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HomeMy WebLinkAboutFizli 98-05-25 . IN THE MATTER OF AN ARBITRATION BETWEEN: KENORA ASSOCIATION FOR COMMUNITY LIVING ("the employer") and ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 702 ("the union") AND IN THE MATTER OF A GRIEVANCE OF MS. YVETTE FIZLI ' - ARBITRATOR: Ian Springate APPEARANCES For the Employer: Fred Bickford, Counsel James Retson, Executive Director Wendy Fulton, Director of Finance and Administration Diane Pelletier, Director of Community Mental Health Support Services For the Union: James Gilbert, Grievance Officer Yvette Fizli, Grievor HEARING: In Kenora on September 24, 1997 WRITTEN SUBMISSIONS: November 21, 1997; February 20; May 5, 1998 2 AWARD INTRODUCTION The grievor was absent £rom work due to illness from January 11, 1996 to February 28, 1996 inclusive. On April 4, 1996 she filed a grievance which challenged the employer's treatment of benefit premiums as wellas her vacation and sick time in consequence of her being off work. Neither party contended that the grievor's absence related to a handicap as that term is defined in the Human Rights Code and neither party relied on the provisions of the Code. THE FACTS The grievor is a full-time Community Support Worker. She started working for the employer in 1987. Prior to 1996 she had at times been absent from work on account of illness but always for less than 30 days and without the absence impacting on her benefit entitlements. The grievor went offwork due to stress on January 11, 1996. She testified that initially she was to be off for four weeks but because she was suffering from a bad cold her doctor prescribed antibiotics and recommended that she stay off work for two more weeks. Subsequently her doctor recommended that she stay off work for an additional week. Neither at the hearing nor in its subsequent written submissions did the employer challenge the bona fides of the grievor's absence. 3 The grievor testified that during her absence she was not paid by the employer but rather received weekly indemnity payments from an insurance company. She agreed with counsel for the employer that she had made a claim for benefits to the insurance company. The employer has a standard "Notice of Group Premium Payment" form which it uses when an employee is expected to be off work in excess of30 days. The form advises the employee that the employer's obligation to contribute to group benefit premiums ceases when an employee is on a leave of absence without pay exceeding 30 calendar days. The form states that if the employee does not wish to pay the premiums, the individual's coverage under the benefit plan will cease and the employee will be responsible for providing information to the insurance company sufficient to be reinstated on the benefit plan. The grievor testified that she was given a Notice of Group Premium Payment form when she provided the employer with a doctor's note. She said that she could not recall if this was when she brought in a note after being off work for four weeks, or when she provided a note after being off for six weeks. The Notice of Group Premium Payment form has a place to be signed. by Ms. Wendy Fulton, the employer's Director of Finance and Administration, as well as by the employee involved. Ms. Fulton testified that the form is usually signed on her behalf my Ms. M. Zimmer who reports to her. Four versions of the form were filed at the hearing, three with somewhat different calculations of total premium costs. The fourth was a copy of one of the other versions to which had been attached a note written by Ms. Zimmer. None of the four versions was signed by Ms. Fulton, Ms. Zimmer or the grievor. 4 Ms. Fulton testified that when an employee goes off work the employer's practice is to continue making premium payments on behalf of the employee and later be reimbursed by the employee. She indicated that for an extended absence an employee generally makes periodic payments to the employer but for relatively short absences the repayment is done after the employee returns to work through payroll deductions agreed to by the employee. Ms. Fulton testified that on the basis of Ms. Zimmer's note attached to one ofthe Notice of Group Premium Payment forms she understood that Ms. Zimmer had talked to the grievor, perhaps over the telephone, and the grievor had agreed to repay premium payments through payroll deductions. Ms. Zimmer's note read as follows: "Feb. 12/96 Yvette will pay $247.32 when she gets paid on March 1/96". Ms. Zimmer did not testify in these proceedings. The grievor testified that she did not discuss payroll deductions with the employer in advance of any deduction being made fTom her pay. This evidence falls short of establishing that the grievor agreed to reimburs,e the employer for premium payments. On March 13, 1996 the grievor received a memorandum fTom Ms. Carey Heron in payroll. The memorandum advised the grievor that her vacation and sick leave entitlement would be prorated as a result of her absence fTom work and that the employer would also be recovering benefit costs fTom her. On March 27, 1996 Ms. Marlene Kilfoyle, the employer's Assistant Director, Life Skills Program, sent the grievor a memorandum setting out the employer's rationale for its proposed action. The text of the memorandum is set out below. The underlinings were on the original document. 