HomeMy WebLinkAboutUnion 15-05-19IN THE MATTER OF AN ARBITRATION
BETWEEN:
SIR SANFORD FLEMING COLLEGE
OF APPLIED ARTS & TECHNOLOGY
(“Employer”)
- and –
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 352
(“Union”)
(Grievance re: STD Benefits)
ARBITRATOR: Jasbir Parmar
On Behalf of the Employer:
Catherine Peters, Counsel
Shelley Mantik, Human Resources Consultant
Sonia Crook, VP Human Resources
Shannon Beaudoin, Benefits and HR Support Leader
On Behalf of the Union:
Jane Letton, Counsel
Audrey Healy, Local 352 Chief Steward
Liz Mathews, Local President
Suzanne Hooke, Local VP
This matter was heard on May 6, 2015 in Peterborough, ON.
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I. INTRODUCTION
1. This decision deals with a Union grievance, alleging the Employer improperly calculated
sick leave entitlement for new academic employees with a start date other than September of
each year. By agreement of the parties, this stage of the proceeding only deals with the merits
of the grievance, and does not address remedy.
II. THE COLLECTIVE AGREEMENT
2. The key issue in dispute is the proper interpretation of Article 17 of the collective
agreement. The following is an excerpt of the relevant portions of that provision:
Article 17
SHORT-TERM DISABILITY PLAN (STD)
Participation
17.01 A Effective April 1, 1991, all full-time employees shall be covered by this plan.
Funding
17.01 B This plan shall be funded by the College.
Waiting Period
17.01 C New employees will be eligible for benefits under this plan from their first day
of service with the College. The annual benefit allocation described in 17.01 F shall be
credited at that time.
Benefit Year
17.01 D The benefit year shall commence September 1 for the purpose of crediting the
days referred to in 17.01 F 1.
Workplace Safety and Insurance and Other STD Insurance
17.01 E ….
Benefits
17.01 F 1 During absences due to illness or injury, participating employees who
would otherwise be scheduled to work shall receive 100% of regular pay for up to and
including 20 working days in any one benefit year, plus any unused credits carried
forward from previous years. Days not utilized in any year shall be considered to be
credits (on the basis that one credit represents 100% of regular pay for one working day)
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and shall be carried forward to the next benefit year. Debits shall be made from the total
assigned benefit on a day-for-day basis.
17.01 F 2 During absences due to illness or injury in excess of the accumulated days
referred to in 17.01 F 1, participating employees shall be paid 75% of regular pay for up
to the difference between the number of accumulated days referred to in 17.01 F 1 and
the date the employee would normally qualify for LTD.
…
III. RELEVANT FACTS
3. The parties provided an Agreed Statement of Facts, which is attached as an Appendix to
this award. For ease of reference, I have summarized the key facts.
4. Article 17 has been in the collective agreement since it was awarded by Arbitrator Teplitsky
in an interest arbitration award dated November 28, 1989. Prior to that, the parties had a sick
leave system that permitted cashing out unused sick leave at retirement. Arbitrator Teplitsky
awarded a new sick leave plan, to take effect on April 1, 1991. The new plan did not have a
cash out option, but permitted carrying over of unused sick leave into the next benefit year. The
relevant provisions that were awarded are set out below:
YY.03 Waiting Period
New employees will be eligible for benefits under this plan from their first day of service
with the College. The annual benefit allocation described in YY.06 shall be credited at
that time.
YY.04 Benefit Year
The benefit year shall be September 1 to August 31. For the balance of the benefit year
expiring August 31, 1991, an employee will be credited with the unused credits, if any,
standing in the name of the employee on April 1,1991 under the terms of a previous
Cumulative Sick Leave (CSL) Plan, where applicable. Employees hired between April 1,
1991 and August 31, 1991 shall be credited with a pro-rated number of annual credits,
depending on date of hire.
5. The parties sought clarification of Arbitrator Teplitsky’s award. In a supplementary award
dated December 7, 1989, he declined to alter the language of YY.03 (now 17.01C).
6. The majority of that language remains in the collective agreement to date. The only
change in that language was made in the 2001-2003 agreement. At that time, Article 17.01D
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(previously Article YY.04) was altered, deleting all but the first sentence (which was slightly
altered) and thereby removing any reference to the transitional period from the old plan to the
new plan between April 1 and August 31, 1991.
7. The STD Plan is not an insured benefit, but is paid directly to employees by the College.
8. There are some documents post-dating the introduction of the language into the collective
agreement. These are the Addendum to the Benefits Administration Manual with Respect to
Academic Sick Leave Plan and the Benefits Booklet for Academic Employees (developed by the
Joint Insurance Committee). These documents make reference to prorating short-term sick
leave, but these documents are not part of the collective agreement.
