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HomeMy WebLinkAboutRichards 14-09-15 IN THE MATTER OF AN ARBITRATION BETWEEN: Cornwall Community Hospital (the “Hospital”) -and- Ontario Public Service Employees Union, Local 402 (the “Union”) Sole Arbitrator Christine Schmidt For the Union: Wassim Garzouzi, Counsel Morgan Rowe, Counsel For the Hospital: Vicki Satta, Counsel Carolyn Dunlop, Counsel AWARD 1. This award concerns two grievances: an individual and a policy grievance relating to the narrow issue of the calculation of an Early Retirement Allowance (“ERA”) for Ms. Connie Richards (the “grievor”), a Tech 2-Phlebotomist previously employed at the Hospital. 2. The grievor opted to receive an ERA rather than transfer her employment to the Eastern Ontario Regional Laboratory Association (“EORLA”) when laboratory functions and positions were transferred from the Hospital to the EORLA on April 1, 2012. 3. This case proceeded by way of written submissions based on the pa rties’ Agreed Statement of Fact (“ASF”) attached as Appendix A to this award. 4. Briefly, at the time the grievor opted to receive an ERA, she had been working 22.5 hours per week for 13 months as a permanent accommodation stemming from a workplace injury sustained in May 2009. Prior to that, she had worked full-time hours. The grievor’s weekly wages at the time she opted to receive the ERA amounted to $570.825 ($25.37 X 22.5 hours). She was 61 years old at the time. 5. In addition to her weekly wages, the grievor received Workplace Safety and Insurance Board (“WSIB”) benefits to match her pre-disability salary. The grievor will continue to receive WSIB benefits until she is 65. Notwithstanding the grievor’s reduced hours on account of her disability, she retained her status as a full-time employee with the Hospital. The parties agree the grievor had 17 years service when she opted for the ERA and chose to retire. 6. The collective agreement provides that employees eligible for early retirement can opt to receive an ERA of “two weeks’ salary for each year of service to a maximum ceiling of fifty-two (52) weeks’ salary.” The Hospital 2 calculated the grievor’s ERA based on the regular weekly wages (the salary) she earned working 22.5 hours per week. The Union contends that the Hospital’s calculation violates article 11.12 of the collective agreement and the Ontario Human Rights Code (“the Code”). Its position is that the grievor’s ERA should be calculated on the basis of a 37.5 hour work week – a standard full-time employees’ work week. Collective Agreement 7. The provisions of article 11.12 of the collective agreement relevant to the issue in dispute read: 11.12 (a) Local Human Resource Plans will apply to Health Services Restructuring Commission directives. In other circumstances, the balance of this Article will apply. (b) Before issuing notice of long term layoff pursuant to Article 11.03, and following notice pursuant to Article 11.01 (a), the Hospital will make offers of early retirement allowance in accordance with the following conditions: (i) The Hospital will first make offers in order of seniority in the department(s) and in classifications where layoffs would otherwise occur. The Hospital will offer the same number of early retirements as the number of layoffs it would otherwise make. (ii) The Hospital will make offers to employees eligible for early retirement under the Hospital pension plan (including regular part-time, if applicable, whether or not they participate in the hospital pension plan). … An employee who elects an early retirement option shall receive, following completion of the last day of work, a retirement allowance of two (2) weeks’ salary for each year of service, to a maximum ceiling of fifty-two (52) weeks’ salary.* (c) If after making offers of early retirement, individual layoff notices are still required, prior to issuing those notices the Hospital will offer a voluntary early exit option in accordance with the following conditions: (i) The Hospital will first make offers in the classifications within department(s) where layoffs would otherwise occur. If more employees than are required are interested, the Hospital will make its decision based on seniority. 3 … *The following will apply when calculating early retirement, voluntary exit and separation allowance for part-time employees:  Service - One year of service for each 1650 hours worked  Weekly Salary - The employee’s regular hourly rate on her last day times her normal weekly hours.  Normal Weekly Hours - Average hours worked over the preceding 26 weeks. The Code 8. The relevant provisions of the Code agreement read: Section 5: 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, gender identity, gender expression, age, record of offences, marital status, family status or disability. Section 11 reads: 11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where, (a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or (b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. R.S.O. 1990, c.H.19, s.11(1). (2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. 4 Did the Hospital violate article 11.12 of the collective agreement when it calculated the grievor’s ERA? 9. The Union says that the Hospital has applied the collective agreement language reproduced above as it pertains to the calculation of an ERA for part- time employees to the grievor despite her full-time status. It asserts that the Hospital has prorated the grievor’s salary by her actual hours of work and calculated that salary at the time she opted to receive the ERA. According to the Union, the way the Hospital has calculated the grievor’s ERA is by reference to the definition of “weekly salary” in article 11.12 applicable to only part-time employees. The Union submits that the collective agreement language is indicative of the parties’ intention to calculate an employee’s ERA based on their employment status rather than their hours of work. Therefore, the Union reasons that the grievor, a full-time employee, is entitled to an ERA based on the regular weekly full-time salary of a Tech 2- Phlebotomist. 