HomeMy WebLinkAboutUnion 07-01-18IN THE MATTER OF AN ARBITRATION
Between:
ROYAL OTTAWA HEALTH CARE GROUP
(the "Hospital ")
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 479
(the "Union ")
and in the matter of various grievances claiming parental leave top -up under Article
15.05(b) of the collective agreement.
Russell Goodfellow — Chair
John Russell — Hospital Nominee
Pamela Munt - Madill — Union Nominee
Appearances for the Hospital:
Russel W. Zinn, counsel
Catherine Thomas
Huguette Chevrier
Appearances for the Union:
Eric O'Brien, counsel
Paul Sharkey,
Marlene Rivier
Dianne Blackburn
Marne Colter
Hearings were held in this matter in Ottawa on May 12 and 18, 2005 and November 20
and 29, 2006.
AWARD
This award arises out of various individual grievances alleging an
improper denial of supplementary unemployment benefits pursuant to Article 15.05(b) of
the collective agreement. In addition to the claims asserted in the grievances, the Union
also advanced claims in respect of leaves taken by a number of employees for which no
formal grievances had yet been filed and which, if filed now, would be outside the time
limits prescribed by the collective agreement.
It was the position of the Union that there was no collective agreement
limit on the number of weeks for which parental/adoption leave top -up benefits were
required to be provided and, therefore, that they were payable for the full period for
which the basic benefits were provided by statute, i.e. 35 weeks. It was the position of
the Hospital that the agreed -upon limit of 10 weeks had been mistakenly omitted from the
language of the agreement and that the doctrine of rectification applied to correct that
defect. The Hospital also raised timeliness objections to many of the grievances.
The Board, having heard evidence in relation to the matter, and having
received representations from the parties, was advised by the parties that it had all
necessary jurisdiction to make the following determinations and orders:
1. All grievances that claim top -up for a parental leave filed by employees who
returned from the parental leave prior to February 15, 2004 are untimely and are dismissed
with respect to those leaves.
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2. All employees who returned from a parental leave on or after February 15, 2004 and
who filed a grievance with respect to the top -up of benefits for that specific leave before
November 20, 2006 shall be entitled to a top -up of the EI parental leave benefits received
for that specific leave, to a maximum of 35 weeks.
3. Any employee on parental leave as at November 20, 2006 shall be entitled to a top-
up of the EI parental leave benefits received, to a maximum of 35 weeks.
4. Any other grievance with respect to top -up of parental leave benefits that relates to a
leave that ended prior to November 20, 2006 and that had not been filed prior to November
20, 2006 is untimely and is hereby dismissed as such.
5. Effective November 20, 2006, Article 15.05(b) shall provide as follows:
15.05 (b) Parental Leave and Adoption Leave
(i) Parental Leave and Adoption leaves will be granted in accordance
with the provisions of the Employment Standards Act, except where
amended in this agreement.
(ii) Effective on confirmation by the Canada Employment Insurance
Commission of the appropriateness of the Hospital's Supplemental
Unemployment Benefit (SUB) plan, and retroactive to date of confirmation
by the Canada Employment Insurance Commission, an employee who is on
parental or adoption leave as provided under this agreement and who is in
receipt of Employment Insurance parental benefits pursuant to Section 23 of
the Employment Insurance Act, shall be paid a supplemental unemployment
benefit. That benefit will be equivalent to the difference between eighty four
per cent (84 %) of her regular weekly earnings and the sum of her weekly
Employment Insurance benefits during her leave and any other earnings.
Such payment shall commence following completion of the two week
employment insurance waiting period, if such is required under the
Employment Insurance Act, and receipt by the Hospital of the employee's
Employment Insurance cheque stub as proof that she is in receipt of
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Employment Insurance parental benefits, and shall continue while the
employee is in receipt of such benefits, for a maximum period of twenty -
three (23) weeks for a parental leave. The employee's regular weekly
earnings shall be determined by multiplying her regular hourly rate on her
last day worked prior to the commencement of the leave times her normal
weekly hours.
This provision only applies to employees with at least thirteen (13) weeks of
continuous service at the hospital prior to the commencement of the parental
or adoption leave.
The employee does not have any vested right except to receive payments for
the covered unemployment period. The plan provides that payment in
respect of guaranteed annual remuneration or in respect of deferred
remuneration or severance pay benefits are not reduced or increased by
payments received under the plan.
It is understood that during any Employer approved extension of leave in a)
or b) above, which is beyond those prescribed under the Employment
Standards Act, credit for service or seniority for the purposes of salary
increments, vacations, sick leave, or any other benefits under any provisions
of the collective agreement or elsewhere shall be suspended during such
leave and the employee's anniversary date adjusted accordingly. In addition,
the employee will become responsible for full payment of subsidized
employee benefits in which he or she is participating for the period of
absence.
