HomeMy WebLinkAboutUnion 13-04-11In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act
Between:
LUTHERAN COMMUNITY CARE CENTRE
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION,
LOCAL 738
Grievance re Maternity Leave and Sick Leave Accrual
OPSEU File No. 2012-0738-0004
Arbitrator: Randi H. Abramsky
Appearances
For the Union: Amanda Montague-Reinholdt Counsel
For the Employer: Garth O’Neill Counsel
Hearing: Written submissions filed on Feb. 15, March 1, and March
7, 2013. With additional clarification on April 4, 2013.
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AWARD
At issue is whether the Employer, Lutheran Care Community Centre of Thunder
Bay, violated the collective agreement and/or the Ontario Employment Standards Act,
when it did not provide sick leave credits for employees who are on maternity and
parental leave. The parties proceeded by way of stipulated facts and written submissions.
FACTS:
The Agreed Statement of Fact states as follows:
1. The Lutheran Community Care Centre of Thunder Bay (LCCC) is a charitable
organization of the Lutheran Churches of the Thunder Bay area, guided by the
values and beliefs of the Lutheran Church.
2. LCCC provides social, developmental and spiritual services to people living in
Northern Ontario:
a. Social Services includes supports to residents at Luther Court, seniors living
in the community, and individuals at risk of homelessness.
b. Developmental Services include serving as the central access point for adult
developmental services in the Northern Region known as Developmental
Services Ontario Northern Regional, a direct funding program called
Passport, and case management services through Adult Protective Service
Workers and Specialized Service Coordinators.
c. Spiritual Services include Pastoral Care in hospitals and long term care
facilities and a Street Chaplaincy known as Street Reach Ministries.
Employment
3. LCCC employs approximately 35 persons with the head office in Thunder Bay
and satellite offices in Dryden, Nipigon, Marathon, Sault Ste. Marie and
Sudbury. This includes approximately 23 Social Workers, who are members of
the bargaining unit, as well as managerial, chaplaincy and administrative staff.
Collective Agreement
4. LCCC and OPSEU have been parties to the Collective Agreement since June,
1997. The current Collective Agreement is in effect from April 1, 2012 to
March 31, 2014 attached herein (Tab 1).
5. OPSEU is the exclusive bargaining agent of members of the bargaining unit.
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Grievance #2012-0738-0004, dated June 21, 2012
6. The grievance which is the subject of this arbitration is attached herein (Tab 2),
and was filed on June 21, 2012. The grievance claims that:
The employer is in violation of the Sick Leave Article and the Ontario
Human Rights Code. The Employer is not accruing sick credits to staff who
are on maternity leave. The union states that maternity leave is an approved
leave and a member accrues sick credits.
The settlement sought is that “members on an approved leave accrue sick leave credits as
if they worked.”
OPSEU is no longer taking the position that the Employer is in violation of the Ontario
Human Rights Code.
7. The employer responded to the grievance in a letter dated June 29, 2012,
attached herein (Tab 3), advising that it was in compliance with the Employment
Standards Act, and the Collective Agreement, and that there was no evidence to
support that the Ontario Human Rights Code had been violated.
8. The relevant articles of the Collective Agreement include the following:
Article 8 – Leaves
9.05 Pregnancy/Parental/Adoption Leave
Pregnancy, Parental and Adoption Leave shall be granted to employees under the terms
and in compliance with the Employment Standards Act, as amended from time to time.
Article 9 – Seniority
9.01
Seniority shall mean length of continuous service with the Employer since the last date of
hire and shall include service prior to the certification or recognition of the Union.
Employees working less than forty (40) hours per week shall have their seniority pro-
rated based on a full-time equivalent. Seniority shall operate on a bargaining unit-wide
basis. During an employee’s leave of absence without pay or other unpaid absence from
the Employer, the employee will not accumulate service for any purposes under this
Collective Agreement.
