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HomeMy WebLinkAboutUnion 15-03-21IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 464 -AND- THE OTTAWA HOSPITAL Mary Ellen Cummings, arbitrator Grievance about the application of Article 16.03, sick leave benefits Appearances: Wassim Garzouzi and Amanda Montague-Reinholdt for the union Lynn Harnden and Amanda Sarginson for the employer Award released on March 21, 2015 at Georgetown, Ontario -1- AWARD 1. The Ontario Public Service Employees Union has filed a policy grievance against the Ottawa Hospital alleging that the Hospital has violated the collective agreement and the Ontario Human Rights Code, R.S.O. 1990, c H19 as amended. The union alleges that the Hospital is discriminating against some employees who have chronic illnesses in interpreting and applying Article 16.03 of the parties' collective agreement. It reads: No sick pay benefit is payable under HOODIP for the first fifteen hours of absence for the sixth and subsequent period(s) of absence in the same fiscal year (April 1st through March 31). 2. HOODIP refers to the Hospitals of Ontario Disability Income Plan, which provides short term and long term disability benefits to employees in Ontario hospitals. Under this collective agreement, the Hospital must provide a short-term sick leave plan at least equivalent to the 1992 HOODIP Plan. 3. Employees are entitled to 15 weeks of short term sick pay benefits for each period of absence. In interpreting and applying Article 16.03, the Hospital consistently applies HOODIP's definition of "period of absence" as follows; any absences separated by three weeks or more are distinct periods of absence. The union submits that such a consistent application of the definition of period of absence discriminates against employees with chronic illnesses whose pattern of illness, and therefore absences, are separated by periods of greater than three weeks. Those employees who have short but frequent bouts of chronic illness will quickly accrue absences and arrive at a sixth period of absence, whose first 15 hours will be unpaid. In contrast, the union submitted, other disabled employees who are absent for longer periods of time in each period of absence, and who have fewer period of absences, will not face an initial 15 unpaid hours. 4. As a remedy for the policy grievance, the union asks that I order the Hospital to bring its interpretation and application of Article 16.03 into conformity with the Code. The union submits that it is not necessary for me to declare that Article 16.03 be amended because the interpretation provided by the Hospital is not the only interpretation available. The union has filed a number of individual grievances, which have been placed in abeyance pending the disposition of this policy grievance. 5. The employer denies that it has violated the collective agreement or the Code. It submits that the language of the collective agreement was negotiated by the parties and that the benefit plan generously provides more than the 1992 HOODIP equivalent that the collective agreement requires. When an employee has a second period of absence, the full 15 weeks of paid sick leave becomes available again. If an employee becomes ill again for the same reasons within three weeks of a previous illness, he or she can use any remaining paid sick leave and the later absence is not considered a new period of absence. That is, says the Hospital, a form of accommodation for employees with chronic illnesses. The Hospital contends that it has applied Article 16.03 as the collective agreement and the Code requires; it has applied the language equally to employees with chronic conditions as it does to other employees who become ill over the course of the year to a variety of health-related conditions. -2- Procedure 6. The parties argued this matter by way of an agreed statement of fact, a joint book of documents, and written submissions supported by case law. Finally, the parties provided supplementary submissions because Arbitrator William Kaplan determined a similar issue involving identical collective agreement language in North Bay Regional Health Centre and Ontario Nurses' Association, grievance of C.L., March 19, 2014. Background Facts 7. These parties do not engage in Central Bargaining with other hospitals and OPSEU. The language in Article 16.03 came about in the parties' bargaining for their 2011-2014 collective agreement. The union and the Hospital proposed the language in their interest arbitration before Christine Schmidt, and the language was included in her award of December 23, 2011. The parties wanted to mirror the language that had been awarded by William Kaplan in the Central Bargaining interest award. 