5 RE: Repayment of Insurance premiums, and pro-rating of vacation and sick leave time while on short-tenn disability. Group Insurance premiums must be repaid and both vacation and sick time must be pro-rated according to the following tenus of the Collective Agreement: 1. Pro-rating of vacation time: Article 14.03(d) states that "a regular full-time employee who is absent fÌ'om work during the vacation year in excess of30 days shall have their vacation pay and time off for vacation pro-rated by the full period of such absence." You were absent fÌ'om work for forty-nine (49) days, and your vacation time has been pro-rated accordingly. 2. Prorating of sick time: Letter of Understanding (page 42) states that "sick leave... is accumulated on the basis of one-half day for each month of work during the period April 1 st to March 31st of each year." You did not accumulate sick leave for the period that you were absent fÌ'om work. 3. Repayment of Insurance premiums: Article 17.06 of the Collective Agreement states that "the employer's obligation to contribute towards premiums under Article 17 ce,ases when an employee is on leave of absence without pay exceeding 30 calendar days or on other unpaid absence exceeding 30 calendar days: and the employee will be solely responsible for making such contributions himself during such absences exceeding 30 calendar days." As you were absent fÌ'om work for forty-nine (49) days, and were not paid by the Kenora Association for Community Living, you are responsible for paying your premiums for the full period of your absence. Sincerely, "Marlene Kilfoyle" Assistant Director, Life Skills Program Ms. Heron sent a memorandum to the grievor on March 28, 1996 which set out specific adjustments made to the grievor's vacation entitlement and sick leave, as well as the details of payroll deductions respecting premium repayments. The text of the memorandum is set out below. The grievor testified that after she received the memorandum she contacted union steward Keith Bingham and they decided that she should file a grievance. ¡ 6 Yvette Please note that we have recovered 3 days vacation and 6 hours sick time ITom this pay for the time you were on short-term disability. As well, we have deducted $148.40 for benefit premiums. Please be advised that there will be an additional recovery of 2 hours vacation and 1/4 of an hour sick time as I miscalculated the total to be pro-rated. There will also be a deduction of $171.22 for the balance of the benefit premiums. "Carey" The parties signed their first collective agreement in November 1987. At the hearing the parties agreed that a list prepared by the employer respecting employee absences between April 13, 1989 and March 12, 1996 should be made an exhibit. Many of the absences referred to on the list were for less than 30 days. The list suggested that for absences in excess of thirty days, no insurance premiums were repaid by employees prior to May 1992 and the employer had no record of any adjustments being made to employee vacation and sick time entitlements prior to July 1993. From May 1992 to March 12, 1996 there were some 20 instances where employees repaid insurance premiums. In at least 12 instances the employees had both vacation and sick time adjusted. Mr. Joe Barron is a staff representative with the Ontario Public Service Employees Union ("OPSEU") based at its Dryden regional office. He has been responsible for servicing the bargaining unit comprised of employees of the employer since 1989. In his evidence Mr. Barron contended that OPSEU is the bargaining agent for this bargaining unit. The collective agreement in place at the relevant time, however, listed OPSEU Local 702 as the union party to the collective agreement. Mr. Barron testified that Local 702 is a composite local and only a relatively small proportion of its membership is employed by the employer. He said that the president of the local , 7 has never been employed by the employer. Mr. Barron indicated that until his involvement with the grievance giving rise to these proceedings he was not aware of the employer's practice when applying the applicable provisions of the collective agreement. Ms. Fulton testified that when an absent employee comes in to pick up an insurance claim form or deliver a doctor's slip, Ms. Zimmer generally advises him or her of the impact of being absent in excess of30 days. Ms. Fulton stated that she thought the employer's approach encourages employees to