9. The College has a long-standing practice of prorating annual sick leave entitlement for
employees hired in the midst of the benefit year (for e.g. in May).
IV. PARTIES’ POSITIONS
10. The Union submits the language of Article 17 is clear and unambiguous. It submits that
effect must be given to its clear meaning, which is that new employees, regardless of when they
are hired, are to be given the 20 days of annual sick leave benefit allocation provided for in
Article 17.01.F1.
11. The Union notes there are numerous other provisions in the collective agreement which
make express reference to prorated pay or benefits where an employee does not work the full
amount of time contemplated in the collective agreement for that benefit (eg. Article 14.02.C2,
Article 15.01.B, Article 20, and Article 26.08.A.). It submits the parties could easily have
included such express language in Article 17 if they wanted to prorate sick leave entitlement.
They did not, despite the fact they did make changes to Article 17. The Union asserts that the
language used by the parties indicates their clear intent not to prorate this benefit, and effect
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must be given to that intent. To conclude that there should be prorating of STD entitlement, the
Union asserts, would produce an anomalous result because the parties expressly set out when
they wanted to prorate pay or a benefit and they did not do so for sick leave.
12. With regards to Arbitrator Teplitsky’s original and supplementary award, the Union notes
the award provided for proration only in 1991, and made no mention of prorating the benefit for
employees hired any time after August 31, 1991.
13. With respect to any of the documents that post-date 1991, the Union submits first that
those documents should not be considered, because the collective agreement language is clear
and unambiguous. Second, the Union submits that none of those documents actually indicate
the Union agreed that STD entitlement would be prorated in the first year of employment.
14. The Union relies on the following authorities: S.E.I.U., Local 268 v. U.S.W.A., Local 5481
(1994), 43 L.A.C. (4th) 76; Cambrian College – and – OPSEU, Local 655 (unreported, November
29, 2010) (Starkman, Piquette, Martin); Algonquin College – and – OPSEU (unreported, June
21, 2005) (Tacon); Humber College of Applied Arts and Technology – and – OPSEU
(unreported January 10, 1996)(Schiff, Gallivan, Murray); and Brown & Beatty, Canadian Labour
Arbitrationi, para. 4:2100.
15. The Employer submits that the collective agreement provides for prorating for employees
hired in the midst of the benefit year. The Employer submits that when the two Teplitsky awards
are considered, along with the jurisprudence addressing Article 17, it is clear that prorating is
permitted.
16. The Employer notes that most of the language of the current Article 17 remains as
awarded by Arbitrator Teplitsky, with only a minor change. It submits that in his supplementary
award, Arbitrator Teplitsky considered the very argument the Union is now making, and
concluded that such an argument was unreasonable based on the language of the provision.
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17. The Employer also points to a number of College arbitration decisions. Though they did
not directly address the issue that is in dispute in this case, the Employer submits that these
decisions support the conclusion that where an individual is not working a full schedule, then the
purpose of the sick leave provision is not engaged and there is no entitlement to the benefit.
18. As for other provisions in the collective agreement where prorating is expressly provided
for, the Employer submits that the fact that the language of Article 17 was not negotiated by the
parties but awarded through interest arbitration makes the language used by the parties in other
provisions of dubious relevance in concluding the proper interpretation of this provision.
19. The Employer submits if the meaning of the provision is not clear on the basis of the
Teplitsky awards and other jurisprudence, then the provision is at the very least ambiguous. In
that event, it submits regard should be had to documents post-dating the introduction of this
provision in to the collective agreement which reference how new hires during the benefit year
will be treated in respect of sick leave entitlement. The Employer submits there should also be
regard to past practice. While records are only available from 2000 onwards, these indicate
that, but for four anomalous cases, all new hires in the middle of the benefit year were granted a
pro-rated sick leave benefit.
20. The Employer relies on the following authorities: Humber College of Applied Arts &
Technology – and – OPSEU (unreported, June 22, 1999) (MacDowell, Murray, Campbell);
Niagara College – and – OPSEU (unreported, July 2, 1999) (Saltman, Campbell, Seymour);
Mohawk College – and – OPSEU (unreported, March 12, 2001) (Burkett, Campbell, Sullivan);
and Loyalist College of Applied Arts & Technology – and – OPSEU (unreported, February 17,
2003) (Brown, Seymour, Campbell).
V. Analysis
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21. The issue in dispute is the proper interpretation of Article 17. There is no issue that new
employees are also eligible for the sick leave benefit from the date of their hire. The only issue
in dispute is the quantum of a new employee’ entitlement if hired at some time other than the
commencement of the benefit year.
22. As such, I am tasked with giving effect to intention of the parties, as reflected by the
collective agreement. Where parties have addressed an issue in their collective agreement,
parties are assumed to have meant what they said. For this reason, arbitrators are expected to
have regard for the plain and ordinary meaning of the language used.
