, the length of service of the employee
making the application and, of course, the degree to which the
circumstances surrounding the request are compassionate or
otherwise compelling in nature. At the risk of belabouring the.
obvious, it may be noted that the salary forgone by the employee
on leave-of-absence witbout pay may well be absorbed by the costs
associated in ensuring that the absent employee's responsibilities
are discharged by other means. Indeed, it is conceivable that the
cost of providing service through other means may be greater than
the wages that would otherwise have been paid to the employee on .-
leave and this is, no doubt, a consideration that might be taken
into account by the Ministry in determining whether or not-to grant
a particular application for a leave-of-absence without pay.
For similar reasons, in our view, it would be unattractive
from a practical point of view for employees who have been granted
the status of leave-of-absence without pay to have a unilateral
right to cancel that leave and return to full employment at a date
of their choosing. Thus, where the Employer has adjusted for the
absence of the employee by hiring an additional employee or by
adjusting the workload of another employee and promising
compensation therefor, it would be unattractive to be required to
7
8
not only absorb such costs flowing from the leave-of-absence but,
as well, to pay the full wages of the employee who was expected to
be on leave without pay. Indeed, it would be sufficiently
surprising for the Employer to agree to such an arrangement that
we are disinclined to find that such a right is conferred upon
employees by the Collective Agreement in the absence of any
specific language to this effect. In fact, however, the Agreement
is completely silent on the question of the cancellation,
termination or expiration of leaves-of-absence without pay. In the
absence of contractual language on this point, we therefore believe
that the reasonable interpretation of the Agreement is that no such
unilateral right of employees to cancel or terminate leaves-of-
absence without pay is conferred by it.
.-
No doubt, there may well exist circumstances where~an employee
wishes to t~erminate or cancel a leave-of-absence without pay and
where the Employer would have no substantial reason for refusing
to do so. Moreover, it is not impossible to imagine in general
terms the nature of contractual language that might have as its
purpose the structuring of a discretion to permit cancellation of
such leaves or, indeed, to create, in effect, a right to cancel.
Again, however, in the absence of language to this effect, we are
unable to find a home in the Agreement for a right to cancel a
leave status which is limited or circumscribed by considerations
of this kind. Indeed, the claim made by the Union is simply that
in the absence of contractual language to the contrary, employees
9
should be presumed, in effect, to have a unilateral right to cancel
leave-of-absence without pay status. For the reasons outlined
above, we are of the view that the preferable interpretation of the
Agreement is that a presumption should be made to the contrary.
Accordingly, it is our conclusion that employees do not enjoy
a unilateral right to cancel or terminate leaves-of-absence without
pay conferred by the Deputy Minister under Article 29 of the
Collective Agreement.
B. Are employees on leave-of-absence without pay under Article
29 entitled to claim, short-term sickness benefits under
Article 527
As indicated above, it is not clear to us that. formulating the
issue between the parties in this second manner raises a question
which is independent from that considered above, that is, the
question of the existence of a unilateral right of the part of the
employees on leave-of-absence without pay to unilaterally cancel
such a leaves. Indeed, in the submissions made by the Union on the
Grievoris behalf, it appeared to be the Union's assumption that a
claim for short-term sickness benefits under Article 52 would be
coupled with or premised upon a cancellation of leave-of-absence
without pay status. The first objection to be made to the claim
made here for such benefits, then, is that it is inconsistent with
the view that we have taken above, that is, that employees do not
possess a unilateral right of cancellation.
10
Again, apart from the fact that there appears to be no support
for the theory advanced by the Union in the Collective Agreement,
there are some practical impediments to adopting the theory
advanced in supportof this grievance. The Union's theory might
concisely be characterized as ~lcancellation of a leave-of-absence
without pay for the purpose of claiming sick pay benefits". While
it is clear that, from the Union's perspective at least, this
theory might function satisfactorily in the context of the present
claim where the employee became ill during the leave-of-absence
without pay and remained ill for its duration and then, indeed, for
a further period of time, it is not at all clear how the Union's
theory would apply in a case where the illness was of a short term
duration during the middle of an extended leave-of-absence without
pay. This ppint was not addressed in arguments. Presumably,
however, the Union might take the view.that an individual ought to
be able to cancel the leave-of-absence during the period of illness
and then reinstate himself or herself unilaterally on leave-of:
absence without pay status once he or she has recovered from the
illness. Alternatively, the Union might take the point of view
(which is less attractive from the employee's perspective) that
once having unilaterally elected to return to normal employment
status, if only for the purpose of collecting sick pay benefits,
the employee must be taken to have waived any right to further
enjoyment of the leave-of-absence without pay status. For obvious
reasons, there are practical problems with either of these
approaches and, again, it is not obvious to us that either of these
? 11
approaches can be read into the Collective Agreement in the absence
of.some explicit language to this effect in the Agreement itself.