return to work as soon as they are fit to do so. She noted that she was aware of a couple of instances where employees could have stayed off of work longer but chose not to do so because of the relevant collective agreement clauses. THE PREMIUM REPAYMENT ISSUE The provisions of the relevant collective agreement relied on by the parties with respect to the premium repayment issue are set out below: ARTICLE 15 - LEAVE OF ABSENCE 15.01 General Leave (a) The Employer may grant leave of absence without pay to an employee. Request for leave of absence shall be made in writing to the Executive Director. .. . ARTICLE 17 - WELFARE BENEFITS AND INSURANCE 17.01 The Employer will, upon completion of the probationary period, contribute for regular full-time employees as follows: 8 (a) To Prudential Insurance Company of America (Group Policy No. GY3897) (or such other carrier as may be selected be the Employer providing similar insurance coverage) an amount equal to one hundred percent (100%) of the billed insurance premium applicable to the employee such Group Policy to include Vision Care to cover employees and their dependents to a maximum of$100.00 for each two year period per immediate family member or employee (subject to the tenus and conditions of the plan); (b) To a Sickness and Accident Weeldy Indemnity Insurance Plan an amount equal to one hundred percent (100%) of the insurance premium subject to the tenus and conditions of such plan. Such Weekly Indemnity Insurance Plan shall include the following tenus: (i) non-occupational accidents and sickness only; (ii) benefits commence first day of absence due to non-occupational accident; first day of absence due to hospitalization and fifth (5th) day of absence due to sickness effective April 1, 1989; (iii) maximum of twenty-six (26) weeks benefits; (iv) seventy-five percent (75%) of weekly salary to a maximum of $1,500.00. .. . 17.06 The Employer's obligation to contribute towards premiums under Article 17 ceases when an employee is on leave of absence without pay exceeding thirty (30) calendar days or on other unpaid absence exceeding thirty (30) calendar days; and the employee will be solely responsible for making such contributions himself during such absences exceeding thirty (30) calendar days. The representative of the union contended that Article 17.06 cannot apply to someone off on sick leave because if it did, and the employee did not pay the insurance premiums, after 30 days he or she would be cut off sick leave benefits. He submitted that the intent of Article 17.01 (b) was to have coverage available to an employee for up to 26 weeks and if the parties intended that employees on approved sick leave would be deprived of sick leave after 30 days clear and express language would have been required. 9 The union representative submitted that Article 17.01 (b) (iv) provides that employees are to receive 75% of their salary while on short term sick leave. He argued that if they have to pay premiums to maintain sick leave and other benefits it would substantially reduce their pre injury/illness compensation. He further submitted that employees on sick leave are more likely to require benefits than when they are healthier. The representative of the union argued that the grievor had not truly been on an unpaid absence as required by Article 17.06 since she was being paid by the employer through its contractual obligations to provide insurance coverage. He also argued that the words "leave of absence" in Article 17.06 relate back to the definition of leave of absence defined in Article 15. He submitted that sick leave is not found under Article 15 and accordingly sick leave is not a leave of absence for the purpose of Article 17. As an alternative argument, the representative of the union contended that the grievor ought to be reimbursed for the first 30 days worth of benefit costs. In support of this contention he contrasted the language of Article 17.06 with that in Article 14.03 (d) which states that an employee absent in excess of30 calendar days shall have vacation pay and time off for vacation "prorated by the full period of such absence". Counsel for the employer's response to this latter argument was that although different language is used in the two articles, the effect of the language is the same, namely that the whole period of absence must be taken into account in prorating sick leave and requiring that an employee contribute towards benefit plan premiums. He argued that this conclusion is borne out by the employer's evidence that both 14.03(d) and 17.06 have consistently been interpreted and applied to mean that the whole period of the absence is considered. 