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Home My WebLink About2012-4216.Crofts.13-07-09 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2012-4216 UNION#2013-0607-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Crofts) Union - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Alison Nielsen-Jones Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Cathy Phan Ministry of Government Services Legal Services Branch Counsel HEARING May 7, 2013 - 2 - Decision [1] In a grievance dated February 1, 2013, Ms. L. Crofts claims that the Employer contravened a Memorandum of Settlement (“the Settlement”) when it altered the way it was paying her while she was off work. The Employer denies that its conduct contravened the Settlement. The parties agreed that this matter be addressed as provided for in article 22.16 of the Collective Agreement, except for the time limitation set out therein. [2] The representatives of the parties made their submissions on the basis of agreed facts. The agreed facts are only for the purposes of this proceeding. The relevant facts can be summarized as follows. [3] On March 16, 2012, the parties appeared at a mediation in Sault Ste. Marie to deal with grievance filed by Ms. Crofts dated August 8, 2011. Ms. Crofts claimed in this grievance that the Employer had failed to properly accommodate her. More specifically, Ms. Crofts and the Union claimed that the Employer’s failure to provide her with a separate office constituted a failure to accommodate her disability. After some discussion with the Vice-Chair, the parties agreed to an interim settlement which included Ms. Crofts undergoing an Independent Medical Examination (an “IME”). It is fair to say that the parties expected that the IME would resolve the question of whether Ms. Crofts should be provided with a separate office to accommodate her disability. The Settlement the parties entered into contained the following relevant terms: 1. The Grievor consents to an Independent Medical Examination (IME) which will be arranged by the Centre for Employee Health Safety and Wellness. 4. The Employer will place the Grievor on a leave with pay effective Monday March 19, 2012. - 3 - 5. The parties agree that the leave with pay will continue until a return to work plan has been developed and implemented. [4] In accordance with the Settlement, Ms. Crofts was placed on leave with pay effective March 19, 2012. The Employer paid her 100% of what she would have earned had she been working. Ms. Crofts attended the IME on July 31, 2012. Dr. Bilkey’s IME report was provided to the Employer on August 15, 2012, and then to the Union on September 11, 2012. Having regards to certain concerns and treatment recommendations, the IME report indicated that Ms. Crofts was not “able to enter the work environment given the aforementioned concerns.” [5] In an email dated November 28, 2012, Employer counsel advised the Union that the Employer was “looking to move the Grievor to sick leave immediately”, given that Ms. Crofts was unable to return to work. A teleconference was held with me on January 23, 2013, and although some issues were discussed, the representatives of the parties were not in a position to fully argue the matter at that time. The Employer placed Ms. Crofts on sick leave effective February 1, 2013. As of that date, the Employer has paid her 75% of what she would have earned had she been working. It is this alteration in her pay which led Ms. Crofts to file the grievance now before me. I was advised at the hearing that Ms. Crofts was following Dr. Bilkey’s recommendations to ensure that she will be in a position to return to work as soon as possible. [6] The Union submitted that the clear intention of the unambiguous Settlement was to place Ms. Crofts on a leave with pay at 100% of her salary until a return to work plan had been developed and implemented. It argued that the fact that the Employer continued to pay Ms. - 4 - Crofts at 100% for over ten months, and well after it had the results of the IME, is an indication that the Employer was well aware that it was obliged to pay 100% of her salary while she remained on leave. The Union argued that the Employer’s unilateral decision to reduce her payments to 75% of her salary constitutes a breach of the Settlement and a contravention of the Human Rights Code. The Union referred me to section 3:4400 (Extrinsic Evidence) from Labour Arbitration, Brown & Beatty, as well as the following decisions: Re University of Manitoba and The Canadian Union of Educational Workers, Local 9 (1990), 11 L.A.C. (4th) 353 (Freedman); OPSEU (Mark) and Ministry of Community Safety and Correctional Services (2008), GSB No. 2008-2162 (Briggs); and, OPSEU (Vinall et al) and Ministry of Natural Resources (1993), GSB Nos. 1270/86 et al. (Gray). [7] Employer counsel submitted that the term “leave with pay” can refer to a variety of leaves, as reflected in the way the parties use the term in the Collective Agreement. Counsel argued that term used in paragraph 4 of the Settlement can encompass sick leave, which in this case more accurately reflects the status of Ms. Crofts. Counsel also submitted that the parties did not intend that Ms. Crofts would receive pay at 100% of her salary in circumstances where she was not able to return to work for a very long time. Counsel submitted that the reduction of her pay to 75% of her salary in these circumstances does not amount to a breach of the Settlement. Employer counsel relied upon the following decisions: OPSEU (Dupuis) and Ministry of Correctional Services (1988), GSB No. 1335/86 (Knopf); and, OPSEU (Lucan) v. Ministry of Community Safety and Correctional Services, [2007] O.G.S.B.A. No. 1 (Abramsky). [8] The Union’s submissions focused on its contention that that there had been a breach of the Settlement and simply asserted at the end of its submissions that the Employer had - 5 - also contravened the Human Rights Code. I am unable to find that the Employer contravened the Human Rights Code in these circumstances. These reasons focus on the Union’s claim that the Employer breached the Settlement. [9] In ascertaining the intention of the parties, it is important to focus on the language in the Settlement as well as the context which gave rise to the Settlement. The key feature of the Settlement was that Ms. Crofts would undergo an IME in order to resolve the question of whether she required a separate office as part of an accommodation plan. The Employer agreed to place her on a leave of absence at 100% of her salary until this question was answered by the IME. Neither party anticipated that the IME would not answer this question, but instead would result in Ms. Crofts being off work due to illness. [10] I agree with the Employer counsel’s submission that the parties did not intend by the interim Settlement that Ms. Crofts would be paid at 100% of her salary if the reason for her absence from work related to illness, as opposed to simply waiting for the IME to answer the question concerning her accommodation. The Union’s position on the meaning of the term “leave with pay” would lead to an absurd result if Ms. Crofts was never able to return to work due to illness. The parties did not intend in such circumstances that Ms. Crofts would be paid at 100% of her salary for an extended period of time. [11] The parties used the term “leave with pay” in paragraph 4 and 5 of the Settlement without being specific as to what the pay would be. As Employer counsel submitted, the term can reference different types of leaves, with different levels of pay. I agree that the use of the term “leave with pay” in the Settlement can encompass a leave which pays 75% of an - 6 - employee’s salary, consistent with the amount an employee would be paid while on sick leave. It is for this reason that I find that the Employer’s alteration in Ms. Crofts pay from 100% to 75% of her salary effective February 1, 2013, does not constitute a breach of the Settlement. [12] For the foregoing reasons, the grievance filed by Ms. Crofts dated February 1, 2013, is hereby dismissed. Dated at Toronto, Ontario this 9th day of July 2013. Ken Petryshen, Vice-Chair