This confirms us in the view that the Agreement is not properly
interpreted as providing a unilateral right to opt in and out of
leave-of-absence without pay status.
Notwithstanding these difficulties, the Union has argued that
previous jurisprudence of. the Grievance Settlement Board
establishes the existence of a general right on the part of
employees to substitute one type of benefit for another and
further, that this proposition can be applied in the present case
to enable an employee to substitute the benefit of short-term
sickness under Article 52 for the benefit of leave-of-absence
without pay u,nder Article 29. The principal authority relied upon
by the Union for this proposition is OPSEU (Lambert & Slauahtl and
Ministrv of Correctional Services 2615/86, a decision of Vice-
Chairperson Verity dated March E&h, 1988.
Before considering the merits of the Union's submission in
this regard, it will be useful to set out the holding in that.case
and the factual context within which it arose in some detail. In
Lambert 8 Slausht, the grievors sought sick pay for days on which
they were ill but which had previously been scheduled for
compensating leave or lieu days. Article 19 of the Agreement,
which provides for holiday pay, stipulates in paragraph 19.1 that
employees who work on holidays shall receive double the hourly rate
i 12
for hours worked~on the holiday, and in 19.2, that they will also
receive-an additional day's payment or a day of compensating leave.
Article 19.4 then provides that compensating leave accumulated
under the Article may be enjoyed at a time mutually agreed upon or
in conjunction with the employee's vacation leave or regular days
Off. The grievers had both worked on statutory holidays and had
accumulated lieu time credits under Article 19.2.
In the case of Mr, Lambert, the grievor had made a request to
take compensating leave on December 17th and 18th, 1986. That
request was granted on December 5th, 1986. On December Sth, 1986,
Mr. Lambert became ill and was absent from work due to illness from
December 9th until December 26th, 1986, returning to work on
December Jlst, 1986. The grievor was paid sick pay for, the days
of his absence except for December 17th and 18th. On those days,
he was paid on the basis of compensating lieu time and the two days
of lieu time where therefore deducted from his balance of lieu time
credits. The facts of Mr. Slaught's grievance were similar in
material respects.
Requests made by the grievor8 to return the credits thereby
absorbed to their lieu time banks was denied~by the Employer on the
theory that once the employee had opted for lieu time, the
arrangement could not be altered simply because the employee in
question had become ill and remained so on the days for which lieu
time had been scheduled. In the Employer's view, once the days in
,r
I 13"
question had been scheduied as lieu days, they were no longer work
days for purposes of entitlement to sick leave payments under
Article 52. )
In rejecting the kmployerls submissions, the Board was
I obviously impressed by the Union's submission that to allow the
I Employer's argument to prevail would have the effect of denying
I the grievers the enjoyment of benefits they had earned through
working on statutory holidays. The Board noted that in previous
cases it had been established that employees who had been scheduled
to work on holidays, but were unable to do so for reasons of
illness, were nonetheless entitled to holiday pay, including
entitlement to compensating leave. The Board went on to state that
(at P. 12): .
"In the, instant grievances the Board is of the opinion that the grievors have subm'itted a more compelling claim
to full recognition/ of lieu day entitlement than in
Charbonneau, due to the fact that they actually worked
the statutory holiday in order to earn the compensating
leaveV1. I
The Employer had further argued that allowing these grievances
i would infringe Article 21:l of the Agreement which provides that
I there shall be no duplication or pyramiding of any premium payments
or compensating leave provided by this Agreement. The Board
agreed, however, with the IUnion's submission that holiday pay and ,,
sick pay were independent benefits intended to serve quite
different purposes and acco,rdingly, that the anti-pyramiding policy
,z 14
would not be offended by allowing an employee to substitute
entitlement to sick pay for days which had been previously
scheduled for compensating leave., The Board noted that holiday
pay, including compensating leave, is designed to P1compensate the
employee at a bonus rate for work performed on a holiday" (at p.