10 Employer counsel submitted that the grievor was on unpaid absence which exceeded 30 calendar days and as such she was solely responsible for the cost of insurance premiums. He disagreed with the union's contention that the grievor was on a paid absence. In this regard he referred to Re Retail Wholesale and Department Store Union. Local 414 and Canteen of Canada Ltd. (1970) 22 LAc. 261 (H. D. Brown). The arbitrator in that case held that although pursuant to the relevant collective agreement an employee had been entitled to a leave of absence without pay due to illness, this did not relieve the company of its obligation to maintain her life insurance coverage. Counsel for the employer contended that the Canteen case found that an employee absent from work and receiving sick leave benefits is considered to be on an unpaid leave Employer counsel also referred to Re Victoria Hospital COl:poration and Ontario Public Service Employees' Union, an unreported January 12, 1995 award of a board of arbitration chaired by arbitrator Felicity Briggs. The issue in that case was whether the employer could prorate an employee's vacation entitlement while she was absent from work and in receipt of workers' compensation benefits. The collective agreement stated that during an unpaid absence exceeding 30 continuous days, credit for vacation purposes was to be suspended. The arbitration board rejected the union's contention that the employee had been on a paid absence since she was in receipt of workers' compensation benefits. In the instant case employer counsel noted that in reaching its decision the arbitration board in the Victoria Hospital case had relied on the following excerpt from Re Toronto General Hospital and Ontario Nurses Association (1977), 16 LAc. (2d) 113 (H. D. Brown) at 117. The collective agreement in the Toronto General case provided that an employee's service review date was to be extended by the length of a nurse's absence without pay in excess of30 days. The grievor had been absent for approximately two months while receiving workers' compensation benefits. , . 11 First, dealing with the grievor's service review date, we have reference to the above section in the appendix to the Collective Agreement, which in our opinion is quite clear and unambiguous that providing the employee does not receive any pay ITom the Hospital during an absence which exceeds thirty calendar days then the service review date is extended by the length of the absence. In fact, the grievor was absent ITom work at the Hospital in excess of thirty (30) calendar days in 1976, and did not receive pay directly ITom the Hospital in that period. "Pay" in this context means wage payments, and in this regard see Re RetaiL Wholesale & Department Store Union, Local 414 and Canteen of Canada Ltd. (1970),22 LAc. 261 (Brown). The Hospital therefore had a clear right to extend the grievor's review date by the length of her absence in excess of thirty (30) calendar days. In his reply submissions the representative of the union noted that Victoria Hospital had been a workers' compensation case. He also contended that it had been wrongly decided. In support of this contention he referred to the decision of the Ontario Crown Employees Grievance Settlement Board ("the GSB") in Dupuis 1335/86. That case concerned whether an employee off with a work related injury could claim vacation credits. The collective agreement provided that an employee was entitled to vacation credits with respect to a month or part thereof in which the employee was at work or on leave with pay. In its decision the GSB quoted at length ITom, and adopted the reasoning of, the GSB's decision in Sears 1129/86. In the Sears case an employee who had been injured at work received 90% of his net salary ITom the Workers' Compensation Board, for which the employer reimbursed the Board. The GSB held that in reality the money had been paid by the employer through its reimbursement arrangement with the Workers' Compensation Board and the employee had been on a leave of absence with pay. The GSB noted that the circumstances involved could not be distinguished ITom an employee absent due to a non-work related illness or injury for whom under the collective agreement vacation credits accrued without inteffilption. In the instant case Article 17.01 requires that the employer pay premiums for all regular full-time employees. Article 17.06 exempts ITom this obligation those situations where an .. 