10. The first thing to note about article 11.12 of the collective agreement is that the formula chosen by the parties for the calculation of the ERA (or the “retirement allowance” as it is referred to in 11.12(b) applies to all employees in the bargaining unit irrespective of their status as full-time or part-time employees. The formula makes no distinctions between employees as a result of the number of hours they work or their status as full-time or part-time. Rather, the chosen formula is driven by the employee’s salary and years of service. That is as true for part-time employees as it is full-time employees. Every eligible employee who chooses to avail herself or himself of the early retirement option is entitled to receive a retirement allowance of “two (2) weeks’ salary for each year of servic e.” 11. The second notable aspect of article 11.12 is that there is no qualification of the formula in respect of full-time employees, most probably because full-time employees normally work the same standard number of hours per week: 37.5. Part-time employees, on the other hand, do not share a standard work week. 5 Since their weekly hours vary, the parties negotiated qualifying language to deal with part-time employees’ unique circumstance. It was necessary to equate “each year of service” for purposes of the retirement allowance with a certain number of yearly hours of work – and in this case, the parties chose 1650 hours to represent a year of service for part-time employees. Due to the variation in the weekly hours of work between part-time employees, the parties also clarified that a week’s salary for any given part-time employee means his or her regular hourly rate on the last day of his or her employment multiplied by his or her “normal weekly hours,” which are further clarified as consisting of the part-time employee’s average weekly hours over the past 26 weeks. 12. The absence of language prorating full-time employees’ salaries by their hours of work neither renders the prescription of the manner by which part-time employees’ weekly salaries are obtained redundant as argued by the Union, nor does it suggest that an employee’s salary is based on whether an employee’s status is full or part-time. 13. As the ASF points out at paragraph 4, the grievor “was a full-time Tech 2- Phlebotomist at all material times (emphasis added). Moreover, the grievor was always treated as a full-time employee for purposes of her entitlement to benefits and regarding the accrual of vacation (paragraph 12). The issue, then, is whether or not, as a full-time employee, the grievor received the retirement allowance that she was entitled to receive under article 11.12. 14. Critical to that conclusion (particularly as there is no dispute between the parties concerning the grievor’s years of service or the amount of compensation she was receiving both from the Hospital and WSIB) is the determination of the meaning of “two (2) weeks’ salary.” The Hospital interpreted “salary” to mean the actual amount of weekly compensation that was paid by the Hospital (as opposed to any compensation payable by WSIB) to the grievor over the course of her last year of employment. The Union effectively says that “salary” in article 6 11.12 for a full-time employee does not mean actual compensation received as of a certain date by the employee having regard to his or her hours of work, but refers to the weekly amount that would be payable to an employee in a classification based on his or her hourly rate multiplied by a standard, full-time 37.5 hour work week. The Union contends that that must be the correct interpretation given the qualifying language that applies only to part -time employees and not to full-time employees. In other words, the parties intended “salary” for full-time employees to be interpreted differently from “salary” for part- time employees. Therefore, submits the Union, the Hospital is incorrect to have transferred concepts applicable to the calculation of part-time employees (the rate of pay payable on the last day of work multiplied by the normal weekly hours worked) to the full-time grievor. 15. I prefer the Hospital’s interpretation. 16. In coming to this conclusion, I adopt the reasoning of Arbitrator Steinberg in Canadian Union of Public Employees, Local 1974 v. Kingston General Hospital, [2013] O.L.A.A. No. 1, wherein he treated the phrase “two (2) weeks salary” in that collective agreement as pertaining personally to the indi vidual in receipt of the salary. 17. In my view, the quantification of an employee’s salary is personal to that employee and it reflects the bargain of payment for actual work. The grievor’s salary was $570.825 per week for 13 months prior to her decision to opt for an ERA. The plain language of this collective agreement does not support the Union’s interpretation that would have the grievor’s salary artificially inflated to that of an employee who works 37.5 hours of work a week. That is not the salary that the grievor received. Moreover, the cases provided by the Union, which speak to an employee’s status existing independently from their hours of work, do not inform the determination of the grievor’s salary. Her “two weeks’ salary” - 7 as are all employees’ “two weeks’ salary” - is a quantum of money reflecting the bargain of payment for work performed regardless of employee status. 18. The Hospital has not prorated the grievor’s salary by her hours of work in calculating her ERA. It has not applied the language applicable to part -time employees to the grievor. Rather, it has calculated the grievor’s ERA based on two weeks of the salary she actually received for 13 months before she chose to retire from her employment. It simply calculated the grievor’s salary by reference to the amount of compensation she was receiving for the work that she performed. 