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HomeMy WebLinkAbout1992-3278.Pound.96-02-08F &PLOY& DE LA COURONNE DE L’ONTARIO COMMlSSlON DE RiiGLEiVlENT DES GRIEFS 180 DUNDk STREET WEST; SUITE 2100. TORONTO ON M5G 128 TiLEPHONElTgLiiPHONE: (416) 326- 1388 180, RUE DUNDAS OUES7; BUREAU 2100, TORONTO (ON) M5G 128 FACSIMILE/Tk!LikOPIE : (4 16) 326 - 1396 i : GSB # 3278/92 ' , i QLBEU # OLB437/92 IN TilE MATTER OF AN ARBITRATION . UnUer THE CROWN EMPLOYEES COLLECTIVE BARGAINING ,ACT. _' Before THE GRIEVANCs SETTLEME-NT E@ARD BETWEEN 1 OLBEU (Pound) Grievdr - an8 - The Crown in,Right of Ontario , (Liquor Control Board of Ontario) _ Employer BEFORE: F. Briggs Vice-Chairperson ' . . FOR THE GRIEVOR s. Philpott ,. Counsel Kos'kie.& Minsky Barristers & Solicitors I . FOR THE A. Raso .EMPLOYER Counsel ,Hicks, Morley, Hamilton, Stewart, Storie Barristers C Solicitors ~' , HEARING August 23, 1995 The &rievcn, Karen Pound, was twice absent from work due to a compensable injury. She , ultimately returned to work in August of 1992. She grieves that she is a victim of adverse ,. impact discrimination because the Employer failed to allow her to continue to accrue 6 vacation and attendance credits during the period of her absence without pay from work-due to the- compensable injury.. The parties agreed on the facts required to deternnne this matter which are set out below: 1. . This is no issue between the parties regarding the calculation of the grievor’s vacation and/or attendance credits.’ That is, there were no errors in calculation made. 2. On October 10, 1989, the grievor was injured at work .and commenced an absence due.to a compensable injury. She was absentuntil January 21, 1991, on which day she returned to work on modified duties. 3. From October 10, 1989, to January 10, 1990 the grievor received full salary with no reduction of accrued credits in accordance with Article 12.5 of the Collective Agreement. She also continued to accrue credits for that period. “Where an employee is absent from work by reason of a condition for which the Workers’ Compensation Board assumes liability, the employee shall be eligible for Compensation Leave for a period not exceeding three (3).months or a total of sixty-five (65) working days where such abseties are intermittent for each unrelated claim. During-such leave the employee shall receive full salary with no reduction of accrued credits but vacaiion and _ _ attendance credits shall continue.to accumulate during the period.” 4. 5. From January 11, .199Oto January 20, 1991 the grievor was paid Workers’ Compensation benefits (“WC benefits”) equal to 65 %- of her regular salary; and’ her WC benefits were “topped up” to 100 % of her regular salary by an amount deducted from her accumulated vacation and attendance credits. It is the LCBO’s policy to utilize an employee’s attendance credits first to top up WC benefits to full salary, and then, if necessary,the employee isgiven the option to utilize vacation credits to top up to full salary. The Grievor chose this option. During this period, the employee is considered to be on a leave of absence with pay for the purposes of accumulation of vacation credits and attendance credits and, accordingly, the grievor continued to accrue credits for that period. ’ . . The grievor’s accumulated vacation and attendance credits were exhausted on August 2, 1990 and thereafter, in accordance with Article 12.8 of the Collective Agreement she was considered on a leave without pay. Article 12.8 of the Collective Agreement provides: , “Where an employee receives an award under the Workers’ Compensation Act, and the award applies for longer than the period set out in Artide 12.5 1 i ‘6. i. 8. and the employee has exhausted all accumulated credits, the employee will be considered on leave without pay.” On October 24, 1991 the grievor suffered a recurrence of her- injury. She again received WC benefits and drew from her bank of accumulated attendance and vacation credits to top up her ‘income to 100% of her regular salary. Her accumulated credits were exhausted on November 20, 1991 and from that day ‘until her return to modified work on August 4, 1992, she was considered to be on a leave without pay and accrued no further vacation or attendance credits for that.period. The periods in respect of which the grievor was in receipt only of WC benefits (when her accumulated credits were exhausted) are deemed to be without pay by Article 12.8 of the Collective Agreement,.. Article 12.8 leaves without pay, as well as other types of leaves without pay have historically been treated by the parties as a hiatus in the accumulation of vacation and attendance credits in accordance with Article 15.1 of the Collective Agreement ’ which provides: “Leave-of absence without pay and without accumulation of credits may be granted to an employee by the Employers.” The parties have historically treated employees as entitled to ‘accumulate vacation and attendance credits only when the employee is at work or on a leave of absence with pay for at least one full day during a calendar month. This is in accordance with Articles 8.7, 9.4 and 9.5 of the Collective Agreement which provide as follows: “Except as provided under Article 8.8 below, an employee is entitled to vacation credits under Article 8.6 in respect of a calendar month in which he/she is at work or on a leave of absence with pay for at least one (1) full day.” ’ “An employee