Article 20 – Sick Leave
20.01
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All employees who are in regular positions of one-quarter (1/4) of a full time equivalent
or greater are entitled to sick days with pay.
20.02
An employee who is unable to report to work due to illness or disability shall notify their
supervisor within two (2) hours of the time that they were due to report to work. Failure
to so report will result in an absence without pay unless there are mitigating
circumstances which, in the opinion of the Employer, justify the failure to notify.
20.03
When an employee is sick for more than four (4) consecutive days, they are required to
provide a note from a physician indicating the reason for not attending work, with the
employee responsible for any expense associates with such medical note. Where an
employee has been absent on a frequent basis, the Executive Director may, at the
Executive Director’s discretion, require a doctor’s certificate at the Employer’s expense
regardless of the length of any one absence.
20.05
An employee who works 40 hours per week is entitled to eighteen (18) sick days (one
day = 8 hours) each fiscal year. An employee begins each fiscal year with their allotment
of eighteen (18) days and deducts from that over the course of the year. Should an
employee leave during the year, a reconciliation of sick days taken and number of days
earned will be done. A new employee will have their allocation pro-rated according to
their employment date. Employees working less than forty 40 hours per week will have
their sick day allocation pro-rated.
20.06
Of the eighteen (18) sick days available to an employee who works forty (40) hours per
week, four (4) may be used alternately as Personal Days. It is understood that Personal
Days are not intended to be used as additional vacation or to work for another employer.
At its discretion the Employer can request verification of the situation that precipitated
the need for a Personal Day. Employees working less than forty (4) hours per week will
have their Personal Day allocation pro-rated.
20.07
An employee who works forty (4) hours per week is able to accumulate unused sick days
up to a maximum of twenty-two (22) days. Employees who work less than forty (4) hours
per week will have their accumulation pro-rated.
9. Following completion of the grievance procedure, OPSEU advised LCCCs by
letter dated July 4, 2012 that it was proceeding to arbitration with the said
grievance.
Scope of Grievance
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10. It is OPSEU’s position that the Collective Agreement does not permit the
Employer to pro-rate sick leave benefits for workers on maternity or parental
leave, and that doing so violates the Collective Agreement and/or the
Employment Standards Act.
11. It is the position of the Employer that the Collective Agreement permits or
requires the pro-rating of sick leave benefits for workers on maternity or
parental leave, as well as other types of leave, and that such a practice does not
violate the Collective Agreement and/or the Employment Standards Act. For
example, if an employee returned from a maternity or parental leave six (6)
months into the fiscal year, that employee would only be entitled to nine (9) sick
days for that fiscal year, in addition to any sick days that the employee had
accumulated before the leave.
12. The Employer treats all employees on unpaid leave (i.e., not paid by the
Employer) in the same manner, respecting the pro-rating of sick leave credits.
Remedy
13. The parties seek a declaration regarding the proper interpretation and application
of the relevant provisions of the Collective Agreement. In the event this
grievance shall succeed, the parties agree that any employees on unpaid
(maternity, parental or otherwise) leave as of June 21, 2012, or at any time
thereafter, shall receive sick leave credits without pro-rating for the period of
their leave.
Other provisions of the collective agreement are relevant in determining the parties’
intent in regard to Article 20.05, and will be discussed in my decision below. In addition,
Section 52(1) of the Ontario Employment Standards Act, 2000 is addressed by both
parties, and provides as follows:
Length of employment
52(1) The period of an employee’s leave under the Part shall be included in
calculating any of the following for the purpose of determining his or her rights under
an employment contract:
1. The length of his or her employment, whether or not it is active employment.
2. The length of the employee’s service whether or not that service is active.
3. The employee’s seniority.
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POSITIONS OF THE PARTIES
The Union
The Union asserts that this dispute lies in the interpretation of the collective
agreement and the relevant legislation. It contends that Article 20 is clear and
unambiguous and does not permit the pro-rating of sick days for employees on maternity
or parental leave. It points to Article 20.01 which states: “All employees who are in
regular positions of one-quarter (1/4) of a full time equivalent or greater are entitled to
sick days with pay” and asserts that is the only condition for entitlement – being in a
regular position of one-quarter or more. A “regular” full-time and “regular” part-time
position are defined in Articles 3.03 and 3.04 to mean “an employee who has successfully
completed the probationary period” and who normally works either “thirty-six (36) or
more hours per week” for a full-time position, or “less than thirty-six (36) hours per week
on a regularly scheduled basis” for part-time. The Union submits that entitlement to sick
days in not triggered by hours or days spent working, or even service or seniority – one
must only be a regular employee. In its view, entitlement is based on employment status
alone.
The amount of sick leave, it submits, is set out in Article 20.05, which is eighteen
days per year for full-time employees. The provision, it notes, only provides for pro-
rating in two circumstances – for new employees, and employees working less than forty
hours per week. It argues that neither exception is relevant here. The Union asserts that
the language of Article 20.05 does not require an employee to work in order to receive
sick leave. It submits that the phrase “An employee who works 40 hours per week” and
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“employees working less than forty hours per week” is not a condition for the receipt of
sick leave, but instead distinguish between the entitlements of full-time and part-time
employees. It submits that there is no requirement that bases entitlement to active service
or hours or days worked. Nor is there language which permits or requires pro-rating for
employees on maternity or parental leave.
In support of its position, the Union relies on Re Toronto District School Board
and Elementary Teachers’ Federation of Ontario (Sick Leave Grievance) [2007]
O.L.A.A. No. 686 (Burkett); Re Religious Hospitallers of St. Joseph of Villa Marie and
Service Employees International Union, Local 210 (1980), 25 L.A.C. (2d) 221 (H.
Brown); Re Sarnia General Hospital Commission and London and District Service
Workers’ Union, Local 220 (1978), 18 L.A.C. (2d) 323 (Johnston).
The Union further argues that even if Article 20 could be interpreted to allow the
proration of sick leave benefits while an employee is on maternity or parental leave, that
restriction would violate Article 52 of the Ontario Employment Standards Act and would
therefore be null and void. The Union asserts that, in its reply to the grievance, the
Employer relied on Article 9.01 which states: “During an employee’s leave of absence
without pay or other unpaid absence from the Employer, the employee will not
accumulate service for any purpose under this Collective Agreement.” That provision,
the Union submits, if applied to an employee on maternity or parental leave, is directly
contrary to Section 52(a). The Union submits that under this provision, all rights under
the collective agreement that accrue based on the length of employment (whether active
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or not), length of service (whether active or not), or seniority, must accrue to an employee
on maternity or parental leave as if that employee were actively working. It submits that
under this provision, employees on maternity or parental leave must be treated as if they
were in active employment and service, for the purpose of determining their rights under
the employment contract. It submits that the Employer’s practice of proration does not
treat employees on leave as being in active service or employment – quite the opposite
and therefore, the Union submits, it is prohibited by the Act.
In support of its position, the Union cites to the following case: Re City of Barrie
and C.U.P.E., Local 2380 (Policy- Pregnancy Leave Grievance) (1994), 40 L.A.C. (4th)
168 (M. Picher); Re Leeds and Grenville County Board of Education and C.U.P.E., Local
1258 (1994), 44 L.A.C. (4th) 140(Thorne); Re Kenora Association for Community Living
and Ontario Public Service Employees Union, Local 702[2004] O. L.A.A.. No. 23
(Roberts) and Re City of Stoney Creek and C.U.P.E., Local 1220 (Agro Grievance)
[1998] O.L.A.A. No. 152 (Knopf)
The Employer
The Employer submits that under the parties’ collective agreement, accrual of sick
leave is based on actual attendance at work, not mere status as an employee. It first relies
on the general purpose of sick days – to provide financial protection for the loss of
income due to legitimate sickness or injury during the work year. The number of days, 18
per year and which may accrue only to 22, serves only that purpose. It submits that since
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sick credits are not required while an employee is on an approved leave, there is no need
to accumulate them over that period.