19. I have considerable difficulty with the Union’s argument that the “salary” used for the purpose of the calculation of the ERA, can, on the collective agreement language of article 11.12 be anything other than compensation payable by the Hospital as of the last day of work. The collective agreement’s silence pertaining to the “timing” as to when salary is to be measured must mean an employee’s salary as of their last day of work following the employee’s decision to opt for an ERA. That must be the default timeframe in the absence of any other express indication. Further, I note that in the Union’s proposed calculation for the grievor’s ERA, it uses the salary of a full- time employee working 37.5 hours – as of the last day of the grievor’s work, once she chose to avail herself of the ERA benefit. 20. Finally, contrary to the Union’s contention, there is no need for there to be a Hospital “employment rule” or practice for the Hospital to assert that an employee paid $570.825 per week (for 22.5 hours work) for 13 months is an employee whose weekly salary is $570.825. That assertion is entirely reasonable on its own. 8 21. For these reasons, I conclude that “two weeks’ salary per year of service” for the purpose of calculating ERA amounts due to employees is the pay they receive for the work they do. In the grievor’s case it was two weeks of her salary multiplied by her years of service as reflected in the Hospital’s calculation. Was the Hospital’s calculation of the grievor’s ERA discriminatory within the meaning of the Code? 22. The Union’s position is that the purpose of the ERA is to recognize an employee’s past service. In its view, the calculation is exclusively tied to past service – a severance benefit as distinct from compensatory benefits tied to current hours of service. W hile the parties’ negotiated formula is superficially neutral, the Union argues that it produces adverse effect discrimination as between full-time employees generally and those absent or working reduced hours because of disability. Alternatively, the formula produces adverse discrimination between part-time employees and those employees working reduced hours due to a disability. 23. The Union argues that the Hospital’s application of the parties’ formula linking the grievor’s salary while working only 22.5 hours a week to the calculation of her ERA penalizes her for her disability because she would be working 37.5 hours but for her disability. As I understand the Union’s argument, to avoid adverse effect discrimination under the Code the Hospital is required to recreate the wage-work bargain not as it actually had been for over a year when the grievor opted for the ERA, but as it would have been had the grievor not become permanently disabled and unable to work 37.5 hours per week. 24. For its part, the Hospital submits that the Union must demonstrate that the calculation of the ERA based on the grievor’s salary imposes a burden or withholds a benefit from her based on disability – a prohibited ground. The Hospital says that paying the grievor “two weeks’ salary per year of service” does not have a discriminatory effect since any distinction in the way the ERA is 9 calculated is based on the salaries employees actually earned. This, according to the Hospital, does not constitute discrimination within the meaning of the Code. 25. In the Hospital’s submission the appropriate comparator group is all employees who opt for the ERA or alternatively all employees who are offered the ERA. Only then, according to the Hospital, is the purpose of the ERA benefit truly recognized: to encourage employees to choose retirement and aid the employees who make that choice in the transition to retirement. The Hospital submits that the Ontario Court of Appeal’s decision in Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital, [1999] O.J. No. 44 (“Orillia Soldiers Hospital”) is a complete answer to the Union’s allegation s of discrimination in this case. 26. In considering the parties’ respective submissions, they provided the following cases: Ont. Human Rights Comm. V. Simpsons-Sears, [1985] 2 S.C.R. 536; Battlefords and District Co-operative Ltd v. Gibbs, [1996] 3 S.C.R. 566; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R 624; British Columbia (Public Service Employee Relations Commission) v. British C olumbia Government and Service Employees’ Union (BCGSEU) (Meiorin Grievance), [1999] S.C.R 3; Withler v. Canada (Attorney General), 2011 S.C.C. 12; Ontario Nurses’ Assn. v. Mount Sinai Hospital, [2005] O.J. 1739 (“Mount Sinai”); Ontario Nurses’ Assn. v. Mount Sinai Hospital, [2004] O.J. 162; Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital, [1999] O.J. No. 44; Loblaws Supermarkets Ltd. v. United Food and Commercial Workers’ International Union, Local 1000A (Kubat Grievances), [2009] O.L.A.A. 385 (Albertyn) (“Loblaws”); Grand Erie District School Board v Elementary Teachers’ Federation of Ontario (Re) (2002), 69 C.L.A.S. 245 (Herlich); Surrey Place Centre v OPSEU, Local 511 (Re), (1995), 37 C.L.A.S. 244 (Craven); Participating Hospitals (St. Mary’s General Hospital and Royal Victoria Hospital) and ONA (Forwell and Nixon), April 17, 2001 (Devlin); Canadian Union of Public Employees, Local 1974 v. Kingston General Hospital, [2013] O.L.A.A. No. 1 (Steinberg); Ontario Secondary School Teachers’ Federation, District 10 v. Peel Board of Education, 1998 CanLII 18118 10 (Albertyn); Retail, Wholesale and Department Store Union, Local 454 v Canada Safeway, 2003 CanLII 71212 (Ramussen); Riverdale Hospital v CUPE, Local 79 (1994), 51 LAC (4th) 24 (Knopf); Little Mountain Residential Care & Housing Society v. Hospital Employees’ Union, 2010 CanLII 86365; Renfrew County and District Health Unit v Ontario Nurses’ Association, 2013 CanLII 51843 (Slotnick); Temiskaming Hospital v. O.N.A. (Small) (Re) (2000), 92 L.A.C. 164 (Thorne); Canadian Broadcasting Corp v Canadian Media Guild, Local 213 (Chabot Grievance) (1995), 45 L.A.C. (4th) 353; United Nurses’ of Alberta v. Calgary Regional Health Authority (Ricketts Grievance)(2002), 114 L.A.C. (4th) 1; Canadian Telephone Employees’ Assn and Bell Canada (Lee Grievance)(1994), 43 L.A.C. (4th) 172; British Columbia Public School Employers’ Assn. Board of Education of School District No.63 v. BCTF (Macri), (Re) (2012), 228 L.A.C. (4th) 227 (Gordon); Commission scolaire régionale de Chambly v. Bergevin, [1994] S.C.J. No 57. 