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HomeMy WebLinkAboutRichmond 00-08-03IN THE MATTER OF AN ARBITRATION BETWEEN:ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) ("the Union") - AND - THE GEORGE BROWN COLLEGE OF APPLIED ARTS AND TECHNOLOGY (the "College") AND THE MATTER OF THE GRIEVANCE OF BRIAN RICHMOND OPESU FILE # 98C432 (ACADEMIC) BOARD OF ARBITRATIONRobert D. Howe, Chair Sherril Murray, Union Nominee Rene St. Onge, College Nominee APPEARANCES For the UnionAlick Ryder, Counsel Brian Richmond For the CollegeLynn Thomson, Cousel Joy McKinnon David Iany Reesha Hosein Amy Tibbles Hearing in the above matter were held in Toronto, Ontario on February 7 and April 17, 2000 A W A R D The matter in issue in these proceedings is whether an employee is entitled to the benefit of professional development days (also referred to in this award as “PD days”) under Article 11.01 H of the parties’ collective agreement (the “Agreement”) while absent from work on sick leave. That article provides as follows: 11.01H 1 The College shall allow each teacher at least ten working days of professional development in each academic year. 11.01H 2 Unless otherwise agreed between the teacher and the supervisor, the allowance of ten days shall include one period of at least five consecutive working days for professional development. 11.01 H 3 The arrangements for such professional development shall be made following discussion between the supervisor and the teacher subject to agreement between the supervisor and the teacher, and such agreement shall not be unreasonably withheld. FACTS The grievor, Brian Richmond, has been employed by the College since 1981. He began as a professor in the Electrical Department and moved in 1995 to the Interdisciplinary Studies Department. During the 1997-98 academic year he became ill and was diagnosed as suffering from major depression. His last day of work was March 11, 1998. As of that date he had not had any professional development days during that academic year. He received short term sick benefits from March 12, 1998 to November 30, 1998, and long term disability benefits thereafter. Anne MacKenzie-Rivers was the Chair of Interdisciplinary Studies (as well as some other Programs) during the 1997-98 academic year and, as such, was the grievor’s “supervisor” within the meaning of Article 11.01 H of the Agreement. On May 26, 1998 the grievor wrote to her regarding a number of matters, including SWFs, sick days, and PD days. The part of his letter which pertains to PD days reads: “at least 10 According to article 11.01 H1 of the Collective Agreement, I am entitled to working days of professional development” (PD days) for the current academic year. As I did not use any PD days before going on sick leave, cannot use them while I am on sick leave, and do not foresee returning to work before the end of the current academic year, please inform me as to how the college intends to compensate me for these 10 unused PD days. After receiving that letter and contacting Human Resources to inquire about the possibility of carrying over PD days to a subsequent academic year, Ms. MacKenzie Rivers advised the grievor that the Agreement has no provision for the carry-over of PD days from one year to another. On June 15, 1998, Mr. Richmond filed the grievance which give rise to these proceedings. The grievance alleges that the College contravened Article 4.01 A of the Agreement, which provides: 4.01 A Ontario Human Rights The parties agree that, in accordance with the provisions of the Code, there shall be no discrimination or harassment against any employee by the Union or the Colleges, by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap. The relief sought in the grievance is “compensation for 10 P.D. Days” and “compensation for time required to deal with this grievance such that it will, if received, not prejudice entitlement for LTD by interfering with continuity of present sick leave”. The grievor testified that in the spring of 1998 he was working on completing a Master of Education degree in a program which he began in 1992 (by taking a full year’s leave of absence), and planned to use the ten PD days for the purpose of writing his Master’s research paper. He further testified that he spent much more than ten days writing that paper. He also gave the following testimony regarding how he was able to write that paper while on sick leave: The work involved in writing the research paper was different from my work at the time. What led to my going onto disability were conditions primarily at work so the work involved in writing my Master’s research paper was actually a way for me to focus on something other than the stresses I had been experiencing at the workplace at the College.... My psychiatrist assisted me in being able to work on my Master’s research paper as part of my therapy. The grievor successfully fulfilled the requirements of that program, and was awarded a Master of Education degree by the University of Toronto in November of 1998. It is clear from the evidence that “professional development” has a wide scope and would include activities such as working on a Master of Education degree. However, at no time prior to the end of the 1997-98 academic year did the grievor indicate to the College that he wanted to use PD days for that purpose (or for any other purpose). Indeed, the evidence indicates that in the spring of 1998 Ms. MacKenzie Rivers was unaware that the grievor was working on a Master’s Degree, and that she did not find out that he had obtained a Master’s Degree until the day she testified in these proceedings. However, she acknowledged in cross-examination that the words “cannot use them while ... on sick leave” (contained in the grievor’s aforementioned letter of May 26, 1998) accurately state the College’s position regarding the use of PD days while on sick leave. She also acknowledged that the grievor was correct in assuming that PD days were refused for him. The evidence further indicates that when the grievance was filed on June 15, 1998, there remained a sufficient number of days in the 1997-98 academic year for ten PD days to have been taken prior to the end of that year. Some evidence was also adduced concerning earlier instances involving the grievor and PD days. In