The Employer also relies on the “general understanding” that sick leave credits
are earned for time worked, citing to Re Ottawa Board of Education and Ontario
Secondary School Teachers Federation (1984), 14 L.A.C. (3d) 102 (Shime); Re
Elementary Teachers’ Federation of Ontario v. Lambton Kent District School Board
(Martin Grievance) ( 2007), 164 L.A.C. (4th) 420 (Etherington); Re Grand Erie District
School Board and Ontario Secondary School Teachers’ Federation, District 23 (Sick
Leave Grievance), 2008 CanLII 3535 (Knopf).
The Employer asserts that the language “an employee who works 40 hours per
week…” supports that interpretation, as does the next sentence that “[e]mployees
working less than 40 hours per week will have their sick day allocation prorated.” The
reference to “work”, it submits, indicates that the parties tied entitlement of sick leave to
work, not status.
The Employer further relies on the “deduction” language and the references to
proration to submit that sick days are intended to be prorated during maternity or parental
leaves of absence. It argues that the provision does not provide an exhaustive list of
circumstances under which sick leave may be deducted or prorated. It also relies on the
language that refers to an employee who “leaves” during the year. In its view, the use of
the word “leave” includes a temporary leave of absence. It submits that had the parties
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intended that an employee leave permanently, it would have used other words, such as
“discharge”, “resigns”, “quits”, or “terminated.” It contends that when an employee
“leaves” during the year, their sick days are “reconciled” or “prorated” which are
interchangeable terms in this context.
In support of its interpretation, the Employer relies on Brown and Beatty,
Canadian Labour Arbitration, 4th Ed., at Section 6:1110 (Non-working Periods); and the
cases cited above.
In terms of the Employment Standards Act, the Employer recognizes that Article
9.01 of the collective agreement may, on its face, violate Section 52 of the Act, but
submits that Section 52 does not apply to sick leave benefits under the parties’ collective
agreement because the benefit is not based on an employee’s length of service, but on the
performance of actual work. Section 52, it contends, precludes an employer from
excluding the leave from the calculation of length of service, seniority and length of
employment in calculating entitlements under a collective agreement. As stated in its
written submissions, it submits, Section 52 only precludes an employer from excluding
the leave from the calculation of benefits which are earned based on “length of
employment, length of service or seniority,” but not on actual service…”(emphasis in
original).
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The Employer relies on the Policy and Interpretation Manual, Employment
Practices Branch, Vol. 1, in regard to Section 52(1), in particular, the note found on page
18-119:
Note, however, that in the context of the requirement that time spent on leave be
included when determining the employee’s length of service, it is the policy of the
Program that employees will earn credit only for length of service, but not for
service itself, i.e., the employee is not treated as if he or she had actively been at
work during the leave. This reflects a change in past policy….
The Employer asserts that Section 52 does not affect entitlements earned on actual
service, and therefore contends that it does not apply to Article 20 of the collective
agreement because sick leave is not based on service or seniority, but on actual work.
In support the Employer relies on Re Leeds and Grenville County Board of
Education and C.U.P.E., Local 1258 (1994), 44 L.A.C. (4th) xxx (Thorne).
Reasons for Decision
The Employer acknowledges in its submissions that “the parties could have used
clearer language in Article 20.05 than they have….” After reviewing the collective
agreement, I certainly agree. The key is whether accrual of sick leave in Article 20 is
based on status as an employee (as argued by the Union) or by attendance at work (as
argued by the Employer). There is language in Article 20 that supports both
interpretations. Having carefully considered the collective agreement, the submissions of
the parties and the case law, however, I conclude that the grievance must succeed.
