HomeMy WebLinkAboutDhawan 06-07-10 i
IN THE MATTER OF AN ARBITRATION
BETWEEN:
SENECA COLLEGE
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(The "College")
-and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(The "Union")
AND IN THE MATTER OF THE GRIEVANCE OF SONIA DHAWAN CONCERNING
THE SUPPLEMENTARY UNEMPLOYMENT BENEFIT PLAN
David K.L. Starkman Chair
Pamela Munt-Madill Union Nominee
Robert Gallivan College Nominee
APPEARANCES FOR THE COLLEGE
Craig Rix Counsel
APPEARANCES FOR THE UNION
Sheila Turkington Counsel
A Hearing in this matter was held on February 1, 2006 at Toronto, Ontario
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AWARD
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The Union alleges that the College has violated the provisions of article 22.02 of the
collective agreement by not paying the grievor, Sonia Dhawan, the supplementary
unemployment benefits to which she is entitled. The College asserts it has made
appropriate payments in accordance with the collective agreement. The relevant
provisions in the collective agreement are:
15.01A A full-time employee who has completed one full academic
year's service with the College shall be entitled to a vacation of two
months as scheduled by the College. A full-time employee who has
completed less than one full academic year's service with the College
shall be entitled to a two month vacation period and shall be paid the
remainder of the employee's prorated annual salary.
15,0113 A teacher assigned to teach for an additional month (11'h month)
over the normal teaching schedule of the equivalent to ten months as part
of a continuous 12 month program shall be entitled to a vacation of one
month, as scheduled by the College. Such teacher shall also receive a
bonus of ten percent of the employee's annual regular salary for the
additional eleventh month of teaching assignment to be paid on
completion of such assignment. A teacher assigned to teach in the
eleventh month for less than a full month will be entitled to a pro-rata
amount of the ten percent bonus referred to above, to be paid on
completion of such assignment.
22.01E The College will not require an employee to take vacation
entitlement concurrently with leave under this Article.
22.026 An employee entitled to leave under 22.01, who provides the
College with proof that the employee has applied for and is eligible to
receive unemployment insurance benefits pursuant to Sections 22 or 23,
Employment Insurance Act, S.C. 1998, C.23, shall be paid an allowance
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in accordance with the Supplementary Unemployment Benefit Plan
(S.U.B.).
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22.02C Payments made according to the Supplementary Unemployment
Benefit Plan will consist of the following:
(i) for the first two weeks, payments equivalent to 93% of the
regular salary which the employee would otherwise have
earned during the period.
and
(ii) for the balance of the period during which the employee is
eligible to receive unemployment insurance benefits
pursuant to Section 22 or 23, Employment Insurance Act,
S.C. 1996, c.23, payment equivalent to the difference
between the sum of the weekly E.I. Benefits the employee is
eligible to receive and any other earnings received by the
employee, and 93% of the regular salary which the
employee would otherwise have earned during such period.
The parties agreed to the following facts:
1. The Union and the College are governed by the collective
agreement between the College Compensation and Appointments
Council for the Colleges of Applied Arts and Technology and the
Ontario Public Service Employees Union, with a term extending
from September 1, 2003 to August 31, 2005.
2. Sonia Dhawan is e.employed as a Counsellor with Seneca College.
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Her employment is covered by the collective agreement.
3. The academic year for 2004105 commenced on September 1, 2004
4. Employees earn an annual salary under the collective agreement.
The annual salary is earned over ten months of work. The College
has a practice of spreading out payment of this salary through
installments extending over a 12 month period and including the
two month unpaid vacation period established under article 15 of
the collective agreement.
5. Ms Dhawan began receiving partial payment of her 2004/2005
annual salary following September 1, 2004. The College began
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making salary payments every two weeks based on 101261 of the
annual salary amount.
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6. Ms Dhawan commenced a pregnancy and parental leave on
October 31, 2004 which extended to October 22, 2005.
7. The College initially began paying Ms Dhawan SUB payments
calculated on the following basis. The College calculated a daily
amount by dividing Ms Dhawan's annual salary by 217,
representing the College's calculation of the number of days in a
calendar year except for weekends, holidays and the two month
vacation period under article 15 of the collective agreement. The
college multiplied this daily amount by 5 to obtain a weekly amount.