27. In determining whether the Hospital’s calculation of the grievor’s ERA is discriminatory within the meaning of the Code , it is worth briefly examining the nature of the benefit considered in this case. The ERA is a negotiated benefit available to all employees eligible for early retirement. It s purpose is to reduce the staff complement by encouraging employees to choose retirement. The ERA provides an incentive opportunity to eligible employees in the form of the parties’ chosen formula in the amount “two weeks salary per year of service.” The formula recognizes employees’ past service. It also links the benefit to an individual’s level of compensation for work performed at the time the empl oyee may opt to receive it. 28. Significantly, unlike severance pay entitlements under the Employment Standards Act, 2000, S.O. 2000, c.41, as amended (the “ESA”) the nature of which was considered by the Court of Appeal in Mount Sinai, employees who are eligible for the incentive payment opportunity can either accept or decline it. It is entirely voluntary. The employee may choose to accept the retirement allowance and retire, or decline the offer and remain employed. In contrast, ESA s everance 11 is a statutory entitlement triggered when an employer severs an employee’s employment involuntarily. In my view, the ERA, which the grievor chose to opt for, is not appropriately compared with ESA severance as the Union submits. The ERA is a negotiated tool by which the Hospital effects a reduction in the workforce. It is true that it recognizes length of an employee’s service, but that recognition is not the ERA’s main purpose. Its main objective is to reduce staff levels by offering employees an incentive to retire. 29. In the case of the ERA benefit, the quid pro quo works as follows: an employee, and in this specific case the grievor, opts to give up the continued receipt of her salary in exchange for the ERA payment (the compensatory inducement based on the parties’ negotiated formula). She personally assesses the relative advantages of opting for the incentive to retire. If the employee thinks she will be better off taking the incentive than transferring to the EROLA and remaining employed she takes the incentive and is compensated pursuant to the parties’ negotiated formula. In the grievor’s case, she undoubtedly factored into her decision to opt for the ERA, her continued entitlement to 2 days per week of WSIB benefits until age 65. 30. I have reviewed the cases provided to me. In some, the principles to be extracted are relevant to the disposition of this case. There are two cases of the many cited that are particularly important to the analysis of the issues before me: Orillia Soldiers Hospital and Loblaws. 31. In Orillia Soldiers Hospital the collective agreement relieved the hospital of its obligation to contribute to the cost of employee benefits once disabled workers were off work for certain periods of time. The disabled employees were not entitled to accrue seniority or service following absences of certain durations. The Union argued that this constituted discrimination because it penalized disabled employees by putting them in a worse position than their able-bodied colleagues. 12 32. The Court of Appeal considered and rejected the Union’s proposition, except as it related to the accrual of seniority. The Court concluded that providing different levels of compensation to different groups of employees does not necessarily violate the Code. For prohibited discrimination to be found to occur, it must be based on a prohibited ground. With respect to employment benefits that are compensatory in nature, the Court wrote at paragraphs 31 and 32: ... On its face, discrimination would exist if the employer provided different levels of compensation for work because of handicap. Likewise, it would constitute discrimination if the employer provided different levels of compensation for not working because of a handicap... I also do not find it helpful to attempt to isolate different elements of the compensation packages such as employer contributions to premiums, vacation pay and wages and ascribe different purposes to each so as to create a discrimination argument. They are all part of the compensation package negotiated by the parties in exchange for work by the employees. For instance, employees may receive worker’s compensation or long term disability payments. 33. In addressing the Union’s adverse effects discrimination argument, the Court wrote at paragraphs 54 and 55: …Nevertheless, I do not read s. 11(2) as imposing upon the employer the burden of simply topping up the wages of the disabled employees. That, in my view, is not the type of accommodation contemplated by s. 11(2) and in fact is inimical to the principles underlying the Code. … Simply topping up the wages of the disabled employees and paying them as if they are not disabled is nothing more than reverse stereotyping as described by Sopinka J. Rather, it would seem to me that the employer in this hypothetical must attempt to accommodate the group. For example, the employer may provide devices and instruments that would allow the disabled employees to perform close to the same level as the able-bodied employees. The duty is on the employer to take all steps short of undue hardship to accommodate the needs of the person discriminated against so that they can compete equally with the other employees. It is by attempting to accommodate their actual characteristics so as to bring them within the workplace environment that the employer complies with