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The goal in a case of interpretation of a collective agreement is to determine the
intention of the parties, as expressed in the words of their agreement. As noted, the issue
is whether those words base sick leave on employment status or actual work.
In reviewing the language, I find that I cannot accept the Employer’s contention
that there is a “general consensus” that sick leave is based on actual work unless there is
“something concrete” in a collective agreement to indicate otherwise. The cases relied on
by the Employer for that contention were all in the education sector. The education
sector provided employees with a statutory entitlement under the Education Act for
“salary for a total of twenty school days in any one school year in respect of his absence
from duty on account of his sickness…” Teachers were also able to accumulate their
unused sick days, which served as a “form of insurance for illness” as well as a
retirement bonus. Re Ottawa Board of Education and Ontario Secondary School
Teachers Federation, supra at pars. 9, 10. In that sector, Arbitrator Shime concluded that
“[t]he one central fact that was relevant to the sick-leave credit system was that sick-leave
credits were earned through attendance at work. The credits were not automatic. They
were a payment for services performed.” Re Ottawa Board of Education, supra at par.
12. The Board stated at par. 13 that it was determining whether this “sick leave concept
has been modified by the legislation or the existing collective agreement.”
The cases cited by the Union refute that a similar “general consensus” applies in
other sectors. In Re Religious Hospitallers of St. Joseph of Villa Marie, supra, the Board
of Arbitration found that the collective agreement based sick leave accrual on the basis of
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employment, not actual work. In Re Sarnia General Hospital Commission, supra, the
Board of Arbitration determined that sick pay credits were based on employment, not
active service, and cited to a number of other arbitral decisions for that interpretation.
The parties intent under this collective agreement, therefore, must be determined
based on the language used in Article 20, without the benefit of a presumption that sick
leave is payment for work performed, absent “something concrete” in the collective
agreement to indicate otherwise.
Turning to the language, Article 20.01 states that “[a]ll employees who are in
regular positions of one-quarter (1/4) of a full time equivalent or greater are entitled to
sick days with pay.” The Union asserts that this language sets out the only condition for
sick pay entitlement, while the Employer asserts it only sets out the minimum full-time
equivalent that an employee must be before earning any sick leave days. While this
provision does provide the minimum full-time equivalent that an employee must be in
order to be eligible for sick leave – it is phrased as an “entitlement”. That is a significant
term.
Article 20.05 then sets out the specifics of that “entitlement.” It states that “[a]n
employee who works 40 hours per week is entitled to eighteen (18) sick days (one day =
8 hours) each fiscal year.” Again, the word “entitled” appears.
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The Employer, however, asserts that this language indicates that an employee
must actually work 40 hours per week to be entitled to sick credits, while the Union
contends that it is a reference to full-time employment, not a condition precedent to the
receipt of sick leave. When the provision is considered as a whole, within the context of
the entire collective agreement, I find the Union’s interpretation to be persuasive.
Article 20.05 distinguishes between an “employee who works 40 hours per week”
and an employee “working less than forty 40 hours per week.” Article 15, Hours of
Work, defines the “normal hours of work” for a full-time employee as “forty (40) hours
of work per week.” Employees who work 40 hours per week are full-time, and employees
who work less than 40 are part-time. Article 3.04 defines a “regular part-time
employees” as “an employee who has successfully completed the probationary period
and who normally works less than thirty-six (36) hours per week on a regularly scheduled
basis.” Throughout Article 20, the words “works forty (40) hours per week” denotes full-
time employees while working “less than forty (40) hours per week” denotes part-time.
This is seen not only in Article 20.05, but in 20.06 and 20.07 as well.
The parties also distinguish between full-time and part-time employees in Article
19, Vacation Leave, in Article 19.02 whereby “[v]acation entitlements apply to full-time
employees” and “[e]mployees working less than forty (40) hours per week” have their
vacation “pro-rated according to the full-time equivalency of their position.”