8. The parties agree that even when an employee is not paid for the first 15 hours of absence for the sixth and subsequent periods of absence in the same fiscal year, he or she is still entitled to 15 weeks of sick leave should the disability last that long. 9. Prior to the present Article 16.03 language, a 2003 interest arbitration had awarded language that paid employees "...an amount equal to any loss of benefits under HOODIP for the first two days of the fourth and subsequent period of absence in any calendar year". Submissions and analysis 10. Although the union alleges that the employer has violated both the collective agreement and the Code, the only relevant aspect of the collective agreement that the union relies on is Article 4 which prohibits discrimination and recognizes and extends the requirements to comply with the Code. Without in any way diminishing the parties' agreement to commit to the application of the Code, and to cover areas of discrimination that are not covered by the Code, the case before me can be determined by an analysis of the Code, without regard to section 4 of the collective agreement. I must determine if the employer’s application of Article 16.03 breaches the Code. 11. Section 5 of the Code says that "Every person has a right to equal treatment with respect to employment without discrimination because of....disability". "Disability" is defined in section 10 (1). The parties agree that employees with chronic illnesses are employees with a "disability". Section 11 of the Code provides that constructive discrimination as well as direct discrimination is prohibited. Constructive discrimination occurs where "...a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference or a group of persons...." The union bears the onus of establishing that the requirement, qualification or factor creates constructive discrimination. If the union is successful, the onus shifts to the employer to justify the discrimination. 12. What would otherwise be constructive discrimination is permitted if the requirement or factor is reasonable and bona fide in the circumstance (section 11 (1)(a)) However, section 11(2) says that I cannot make a determination that a requirement is reasonable and bona fide unless I am satisfied that the needs of the group, in this case, -3- employees with chronic illnesses that amount to disabilities, "cannot be accommodated without undue hardship" to the Hospital "considering the cost...." Again, the onus rests on the Hospital to establish the section 22(2) justification. What is the appropriate comparator group? 13. Both parties agreed that in determining whether an individual or group has been affected by indirect discrimination, a comparator group must be determined. The employer proposed that the comparator group should comprise all employees who will use sick leave benefits which includes those with disabilities that are not chronic illnesses and those who are sick, but do not meet the definition of "disabled" under the Code. 14. The union proposed that the comparator group should consist of employees with disabilities requiring a continuous absence. In its reply submissions, the union disagreed with the employer's description of the appropriate comparator group but added that the difference did not affect the analysis that the union said I should undertake. 15. The parties' disagreement about the appropriate comparator group is rooted in, or at least justified by, the two analyses articulated by the majority, written by Sopinka J and the minority, written by McLachlin J. in the Supreme Court of Canada’s Battlefords and District Co-operative Ltd. and Betty-Lu Clara Gibbs [1996] 3 S.C.R. 566. Ms. Gibbs was an employee who developed a mental disability. The employer's disability plan provided benefits for a longer period of time to employees who were off work because of a physical disability than for employees who were off work due to a mental disability, Ms. Gibbs brought a human rights complaint. Mr. Justice Sopinka, writing for the majority said that "it is appropriate in the circumstances of the present case to compare the benefits received by the mentally disabled with those received by the physically disabled". He concluded that purposive approach was appropriate because human rights law often distinguishes between mental and physical disability (page 585). 16. In her concurring opinion, Madame Justice McLachlin suggested that Sopinka J was recasting the purposive test set out by the Supreme Court of Canada in Brooks v. Canada Safeway Ltd. [1989] 1 S.C.R. 1219. McLachlin J wrote that it was more appropriate to focus on the "true purpose of the insurance scheme..." than on a comparison of available benefits: ...Discrimination will exist if benefits received for the same purpose differ on the basis of a characteristic not relevant to the purpose of the insurance scheme. In the instant case, the defined purpose of the scheme is to insure employees against the income-related consequences of becoming disabled and unable to work. By framing the purpose in this was, the nature of the disability becomes an irrelevant characteristic. Therefore, to distinguish benefits on the basis of disability constitutes discrimination. (page 594) 17. Justices McLachlin and Sopinka ultimately arrive at the same place, but I find the logic of McLachlin J more persuasive and helpful. Applying that analysis to the case before me, the purpose of the sick leave scheme is to provide protection against wage loss when employees cannot work for health related reasons. The nature of the disability is irrelevant. Therefore, the appropriate comparator group includes employees who would not meet the definition of "disabled" under the Code as well as employees who are disabled, including employees who are disabled due to chronic illness that results in short but frequent absences. -4- 18. In considering whether the union