the Code. 34. Orillia Soldiers Hospital stands for the proposition that an employer does not violate the Code when it pays more to employees who are able to work than 13 those who are not because of a disability that cannot be accommodated. The Court of Appeal expressly rejected the Union’s argument that employees off work (and by analogy those who work fewer hours) due to a disability should be accommodated by providing them with the same benefits as working employees. In other words, applying a formula that links a benefit to actual compensation for work performed, which is precisely what article 11.12 of this collective agreement does, resulting in more benefits for those employees who work longer hours is not a violation of the Code. 35. Orillia Soldiers Hospital underlines the importance of correctly identifying the appropriate group to which allegedly disadvantaged employees are to be compared. The Court found that the appropriate comparator group for employees who were not working was not employees actively employed – but rather those employees who were not working for reasons other than disability. In this case, the appropriate comparator is not full-time or part-time employees but rather employees who work fewer hours for reasons other than disability. 36. Before me, all employees eligible for early retirement and entitled to the ERA pursuant to article 11.12 who opt to avail themselves of the benef it receive it based on their salaries for actual work performed at the time they opt for the benefit. A benefit calculated considering individual differences in the salaries paid to them is a permissible distinction under the analysis adopted by the Ontario Court of Appeal in Orillia Soldiers Hospital. 37. I turn now to the Loblaws case where Arbitrator Albertyn considered essentially the same argument made by the Union in the instant case on analogous facts to those before me. He rejected the Union’s position and found that the employer’s use of the grievor’s post accommodation rate of pay in calculating her “buy down,” “buyout” and “early retirement” options did not violate the Code. I agree with Arbitrator Albertyn’s rationale. 14 38. In Loblaws, the grievor had become unable to perform the essential duties of a grocery receiver due to a workplace injury. She accepted the accommodation of a permanent lower paying position and received WSIB benefits to raise her pay to match the rate of the position she held prior to her injury. 39. Three years after the accommodation had been in place, the employer sought to reduce its workforce. The employer provided the grievor with her options under the applicable Letter of Understanding. In each option the moment of calculation of pay due to the employee was 3 or 4 weeks ’ pay per year of completed service as of the date of transfer in the case of “buy down” or “buy out” options or as of the date of retirement in the case of the early retirement offer. 40. The employer calculated the grievor’s entitlement options by using her lower rate in the post-injury accommodation position. The Union alleged, among other things, that the employer’s use of the lower wage rate was contrary to the Code. Only the grievor’s permanent disability prevented her from earing a higher rate. In the Union’s view, the Code required that the employer’s calculations be based on the rate of pay from the position the grievor occupied prior to her injury that led to her accommodation in a less remunerative position. 41. Arbitrator Albertyn rejected the Union’s position. In doing so, he stressed that the benefit itself was measured in relation to work performed. He rejected the Union’s plea that "but for" the disability the employee would have been working in the higher remunerated pre injury position at a higher wage rate, and that she should therefore receive the benefit as if she had been working in that position all along. 42. Arbitrator Albertyn’s rationale that the calculation of the grievor’s options based on the job that she was actually doing did not contravene the Code is applicable to the circumstances here and I adopt it: 15 In deciding what would be the base rate for the calculation of the buy-out/buy-down, the parties did not adopt an average over a period of time, or rate reflective of an employee’s service, they chose instead a moment in time – the "date of the transfer", the date of [store] conversion - as the method for determining the base figure to calculate the buy-down/buy-out/early retirement amount. To have made this choice does not, in my view, constitute discrimination under the Ontario Human Rights Code. This is because an employer is not required by the Code to maintain the employee's previous (higher) rate of pay when the employee is performing work in the accommodated position at a lower rate of pay. The fact that the grievor had to accept the clerk rate as an accommodation does not mean that she is entitled to different treatment, to receive a rate different from that for which she works and has been paid: Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital (Robinson Grievance), [1996] O.L.A.A. No. 56 (Mitchnick). This is particularly the case here when the Grievor has taken a permanent position as clerk on account of her permanent disability. There is no reasonable likelihood she will return to her former position as a receiver. The Employer had no obligation to maintain the Grievor’s rate of pay as a receiver when she ceased to perform the duties of a receiver. The Grievor is entitled to be paid the rate for her job, which, since the accommodation, has been that of the clerk. She is protected by the Code from being paid less on account of her disability. But the reverse does not apply – she cannot claim to be paid for more than she performs; the Code does not entitle the Grievor to be paid what she earned as a receiver when she no longer does the work of a receiver. She is entitled only to the rate of pay for the work she performs [Cambridge Memorial Hospital