23. In the present case, Article 17.01C provides that new employees will be eligible for STD
benefits from their first day of service. It also provides that the benefit will be credited to them
“at that time”, which must mean from their first day of service. The annual benefit allocation is
described in Article 17.01F and provides for paid sick leave of 100% for “up to and including 20
working days in any one benefit year, plus any unused credits carried forward from previous
years”.
24. In my view, the language of Article 17 does not appear on its face to be ambiguous. If one
were to read only the provision itself, one would conclude that new employees are credited with
the benefit of 20 working days as sick leave on the first day of their service.
25. However, it is generally accepted that extrinsic evidence may be considered to determine
whether a collective agreement provision is in fact clear or whether it is ambiguous. In other
words, the extrinsic evidence may reveal a latent ambiguity, which is not patently evident on the
face of the language.
26. In my view, that is the case here.
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27. Article 17 is the product of an interest arbitration award. In fact, Article 17.01C remains
unchanged from the language awarded by Arbitrator Teplitsky. In his supplementary award
Arbitrator Teplitsky was specifically asked to clarify the language in Article 17.01C. He stated
as follows:
I was asked to amend YY.03 [now 17.01C] to clarify the anomalous situation that could
arise where an employee is hired in the summer. It could be argued that such a person
would get 20 credits, and another 20 on September 1. I do not think any amendment is
necessary, because it was not my intention to give anyone a windfall in this way, and a
reasonable interpretation should not produce such a windfall.
28. In the present case, the Union’s position is the very hypothetical argument Arbitrator
Teplitsky considered. He clearly rejected that argument, stating he did not intend to give any
“windfall in this way” and that a reasonable interpretation would not produce such a windfall.
The only reasonable interpretation, according to the author of this language, is that the
hypothetical person would not get 20 credits at the time of hire in the summer and another 20 on
September 1.
29. The Union submits that the “windfall” reference was only in respect of the transitional 1991
benefit year. I disagree.
30. It is true that Arbitrator Teplitsky did not award a “windfall” to employees hired during the
transitional period from April 1, 1991 to August 31, 1991. In Article YY.04 he turned his mind to
this very group, the ones hired before the commencement of the first full benefit year, and
stated their entitlement would be prorated for that period.
31. However, Arbitrator’s Teplitsky’s comments in his supplemental award were in the context
of considering YY.03 (now 17.01C). That provision makes no reference to the transitional 1991
year. In his supplementary award, he was talking about a person hired in the summer of any
year and not just in 1991. Arbitrator Teplitsky described the situation of that person being
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credited a full 20 days on date of hire, and then another 20 days on September 1 as a windfall.
He explicitly stated it was not his intent to award such a windfall.
32. I stated earlier that, in my view, Article 17.01C on its face suggests that a newly hired
employee would get the full 20 days even when hired the midst of the benefit year. That stands
in contrast with Arbitrator Teplitsky’s comment that he did not think a reasonable interpretation
would lead to that conclusion. Yet, I am actually in agreement with his comment. He was
considering this provision in the context of the language as it stood then, which included Article
YY.04 providing for prorating of the benefit for employees hired before the commencement of
the new benefit year. My comment was based on the language as it currently stands.
33. It is somewhat of a misnomer to speak of parties’ intent in the context of language awarded
through interest arbitration. In such circumstance, the arbitrator’s intent (to the extent it is
evident) must be viewed as the intent of the parties. It is clear from the supplementary award
that it was never the intent of the parties that new employees hired in the midst of the benefit
year would receive the full annual benefit in their first year. Rather, it was their intent that the
benefit would be prorated in the first year. Given this clear indication in respect of the provision
itself, how the parties dealt with prorating elsewhere in the collective agreement is of little
persuasive value.
34. The parties did change the language of Article 17 in 2001, removing the reference to the
transitional period in Article 17.01D. It would be a big leap, and one that I am not prepared to
make, to conclude that simply by deleting the reference to the transitional period the parties
were agreeing to a different benefit than new hires were entitled to previously. This is
particularly so given the provision that specifically addresses new hires remained unchanged.
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35. I find that the supplementary award both reveals a latent ambiguity in Article 17.01C and
resolves the ambiguity. Prorating of the STD benefit entitlement for new hires in the midst of the
benefit year is permitted by the collective agreement.
36. Given my finding, I need not address the Employer’s arguments about the post-1991
documents or the Employer’s past practice. There is no suggestion from the Union that either of
those support a different conclusion.
VI. DISPOSITION
37. The grievance is dismissed.
Dated this 19th day of May, 2015.
