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HomeMy WebLinkAboutFarrar 02-04-23 þ . þ . þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ þ BETWEEN: IN RESPECT OF: BEFORE: APPEARANCES FOR THE UNION: APPEARANCES FOR THE EMPLOYER: HEARING: IN THE MATTER OF AN ARBITRATION ontario Public Service Employees Union and its Lo~l 235 . Union - and- Meaford-Beaver Valley Community Support Servièes Employer The Grievance of D. Farrar dated April 10, 2001. M.V. Watters, Sole Arbitrator M. Bevan, Grievance Officer D. Farrar, Grievor C. Caudle, Harc Inc. April 11, 2002 in Owen Sound, Ontario AWARD t. . . . . . . . I . I . . . . . . . . . . . . . . . . . . . . . . . þ þ . . . . . þ þ þ þ þ þ þ þ þ þ . þ þ -1- This proceeding arises from the grievance of Ms. Debbie Farrar dated April 10, 2001. A hearing in respect of the grievance was held in " Owen Sound, Ontario on April 11,2002. The issue for resolu\.ion is whether the grievor is entitled to sick pay pursuant to article 19.04 of the collective agreement in respect of a relief shift of March 24, 2001 which she was unable to work due to illness. Article 19.04 reads: Sick Leave: All full-time employees covered by this agreement shall be eligible for a credit of one and one-quarter (1-1/4) days for each month of service wi tit the employer. Part-time employees shall accumulate sick leave credits on a pro-rata basis based on the ratio of their actual hours worked to full-time hours. The unused portion of an employee's sick leave shall accrue up to a maximum of forty-five (45) days. There will be no cash-out of unused credits. At the hearing, the parties did not present any viva voce evidence. They were in general agreement as to the relevant facts which may be stated as follows: (i) The grievor is employed as a part-time Counsellor 2. She is regularly scheduled to work every second weekend for a total of twelve (12) hours; (ii) The grievor also works "relief shifts" in cases where other employees are unavailable for their shifts because of illness or vacation. I was informed that the grievor works relief shifts on a frequent basis; (iii) The grievor was to work a relief shift of ten (10) hours duration on March 24, 2001. She agreed to work this shift approximately six (6) weeks prior to March 24th. Her schedule was changed to reflect the agreement to work the additional shift. The Employer's I, I . I . . . , . t . t . . . t . . . . . þ þ þ þ þ þ . þ þ þ þ þ þ þ þ þ þ þ þ þ . þ þ þ þ þ þ þ þ þ þ þ þ (iv) (v) (vi) (vii) -2- practice is to post shift schedules thirty (30) days in advance; -~ On the evening-before the above-mentioned relief shift, the ~rievor called in to advise the Employer that she would be unable to attend at work for such shift because of illness. The grievor did not, in fact, work the shift here in issue. The parties agree that she was sick at the time; The grievor claimed sick pay in respect of the missed shift. At the time of her claim, she had sufficient credits in her sick leave bank to cover the shift. The Employer's denial of the claim led directly to the filing of the instant grievance; The Employer responded to the grievance by memos of April 5 and April 17, 2001 and by letter of April 27, 2001. Simply stated, the Employer took the position that-its practice is to grant sick pay only in respect of regularly scheduled shifts. Mbre specifically, the Employer asserted that its policy is not to pay sick pay for relief shifts; The grievor was given sick pay in respect of a relief shift on March 31, 2000. The Employer claimed that the payment in that instance was a mistake and should not have been made. On the Employer's count, there have been five (5) cases since April, 2000 in which employees, such as the grievor, failed to work þ , þ þ . þ . . . þ þ . þ þ þ þ þ þ þ þ þ þ . þ . þ þ þ þ þ þ þ . þ þ þ þ þ þ þ þ þ þ . . þ þ þ þ þ þ þ þ þ þ -3- relief shifts due to illness. Its representative emphasized that sick pay was not paid in any of -~ these cases. I was told that one (1) of the five (5) individtals was a Union steward; (viii) At an Employee-Employer Relations Committee (ERC) meeting held in October, 1997, the parties agreed that unscheduled relief staff would not be paid for extra shifts missed due to inclement weather. The Union's representative noted that the grievor agreed to work the relief shift approximately six (6) weeks prior to March 24,2001 and that the schedule was changed to reflect the fact she agreed to work that day. On his analysis, the relief shift was, in substance, tantamount to a regularly scheduled shift. In this regard, he suggested that the grievor would have been subject to discipline if she had failed to call in or work the shift without a reasonable exêuse. The Union's representative further noted that the grievor accumulates sick leave credits when she works a relief shift such as the one material to this dispute. In his submission, it therefore follows that thegrievor should be entitled to use her credits in respect of a relief shift she was unable to work as a consequence of legitimate illness. He emphasized that sick leave is an earned benefit under the terms of the collecti ve agreement. He added that any argument advanced by the Employer relating to financial hardship would be "a red-herring", as the credits had already been earned by the grievor and were in her sick leave bank at the relevant time. The Union's representative observed that the collective agreement .. t' Þ Þ It . . . . . IÞ . t . . . . . . þ . . . þ þ þ þ þ þ þ þ þ þ þ þ þ þ Þ t Þ Þ Þ Þ Þ Þ Þ Þ . Þ Þ . Þ ~ ) ) -4- is silent on the use of sick leave credits. Article 19.04 speaks to the accumulation of credits. It does not address how such credits may be .