12 employee is on a leave of absence or other unpaid absence exceeding 30 calendar days. Because of the inclusion of the phrase "or on other unpaid absence", nothing turns on the issue of whether the grievor's absence was in fact a leave of absence. As discussed later in this award, under Article 17.04 of the collective agreement, employees receive certain sick leave days. Presumably when they utilize those days employees are paid by the employer and accordingly are on a paid absence. An employee who is in receipt of benefits ITom an insurance company, however, is not being paid by the employer. The facts in the instant case differ ITom those in Sears and Dupuis since here the evidence suggests that the employer paid premiums to obtain coverage under a policy of insurance. In my view an employee on a non compensable absence who is in receipt of insurance benefits is on an unpaid absence. Part of the union's argument was premised on the contention that should insurance premiums not be paid for an employee on sick leave, then after 30 days that individual would be cut off sick benefits. The union, however, led no evidence to indicate this would in fact be the result. Further, the terms of the applicable insurance policy were not placed before me. I do not believe it appropriate to simply assume that the continued payment of insurance premiums is required to maintain an employee's benefits with respect to an ongoing absence. Article 17.06 provides that the employer's obligation to contribute towards premiums ceases when an employee is on an unpaid absence exceeding 30 calendar days. It then goes on to state: "and the employee will be solely responsible for making such contributions himself during such absences exceeding thirty (30) calendar days". I view this statement as indicating that an employee's responsibility for contributions relates only to that portion of an absence that is beyond the 30 days. This interpretation is supported by the fact that in Article 14.03(d), where the parties clearly meant to cover all of an absence longer than 30 days, they did so by stipulating that 13 employees: "shall have their vacation pay and time off for vacation pro-rated by the full period of such absence". Similar language is not included in Article 17.06. Having regard to these considerations, I find that the employer is required to make insurance contributions for the first 30 days of an unpaid absence and the employee is responsible to make the contributions beyond that point. This means that in a case such as this where an absence turns out to be longer than originally anticipated, an employee does not retroactively become responsible for the cost of . . msurance premIums. The fact that the employer had a practice of treating the language of Article 17.06 as covering all of an unpaid absence where part of it extended past the 30 day point does not alter my conclusion. The ordinary meaning of the language in the collective agreement is what governs unless a past practice clearly indicates that a different meaning was intended by both parties; or alternatively the union's silence in the face of the practice can reasonably be interpreted as a representation by the union to the employer that it would not rely on a strict interpretation of the collective agreement. Either approach requires that a responsible official of the union knew about the employer's practice. There is no evidence to suggest that the employer ever advised union officials of its practice. Further, the evidence is not such that one can reasonably conclude that in the normal course of events union officials must have become aware of the practice. The only direct evidence on point was Mr. Barron's testimony that he was not aware of the relevant employer practice until he became involved with the grievance which gave rise to these proceedings. In light of the above, I find that the employer was responsible for the payment of insurance premiums for for the first 30 calendar days of the grievor's unpaid absence but not for the subsequent portion of her absence. , . 14 SICK LEA VB ACCUMULATION The collective agreement, as well as a letter of understanding between the parties, contain the following provisions respecting the accumulation of sick leave: 17.04 The Employer will grant each regular full-time employee six (6) days sick leave per year. Such six (6) days sick leave is non-accumulative and, therefore, is not carried over ITom year to year. LETTER OF UNDERSTANDING .. . 2. This letter of understanding will further serve to confinn agreement that the six days non-accumulative sick leave referred to in Article 17.04 of the Collective Agreement will not apply to an employee until completion of three months of employment and is accumulated on the basis of one-half day for each month of work during the period April 1st to March 31st of each year. (Therefore, an employee who is hired April 1 st would, after completion of three months of employment, be entitled to one and one-half days sick 'leave and continue to accrue one-half day per month for the remainder of the year.) However, such sick days are non-accumulative and are not carried over ITom year to year. Therefore, any unused accumulated sick days as of March 31st are tenninated and an employee would begin accumulating one-half day per month effective April 1 st, again to a maximum of six days. . The letter of understanding provides for sick leave to be accumulated on the basis of one-half day "for each month of work". Ms. Heron's memorandum of March 28, 1996 stated that a total of 6 1/4 hours of sick time would be recovered ITom the grievor. This suggests that the employer reduced