and Ontario Nurses Association (Butts Grievance), [199] O.LAA sic 79 L.A.C. (4th) 392 (Barrett), and cases cited therein; Greyhound Canada Transportation Corp. v. A.T.U. Local 1415 (Lawson Grievance), [2007] C.L.A.D. No. 435 (R. Brown) Q.L. ]. As Employer counsel argues, while the Code requires special treatment to allow disabled persons to participate in employment, it does not require special compensation measures for them beyond the pay they are entitled to receive for the work they actually perform [Milk and Bread Drivers, Dairy Employees, Caterers, et al. vs. Versa Services Ltd. unreported February 7, 1995) (Ontario. Div. Ct), upholding Re Versa Services Ltd and Milk and Bread Drivers, Dairy Employees, Caterers, Local 647 (1994), 39 L.A.C. (4th) 196 (R.M. Brown)]. These conclusions do not change because we are dealing with the buy –down/ buy-out / early retirement amount. The same principle applies: The Code does not require a past (higher) rate of pay to be the bases of the calculation when the employee is not employed to the work of that rate at that time the calculation is to be made. 16 43. Loblaws is directly on point. The collective agreement in the matter before me provides for the payment to eligible employees an ERA of “two weeks’ salary for each year of service.” As I have already found, an employee’s “salary” under article 11.12 is personal to the individual employee. It represents the amount earned by the individual for work performed. Absent language suggesting otherwise, the point in time chosen by the parties at which an employee’s “salary” must be measured is the employee’s salary at their last day of work. The Code does not require special compensation measures for disabled employees beyond the pay they are entitled to receive for the work they actually perform when a benefit links it to current compensation, as it does in this case. 44. For all these reasons, I find that the collective agreement contemplates, for the purpose of the calculation of the grievor’s ERA, the salary she received for the work that she did and had been doing for over a year. Further, the parties’ chosen formula in linking the ERA benefit to an employee’s actual compensation does not contravene the Code. 45. The grievances are therefore dismissed. The method of calculation used by the Hospital complies with the collective agreement and with the Code. Dated at Toronto on September 15, 2014. _______________________________ Christine Schmidt, Sole Arbitrator 17 APPENDIX A AGREED STATEMENT OF FACT 1. The Ontario Public Service Employees Union (“OPSEU” or “the Union”) Local 402 was the bargaining agent for laboratory personnel including the Grievor at the Cornwall Community Hospital (“The Hospital”) until March 31, 2012. The Union and the Hospital are bound by a Collective Agreement, which expires on March 21, 2014. The Collective Agreement 2. In accordance with the Collective Agreement, OPSEU members may be entitled to a retirement allowance described in Article 11.12 b): 11.12 (a) Local Human Resource Plans will apply to Health Services Restructuring Commission directives. In other circumstances, the balance of this Article will apply. (b) Before issuing notice of long term layoff pursuant to Article 11.03, and following notice pursuant to Article 11.01 (a), the Hospital will make offers of early retirement allowance in accordance with the following conditions: (i) The Hospital will first make offers in order of seniority in the department(s) and in classifications where layoffs would otherwise occur. The Hospital will offer the same number of early retirements as the number of layoffs it would otherwise make. (ii) The Hospital will make offers to employees eligible for early retirement under the Hospital pension plan (including regular part-time, if applicable, whether or not they participate in the hospital pension plan). (iii) If no employees on the unit affected accept the offer, the Hospital will then extend the offer to other employees in the same classification as that being affected in the bargaining unit in order of seniority. (iv) The number of early retirements the Hospital approves will not exceed the number of employees in that classification who would otherwise be laid off. An employee who elects an early retirement option shall receive, following completion of the last day of work, a retirement allowance of two (2) weeks’ salary for each year of service, to a maximum ceiling of fifty-two (52) weeks’ salary.* 18 (c) If after making offers of early retirement, individual layoff notices are still required, prior to issuing those notices the Hospital will offer a voluntary early exit option in accordance with the following conditions: (i) The Hospital will first make offers in the classifications within department(s) where layoffs would otherwise occur. If more employees than are required are interested, the Hospital will make its decision based on seniority. (ii) If insufficient employees in the department affected accept the offer, the Hospital will then extend the offer to employees in the same classification in other departments. If more employees than are required are interested, the Hospital will make its decision based on seniority. (iii) In no case will the Hospital approve an employee’s request under (i) and (ii) above for a voluntary early exit option, if the employees remaining are not qualified to perform the available work. (iv) The number of voluntary early exit options the Hospital approves will not exceed the number of employees in that classification who would otherwise be laid off. The last day of employment for an employee who accepts a voluntary early exit option will be at the Hospital’s discretion and will be no earlier than thirty (30) calendar days immediately following the employee’s written acceptance of the offer. (v) An employee who elects a voluntary early exit option shall receive, following completion of the last day of work, a separation allowance of two (2) weeks’ salary for each year of service, to a maximum of fifty-two (52) weeks’ pay.