~ used in the context of either a regularly scheduled shift or a relief shift not worked becamte of illness. On the Union's reading, the parties intended that sick leave credits could be resorted to for both types of shi fts . It was suggested that if this was not their real intent, the article would' have expressly restricted entitlement to regularly scheduled shifts. The Union's representative asserted that if the Employer wishes to obtain such a restriction, it should do so by way of negotiations rather than by arbitration. He advised that the Union would likely counter any such initiative with its own proposal to permit a cash out of credits. From the perspective of the Union, the fact that there may have been five (5) cases since April, 2000 where employees were not given sick pay for relief shifts does not constitute a past practice or serve to create an estoppel. The Union's representative stressed that there is no evidence that the Union was aware of, or acquiesced in, any of these cases. He in any event, suggested that, the practice was inconsistent as the grievor herself received sick pay in respect of a relief shift in March, 2000. Lastly, he referenced the fact that the ERC meeting of October, 1997 dealt with inclement weather and did not address the issue of sick leave. The Union asked for an order that the Employer pay to the griever ten (10) hours of sick pay in respect of the shift of March 24, 2001. The Union acknowledged that a corresponding deduction would have to be made to her bank of sick leave credits. The following awards were cited .. þ , Þ t It . . t . . t . Þ t Þ t . . þ þ þ þ . þ þ þ þ þ þ þ þ . þ þ þ þ þ þ þ þ . t . Þ Þ Þ . . . þ þ þ þ þ þ -5- in support of the Union's position: Re Health Sciences Center and Canadian Union of Public Employees, Local 1550 (1998), 73 L.A.C. (4th) .~ 161 (Jamieson); and Re Halifax Infirmary Hospital and Canadian Brotherhood of Railway, oA-ansport and General Workers. Local 606 (1989), 5 L.A. C. (4th) 138 (Veniot). The position of the Employer is well summarized in its response of April 27, 2001 which reads in part: "It is management's position that the intent of sick leave benefit payment is to provide staff with relief from 'financial hardship from the loss of regular scheduled salary as a result of being off sick or otherwise provided for in our collective agreement. When someone is not able to work their regularly scheduled shift as a result of illness, or other valid reasons, it is clear that there is a financial impact on their regular income. Therefore a hardship may occur as a result of not receiving wages which would normally be expected and budgeted for. However when someone agrees to work hours in addition to their regular schedule and then is not able to fulfil their commitment, there is no loss of regular or scheduled income." simply stated, it is the Employer's submission that sick pay is only available to part-time employees vis a vis their regularly scheduled shifts and that there is no contractual entitlement to same in respect of relief shifts not worked because of illness. Put another way, the Employer asserts that extra shifts, over and above those regularly scheduled, are not captured by article 19.04. On the Employer's analysis, it should not have to grant sick pay in respect of the former given that the'collective agreement is silent on the use of sick leave credits. Its representative argued that such issue should be canvassed in negotiations at the expiry of the agreement. Reference was also made to the financial hardship that could result from a ruling in the Union's favour. More specifically, it was noted . Þ' Þ . I) It It It , It t I Þ . IÞ It . It Þ Þ , IÞ Þ IÞ IÞ . a . It . , It Þ !J Þ Þ . t . Þ IÞ I I t . t t . Þ ~ . ~ ~ t Þ -6- that the Employer could pay triple time for a shift if it was required to provide sick pay to both the originally scheduled employee and his or .~ her replacement. Lastly, the Employ~r claims that its position in this case is consistent with past practice pursuant to which employees have not received sick pay if unable to w6rk a relief shift due to illn~ss. On its assessment, the Union should have been aware of the practice, particularly so given that one (1) of the five (5) affected employees was a Union steward. The Employer's representati ve described the provision of sick pay to the grievor in March, 2000 as a mistake. He also referenced the decision taken at the ERC meeting of October, 1997 to deny pay to relief staff who missed an extra shift due to inclement weather. It was argued that the treatment of that issue is consistent with the Employer's approach in the instant case asi t relates to entitlement to sick pay. The Employer asked that the grievance be dismissed. It relied on the following award in support of its position: Re NA V Canada and Canadian Air Traffic Control Association (2000), 94 L.A~C. (4th) 75 (Hope). It is clear that article 19.04 does not expressly address the issue of when part-time employees may use their accumulated sick leave credits. No reference is made therein to either regularly scheduled shifts or to relief shifts. The fact that the collective agreement is silent on the issue of usage does not compel a decision in the Employer's favour. If that were so, a part-time employee would not be entitled to sick pay even in respect of a regularly scheduled shift. .. ~, . . ~ ~ ~ ~ It t . !