the grievor's sick leave credits by a proportion which represented the number of days she was off between January 11 and February 28, 1996. The representative of the union contended that the letter of understanding was made pursuant to Article 17.04 and not in defiance of it. He submitted that Article 17.04 requires the 15 employer to grant six sick days per year to each full time employee and to deprive an employee of the six days would require clear and express language. He argued that there is no express collective agreement provision which states that if an employee is ill in a particular month she will not earn sick credit for that month. The union representative noted that in the Misericordia case the collective agreement contained a specific provision that sick credits would not accumulate during periods of illness or injury. He argued that to uphold the employer's position in the instant case would require importing such a clause into the collective agreement. As an alternative argument the representative of the union submitted that the grievor ought not to have lost any sick leave accumulation based on the letter of understanding since the letter speaks to "each month of work". He contended that the grievor worked up to January 10th as well as on February 29, 1996 and accordingly she was entitled to accumulate sick credit for both months. He argued that the letter of understanding does not require physical presence at the workplace for each day of the month and so even if an employee worked one day in a specific month she ought to earn the attendance credit for that month. Counsel for the employer contended that the language of the letter of understanding permits accumulation of sick leave on the basis of half a day for each month of work and thus accumulation only occurs while the employee is at work. In support of this contention he relied on Re North Bay Hospital Commission and Ontario Nurses' Association (1976) 13 LAC. (2d) 154 (Abbott). The issue in that case was whether time on sick leave was to be considered work time for purposes of a clause which permitted the prorating of vacation pay when an employee worked less than 1525 hours in a vacation year. The arbitrator rejected the union's argument that paid sick leave and paid vacation were to be considered as time worked. 16 Employer counsel also referred to Re City of Trail and International Association of Firefighters, Local 941 (1983), 10 LAC. (3d) 251 (Munroe). The collective agreement in that case provided that employees were to accumulate sick leave at one and a half days per month worked or 18 days per year worked. The arbitration board held that an employee did not accumulate sick leave while off work for some 15 and a half months. Employer counsel submitted that if the union's interpretation was to apply, namely that as long as an employee worked at least one day in each calendar month he or she would be entitled to accumulate sick leave, an employee could potentially be off work for up to 60 days and still accumulate sick leave. He argued that this interpretation would be absurd and unreasonable. Employer counsel contended that the letter of understanding must be interpreted in the context of its application as understood by the parties. He submitted that the letter states that sick leave is accumulated on the basis of half a day for each month of work and this has always been interpreted to be 30 days, not a specific calendar month. He argued that the evidence demonstrated that an employee's sick leave accumulation is only affected where that employee is absent for a period exceeding 30 days. In his reply submissions the representative of the union contended that the employer could not rely on this practice as the union had not been aware of it. The letter of understanding represents the parties' agreement respecting how Article 17.04 is to be applied, including when and how sick leave will accumulate. It provides that sick leave will not accumulate for the first three months of someone's employment. Although the term "employment" is used with reference to the first three months, the letter goes on to state that after three months sick days will accumulate on the basis of one-half day "for each month of work" . The reference to work indicates that the status of being an employee is not a sufficient basis for. sick leave to accumulate. ,. 