It multiplied this weekly amount by 93% and paid to Ms Dhawan the
difference between this and the amount of employment insurance
benefits Ms Dhawan was receiving.
8. In the course of the academic year, the College contacted Ms
Dhawan to advise that it believed it had made an error in its
calculation of SUB payments to her. It revised its calculation as
follows. The College calculated a dally amount by dividing Ms
Dhawan's annual salary by 261, representing the College's
calculation of the number of days in a calendar year except for
weekends, and holidays. The 261 figure is based on pro rating the
annual salary over 12 months and paying it over that 12 months.
The figure is the total of 365 calendar days less weekends and
holidays. The College multiplied this daily amount by 5 to obtain a
weekly amount. It multiplied this weekly amount by 93% and paid
to Ms Dhawan the difference between this and the amount of
employment insurance benefits Ms Dhawan was receiving.
9. The only monies that Ms Dhawan received during the October 24,
2005 to December 16, 2005 period were portions of salary that the
employer had not yet paid to her from September 1, 2004 to
October 31, 2004 period as a result of the College's practice of
spreading the annual salary earned over 10 months across 12
months of salary payments.
10. In addition to this, Ms Dhawan is scheduled to take her vacation
entitlement in the 2005/2006 academic year before August 31,
2006. Ms Dhawan's 2004/2005 vacation entitlement was
scheduled upon her return from her leave between October 29,
2005 and December 16, 2005,
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Attached as part of the statement of Agreed Facts was a Chart showing both the
payments the College made to Ms Dhawan each week of her leave together with the
amounts the Union claimed should have been made. That Chart is attached as an
Appendix to this Award.
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The Union submitted that the language of article 22.02C(ii) was clear that the grievor,
while on mate rnitylparentaI leave, was entitled to be paid the difference between what
she received in Employment Insurance benefits and 93% of the monies she would
otherwise have earned during the period. In its view, her salary is earned over a ten
month, or 43 week period, thus one uses a divisor of 217 to determine a daily rate. The
Union also submitted that the ten month rate should continue to be paid for the full
twelve months of the leave so as not to financially disadvantage the grievor in the year
following her return to work.
In the Employer's view, the grievor is entitled to have her salary topped up to 93% of
what she otherwise would have earned, and because the grievor's salary is paid over
twelve months, what she would have been paid requires use of the divisor of 261
referred to in the Agreed Facts. In its view, if the grievor was paid according to the
Union's calculation, then during the period of the grievor's leave of absence she would
receive almost 112% of the annual salary she would otherwise have earned had she
been at work during that year, and the parties could not have intended such a result.
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The Union acknowledges this result, but points out that, if the College's interpretation is
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accepted, then the grievor will in fact receive less than 93% of her earnings when one
looks at the impact of the leave upon the grievor in the period October, 2005 when she
returned from parental leave, until September, 2006, being the end of the 2006 vacation
period. When the grievor returned from her leave in October, 2005 she was given two
months of vacation pursuant to article 95.01A. During that vacation period, the grievor
received from the Employer the deferred salary from working September to October,
2004, immediately prior to her leave, which amounted to $237.30 per week.
As well, because the grievor was on vacation and not at work during the months of
November and December, 2005, the College was not paying her regular salary and was
therefore not setting aside any deferred salary, so that when the grievor goes on
vacation in the months of July and August, 2006, she will have deferred salary from
working only six months, January to June, and therefore she will receive less money
during the summer months of 2006, than she otherwise would have received had she
been at work, and had salary deferred in the months of November, and December,
2005.
In the Union's view, if one looks at what the grievor would receive, on its interpretation
of the collective agreement, in the two year period from the commencement of the leave
in October, 2004 until the end of the summer vacation period in September, 2006 she
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would receive 93% of her wages during the period October, 2004 until October, 2005
and 900% of her annual wages for the period January, 2006 and ending in August,
2006. if the Employer's interpretation is accepted, during the period of her leave she
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would receive 93% of what she otherwise would have received during the period of the
leave, 8nd less than one hundred per cent of her salary during the period from the end
of her leave in October, 2005 and the end of the summer vacation period in August,
2006.
The Employer responds that one should not look at this matter over a two year period,
as the language of article 22.02C(ii) is clear that the grievor is only entitled to a top up to
93% of what she otherwise would have earned during the period of the leave, and the
impact of this provision on the grievor's salary in the year following the leave is not
material in determining the meaning of the words used in article 22.02C. The Employer
made no explicit representations as to what the grievor will earn in total during the
period September 1, 2005 until August 39, 2006.