Þ . Þ t t t !Þ t Þ Þ , Þ Þ Þ Þ Þ Þ Þ ~ Þ Þ Þ . . ~ þ þ þ þ þ . a a þ þ ~ þ . ~ ~ . ~ þ , . -7- ~he present issue must, accordingly, be resolved by a determination of what the parties likely intended when they negotiated article 19.04. .~ On the facts before me', it is apparent that the grievor agreed to work the relief shift we11 in advance of March 24, 2001. As noted, the schedule was changed to reflect her agreement to work the shift. If the grievor had actually worked the shift, she would have earned sick leave credits. Article 19.04, in the second sentence, provides that part-time employees shall accumulate sick leave credits on a pro-rata basis based on the ratio of their "actual hours worked" to full-time hours. If the shift would be counted for purposes of accumulation of sick credits, I can isolate no sound reason why they should not be cavailable when the employee is unable to work the shift because of legitimate illness. In my judgment, the parties would likely have resorted to clear and precise language if they had intended to restrict entitlement to regularly scheduled shifts. This is particularly so given the purpose behind sick leave plans of this nature and the fact that the benefit is earned by employees through the accumulation of hours worked. I have carefully considered the evidence relating to past practice. After so doing, I conclude that it is insufficient to support the practice claimed. There is nothing before me to establish that the union either was or acquiesced aware of, in, the practice. The treatment accorded to the five (5) other employees subsequent to April, 2000 cannot, therefore, be determinative here. Indeed, the provision of sick pay to the grievor in March, 2000 suggests that such practice, if it existed, may have been inconsistently applied. Finally, I am unable to find tha t the agreement reached in October, 1997 relating to !'JI Þ . Þ . . . . It t . t It Þ II) It It II) It Þ t Þ Þ ~ Þ Þ . . þ ~ þ , t . Þ . Þ . . . þ þ . . t Þ . Þ ~ Þ . Þ . . . . -8- inclement weather supports a decision to deny this grievor's claim to sick pay. That resolution focused on a distinct issue arising under a .~ different article of the collective agreement. In Re Heal th Scien~es Centre, part-time employees worked a set number of Equivalent Full Time (EFT) days over each two (2) week period. They also worked extra shifts available when other employees were away from work for various reasons, such as leaves of absence, illness and vacations. The Employer's practice was to post a four (4) week schedule, two (2) weeks in advance. The schedule for the part-timers included both theJ,r EFT and additional hours. The sick leave provision in Re Health Sciences Centre referenced "an employee who is absent from scheduled work due to illness..n The issue in that instance was whether the part-time employees were covered by the provision while they were working the extra additional shifts. This question was answered in the affirmative. The arbitrator there reasoned as follows: n...........Surely, the scheduled hours of work for part-time employees are those that are listed in the schedule that is posted by the Employer pursuant to Article 1804. This undoubtedly includes both EFT and additional extra shifts. It also includes shifts that might be added to the employee's work schedule at the last minute. Provided that an employee is scheduled to work, then those are the hours that constitute scheduled work for part-time employees for the purposes of Article 1301, and I so find." (page 167, emphasis mine) In Re Halifax Infirmary Hospital, the grievor was asked to work in a higher classification on two (2) days that would ordinarily have been ~ ~. ~ ~ ~ ~ ~ ~ ~ !t !t ~ ~ ~ ~ ~ ~ ~ ~ þ . þ . . . . . . þ ~ , , ~ ~ ~ ~ ~ -9- his days off in the rotation as it was originally sch~dul.ed. The grievor's work schedule was changed following his agreement to work the .