is entitled to attendance credits under Article 9,.2 in respect of a calendar month in which he/she is at work or on leave-of-absence with pay for at least one (1) full day.” “Notwithstanding the provisions of Article 9.4 an employee is not entitled to attendance credits under Article 9.2 in respect of a month in which the employee is absent from work.” ’ Ms. Philpott, for the Union, reinforced that there is no dispute between the parties that the current practice of non accumulation of benefits during an unpaid leave of absence has been -. . in effect for a considerable period and continues to the present day. However, it was the Union’s position that to-allow the non accumulation of benefits to employees absent on Worker’s Compensation is contrary to the provisions of the Human Rights Code, R.S.O. ‘2 . . i 1990, c. II-19.(hereinafter referred to as “the Code”. -The/relevant sections of the Code are ‘as follows: 5.( 1) Every person has a right to equal treatment. with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap. 10. In Part I and in this Part, “because of handicap” means for the reason that the person has or has had, or is believed to have had, +9 an injury or disability for which benefits were-claimed or received under the Workers’ Cqmpefisation Act; 17.(l) A right of a person under this Act is not infringer for the reason only that the person is .incapable of performing or fulfilling the essential duties or requirements attending the exercise ’ of the right because of handicap. The Union submitted that to tie the accrual of vacation and attendance credits to actual attendance at work, given that the grievor was absent from’work due to a compensable , injury; is discrimination. TheUnion had two arguments for,the Board to consider. .The f&St was that the grievor was treated differently from other employees on other types of leaves of absence without pay. The second submission, in the alternative, isthat the grievor was treated differently than ,everyone else in the- bargaining ‘unit. ? ‘- Regarding the first argument, the Union suggested that in.accordance with Article 12 of the Collective Agreement, members of the bargaining unit are entitled to sickness and injury leave. The Collective Agreement also provides for a variety of other leaves including, but ’ not ‘limited to, maternity leave, military heave, and bereavement leave. Some ofthose leaves allow for the continuation of wages and accumulation of benefits. Jn some provisions, like maternity leave there is a period of compensation and a period of absence without pay. All .’ employees should &treated in the same fashion despite&the reason for their absence from the workplace. That rs to say that all employees who are on leaves of absence ought to be able to accrue vacation and attendance credits. 3 . . ‘- ._ i L_ Ms. Philpott asked the Board to consider some recent cases.. In Re Riverdale Hospital (Board of &&nors) and Canadian Union of’Public Employee& Local 79 (1993), 39 L.A.C. (4th) 63 (Stewart), a grievance was allowed that adjusted an employees seniority after an absence due to a maternity leave. The arbitration board determined that thegrievor was absent-on a leave without pay and’ was treated differently from other employees in the bargaining unit who were absent without pay, contrary to the Code.‘, In Rb Memorial Hospital; Boma@lle and Ontatio Nurses’ Association (1993), 35 L.A.C. \ (4th) 401, Arbitrator Thome four&hat a nurse was improperly terminated when the Hospital discharged her in accordance with a “deemed termination” provision. The grievor had been absent from work due to a disability for which she was receiving ..long term disability insurance for a period in excess of thirty months. The board of arbitration found that the. hospital could not terminate the grievor’s employment as she was entitled to the same standard as other employees, that is, just cause for discharge. It was decided that the matter -was similar to Re Chporation of City of Stratford and Canadian Union of Public 1 Employees, Local 197 (1990), 13 L.A.C. (4th) l.(M arszewski). In that decision, which was upheld in Divisional Court, it was found that a “deemed termination” was contrary to.the ’ Code because the grievor was ,“not entitled to challenge his termination pursuant to the just cause standard’. It was argued by the Union that these cases stand for the proposition that employees ought not to be penalized for an absence due to a handicap. In the instant matter, the grievor was penalized by the Employer’s disallowing the-accumulation of vacation and attendance credits for the period of her absence. ,The Union also relied ‘on Re Victoria County Memorial Hospital and Canadian ‘Auto Workers, Local 607 (1994); 42 L.A.C. (4th) 194 (O’Connell) , and Re Toronto Hospital and Ontario Nurses’ Association (1992), 3 1 L.A.C. (4th) 44 (P. Picher). I, -e I . . . The alternative position.of the Union is that the grievor ought to be treated the same as other members of the bargaining unit. That is to say that she Ms. Pound ought to be allowed to accrue vacation and attendance credits irrespective of whether she attended at work. As her co-workers accumulated these benefits, so should the grievor. The Employer’s failure to allow this accrual-is discriminatory because the grievor-was absent from work due to a disability. If not for her handicap, she would have been present at work and accruing the benefits. Ms. Raso, for the