* (d) Where an employee has received individual notice of long term layoff under Article 11.03 such employee may resign and receive a separation allowance as follows: (i) Where an employee resigns effective within thirty (30) days after receiving individual notice of long term layoff, she or he shall be entitled to a separation allowance of two (2) weeks’ salary for each year of continuous service to a maximum of sixteen (16) weeks’ pay, and, on production of receipts from an approved educational program, within twelve (12) months of resignation will be reimbursed for tuition fees up to a maximum of three thousand ($3,000.00) dollars.* 19 (ii) Where an employee resigns effective later than thirty (30) days after receiving individual notice of long term layoff, he or she shall be entitled to a separation allowance of four (4) weeks’ salary, and, on production of receipts from an approved educational program, within twelve (12) months of resignation will be reimbursed for tuition fees up to a maximum of one thousand two hundred and fifty ($1,250.00) dollars.* *The following will apply when calculating early retirement, voluntary exit and separation allowance for part-time employees:  Service - One year of service for each 1650 hours worked  Weekly Salary - The employee’s regular hourly rate on her last day times her normal weekly hours.  Normal Weekly Hours - Average hours worked over the preceding 26 weeks. The Grievor 3. The Grievor, Ms. Connie Richards, began her employment within the OPSEU bargaining unit at the Cornwall Community Hospital on April 6, 1995. 4. She was a full-time Tech 2- Phlebotomist at all material times, working 7.5 hour shifts in the Hospitals Laboratory. As a full time staff member, the Grievor was scheduled to work five (5) X 7.5 hour shifts or 37.5 hours in each week. Because of the nature of her work, she was generally scheduled to work from Monday to Friday of each week, however she was also scheduled to work every 5th weekend. 5. She had accrued almost seventeen (17) years of service at the time that her position was transferred to the Eastern Ontario Regional Laboratory Association (EORLA) on April 1, 2012. Her service at the date of her retirement on April 30, 2012 was 17 years, 23 days. 6. The Grievor’s date of birth is September 7, 1950 and she was 61 years of age when she retired. 7. On May 23, 2009, the Grievor suffered a workplace injury which was reported to the Ontario Workplace Safety and Insurance Board (WSIB) in accordance with the requirements of the Ontario Workplace Safety and Insurance Act. 8. After the date of the workplace injury:  The Grievor worked her regular hours of work and received her regular pay for those hours of work on May 23, and 24th, 2009. 20  She was off work for the period from May 27, 2009 to June 4, 2009 and received compensation from WSIB benefits for the period of time off.  She resumed her regular hours of work at the Hospital and received her regular pay for those hours of work from June 5, 2009 to June 18, 2009.  From June 19, 2009 to July 31, 2009, the Grievor was off work and received compensation from WSIB benefits for the period of time off.  She partially resumed work at the Hospital from August 10, 2009 until September 2, 2009, during which time she worked half days. She received her regular pay from the Hospital for the half days that she worked. She received compensation from WSIB benefits for the half days of work that she was unable to work at the Hospital during this period.  She resumed her regular hours of work at the Hospital and received her regular pay for those hours of work from September 2, 2009 until November 2, 2009.  From November 3, 2009 to November 6, 2009 she was off work and received compensation from WSIB benefits for the period of time off.  She resumed her regular hours of work at the Hospital and received her regular pay for those hours of work from November 9, 2009 to November 18, 2009.  On November 19, 2009, she worked for a half day and received her regular pay for those hours of work. She received compensation from WSIB benefits for the half day that she was unable to work.  From November 20, 2009 to December 4, 2009 she was off work and received compensation by WSIB benefits for the period of time off.  On December 7, 2009 she resumed regular hours of work at the Hospital and received her regular pay for those hours of work until April 28, 2010.  From April 29, 2010 until July 23, 2010 she was off work and was compensated by WSIB benefits for the period of time off.  She resumed her regular hours of work at the Hospital and received her regular pay for those hours of work from July 26, 2010 until October 20, 2010.  From October 21, 2010 until November 5, 2010 she was off work and was compensated by WSIB benefits for the period of time off.  From November 8, 2010 until November 19, 2010 she was off on sick leave unrelated to her WSIB claim. She received regular sick pay benefits for this period of time.  From November 22, 2010 until January 5, 2011 the Grievor returned to work her regular hours at the Hospital and received her regular pay for those hours of work.  On January 6, 2011 she worked a half day at the Hospital. She received her regular pay from the Hospital for the half days that she worked. She received compensation from WSIB benefits for the half day of work that she was unable to work on this date. 21  The Grievor worked her regular hours of work at the Hospital and received her regular pay for those hours of work from January 7, 2011 to March 7, 2011.  On January 17, 2011, the Grievor met with the WSIB Return to Work Specialist, the Union representatives and the Hospital representatives to explore the need for a permanent accommodation of the hours of work of the Grievor.  The Parties commenced an examination of the possibility of a permanently accommodated schedule for the Grievor of three (3) shifts (22.5 hours of work) per week, instead of the five (5) days (37.5 hours of work) per week of a full time employee.  