17 Unlike Article 14.03 (d) which addresses vacation entitlement, the letter of understanding makes no reference to prorating sick time. It provides that an employee is to accumulate half a day for each month of work. In my view an employee either qualifies for half a day's sick credit with respect to a particular month or does not. It is not open for the employer to give credit on the basis of hours and tractions of hours. Further, for the reasons referred to earlier in this award, the employer's practice of prorating sick time does not justifY a conclusion that the union shared, . or agreed not to challenge, the employer's interpretation of the collective agreement. The term "each month of work" can reasonably refer to a period trom a specific date in one month to the corresponding date in the following month. However, because the letter of understanding provides that any unused sick days will terminate as of March 31st each year, and accumulation start over again effective April 1 st, in the normal course a month for sick leave accumulation purposes will in fact be a calendar month. Any sick days that might have been to the grievor's credit as of March 31, 1995 would have been terminated. She would have again commenced accumulating sick days as of April 1, 1995. Lacking any suggestion to the contrary, I presume that up to the end of December 1995 she had put in nine months of work during which she accumulated sick day credits. The next applicable month was logically January 1996. The term "each month of work" requires that work be performed within a particular month to justify the accumulation of half a day of sick leave. The more difficult issue is whether there is a minimum amount of time an employee must work in a month to be credited for the half day. One consideration is the fact the parties did not specifY any such minimum. Another is that they used the word "each", a term generally used to refer to every one of two or more things. Given these considerations, I believe the most reasonable interpretation of the letter of ,. 18 understanding is that for every month in which an employee works, the employee accumulates half a day of sick leave. The grievor worked up to January 10, 1996. She apparently also worked on February 29, 1996. Accordingly, I find that the grievor was entitled to half a day of sick leave with respect to January 1996 and another half a day of sick leave with respect to February 1996. " VACATION ENTITLEMENT The collective agreement contains the following provisions respecting vacation entitlement: ARTICLE 14 - VACATION .. . 14.03 (c) A regular full-time employee shall receive vacation credits on the following basis: (i) Effective April 1, 1994, an employee who has completed one (1) or more years (but less than five (5) years) of continuous' service as of April 1 st in any year shall be entitled to an annual vacation with pay of three (3) weeks; (ii) An employee who has completed four (4) full years or more of continuous full-time service as of April 1 st in any year, shall be entitled to an annual vacation with pay of four (4) weeks. (iii) Effective April, 1994, an employee who has completed eight (8) full years or more of continuous full-time service as of April 1st in any year, shall be entitled to an annual vacation with pay of five (5) weeks. (d) A regular full-time employee who is absent ITom work during the vacation year in excess ofthirty (30) calendar days shall have their vacation pay and time off for vacation pro-rated by the full period of such absence. . 19 The representative of the union argued that Article 14.03(d) did not cover the grievor as she was on a sick leave absence. He submitted that Article 14.03(d) does not cover every possible time an employee is not physically in the work place. He noted in this regard that Article 14.03(iii) provides that certain employees are to receive five weeks vacation with pay. He raised the possibility of an employee taking all five weeks together and asked if the employee would have to repay vacation credits. He noted that the same type of issue would arise if an employee was granted permission to cany one year's vacation credits into the following year. The representative of the union submitted that there is no express language in the collective agreement to restrict the accumulation of vacation time when an employee is on sick leave, and accordingly the grievor was entitled to accumulate it during absences due to illness or injury. In support of this position he referred to Misericordia Hospital and United Nurses of Alberta. Local 11 (1989), 3 LA. C. (4th) 420 (G. E. Power). That case concerned an employee who was away ITom work for almost 18 continuous months on a combination of sick leave, short term disability and long term disability. The collective agreement provided that employees would earn vacation entitlement during each year of continuous service in the employ of the hospital and thát vacation pay would be governed by the position held by the employee. The agreement also . stated that except for a leave of absence for union business, "in the case of a leave of absence in excess of one (1) month, employees shall cease to accrue sick leave and earned vacation...". The arbitrator held that the employee was entitled to accrue vacation entitlement while on sick leave and short term disability, but not while on long term disability since the collective agreement indicated that a person on long term disability did not hold a position. Although