The Union responded to this submission by submitting that the parties negotiated
language in the collective agreement which indicates that the parties intended to look
beyond the one year period.
DECISION
It is clear that full-time academic staff such as the grievor earn their salary over a ten
month period. It is also clear that the College has an administrative practice of
withholding a portion of the salary each pay period and paying this money during the
two month vacation period which usually occurs in the summer months. This is
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administratively convenient for both the College and the academic staff.
The difficulty in this matter is caused by three factors. The first is that employees, such
as the grievor, "earn" their salary over a ten month period and then have two months of
unpaid vacation, usually in the summer months, The second factor is the practice of
the College of withholding a portion of an employee's salary during the month(s) it is
being earned, and paying the withheld monies to the employee during the two month
vacation period. The third factor is the language of the collective agreement which
prevents the College from requiring an employee to take vacation during the period of a
leave.
Article 22.02(ii) of the collective agreement requires the College to pay to an employee
on maternity/parental leave, "93% of the regular salary which the employee would
otherwise have earned during such period". To the College this means that an
employee such as the grievor, who was paid $61,090.00/year prior to the
commencement of her leave would receive 93% of that amount during the term of her
leave, assuming there were no salary adjustments during the period. As can be seen
from the Chart appended hereto, that is the amount the grievor actually received.
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In the Union's view, such a payment results in the griever being penalized in the year
following her return from the leave. Article 22.01 E provides that the College cannot
require an employee to take vacation concurrently with the leave. The grievor therefore
took two months 'vacation' upon her return to work for which she received $2,035.65 in
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total, being the money withheld during the September to October, 2004 months
immediately prior to going on leave. In the Union's view the griever will receive less
money in the July - August, 2006 vacation period, because she had no earnings, and
therefore no withholdings in the November - December, 2005 months when she was on
vacation. Thus over a two year period the griever will be paid approximately $7,185.00
less than she otherwise would have received had she not taken the leave of absence.
The Union argues that the grievor should be paid the ten month rate for the entire
twelve months of her leave. This would include payment for each week of a leave that
falls during the summer months, because in its view those are weeks when the grievor
is not on vacation by virtue of article 22.01 E, and therefore should be deemed to be
earning money.
The Union acknowledges that its interpretation will result in payments in the period from
September, 2004 until August, 2005 of approximately $7,185.00 more than what the
grievor would otherwise have received had she not taken the leave. The Union submits
however that if this overpayment is not paid in the first year the grievor will be penalized
in the second year by receiving less than she otherwise would have earned and that it
could not have been the intention of the parties to penalize employees by a reduction in
their take home remuneration for taking a mate rnitylparental leave of absence.
In resolving this matter, the Panel has looked to the words used by the parties, as
signifying their intentions. The grievor is entitled to receive from the College "93% of the
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regular salary which the employee would otherwise have earned during such period". It
is clear that the period referred to is the twelve months of the grievor's leave.
The parties agreed that the grievor's salary at the commencement of her leave of
absence was $61,090.00 and that during her leave it was increased according to the
collective agreement to $62,189.00. The parties also agreed that the grievor earned
her salary over a ten month period. The collective agreement provides that the College
shall top up the grievor's salary to 93% of what she otherwise would have earned. As is
evident from the attachment, that is what the grievor received.
To adopt the Union's interpretation of the collective agreement would mean paying the
grievor almost 112% of her salary during the twelve months of her leave instead of the
93% required by Article 22.02C which is contrary to the express language used by the
parties. We also find that the Union's argument and reliance on the vacation provisions
of the agreement to be unpersuasive in interpreting the meaning of Article 22.02C as
nothing in article 22.01 E supports paying the grievor more than 93% of the salary she
otherwise would have earned during the period of her leave.
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Accordingly, we conclude that Ms. Dhawan was paid correctly in accordance with Article
22 of the collective agreement. Her grievance therefore is hereby dismissed.