The Grievor proposed a schedule and the Hospital was able to permanently schedule another Tech 2 - Phlebotomist to work on the Grievor’s proposed days off. As a result, the Hospital was able to accommodate the Grievor to the satisfaction of all parties.  The Grievor was off work from March 9, 2011 to March 25, 2011 and received compensation by WSIB benefits for the period of time off. 9. Upon her return to work to the Hospital on March 28, 2011, the Grievor commenced a permanent accommodated schedule that all parties had agreed upon. She was scheduled to work three (3) shifts every week and was off on two (2) shifts every week. 10. The Grievor was thereby permanently scheduled to work 60% of her former hours of work (22.5/37.5) and she received her regular pay for the hours that she worked at the Hospital. This reduced work week became her normal hours of work for the final thirteen (13) months of her work at the Hospital. 11. The Grievor received compensation by WSIB benefits for the two (2) days per week or 40 % of her former full time hours (15/37.5) that she was off work since March 28, 2011. 12. The Grievor continued to be treated as a full time employee for the purposes of entitlements to benefits and vacation time accrual. Her insured benefit entitlements remained unchanged following her permanent reduction to 22.5 hours of work per week. 13. For the last thirteen (13) months of the Grievors employment, the Hospital was paying the Grievor her regular wages for her three (3) shifts (22.5 hours of work) per week. The WSIB was providing pay to the Grievor by way of WSIB Benefits for the two (2) days that she was off work each week. She received both payments until her early retirement on April 30, 2012. 22 Transfer to EORLA/ Retirement 14. On April 1, 2012 all laboratory functions and positions from the 16 Hospitals in the Champlain Local Health Integrated Network were transferred to the EORLA. 15. Pursuant to this transfer, employees performing laboratory functions, including the Grievor were provided with two options: a) they could elect to be laid off under the collective agreement with their home Hospital and receive layoff entitlements accordingly- including the identified retirement allowance, or b) they could elect to transfer with their employment to EORLA. 16. Employees were requested to make their election on a form provided by CCH. The form provided that the employee check off a box to indicate acceptance or declining of the transfer. 17. On February 22, 2012 the Grievor returned the form to CCH. She had checked the box labeled “Decline the transfer to EORLA” and signed the form. 18. On March 02, 2012, the CCH confirmed in writing with the Grievor that she elected to decline the transfer to EORLA and accepted to be laid off. She requested that she receive an early retirement allowance in accordance with her entitlements. Following the receipt of the letter, a meeting was held on March 28, 2012 between the Grievor and CCH to review her options. 19. On March 30, 2012 the Grievor provided CCH with her signed Transfer of Employment. 20. On April 11, 2012 the Grievor filed her grievance regarding the calculation of her early retirement allowance. Calculation of Early Retirement Allowance 21. Upon receipt of her election, the Hospital calculated that the retirement allowance on the basis of the regular wages received and the hours of work that the Grievor had been performing at the Hospital for a period of more thirteen (13) months. 22. The Grievor was earning regular wages of $25.37 per hour and she was working a permanently accommodated schedule of 22.5 hours per week at the date of her retirement. 23 23. The Hospital calculated the Retirement Allowance as follows :  2 weeks per year of service x 17 years service = 34 weeks  Regular wages of $25.37 per hour x 22.5 hours per week = $570.825 per week  34 weeks x $570.825 = $19,408.05. 24. The Hospital provided the Grievor with payment of $19,408.05 which it calculated to be the value of her retirement allowance. The Hospital deposited this amount into an RRSP account as directed by the Grievor. It is the Hospitals position that this calculation is correct in accordance wit h the Collective Agreement, the Ontario Employment Standards Act and the Ontario Human Rights Code. 25. Following her early retirement, the Grievor continues to receive compensation from WSIB to compensate her for the two (2) days per week that she was off work in the last year of her employment and will continue to do so until she reaches the age of 65 years. The grievor’s benefit is “locked in” and she is not required to produce further medical information to justify her entitlement to the WSIB. Other than an annual earnings review for tax purposes, the Grievor will not face a reduction in compensation by the WSIB during this time. 26. The Union disputes the calculation used by the Hospital, and contends that the Grievor should be entitled to payment of the Retirement Allowance based on regular full time scheduled hours of 37.5 hours per week. The Unions position is that the Retirement Allowance should be calculated as follows:  2 weeks/year of service x 17 years = 34 weeks  Wages of $25.37 per hour X 37.5 hours per week=$951.38  34 weeks x $951.38 = $32,346.75 27. On April 9, 2012 the Union filed a Policy Grievance claiming multiple breaches of the Collective Agreement and the Ontario Human Rights Code. On April 11, 2012, the Grievor filed an individual grievance alleging that the allowance was calculated in an improper manner and that the relevant provisions of the Collective Agreement were applied in a discriminatory manner. 28. The grievance proceeded through the internal process without resolution. The parties agree it is properly before Arbitrator Schmidt for a determination of the proper calculation of the early retirement allowance based on this agreed statement of facts.