6. Article 15.05(b), as above, will be incorporated into the collective agreement in
force April 1, 2004 to March 31 2006, below the existing Article 15.05(b) with an
explanatory note to indicate that the amendments are effective November 20, 2006. Neither
party shall table amendments to Article 15.05(b) for the collective agreement that
commences April 1, 2006.
The foregoing determinations and orders dispose of all issues in dispute
between the parties and any and all arguments raised in the grievances and at the hearing.
On the basis of these determinations and orders the proceedings are hereby terminated.
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However, the Board shall remain seized to resolve any and all issues concerning the
interpretation or implementation of this award.
DATED at Oakville this 18th day of January, 2007.
Russell Goodfellow - Chair
"John Russell"
I concur. Hospital Nominee
"Pamela Munt - Madill"
I concur. Union Nominee
c- /
MEMORANDUM OF SETTLEMENT
ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND ITS LOCAL 479 (the "Union ")
AND
ROYAL OTTAWA HEALTH CARE GROUP (the "Hospital ")
Re: Various grievances filed claiming parental leave top -up under the Collective Agreements
commencing April], 2000.
The parties are agreed that the Board of Arbitration chaired by Russell Goodfellow shall issue a
unanimous Award that summarizes the grievance issues and the positions of the Parties, and
encompasses the following order: 4,ejcLq�es , ,Lb/v- C�°oue.S
All grievances that claim top -up for a parental leave filed by employees who returned from
the parental leave prior to February 15, 2004, are untimely and are dismissed with respect
to those leaves.
2. All employees who returned from a parental leave on or after February 15, 2004 and who
filed a grievance with respect to the top -up of benefits for that specific leave before
November 20, 2006 shall be entitled to a top -up of the EI parental leave benefits received
for that specific leave, to a maximum of 35 weeks.
3. Any employee on parental leave as at November 20, 2006 shall be entitled to a top -up of
the EI parental leave benefits received, to a maximum of 35. We'! wS
4. Any other grievance with respect to top -up of parental leave benefits that relates to a leave
that ended prior to November 4, 2006 and that has not been filed prior to November 20, 2 `
2006 is untimely and shall be dismissed as untimely.
As agreed by the Parties, Article 15.05(b) is amended, effective November Z1, 2006 as
follows:
15.05 (b) Parental Leave and Adoption Leave
(i) Parental Leave and Adoption leaves will be granted in accordance with the
provisions of the Employment Standards Act, except where amended in this agreement.
(ii) Effective on confirmation by the Canada Employment Insurance Commission of the
appropriateness of the Hospital's Supplemental Unemployment Benefit (SUB) plan, and
retroactive to date of confirmation by the Canada Employment Insurance Commission, an
employee who is on parental or adoption leave as provided under this agreement and.who
is in receipt of Employment Insurance parental benefits pursuant to Section 23 of the
Employment Insurance Act, shall be paid a supplemental unemployment benefit. That
benefit will be equivalent to the difference between eighty four per cent (84 %) of her
DOCSOTT: 513268 \5
I
regular weekly earnings and the sum of her weekly Employment Insurance benefits during
her leave and any other earnings. Such payment shall commence following completion of
the two week employment insurance waiting period, if such is required under the
Employment Insurance Act, and receipt by the Hospital of the employee's Employment
Insurance cheque stub as proof that she is in receipt of Employment Insurance parental
benefits, and shall continue while the employee is in receipt of such benefits, for a
maximum period of twenty-three (23) weeks for a parental leave. The employee's regular
weekly earnings shall be determined by multiplying her regular hourly rate on her last day
worked prior to the commencement of the leave times her normal weekly hours.
This provision only applies to employees with at least` , of continuous
service at the hospital prior to the commencement of the parental or adoption leave.
The employee does not have any vested right except to receive payments for the covered
unemployment period. The plan provides that payment in respect of guaranteed annual
remuneration or in respect of deferred remuneration or severance pay benefits are not
reduced or increased by payments received under the plan.
It is understood that during any Employer approved extension of leave in a) or b) above,
which is beyond those prescribed under' the Employment Standards Act, credit for service
or seniority for the purposes of salary increments, vacations, sick leave, or any other
benefits under any provisions of the collective agreement or elsewhere shall be suspended
during such leave and the employee's anniversary date adjusted accordingly. In addition,
the employee will become responsible for full payment of subsidized employee benefits in
which he or she is participating for the period of absence. 3 aL®c�l n-
&kafTti�..
i So S7 Ck,)
Also as agreed by the Parties, the amended article 15.05(b), above, will 6e incorporated
into the collective agreement in force April 1, 2004 to March 31 2006with an explanatory
note to indicate that the amendments are effective November 24, 2006. Neither party shall
table amendments to Article 15.05 (b) for the collective agreement that commences April
1, 2006.
7. The Board shall remain seized with respect to any issues arising from the implementation
of the Award.
Dated at Ottawa as at November 21, 2006
DOCSOTT: 513268\5
Fprr the Hospital