September of 1987, for example, Mr. Richmond filed a grievance seeking payment for six PD days on the grounds that he was teaching for forty weeks and could only take four PD days. In ruling that Mr. Richmond was entitled to payment for the six days in question, the President of the College indicated that his decision was “a reflection of professional considerations rather than any interpretation of the memorandum of agreement”. He also indicated that the case was “singular in nature” and that the College should have more thoroughly explored alternatives with Mr. Richmond. The evidence regarding those earlier instances was not relied upon by Mr. Ryder during final argument, and is of no assistance in deciding the present case. It is clear from the evidence given by Sally Roy, the College’s Vice-President of Human Resources, that unused PD days are generally forfeited as there is no provision for carrying over unused PD days from one academic year to the next. The only exceptions to that approach occurred during an academic year in which a strike necessitated concentration upon the completion of academic subjects in a shorter than usual time frame, and during the two academic years following the introduction of a workload formula negotiated by the parties. Those exceptions are of no relevance to the instant case. It was also Ms. Roy’s uncontradicted evidence that when an employee is absent for an entire academic year, the employee’s PD days are forfeited and not rolled over. She further testified that the same is true when an employee who has not used all of his or her PD days is absent from sometime during the course of the academic year through to the end of that year. Summary of the Submissions of Union Counsel Counsel for the Union submitted that the issue of whether the benefit of PD days applies when an employee is on sick leave is to be decided on the basis of the general arbitral jurisprudence, because there is nothing in the Agreement to guide the determination of that issue. He contended that the PD days benefit accrues by virtue of the employment relationship, and is not dependent upon the employee’s performance of work or receipt of wages. In support of that contention, he referred the Board to Re City of Trail and International Association of Fire Fighters, Local 941 (1983), 10 L.A.C. (3d) 251 (Munroe); Re North York General Hospital and Ontario Nurses’ Association (1980), 27 L.A.C. (2d) 64 (Shime); and O.N.A v. th Orillia Soldiers Memorial Hospital (1999), 169 D.L.R. (4) 489 (Ont. C.A.). He submitted that there is no concern about a duplication of benefits because PD days are not a monetary benefit, are not part of the income package, and are not a reward for actual work. Indeed, he submitted that PD days are not even designed to be a reward for the teacher but rather to benefit the total College community. He also submitted that the purposes of PD days are fully achievable without a working presence at the College. Union counsel argued that the Agreement should be interpreted in a manner which avoids Ontario Human discrimination on the basis of sickness and which makes the agreement compliant with Rights Code . He also argued that this is a symmetry case, in that if a person who is away from work on a PD day becomes ill, there is nothing in the Agreement which deprives that person of his or her sick day. He submitted that Fanshawe College and Ontario Public Employees Service Union, OPSEU File Nos. 96F798-800 (Academic), unreported award dated December 15, 1997 (H.D. Brown), is distinguishable from the instant case in that it involved a lay-off, which is a situation in which the employment relationship continues to exist but in which all terms and conditions of the Agreement relating to benefits to employees are suspended. He submitted that the case did not analyse the nature of PD days as a benefit, and did not indicate whether PD days are suspended while an employee is on sick leave. Union counsel submitted that the Board does not need to decide whether PD days not taken in one academic year can be rolled over into the next academic year, because when the grievance was filed on June 15, 1998, a sufficient number of days remained in the 1997-98 academic year for ten PD days to have been taken prior to the end of that year. He also submitted that the Board need not decide whether compensation is due for the ten PD days in question, because all that is being sought is to have ten sick days restored to the grievor’s sick day bank (on the basis that if the grievor had been permitted to take his ten PD days, he would have used ten fewer sick days), with the potential financial benefit to the grievor being deferred until he retires (and being available then only within the limits set forth in Article 17.01 H of the Agreement). Summary of the Submissions of College Counsel Counsel for the College submitted that there is no basis for granting the remedy requested by the Union. She contended that the PD days provided for in the Agreement allow teachers to be away from work participating in some type of activity which contributes to their professional development while continuing to receive their normal salary, but if a teacher is already away from work because of illness, nothing in the Agreement or in the practice of the College permits professional development days to be substituted for sick leave on an ad hoc basis, to be rolled over into a subsequent academic year, or to be converted into a monetary payment. She argued that being able to be away from work to engage in professional development while receiving full pay is a form of compensation or benefit which flows to employees in exchange for work, and is not dependent on simply being an employee. Thus, she contended that PD days are not in the category of seniority as discussed in the Orillia Soldiers Memorial Hospital case. She also relied upon that case in support of her contention that the appropriate comparators for employees absent due to illness are not employees who are working but rather employees who are absent for other reasons. College counsel suggested that if part of the grievor’s regime for making himself well again included taking courses, that would be arguably be no different from physiotherapy or any other types of activities that are not