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In my view, the more reasonable interpretation of Article 20.05 that “[a]n
employee who works 40 hours per week is entitled to eighteen (18) sick days…each
fiscal year” is that it denotes full-time employees, and does not impose a requirement that
the employee actively work 40 hours each week to be entitled to eighteen sick days.
Such a requirement would be highly difficult to achieve, as employees may not be at
work 40 hours per week due to illness, bereavement leave, court attendance, personal
days, and so forth.
The Employer recognizes this difficulty in its submissions, arguing that Article
20.05 does not support a prorating based on hours of work because it speaks of sick days,
“so no prorating would occur…unless an employee was absent more than 1/18th of the
total working days in a year.” In the alternative, it submits that proration for every hour
not worked would not be an absurd interpretation because the Employer could, if it
wished, track hours worked and calculate sick time in exactly that manner.
With respect, the collective agreement does not support a proration of sick days
based on an employee being absent more than 1/18th of the days in a year. A similar
situation arose in Re Religious Hospitallers of St. Joseph of Villa Marie, supra. In that
case, the collective agreement provided that employees were “entitled to one and one-half
(1½) days sick leave with pay for each additional month of employment.” The employer,
however, denied sick leave accrual when an employee was absent more than 10 days in a
30-day period. The Board of Arbitration upheld the grievance, concluding at par. 11, that
the employer’s practice “is not consistent or in accordance with [the collective
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agreement] which applies simply to the employment relationship, not to the fact of
working.”
In terms of tracking employees time by hour in regard to sick leave, there is no
evidence that this has been done, or been accepted by the Union.
Further, the words are descriptive – they contrast the entitlement of full-time and
part-time employees. “An employee who works 40 hours per week is entitled to eighteen
(18) sick days” while “[e]mployees working less than forty 40 hours per week will have
their sick day allocation pro-rated.” This is very different than saying that an employee
must work 40 hours per week, or must be actively at work to be entitled to eighteen sick
days.
Article 20.05 then provides that “[a]n employee begins each fiscal year with their
allotment of eighteen (18) days and deducts from that over the course of the year. Should
an employee leave during the year, a reconciliation of sick days taken and number of
days earned will be done.” The first sentence of this language appears to provide full-
time employees with an allotment of 18 sick days at the start of the fiscal year, from
which each sick day used over the course of the year is deducted from that allotment. The
Employer asserts, however, that deductions (through proration or reconciliation) may also
be made for leaves of absence as set out in the second sentence.
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Although the provision does not specify when a “deduction” may be made, the
context clearly demonstrates that a deduction is made for each sick day used from the 18
allotted at the start of the year. Does it allow for other “deductions” when an employee is
on a leave of absence? If so, on what basis?
The Employer suggests that the “deduction” is made on a prorated basis, relying
on the third sentence of Article 20.05 that “[s]hould an employee leave during the year, a
reconciliation of sick day taken and number of days earned will be done.” The Employer
interprets “leave” to include leaves or absences. It equates “reconcile” with “adjust” and
“prorate” and suggests that the terms are used interchangeably in this context, although it
acknowledges that “the effect of ‘reconciling’ will be different – repayment - if the
‘leave’ is a permanent one.” In the case of an employee on maternity or parental leave, it
submits that sick days are “reconciled” or pro-rated under Article 20.05.
The terms “deducts”, “reconciliation” and “pro-rated” are all terms used in Article
20.05. A key principle of contract interpretation is that different words mean different
things. Presumably, by using different words, particularly in the same subsection, the
parties meant different things – and the terms should not be considered interchangeable.
The words “deducts from that over the course of the year” clearly refer to
deduction for sick days used during the year. It does not mean that the Employer can
deduct sick leave entitlement over the course of the year when an employee is absent
from work.