Employer, asked the Board to keep in mind that the Union has not alleged that there is any violation of the Collective Agreement. Rather, it was asserted by the Union that the Collective-Agreement is discriminatory and should, in part, be struck down; It is the position of the Employer that there is no adverse impact discrimination regarding the ‘grievor and therefore the Code has not been offended and this matter must be dismissed. The past ._ practice of the Employer is that all employees, irrespective of the reasons for their absence, are treated equally. That is to say employees do not continue to accumulate vacation and attendance credits,during the period of any absence which is without pay. .I. The Employer, like the Union, referred to a number of,previous cases. In Re Andrews v. Law Society of British Columbia (1989), IO C.H.R.R. D/5719 (S.C.C.) discrimination was defined taking into account the fmdingsaf other courts. It was stated at page 173 that “it arises where an employer..... adopts a rule or standard... which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or .group,- obligations, penalties, .or restrictive conditions not imposed on other members of the work force”. Ms. Raso submitted that two elements must be present for a finding of discrimination. First, there must be a causal connection between the group being denied and a prohibited ground. 5 ./ . In the instant .matter, the grievor is not being tieated differently. Any employee who is absent without pay has not and does not accumulate vacation or attendance credits. This .is . . ‘not a prohibited ground under the Co$ and therefore there is no causal connection. Sec,ond, . there must be a restriction which is not imposed on other employees. Obviously, as stated above, any emnloyees who is absent without pay is not accumulating vacation or attendance credits. Therefore, the grievor is treated the same as other employees. The Code does not address employees. with different attendance records. This very issue was considered by ‘a board of arbitration in Re Windsor Western Hospital and Ontario l$ublic Service Employees Union (October 24, 1994), unreported (Stanley). The Hospital did not allow the grievor to accrue vacation and sick leave entitlement during : , the period that the grievor was absent on a compensable injury and in receipt of Worker’s ~ Compensation Benefits. In considering the matter, the Board .stated at pages 11 and 121 The issue we must decide is whether the provision in the collective agreement which denies employees on a leave of absence the right to accrue vacation and sick leave is “discriminatory”. If it is, it can only be so because of the broader definition of diirimination found in S. 11 of the Code. In accordance with that section, what we have to ask is whether the collective agreement provision - ‘:results in the exclusion, restriction or preference of a ’ group of persons who are identified by a prohibited groundof discrimination and of whom the person is a member. ” The “group” which the collective agreement singles out to deny accrual of sick leave and vacation is not “a group of persons who are identified by a prohibited ground of discrimination”. The group denied accrual of sick leave and vacation is all those employees who are on leaves of absence. The Code does not list “being on a leave of absence” as a prohibited ground of discrimination. I \ It might be argued that employees with a “disability” are a group within thislarger group and are therefore covered by the language. That is really the essence of constructive discrimination - that a general innoduous exclusion sweeps in all members of a protected group. In this case there are really two protected groups - those with “handicap” and the person who is defined as handicapped because he/she “has or has had, or is believed to have or have had an injury or disability for which benefits were claimed or received under the Workers’ Compensation Act.” However, not all employees with a handicap, or all employees who have or have had an injury for, which benefits are claimed, are going to be on leaves of absence. Thus the general exclusion does not sweep in all or even a majority of me members of a protected group. If we had to decide whether the qualification was reasonable and bona fide, since it is accepted in so many collective agreements that vacation and sick leave are benefits earned i I _’ I through attendance‘at work, we would conclude that the qualification in this case is reasonable and bonafide. The Employer argued that Article 12.5 of the Collective Agreement allows employees to I ” continue to accumulate vacation and attendance credits for the first sixty five days of an absence from work for which the Worker’s Compensation assumes liability. During this period of time the employees are paid 100% of their regular salary. Employees do not cease accruing those benefits until such time as they are on a leave of absence without pay. It is that change in their status which disallows the continuation of benefit accrual. Ms. Raso assertedthat it has. been decided that Worker’s Compensation Benefits are ‘not - insurable earnings.for the purposes of Unemployment Insurance according to Re Blondhi v. Minister. of Employment (1988), 89 C.L.L.C. 12,020 (F.C.A.) It was suggested that. this 1 is an analogous situation. Therefore, there can be. little doubt that employees who are absent from work and who are in receipt of Worker’s Compensation,Benefits are to be considered to be employees absent from work without pay. ’ The Employer submitted that the appropriate group of comparators are other employees on unpaid leaves of absence and not the rest of the bargaining unit. In We Canadian.Airlines . . International Ltd. knd Canadian Union of Public Employees, Airline Division (1993), 32 L.A.C. (4th) 398 .