~ extra shifts. The grievor worked the first day but was unable to work the second due to a bona tide illness. The Employer subsequently denied his claim to sick pay for the latter day as it was a day on which he "wasn't supposed to be there anyway". The Employer's position was that the sick leave provisions were an income maintenance scheme and that what was being claimed by the grievor was loss of income on a day in which he ordinarily would have earned none. In other words, there was no income to maintain, and therefore no benefit was payable. The position arbitrator in Re Halifax Infirmary Hospital rejected the advanced by the Employer. In so doing, he reached the following conclusions: (i) (ii) (iii) the grievor was in the position of an employee who was being asked to agree to an alteration of his posted schedule; once the grievor agreed to work the extra time, the Employer gained the right to alter his posted schedule. When it did that, the grievor was then "required" to attend at work on the two (2) days unless he had a good reason for being absent; as and from the time the arrangement was struck, it had the same status under the collective agreement as the requirement to work the previously scheduled rotation. In fact, it became part and parcel of the posted rotation because the Employer made it such. This was so even though it was an ad hoc arrangement. The arbitrator reasoned as follows in deciding to allow the grievance: "It is obvious that at a minimum paid leave must be payable in respect of time during an employee was not in fact at work, but was required to have been at work, had illness not intervened. On this test, I have no hesitation in holding that Mr. Borden should be paid sick leave , þ . . . þ . . þ . . . þ þ þ . þ . . þ þ , þ þ . þ . . . . þ þ ~ þ . . . . ~ I t I . t I I t ¡ ¡ I t I ~ , I , , -10- because he should have been at work on August 30,1988. The employer asked him to attend and he agreed to do so, and the employer then changed his schedule to require his attendance. .~ Illness intervened to keep him from being there. . This being the cas~, he was absent from work in respect of a time in which he was required to have been at work, and if there were credits in the sick leave "bank", to pay him for that day, he is entitled to rely on them for a day's sick pay." (page 146) -and- "...........I draw a clear distinction between Mr. Borden's case, and some other more casual situations involving overtime." (page 147) In my judgment, the awards in Re Health Sciences Centre and Re Halifax Infirmary Hospital are supportive of the position taken by the union in this case. In the former, it was decided that the part-time employee was entitled to sick pay for extra shifts, even when scheduled at the last minute. The arbitrator found that the extra shifts were scheduled shifts for purposes of the sick leave provision. I note that there was nothing in the collective agreement limiting the income protection benefit to EFT hours. In the latter award, it was determined that the grievor was entitled to sick pay in respect of a day on which he was not originally scheduled to work. The decision was premised on the fact that the grievor was "required" to work the day following his agreement to do so. It is apparent that the arbitrator was not inclined to accept the Employer's submission as to the restrictive or limited application of the sick leave provisions. I am satisfied that the reasoning advanced in the above two (2) awards is applicable to the ry ~ . , ~ ~ ~ ~ ~ - ~ ~ ~ ~ Iþ t Iþ . ~ ~ ~ . ~ . . . . þ . , þ þ þ þ . I . ~ , I I I .,' -11- present dispute. I accept the view expressed in Re Halifax Infirmary Hospital that .~ a distinction can be drawn between a requirement to work one (1) or two (2) . a more casual involving overtime. extra shifts and situation Indeed, the award in Re NAV Canada reflects such a distinction. In that instance, it was held that the grievor, an Air Traffic Controller, was not entitled a to sick with pay respect to mandatory overtime assignment, following his regular shift, which he was unable to complete due to fatigue. The ratio of Re NAV Canada is well summarized in the following excerpt from the award: "Sick leave with pay fills two contractual requirements. Sick leave constitutes authorization for the employee to be absent from work. sick pay compensates the employee for any loss of pay occasioned by the absence. Employees who perform overtime earn pay in 15-minute increments for work performed, or its equivalent. However, it cannot be said that employees lose pay when they do not work overtime, at least not in the sense of employees who lose regular pay by reason of an absence due to illness. Employees who are unable" to perform or complete an overtime assignment due to illness lose the opportunity to earn premium pay. That is not a compensable loss within the meaning of the sick leave with pay provision................... (pages 6-7) I agree with the reasoning and the result in Re NAV Canada. In my judgment, however, the circumstances in that case are distinguishable from those existing here. The instant case does not involve the inability to work overtime. Rather, it involves a situation in which the grievor was unable due to illness to work a shift which was both identified and agreed to some six (6) weeks in advance. For all of the above reasons, I find that the grievor is entitled to sick pay in respect of the relief shift on March 24,2001. The p It., . ~ ~ ~ - -- ~ . - Iþ Iþ Iþ IÞ IÞ It ~ !Þ t t Þ . ~ . . ~ , . ~ ~ þ þ þ . . . þ þ þ þ , . ~ ~ I I I I I ~ ' -12- Employer is ordered to make the appropriate payment and to thereafter adjust the grievor's bank of sick leave credits. I will remain seized " in the event there are' any difficulties experienced with the . d' implementation of this aware The grievance is hereby allowed. Dated at Windsor, ontario this ~3rJ , 2002. day OfApr.¡J (yý). oJ. úhtiø!> M.V. Watters