has made out a prima facie case of discrimination, I must compare the treatment of employees who are disabled due t o chronic illness that result in short but frequent absences to the treatment of other employees who receive sick leave benefits under the plan. Have employees with chronic illnesses that result in short but frequent absences been subject to differential treatment when compared to other employees who have access to the sick leave plan? 19. The employer points out that not all differential treatment is adverse treatment. The union agrees. In its reply submissions it wrote that every limit on the number of sick days given to employees is not automatically discriminatory. But, in this case, it says the differential treatment is improper because employees with single or long periods of disability will be compensated for all absences while employees with chronic illnesses whose absence patterns are shorter and more frequent will not be compensated for all of their absences. 20. The employer submits that all employees have access to the same number of sick days. An employee who is not paid for first 15 hours of a sixth and subsequent absence will still be entitled to 15 weeks of sick pay for the sixth and subsequent absence. The employer submitted that the language of Article 16.03 is an appropriate collective agreement trade-off or qualifying period and not inherently discriminatory. The employer argued that the union's submissions assume that employees with chronic illnesses will be more likely than other employees to reach a s ixth absence in a fiscal year and therefore, are being more disadvantaged. The employer argued that assumption ignores the employer's duty to seek to accommodate individual employees in various ways to ensure they can come to work. "As a result of the Hospital's efforts to accommodate individual employees on a case by case basis, it cannot be assumed that employees who suffer from chronic disabilities will necessarily reach the threshold established by Article 16.03 in any given year". 21. In reply, the union submitted that it appreciated the employer's acknowledgement of its duty to accommodate and is only asking that Article 16.03 be applied by the employer in a manner that similarly meets its duty to accommodate employees who are disabled by chronic illnesses. 22. I conclude that the Hospital’s consistent use of a three week gap to mark periods of absence for the application of Article 16.03 has an unintended adverse impact on employees with chronic illnesses, when compared with other employees who are entitled to sick leave benefits. The three week gap is a completely arbitrary rule, that while convenient to apply, disadvantages employees with chronic illnesses. They may have short bouts of illness, but since each absence is treated as an incident, those employees will arrive at a sixth absence, and consequent 15 hour delay in receiving benefits, more quickly than other employees who are entitled to sick leave benefits. Treating three weeks as a measure of the distance between an old ailment and a new ailment fail s to address the circumstances of employees with chronic illness. Employees with chronic illness will often live with the disability for all of their lives. There may be gaps between incidents that require absence from work or other accommodation, but the disability will -5- always be present. For those employees, there is no three week gap between ailments. Applying Article 16.03 as the employer has done, is discriminatory. Is the discrimination justified as reasonable and bona fide? 23. The Supreme Court of Canada developed the test that has been consistently applied to determine if a discriminatory rule is otherwise justified as reasonable and bona fide in British Columbia (Public Service Employees Relation Commission) v. British Columbia Government and Service Employees Union (Meiorin grievance), [1999] SCJ No. 46 (commonly called Meiorin). The employer must establish: (1) that the employer adopted the standard for a purpose rationally connected to the performance of the job; (2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and (3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship on the employer. 24. The Meiorin case concerned an employer rule that male and female firefighters complete a running race in a certain time period to establish that they had the aerobic fitness to perform fire fighting work. The Court found that the standard was prima facie discriminatory towards females because of their generally lower aerobic capacity due to physiological reasons and their inability, for the same psychological reasons, to improve their aerobic capacity through training. The tests developed in Meiorin have been consistently applied by courts and has been essentially codified in section 11 of the Code. 25. The Hospital argued that the first step has no application because the “rule” in question was not imposed unilaterally by the employer, but is the product of a joint union and employer submission to interest arbitrator Schmidt, which was then implemented by her in her award. In my respectful view, that answer is not sufficient. The union also has a duty to ensure that it does not contravene the Code. In Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, the Supreme Court held that a