12, quoting Vice-Chairperson Swinton in m and the Mini&r-v of
Communitv and Social Services, 116/78 at p. 5). The Board then
characterized the purpose of sick pay as follows (p. 13):
On the other hand, the sick pay plan is to provide
earnings relief in periods of incapacity caused by
illness or injury. Sick pay is in- the nature of an
indemnification for loss of earnings due to incapability
to attend work due to illness or injury.
The Board further noted that "Clearly, holiday and sick pay are
benefits intended to serve quite different purposes.
._.
Finally, the Board turned to what it considered to be the
essential issue in the case, that is "the proper characterization
of the absence - whether or not the grievor Lambert was on
compensating leave or sick leave on December 17th and 18th,
1986..." (p. 14) In the case of both grievers, they had been
absent for extended periods of time both prior to and after, the
days scheduled for compensating leave. The Board reasoned that
the fundamental reason for the grievers' absences from work on the
days in question was illness in Lambert's case. and injury in
Slaught's, not because of compensating leave. The Board then
concluded as follows (p. 15):
Wompensating leave is a significant employee benefit which
must not be denied in the absence of wording to the contrary
r
15
in the Collective Agreement. To accept the Employer's
position would.in effect penalize the grievors on account of
illness, and injury. We would adopt the Union's contention
that the grievers should not be placed in a worse position
than they would have been in had compensating leave not been
scheduled.11
In summary, then, the Board's position in Lambert & Slausht
appears to establish that an employee who has applied for and has
been granted lieu days and who then becomes ill and unable to work
on those days is entitled to substitute for those lieu days a claim
for sick leave benefits. Although it has been urged upon us in
this case by the Employer that this decision is currently subject
to judicial review, we are quite prepared to accept for purposes
of resolving the present matter that the decision in.Lambert &
Slausht is correct. The question before the present Board, then,
is whether that decision is applicable to the present fact
situation. For the reasons we shall set forth below, is our view
that it is not.
In the present case, the Union argues in effect that Lambert
& Slauaht stands for the proposition that employees have a general
right, unless the right is denied by express language in the
Agreement, to substitute sick pay for other types of benefits. In
Lambert h Slaucrht itself, sick pay was substituted for lieu time.
In the present case, the grievor simply wishes to substitute sick
time for leave-of-absence without pay.
16
In our view, no such general proposition is established by
the Lambert & Slaucfht case. Rather, in each instance in which a
conflict or potential conflict of this kind arises, the Board must
pay very close attention to the nature and objectives of the
benefit for which the grievor wishes to substitute a claim for sick
pay. Thus, in Lambert & Slauaht itself, the Board very carefully
analyzed the nature of lieu time benefits. Indeed, a critical
feature of the Board's reasoning in that case was that it felt that
failure to allow the grievance would have the effect of depriving
the. grievers of the benefits they had fairly, earned under the
Collective Agreement by working on statutory holidays. In the
present case, the nature of the benefit for which the grievor seeks
to substitute entitlement to sick pay is very different from
holiday pay. ,-First, it may be noted that the status of leave-of-
absence without pay' is not something to which an employee is
entitled under the Agreement or which the.employee earns under its
provisions. Rather, and for the reasons we have articulated above,
the granting of the benefit of'leave-of-absence without pay under
Article 29 is entirely discretionary in character.