not specifically stated, the arbitrator appears to have viewed sick leave and absence on short term disability as being different trom a leave of absence. " 20 In Misericordia the arbitration board at p. 425 quoted the passage set out below ITom a December 16, 1987 unreported award of arbitrator Beattie in Re Royal Alexandra Hospital and United Nurses of Alberta. Local 33. The representative of the union relied on this passage and argued that there was not clear language which deprived the grievor ITom accumulating vacation as well as sick leave credits while off on sick leave. Guided by the principle, that the clearest language is required to deprive employees of benefits which have been negotiated under a collective agreement, we are satisfied that a provision recognizing accrued benefits cannot be interpreted as limiting a specific benefit. Counsel for the employer submitted that the effect of Article 14.03 is that an employee who works less cannot accrue vacation credit at the same rate as those who attend regularly at work. He contended that arbitrators have long recognized that similar collective agreement language restricting the accumulation of vacation credits during lengthy periods of unpaid leave is logical. He referred to Re Lions Gate Hospital and Hospital Employees' Union, Local 180 (1979), 23 LAC. (2d) 308 (Larson) where the collective agreement provided that if an unpaid leave of absence exceeded twenty working days in a year the employee was not to accumulate benefits ITom the twenty-first day. The arbitration board upheld a reduction of vacation entitlement for an employee who because of severe illness had taken an unpaid leave of absence in excess of 20 days. In the instant case employer counsel relied on the following excerpt ITom the award at p.31 0: That the collective agreement was intended to restrict the accumulation of vacation credits during lengthy periods of unpaid leave has a certain logic. It seems settled that vacation pay is an earned benefit comprising part of the wage' structure. An employee earns a paid vacation while working in the ordinary course of his employment. At vacation time he merely collects what he has already earned. A paid vacation is not "a means of indemnifying employees against losing ... wages through not being allowed to work": Re T.c.F. of Canada Ltd. and Textile Workers' Union of America. Local 1332 (1972), 1 LAc. (2d) 382 (Adell) ~ 21 at p. 384. It follows that an employee who works less would not be expected to accrue vacation credit at the same rate as those who attend regularly at work. Employer counsel disagreed with the union's contention that with the employer's approach an employee.who took five consecutive weeks of vacation pursuant to Article 14.03(iii) would have his or her annual vacation entitlement prorated tinder Article 14.03(d). He argued that it would make no sense for an employee entitled to be away from work on vacation to have the absence constitute absence from work under Article 14.03(d). He contended that such an interpretation would fly in the face of the well established cannon of interpretation that where there are potentially conflicting clauses in a collective agreement, the provisions should be interpreted in the context of the whole agreement to give a meaning which would avoid any inconsistency between the clauses. I In his reply submissions the representative of the union agreed that it would make no sense for absence on vacation to constitute an absence from work under Article 14.03(d). He added that it was equally absurd to suggest that an employee sick for in excess of four weeks is absent from work under that article. The entitlement of certain specified employees to five weeks vacation 'with pay is expressly dealt with in Article 14.03(c). In my view that entitlement cannot be eroded by other more general collective agreement provisions. The case law indicates that an employee on sick leave is entitled to accumulate vacation entitlement unless the collective agreement clearly provides otherwise. Article 14.03(d) of the collective agreement is worded more broadly than the relevant provision in the Misericordia Hospital case. It provides for the proration of vacation entitlement for "a regular full-time employee who is absent from work during the vacation year in excess of thirty (30) calendar ... 22 . days". The grievor was absent from work in excess of 30 calendar days and thus covered by this provision. Article 14.03(d) refers to prorating an employee's vacation entitlement "by the full period of such absence". Accordingly, the employer was entitled to prorate the grievor's vacation entitlement for the full period of her absence. CONCLUSION The grievance succeeds in part. I will remain seized of this matter to deal with any difficulties the parties may encounter in determining how the grievor is to be compensated. Dated this 25th day of May, 1998. ( L i:/1~ ý!~¡f; bitra~ór .