union can cause or contribute to discrimination when a discriminatory rule is part of the collective agreement. Moreover, the Court said that “It has to be assumed that all provisions are formulated jointly by the parties and that they bear responsibility equally for their effect on employees”(paragraph 36). The presence of a discriminatory rule in a collective agreement does not absolve the employer from liability. Instead, it adds the union as equally liable for the discriminatory rule. 26. The Hospital submitted that it has met the test for the second step. Employers have a legitimate interest in the regular attendance of its employees at work, an interest that has been recognized by the Supreme Court of Canada in McGill University Health Care Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, [2007] 1 S.C.R. 161. At paragraph 57, Abella J said that “…automatic termination clauses of a reasonable length represent a trade off for employees between -6- their right to be dismissed for just and sufficient cause….and the certainty that the employment relationship will be maintained for a fixed period”. 27. However, as the Hospital acknowledged in its submissions, the passages that it relies on from the minority decision of Justice Abella relates to her analysis that an automatic termination clause in a collective agreement was not prima facie discriminatory. Abella J. was not considering whether the rule at issue was adopted by the employer in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose. In any event, the union acknowledges that the employer (and the union) proposed the language in Article 16.03 in good faith. 28. It is fairly common knowledge that collective bargaining in the hospital sector has been challenging as both sides seek to address pressures from funders to put a brake on escalating health care costs. Although these parties do not engage in Central Bargaining, the Central award exerts a strong influence on parties in similar situations who bargain after the release of the Central award. In Providence Care Centre, Mental Health Services Site and OPSEU, Local 431, (February 11, 2013), an interest arbitration panel chaired by Kevin Burkett noted that the changes that I am considering were implemented in the Central bargaining OPSEU award and the ONA award, and “there were corresponding ‘gives’ awarded to the bargaining units.” Arbitrator Burkett imposed similar language around the sixth sick leave absence, while increasing premiums earned for employees working afternoon, evening and weekend shifts. I am satisfied that the parties before me implemented Article 16.03 in good faith, recognizing that it had been widely imposed in the sector in previous interest arbitration awards. 29. The real question before me is whether the Hospital has demonstrated that the rule is reasonably necessary to the accomplishment of a legitimate work-related purpose and “that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship on the employer.” The Hospital submitted that the courts have recognized that employers are entitled to establish rules to encourage employees to attend at work on a regular basis. The Hospital argued that it would cause it undue hardship to not count absences due to chronic illnesses as an “occurrence” when interpreting Article 16.03. First, the Hospital says that this would result in unfair application of the definition of “occurrence” with the result that employees legitimately absent for a sixth illness but who do not have a chronic illness, would receive 15 hours less pay. 30. Second, the Hospital argued that for the Hospital to not count absences due to chronic illness, it would need to assess each and every absence of an employee with a known disability. That would require the employee to provide a doctor’s note for each absence, regardless of duration. 31. Third, the Hospital submitted that where employees develop chronic illnesses that amount to a disability during the course of the year, the Hospital would be required to determine whether previous absences were on account of that disability, and therefore, should not have been counted towards the determination of a sixth absence. These examples of the difficulty of implementing the union’s proposed remedy, the Hospital argued, show why the trade-off in the collective agreement represents a fair and workable solution to ensuring that employees unable to work because of health related reasons are -7- paid for a reasonable number of days of absence without requiring the employer to make individuals exceptions that would both be unfair to other employees and would create undue hardship for the employer. 32. At this point, I am not assessing whether the remedy proposed by the union is the appropriate one. Instead, I am assessing whether the employer has established that its present practice of declining to pay the first 15 hours of absence for the sixth absence, for all employees, including those absent for chronic absences, cannot be altered without putting the employer to undue hardship. The case law has established that the test is “undue hardship”. Some hardship is expected. (see for example, Meiorin at paragraph 62). I understand that the employer will have to incur some time and expense in evaluating the absences of those employees known to have chronic illnesses and in considering anew the previous absences of employees who are later found to have a chronic illness. 