This decision is without prejudice to the right to file a subsequent grievance should the
grievor feel she was not properly compensated for the 2005-2006 academic year
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Dated at Maberly, Ontario this 10`h day of July, 2006
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David K.L. Starkman
Chair
"i dissent" - see attached
Pamela Munt-Madill
Union Nominee
"I concur"
Robert Gallivan
College Nominee
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APPENDIX `A'
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e• Sonia Dhawan
atal; 51 weeks
nan. Leave: October 31,2004-Februay 26,2005 I
arental Leave: Februa 27,2005-October 22,2005 Union Re nest
Re u5ar Salary Regular Salary- Deferred Sal.For 04!05 SUB Benefits Paid+EJ. SUB Payment
Paid at 12 mths. Earned at 10 mths lVacation 1 1110 for entire leave
leek Sala Rate Service Type 263 (21 (0ct23-Dec 16,2005) 1 Comments
;ptember 1-4,2404 $58,891.00 Fuli'1irne $676.91 $814.16 513725
e tember5-11,2004 $61,090.00 Full Time 51,170.31 51,407.60 5237.30
s tember12-18,2004 $61,090.00 Full Time $1,170.311 $1,407.60 $237.30
:ptemberl9-25,2004 $61,090.00 Full-rime $1,170.311 $1,407.60 $237.30
:ptember266-October 2,2004 $61,090.00 Full-time $1,1M311 $1,407.60 $237.30
ctober 3-9,2004 $61,090.00 FuIITune $1,170.31,111 $1,407,60 $237.30
ctober 10-16,2004 $61,090.00 Full Time S1,170.311 $1,407.60 $237.30
ctober 17-23,2004 $61,090.00 Full Time S?,170.31 $1,407.60 $237.30
otober24-30,2004 $61,090,00 Full Time $1,170.311 $1,407.60 $237.30
.tober31-November 6,2004 $61,090.00Waitin Period $1,170.31 S1,407.601 $1,088.39 1 51,309.07
wember 7-13,2004 $61.090.00 Waintin2 Period S1,170.311 $1,407.601 1 $1,088.3191 $1,309.07
wernber14-20,2004 $61.090.00E.I,+Sub Payment $1,170.31 $1,407.60 $1,088.391 $1,309.07 '
wember21-27,2004 $61,090.00 E.I.+Sub Pa ent $1,170.31 $1,407.60 $1,088.391 $1.309.071.
wember 28-December 4,2004 561,090.00 1 E.l,+Sub Pa ment $3,170.31 $1,407,60 51,088.39 $1,309.07
:cember 5-11,2004 $61,090.00 1 E.l.+Sub Payment 1,1770.31 $1,407.60 $1,088.39 $1,
-38,2004 51 .33 51,40760 $1, 88.39 09-0;1
.wrnber12 , E 3091 j
:cember 19-25,2004 $1,170.31 $1,407.60 $1,309.07
,
:cember26-Janus 1,2004 561,090.00 El.+Sub Pa ent $1,170.31 $1,407,60 $1,088.39 $1,309.071
ry
nau 2-January 8,2005 $61,090.00 E.1.+Sub Payment $1,170.31 S1,407.601 $1,088.39 $1,309.07
nua 9-15,2005 $61,090.00 E.I.+Sub Payment $1,170.31 $1,407.601 $1,088.39 $1,309.07
nuary 16-22.2005 $61,090.00 E.I.+Sub Payment $1,170.31 $1,407.60 $1,068.39 53,309.071
nua 23-29,2005 $61,090 GE.I.+Sub Payment $1.170,31 $1,407.60 $1,088.39 $1,309.071
nua 30-February 5,2005 $61,090.00 E.1.+Sub Pa ent $1,170.31 $1,407.60 $1,088.39 $1,309.07
:brua 6-February 12,2005 $61,090.00 E.I.+Sub Payment $1,170.31 51,407.60 $1,088.39 $1,309.07
,bra 13-19,2005 $61,090.001=.1.+SubPayment $1,170.31 $1.407.60 $1,088.391 $1,309.07'
:braua 20-26,2005 $61,090.00 E.I.+Sub Payment $1,170.31 $1,407.60 $1,088.391 $1,309.07
bruary27 March 5,2005 $61,090.00 E.1.+Sub Payment $1,170.31 $1,407.60 $1,088.39 $1,309.071
arch 6-12.2005 $61,()90.00 1 E.I.+Sub Payment $1,170.31 $1,407, 51,088.39 51,309.07
$61,090.00E.l.+Sub Payment 60 $1,088.39 $1,309.07 arch13-19,2005 $1,170.31 $1407.60 arch 20-26,2005 $61,090.00 El.+Sub Payment $1,170. 407.601 $1.088.39 $1,309.07
vch27-31,2005 $61,090.00 E.I.+Sub Pa ent $93625 $1,126.081 $870.71 $1,04726
ril 1 -2,2005 $62,189.00 E.l,+Sub Payment $23827 $286"591 $221.59 $266.52.1
aril 3-9,2005 $62,189.00 E.I.+Sub Payment $1.191.361 $1,432.931 $1,107.96 $1,332.62
*10-16,2005 $62,189.00 E.1.+Sub Payment $1,193.36 $1,432.93 $1,107.96. $1,332.62
4117-23,2005 $62,189.001=_1.+Sub Payment $1,191.36 $1,432.93 $1,107.96 $1,33162
ril 24-30,2005 $62,189.00 E.I.+Sub Payment $1,191.36 $1,432.93 $1,107.95 $1,332.62
ty 1-7,2005 $62,189.00 E.S.+Sub Payment $1,191.36 $1,492.93 51,107.96 $1,332.62