(Spri.ngate), it was determined that it is not discrimination for the’ i . employer to treat employees absent from work differently from:employees remaining at work. It was stated at page 408: . . ..If taken to its logical conclusion’ the union’s position would appear to require that an - employer “make whole” an employee on maternity leave and treat her for pay and benefit purposes as if she was still actively at work. .’ The Canadian &man Rights Act prohibits an employer from differentiating adversely in relation to an employee based on a prohibited ground of discrimination. To conclude that this goes beyond requiring that employees on maternity leave be treated as well as other employees off work for health-related reasons, and instead requires that they be treated in the same manner as employees actively at work, would require that I give the Act an ,- “7 : . interpretation much broader than similar provisions have been given to date. As indicated ..’ above, the arbitral jurisprudence, although limited, has -rejected this type of approach.. Further, although the Supreme Court of Canada in the Brooks case expressed concern about pregnant women-bearing a disproportionate amount-of the costs of procreation, it did. not I’ adopt the approach being advanced by the union. Instead the courtheld only that employees on maternity leave were entitled to be treated in a manner similar to other employees who were off work for health-related reasons. _ The Employer also relied on Re Hick1ing.v. Lanark Leeds and Grenville County (1986), 7 C.H.R.R. D/3546 (Board of Inquiry); Re Stelco Inc., Hilton Works and United - Steelworkers of America,, Local PO05 ( February 13, 1995), unreported (0. Gray); Re Glen Haven Manor Corp. and, Canadian Union of Public Employees, Local 2330 (1991), 19 L.A.C. (4th) (Darby); Re Town.of Ajax and Canadian Union of Public Employees, Local 54 (1991), 23 L.A.C. (4th) 77 (Rayner); Re The Hamilton Entertainment and Convention Centre and International Alliance of Theatrical Stage Employees’and MovingPicture Machine Operators of the United States and Canada, Local 129 (October 30, 1993), mrkported (Marcotte); Re Family Service Association of Metropolitan Toronto and Ontario Public Service ‘Employees Union, Local 594’ (October 19, 1994), unreported :SchifQ; Re’Versa Services Ltd. And Milk & Bread Drivers, Dairy Employees Caterers & Allied Employees Union, -Local 647 (1994), 39 L.A.C. (4th) 196 (R. M. Brown). Ms. Raso contended that the parties in the instant matter are sophisticated and‘knowledgable. -_ They knew the Code and have known their obligations for some time. It is clear from the language of the Collective Agreement and the long standing practice that the parties knew that they here not offending the Code. ’ / The Employer asserted that, in considering the affect of the. Code, this., Board must differentiate between issues of participation for employment and matters of compensation for employment. Section 17 of the Code requires the accommodation for people with handicaps to enable them access to-employment. However, the issue at bar is not a matter 8 . ( : - I accommodation but one of compensation. At page 20 of Re Stelco (supra); it &as stated: Section 17 of the Code makes it clear that a difference in treatment will not infringe the Code if it flows from an incapacity which cannot be accommodated, even if the incapacity is a result of handicap. Counsel for the union acknowledged during argument that the-Code did not oblige the employer to pay wages to the grievor for the period he was ‘absent due to his compensable injury, in the amount he would have earned had he worked during that period. This must surely be so. If there has been no denial or work contrary to the Code during that period - and there is no suggestion that there has - ‘then it is difftcult to see how it could have been a breach of the Code that he was not paid for work he did not and-could not perform. Although counsel for the union resisted so characterizing it,. the vacation pay in issue here is another element of the comperisation to which an employee becomes entitled for performing work during the “vacation year”. When all of the vacation pay provisions of article 11 are read together, it is apparent that, like wage compensation,’ the amount ~of that additional, deferred compensation depends onthe amount of work performed, although the relationship - is not as linear as it is for wages Lie wages, vacation pay is earned by performing work. _ The Employer asserted that the Board ought to take into .account that the’ Code does not oblige the employer to pay an injured worker..one hundred percent of their wages. Furthei, it does not require employers to pay full vacation pay or other benefits. In summary, the - Board was asked to dismiss the grievance. ’ .: 3 \ RECISION, - (. : After careful consideration of the ablesubmissions put forward by counsel for the parties and be substantial jurisprudence provided, I am of the view that this grievance must fail. I have Deen persuaded by the Employer’s