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Nor does the next sentence of Article 20.05 support that interpretation. It states
“[s]hould an employee leave during the year, a reconciliation of sick days taken and
number of sick days earned will be done.” The question is whether or not the term
“leave” includes “leaves of absence.” The term “leave” is used elsewhere in the
collective agreement. In Article 19.01 (b), the agreement provides that “[s]hould an
employee leave within their first year of employment then four per cent (4%) of their
earnings is paid in lieu of vacation time.” The most likely interpretation of this provision
is that when an employee leaves employment during their first year of work, they receive
four percent of their earnings in lieu of vacation time. It would not appear to apply to
“leaves of absence.” The provision then moves on to “the second and subsequent years
of employment” and subsection (f) deals with an employee who “resigns” and a
determination is made whether vacation pay is due to the employee, or must be
reimbursed to the employer. This latter possibility is necessary because an employee,
under Article 19.01(c) “may take all or a portion of their vacation leave after six months
of employment” or under (d) may “take vacation being earned for that year within the
same year.” Thus, there may be a situation whereby an employee has taken more
vacation days than they have earned when their employment has ended, and must
reimburse those extra vacation days back to the Employer.
This determination in regard to vacation time is similar, in my view, to the
“reconciliation” done under Article 20.05, should an employee “leave” during the year. A
“reconciliation” involves a comparison of the number of sick days taken by an employee
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and the number of sick days earned. It may involve a repayment by the employee if the
employee, who leaves, has taken more sick days than he or she has earned.
This “reconciliation”, however, applies only to employees who “leave during the
year”. For them, a final accounting must be made. An employee who goes “on leave”
during the year is not the same. They remain part of the employee complement, and will
return to work. There is no need for a final “reconciliation” or accounting due to their
leaving employment.
It would also be unusual, in my view, to include within the phrase “should an
employee leave during the year” an employee who goes on a temporary leave of absence.
Although the language could bear that interpretation, an employee who “leave[s] during
the year” is not the same as one who goes “on leave during the year.” One is permanent;
the other is temporary.
In my view, therefore, this language does not authorize the Employer to deduct
sick time for weeks or months that an employee is on leave. It applies to employees who
leave employment. If the parties intended it also to apply to leaves of absence, clearer
language would be needed.
The concept, however - that sick time is earned – supports the view that sick days
are earned through time worked. So does the pro-ration of sick leave for new employees
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based on their employment date. This language is why there is merit to the positions of
both parties, and makes this a difficult case to decide.
Overall, however, I find that the language more fully supports the Union’s
interpretation. The parties could have, but did not, specify that sick leave is to be prorated
for full-time employees based on attendance, completed work, or for leaves of absence.
They could have, but did not, provide that employees “earn” sick time per month of
work. Except for new hires, the collective agreement makes no provision for prorating
sick time for full-time employees. Instead, it provides an “entitlement” of 18 days to full-
time employees.
The pro-ration for part-time employees does not support the conclusion that sick
leave for full-time employees on leave should also be pro-rated. Rather, it indicates that
the part-time employees’ entitlement is not the same as full-time employees, and their
allocation is based on a comparison of their hours compared to full-time employees. The
same is true for vacation under Article 19.02, under which “[e]mployees working less
than forty (40) hours per week are entitled to vacation pro-rated according to the full-time
equivalency of their position.”
The fact that employees can only accumulate 22 days does not change this result.
On the contrary, it demonstrates that the accrual of sick leave is still of benefit to
employees who take maternity or parental leave, as there is an ongoing employment
relationship and the employee will be returning to work. Further, full-time employees
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may use up to four sick leave days as Personal Days, another benefit for returning
employees. Consequently, the Employer’s argument that “there is no need to accumulate”
sick time while on maternity or parental leave is not quite correct. There is a useful
benefit to them, upon their return to work.
Consequently, for the above reasons, I am persuaded that full-time employees are
“entitled” to eighteen sick days, at the start of each fiscal year, and that the Employer
may not deduct for maternity or parental “leaves of absence” under Article 20.05.