More importantly, the status of leave-of-absence without pay
is one which by its nature amounts to a waiver of entitlement to
earnings for the period of'time in question. Indeed, the applicant
for leave-of-absence without pay seeks the benefit of a period of
time during which there is no obigation to work and
correspondingly, no obligation on the part of the Employer to pay
17
wages. A person who has waived his or her right to earnings is
not,. in our view, in a position to claim entitlement to sick pay
which, as the Board noted in Lambert & Slausht, has as its purpose
the provision of "earnings relief in periods of incapacity caused
by illness or injury" (p. 13). In the language of Article 52.1,.
sick pay benefits are extended to "an employee who is unable to
attend to his duties due to sickness or injury....q* An employee
who has applied for.and been granted a leave&of-absence without pay
status has no l~dutiesl~ during that period. This, indeed, may be
said to be the point of the exercise. In this sense, we believe
that the Grievor's claim to entitlement to sick pay benefits is
inconsistent with the Grievor's status of being onleave-of-absence
without pay.
._
Finally, one further argument made by the Union must be
considered. In support of the general proposition that employees
ought to be able to enjoy such benefits as sick pay benefits during
a period of time on leave-of-absence without pay, the Union has
noted that a number of other benefits may be enjoyed by an employee
during such a period. Thus, on- the application form itself
(Exhibit 2), the applicant for leave-of-absence. without pay is
invited to indicate whether he or she wishes to pay the insurance
premiums for various insured benefit plans including OHIP, Vision
Care, Dental, LTIP, and so on. Further, the Union notes that
Article 56.1, which creates an entitlement to death benefits would
appear to be applicable to employees who die while on leave-of-
r:
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absence without pay. Article 56.1 provides as follows:
Where an employee who has served more than six (6) months
dies, there shall be paid to his personal representative or,
if there is.no personal representative, to such person as the
Commission determines the sum of,
(a) one-twelfth (l/12) of his annual salary; and
(b) his salary for the period of vacation leave-of-absence
and overtime credits that have accrued.
If an employee on leave-of-absence without pay can have the benefit
of certain insured plans and indeed of a benefit created by the
Agreement itself in Article 56.1, why then, the Union asks, can
such an employee not be entitled to sick pay benefits as well? The
answer, in our view, is that these various benefits are different
from sick pay benefits in ways that are material to determining
whether or not an employee on leave-of-absence without pay can
claim an entitlement to sick pay benefits during that period. That
is, to say, we see no inconsistency between denying sick leave but.
allowing employees on leave-of-absence without pay to pay the
insurance premiums on and retain the benefits of certain insurance
plans or to retain the advantage of death benefits which appear to
require in the words of Article 56.1 only that the claimant be "an
employee who has served more than six (6) months". With respect
to the latter point, we are prepared to assume for the sake of
argument that an employee who is granted the status of leave-of-
absence without pay for a period of time remains an "employee" for
these purposes. Further, we see no reason for interpreting an
employee's request to spend a period of time on leave-of-absence
without pay as carrying with it an inherent decision to forfeit an
19
entitlement that would otherwise exist to death benefits. As we
have indicated above, we take a different view with,respect to the
interchangeability of sick pay benefits and leave-of-absence
without pay. In our view, to recoqnfze the inconsistency of
inherent in such substitution is merely to. recoqnize that a
successful application for leave-of-absence without pay status
results in the applicant forfeiting the right to wages for a period
of time and as well, the corresponding right to substitute sick pay
benefits for wages that ,would otherwise be earned. While we
acknowledge, then, that there are other types of benefits that
remain available to the employee during a leave-of-absence without
payI we nonetheless conclude that sick pay benefits cannot be
counted amongst them.
In summary, then, it is our view that employees who are on
leave-of-absence without pay do not possess a unilateral ricjht to
opt back into full employment status at their convenience prior to
the termination of the period of time for which the leave was
granted. Similarly, they do not possess, we believe, a right to
opt back into full employment status and then back on leave-of-
absence without pay status in order to facilitate the making of
claims for periods of illness during their period of time on leave-
of-absence without pay. Further, it is our view that the holding
in Lambert & Slausht to the effect that employees who are ill
during days when cpmpensatinq lieu time has been scheduled may
substitute sick pay benefit claims for those lieu.days does not
20
reach the present fact situation because of the inherent
differences between holiday pay (including lieu days) and leave-
of-absence without pay under Article 29.
For these reasons, then, the present grievance is hereby
dismissed.
Dated at Toronto this 9th day of January , 19: .>
Il.../ J. Anderson, Member
I. Cowan, Member