submission that there are two aspects. to the matter of 3iscrimination regarding employment which fall into two categories, participation and ;om@rsation. The matter at issue is one of compensation. The. Employer’s long standing and continuing practice of disallowing the accrual of vacation and attendance benefits timle , employees are absent without pay is not a matter of discrimination which impacts upon an employees’ access to employment. It is a matter of an .employees’ level of compensation. The ‘Collective Agreement between these parties is clear that attendance benefits and . ._ 9 ._ “. . ‘, . . _ vacation benefits are earned by attendance in the workplace after the initial sixtj4ive ‘days considered iq Article 12.5. The instant matter differs from most of the cases put forward by the Union. In those cases, the gr+vors’ employment was terminated in acc&dance with a “deemed termination” provision. That is to say that employees were terminated after a specified period of time and -without any consideration of whether there was just cause for the discharge. The protection k of the standard ‘of just cause is afforded- to all other employees and for an employer to dis~$itle handicapped.people to the protection of the just cause standard would clearly be discrimination. That denial of the protection of just cause was an employment participation matter, not a matter of compensatiofi. In the instant matter, the’continuation’of the grievor’s status of employment was not affected. This was not a matter of employment status or seniqrity ,accrual but rather an issue concerning the grievor’s abilitj to accrue certain benefits during her unpaid leave of absence. / _ The Union suggested, in the alternative, that the appropriate group to compare the grievor to is the entire bargaining unit. Again, I cannot agree. The appropriate employees tq consider in determining adverse impact discrimination for this grievor are ‘other employees on leaves of absence tiithouf pay. Employees on leaves of absence without pay in receipt of Worker’s CompenSation Benefits are not being treated differently than other employees who were on leaves of absence for other reasons. The scheme under this Collective Agreement provides that employees at work will accrue certain benefits and .those who are not at work and are not being paid by the employer, do not. Employees who are absent from work and in receipt of Worker’s Compensation Benefits are paid an &nount of money that is less than what employees attending at work would otherwise earn. As in the Stelco case, there was no suggestion from the Union that the grievor was 10 :, .%J I -_ . , .(’ monetarily cotipensated in an amount that is contrary to the Code. During tlie period when she was in receipt of Worker’s Compensation Benefits, Ms. Pound was compensated @ a manner that was consistent with the Code.’ ‘The fact that she did not continue to accrue certain benefits which were earned by her co-workers who attended at work i$ not discriminatory. The earning of those benefits is dependant upon-attendance at work. That qualification does not, in my view, offend the Code. As noted in Versa Servic,s (sup-a), Section 17 c&ot be held to’mean that a handicapped person should receive the same compensation as others in the work place because there is : nd reference to compensation in that section. Arbitrator R. M. Brown thought it noteworthy that the legislation was lacking a provision for equality of comperisation. He fetid that-the absence 3f such a provision indicates a legislative. intention to “apply a different ,- understanding of equality to matter of compensation”. He’continued that a handicapped employee had only the right to be compensated-in the same way as an employee without a handicap. In the instant matter the grievor was treated in the same fashion as any other employee who was absent from work without pay.. A number of boards of arbitration have .spent much time and deliberation on this issue. Dete rmining whither there is a contravention-of human rights legislation requires the most thoughtful and careful consideration. It is essential .@at adjudicators are ‘assured that employees do not lose employment benefits based on a ground which is prohibited by the . legislation. ‘. In the instant Collective Agreement, the parties specifically put their mind to providing. a benefit specifically for employees absent due to ti compensable injury oi illness. At Article 12.5, those employees have their pay kept whole and receive all benefits for the first three months. After that three month (or sixty-five day) period, those employees are treated like 11 J 3 .+ , >, ‘* L? r ,Z . ’ other-employees who are absent from the workplace without pay. At the point where they are being paid a lesser amount, their benefits are also reduced. Indeed, at that point employees who are on a leave without pay who are in receipt of Worker’s Compensation Benefits are treated equally to those employees who are on other unpaid leaves of absence. I It is undoubtedly unfortunate that employees, like the grievor, become injured or ill as a result of their employment.’ However, I am of the view that the grievor was neither treated ’ differently than any other employee who was absent from work without-pay nor was she discriminated against when she was disallowed from continuing to accrue vacation and attendance credits. . For all of those reasons, the grievance is dismissed. 12