iy 8-14,2005 $62,189.00 E.I.+Sub Payment $1,191.36 $1,432.93 $1,107.96 $1.332.62
jy 15-21,2005 562,189,00 I E.I.+Sub Payment $1,191.36 $1,432.93 $1,107.96 $1,332.62
ix 22-28,2005 $62,189.00 E.I.$Sub P3yrnent $1,191.36 51,432.93 5?,107.96 $1,332.62
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DISSENT OF THE UNION NOMINEE
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With all due respect I must disagree wifh the Majority.
The Majority is correct in basing their decision on the wording of Article 22.02 {Ii} of the
collective agreement as signifying the parties' Intentions, The Majority however makes
an error in applying the clear intent of this provision to the grievance before them.
Tho wording of Article 22,02(11) dearly signifles the parties' Intention to support
individuals on a Maternity/Paternity leave at a level of Income close to their normal
earnings. Basic principles of contract interpretation roquirs that this dear Intention be
supported by an interpretation of the Article. The Majority's decision not only does not
support this clear Intention but Is patently unreasonable In light of this clear Intention.
The Majority makes an error of fact on page 10 of the declslon In finding that the regular
salary which the Grievor would have earned during the twelve month period of her leave
was approximately equal to her annual salary. As is clear from the collective agreement
provisions and the submissions of both parties, the Grievor's annual salary is based on
a twelve month academic year during which she receives a two month unpaid
vacation, This is not'the situation of the Grievor while on her leave. Article 22.01E of
the collective agreement prevents the College from requiring the Grievor to take her
vacation concurrent with her Maternity/Parental leave. The Grievor therefore deferred
her unpaid vacation entitlement until her return from her leave. Such a deferral was
accepted by all parties. The Grievor would not therefore have earned her regular salary
during the twelve month period of her leave. She would have regularly earned an
amount which recognized she did not receive her vacation entitlement.
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The calculations submitted by the Union accurately reflect a correct application of all of
the provisions of the collective agreement, These calculations recognize thy,. clear
intention of Article 22.02 (il) to support the Grievor's Income during the period -if her
leave at a level equal to 93% of her regular earnings with deferral of her unpaid vacation
entitlement until her return. The Gdevor's financial position is then consistent with the
language of the colloclh/e agreement.
The proof of the Major€ty's error is the gross difference In remuneration between the
obvious intention of the partles drafting the collective agreement and the result in this
grievance. As Is admitted by the Majority, the result of their interpretation of Article
22.02(il) Is to cause this Gria•+or to suffer a financial loss of approximately $7,800 in
addition to the expected 7% loss as a result of her Maternity/ Paternity Leavn Stich a
result can only be said to be patently unreasonable In light of the char unequival
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Intention of Article 22.02(ii).
In light of tire, above It is clear the Majority has made several errors in arriving at their
conclusion. For this reason both the analysis and the result of the Majority's derision
should be rejected and an interpretation of this provision which is consistent with
accepted principles of contract Interpretation should ba suhstituted The grievance
should be allowed and the drlevor should immediately be paid the amounts owing to
her as outlined In the Union's submissions with all appropriate Interest,
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