33. But looking at the individual needs of employees with disabilities and determining to what extent accommodation is required is the minimum required of all employers under the Code. In its submissions, the Hospital wrote that it has a “comprehensive and effective accommodation process in place which is designed to address the specific needs of employees with disabilities on an individualized basis”. The union agrees that the Hospital has an accommodation process in place. The Hospital has not met the test of undue hardship. It has not convinced me that it cannot use its existing accommodation process to consider whether the sixth and subsequent periods of absence are on account of a chronic disability. The award in North Bay Regional Health Centre and ONA, grievance of C.L. 34. While the parties were preparing their submissions in this case, Arbitrator William Kaplan released his award in North Bay Regional Health Centre and ONA, grievance of C.L (March 19, 2014). The collective agreement at issue contains the same language that is before me and the employer used the same HOODIP rule, treating each absence separated by three weeks as a separate occurrence. The grievor had a chronic illness that amounted to a disability. She required treatment one day every six weeks that could only occur during her regular hours of work. Prior to the change to the collective agreement, the grievor received sick leave benefits for the days of treatment and days of absence after treatment when she sometimes suffered side effects. After the change to the collective agreement, the grievor was not paid for the first 15 hours of the sixth and subsequent periods of absence. Each absence for treatment was counted as a separate absence and the grievor quickly accumulated the sixth absence. Arbitrator Kaplan held that the application of the three week rule for the counting of distinct absences was discriminatory. “That one person requiring treatment for the same disability every three weeks would qualify for sick pay but another person, working side by side with the first person, but who required treatment every four weeks, does not, would, if upheld, make a complete mockery of the Code and the duty to accommodate”(page 9). 35. Arbitrator Kaplan did not strike the application of the three week rule as the union had requested. Instead, he remitted the matter to the parties to make revisions that would include their accommodation obligations. He also suspended the operation of the three week rule in other similar cases of chronic illness that triggered accommodation -8- obligations. (page 11). Finally, Arbitrator Kaplan referred to the medical information that had been put before him about how the grievor’s treatment regime was undertaken. That information suggested that treatment could be arranged to require only 2 to 3 hours of absence. The Arbitrator suggested that was something the parties should consider in their efforts to find reasonable accommodation. 36. The parties before me made submissions about whether or not I ought to follow the analysis of Arbitrator Kaplan. As is set out above, I chose my own path to the analysis of the policy grievance in front of me. I have included the North Bay Regional Health Centre and ONA, grievance of C.L. case for two reasons. It offers a concrete example of how the application of the three week gap to define separate periods of absence has a disparate impact on an employee with a chronic illness. The case also shows that a standard remedy will not fit all circumstances. The parties must meet their duty to accommodate through “an ongoing and dynamic process that must be considered and implemented within context…and may change over time requiring re-evaluation and adjustment” (page 12). Remedy 37. Turning back to the matter before me, the union has asked that I direct that the employer cannot interpret Article 16.03 in a manner that denies sick pay benefits to employees with chronic disabilities requiring periodic absences. As I noted at the beginning, this grievance is a policy grievance. I have no particular facts before me that demonstrate the impact of the Hospital’s application of Article 16.03 to an employee’s circumstances. I only know that the Hospital has consistently counted absences separated by more than three weeks as a distinct period of absence, whatever the cause of the absence. 38. At this point, I direct the employer to stop counting absences separated by more than three weeks as a distinct period of absence when the employee has a chronic illness. I further direct that the employer look at the absences of employees with chronic illnesses and determine whether the employee can be accommodated, and if so how. Accommodation may require the payment of sick leave for all hours of absence, or accommodation may take other forms. Just as I have found the Hospital’s application of the same rule to all employees, regardless of disability, to be a breach of the Code, a single remedy, without a consideration of individual circumstances, would also be inappropriate. 39. I remain seized to deal with any issues around the implementation of my award. Signed at Georgetown, Ontario, this 21st day of March 2015. Mary Ellen Cummings