___________________
JASBIR PARMAR
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APPENDIX A
1. On October 9, 2014, the Union filed a grievance alleging that the College’s practice of prorating
sick days in the first year of employment for new academic employees with a start date other than
September 1 is contrary to Article 17 of the Faculty Collective Agreement (“the Grievance”). A copy of the
Grievance is attached as Exhibit 1.
2. A copy of Article 17, Short-Term Disability Plan (STD), of the Faculty Collective Agreement
effective September 1, 2014 to September 30, 2017, is attached as Exhibit 2. For clarity, Short Term
Disability is not an insured benefit but is a benefit paid directly to employees by the College.
3. A copy of a document entitled “Sick Leave Credit for New Employees Hired prior to September
1st” which was jointly created by the College and the Union setting out their respective positions on the
issue, and which was attached by the Union to the Grievance when it was filed, is attached as Exhibit 3.
4. The current Article 17 originated in language awarded by Arbitrator Teplitsky in an interest
arbitration award following a faculty strike in 1989. The sick leave provisions awarded by Arbitrator
Teplitsky replaced the previous Cumulative Sick Leave Plan with its retirement gratuity feature for
employees hired after April 1, 1991.
5. Arbitrator Teplitsky’s original award dated November 28, 1989 (which deals with the sick leave
provisions at pages 20-25) and a supplementary award dated December 7, 1989 also dealing with the
new sick leave provisions are attached as Exhibits 4 and 5, respectively.
6. A copy of Article 21.01 of the 1989-1991 Collective Agreement is attached at Exhibit 6.
7. A copy of Article 17.01 D of the 1991-1994 Collective Agreement, which was attached to the
Grievance when it was filed, is attached as Exhibit 7.
8. The language of Article 17.01 D of the Collective Agreement, which referenced the transition from
the Cumulative Sick Leave Plan (CSL) to the Short Term Disability Plan (STD) remained unchanged until
it was amended in the 2001-2003 Collective Agreement. A copy of Article 17.01 D of the 2001-2003
Collective Agreement is attached as Exhibit 8.
9. A copy of the Addendum to the Benefits Administration Manual with Respect to Academic Sick
Leave Plan at April 1, 1991 is attached as Exhibit 9.
10. An excerpt from the current Benefits Booklet for Academic Employees of the Colleges of Applied
Arts and Technology, developed by the Joint Insurance Committee (Academic), is attached as Exhibit 10.
The Committee, which is established pursuant to Appendix IV of the Collective Agreement, is a joint
committee which includes representatives of both the Ontario Public Service Employees’ Union and the
College Employer Council/Colleges of Applied Arts and Technology. The Committee’s purpose,
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composition and duties are decribed in Appendix IV. A copy of Appendix IV of the Collective Agreement
is attached as Exhibit 11.
11. The College has used an on-line system for recording employee attendance since 2002. The first
such system, the Employee Attendance Record system, was in place from 2002 until September 30,
2011. Effective October 1, 2011, the College implemented a new on-line attendance system called the
My Absence system. Faculty members access the on-line system to record their absences (including
vacation days), and to obtain up-to-date information about their current sick leave and vacation balances.
12. In addition, since January 2011, the College has had a practice of issuing letters to new faculty
members which advise them (among other things) of the number of sick days credited to them on their
first day of employment.
13. Copies of sample letters issued to new faculty members as well as a printouts from the College’s
My Absence on-line system for those faculty members showing the information available to them
regarding their sick leave and vacation annual entitlements, days taken, and outstanding balances are
attached as Exhibit 12.
14. A copy of a spreadsheet showing the College’s practice with respect to allocating sick days to
faculty members in their first year of employment since the on-line system was first introduced in 2002 is
attached as Exhibit 13.
15. The Union first raised an issue regarding the propriety of pro-rating sick leave for new faculty
members in the first year of employment in a verbal discussion between Liz Mathewson, President, Local
352 and Shannon Beaudoin, Benefits and HR Support Leader for the College, on June 16, 2014. Ms.
Mathewson followed up on this discussion in an email dated June 18, 2014. A copy of the initial
exchange of email correspondence between Ms. Mathewson and Ms. Beaudoin regarding this issue is
attached as Exhibit 14.
16. Further email correspondence was exchanged between Ms. Mathewson and Ms. Beaudoin
between June 19 and 27, 2014, at which time Ms. Matthewson requested a meeting to discuss the issue.
A meeting was held for this purpose on September 4, 2014; Ms. Matthewson and Audrey Healey
attended this meeting on behalf of the Union, and Ms. Beaudoin and Shelley Mantik, Human Resources
Consultant, attended on behalf of the College. On September 8, 2014, Ms. Matthewson provided Ms.
Mantik with a summary of the Union’s position. On September 26, 2014, Ms. Mantik sent the College’s
response, resulting in the document attached as Exhibit 3.
End