Given this ruling, it is not necessary to address the arguments of the parties
concerning the Employment Standards Act. Nevertheless, in order to provide guidance
to the parties, I will address that issue. For the reasons set out below, I conclude that
Section 52 of the Act does not bar a sick leave entitlement based on actual performance of
work.
Section 52 ensures that the period of an employee’s maternity or parental leave is
included in calculating, for determining his or her rights under a collective agreement, the
length of his or her employment (whether active or not) and length of service (whether
active or not) or the employee’s seniority. The Union, in its submission, argues that under
this provision that “all rights in the employment contract that accrue based on the length
of employment (whether active or not), length of employment (whether active or not), or
seniority must accrue to an employee on maternity or parental leave as if that employee
were actively working.” With that, I agree. The Union then asserts that “the
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consequence of this Part of the ESA is that employees on maternity or parental leave are
treated as if they were in active employment or service, for the purpose of determining
their rights under the employment contract.” With that proposition, I cannot fully agree.
It is true only insofar as the employees’ rights under the collective agreement are based
on length of service. The Union’s broader interpretation reads the word “length” out of
Section 52.
The Policy and Interpretation Manual, Employment Standards Act 2000, Vol. 1,
cited by the Employer in regard to Section 52, states at p. 18-120 that “any entitlement
driven by length of service, length of employment or seniority continues to accrue under
this section” but also provides the following limitation at p. 18-119:
Note, however, that in the context of the requirement that time spent on leave be
included when determining the employee’s length of service, it is the policy of the
Program that employees will earn credit only for length of service, but not for
service itself, i.e, the employee is not treated as if he or she had actively been at
work during the leave. This reflects a change in past policy. …
This interpretation runs directly counter to the Union’s contention that Section 52
requires that employees on maternity or parental leave be treated as if they were in active
service during the leave.
The Policy and Interpretation Manual explains that the predecessor language of
Section 52 was Section 42(4) of the Act, which stated: “Seniority continues to accrue
during pregnancy leave or parental leave.” This was interpreted by some arbitrators and
adjudicators, but not all, to include “service” – that service continues to accrue during
pregnancy or parental leave. E.g., Re City of Barrie and C.U.P.E., Local 2380(Policy –
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Pregnancy Leave Grievance), supra. The Union relies on this decision for its contention
that employees must be treated under Section 52 as if their service continues to accrue.
But when the Act was revised in 1996, the language was amended to protect “length” of
employment, “length” of service and seniority. The amendment did not simply state that
“seniority and service continues to accrue.” Consequently, in regard to benefits that are
based on length of employment, length of service or seniority, the amendment requires
employers to include the time that an employee is on maternity or parental leave in the
calculation of the employee’s benefits. The same is not true, however, where entitlement
is not based on length of employment or service or seniority, but actual performance of
work. As stated in the Policy and Interpretation Manual, at p. 18-119: “the employee is
not treated as if he or she had actively been at work during the leave.” Consequently,
Section 52 of the Employment Standards Act would not preclude the parties from
negotiating a provision which ties sick leave to actual performance of work.
Conclusion:
For all of the reasons set out above, I conclude as follows:
1. The grievance is allowed. Article 20.05 does not permit the Employer to deduct
or pro-rate time spent on maternity or parental leave from the employees’ annual
entitlement of eighteen (18) sick days. Interpreting Article 20, in the context of
the collective agreement as a whole, I conclude that entitlement of sick time is
based on employment status rather than actual time worked.
2. For the guidance of the parties, I conclude that Section 52 of the Employment
Standards Act does not preclude the parties from negotiating a provision which
ties sick leave to actual performance of work.
3. I shall remain seized.
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Issued this 11th day of April, 2013.
/s/ Randi H. Abramsky
______________________________
Randi H. Abramsky, Arbitrator