inconsistent with the grievor’s being absent due to illness, and would not alter on a day-to-day basis the reason for his absence from work. She further suggested that the grievor was absent from work due to illness, and that the grievor’s evidence that he was able to work on his Master’s research paper on some of those days of absence does not alter the fundamental reason for his absence. Fashawe College Council submitted that arbitrator Brown’s award in case supports the College’s position in the instant case in that the arbitrator concluded that a variety of provisions under the Agreement, including the PD days provision, apply to work performed during the academic year and do not have a life of their own, so that teachers no longer required to perform their working duties are not entitled to claim them. Decision In Re City of Trail and International Association of Fire Fighters, Local 941, supra, a fire fighter was absent from work for over fifteen and a half months due to a work-related heart attack and was paid his regular salary throughout that period (under a “topping up” provision in the collective agreement pursuant to which a fire fighter absent due to compensable injuries was entitled to receive full salary, with monies received from the W.C.B. being remitted to the City and one duty shift of sick leave being deducted from the employee’s accumulated total for every four duty shifts missed). However, the Association contended that the fire fighter was also entitled to statutory holidays, annual vacation, and sick-leave accumulation during the period of his absence. After noting (at pp. 257-8) that some benefits “accrue to employees simply by virtue of the employment relationship” while other benefits “depend on the employee’s presence at the work place and the performance of work”, the majority of an arbitration board chaired by D.R. Munroe found that the fire fighter was entitled to receive pay in lieu of vacation and statutory holidays, but was not entitled to accumulate sick leave during that absence from work. The majority award reached that conclusion on the basis of “a close examination of the wording” of the applicable collective agreement (and some consideration of negotiating history), and not on the basis of “a presumptive framework based on principle”. See page 258 of the award, which also includes the following observation: Arbitrators are not strangers to disputes about the benefits to be accorded to employees who are absent from work and whose absences are due to illness or compensable disabilities. But if there is one thing clear from the several cases cited by counsel, it is that such disputes cannot and should not be resolved by reference to arbitral dogma. It all depends on the agreement being construed. In O.N.A. v. Orillia Soldiers Memorial Hospital, supra, the Ontario Court of Appeal (in restoring an arbitration award that had been partially set aside by the Divisional Court) found that the seniority provisions in the collective agreement before them in that case were triggered simply by the status of being an employee, and were not an additional form of compensation in exchange for work. Rosenberg J.A. (in delivering the judgment of the Court) wrote, in part, as follows (in paragraph 63 on page 516): Thus, in this agreement, seniority is not directly related to compensation. The purpose of seniority is not to provide an additional form of compensation in exchange for work. Unlike service accrual, for example, years of seniority do not determine the employee’s compensation. Rather, the seniority provisions are triggered simply by the status of being an employee, a status long-term disabled employees retain.... The Court went on to find that depriving disabled employees of seniority accrual during periods when they were unable to work constituted discrimination prohibited by the Ontario Human Rights Code. However, denying those employees service accrual and employer contribution to benefits during such periods was found not to be violative of the Code because they were both a form of compensation in exchange for work, and requiring work for compensation was a bona fide occupational requirement which could not be accommodated without undue hardship. A nurse who was unable to work her scheduled shift on Thanksgiving Day due to illness was found to be entitled to receive both holiday pay and sick pay for that day in Re North York General Hospital and Ontario Nurses’ Association, supra. In reaching that conclusion, arbitrator Shime wrote, in part, as follows at page 70 of the majority award: In summary, we conclude that the provisions of the collective agreement governing sick pay and holiday pay are independent and that the grievor is entitled to the benefit of both provisions. Had the grievor worked on the day in question she would have received not only her pay for the shift but the holiday entitlement as well and that would not have been considered as a duplication. In these circumstances, we see no reason why any conceptual notion of separate benefits replacing that income should disentitle the grievor to those independent and mutually exclusive benefits of the collective agreement which she has earned. Such payments for separate purposes are not duplications and do not require an express article in that regard. The only case specifically dealing with professional development days to which we were referred by counsel was Fanshawe College and Ontario Public Employees Service Union, supra, in which the majority of an arbitration board chaired by H.D. Brown rejected the Union’s contention that notices of lay- off should not become effective until employees had received their professional development days (and their vacation entitlement, statutory holidays, and non-teaching weeks) attributable to their employment prior to the lay-off notice. In reaching that conclusion, the majority found (at page 12) “that vacation entitlement, professional development days and non-teaching weeks are matters arising from the Grievors’ teaching responsibilities during the academic year and are separate benefits attaching thereto and do not qualify the right of the College to layoff employees....” The majority also noted (at page 13) that “[v]acations, professional development days, complementary functions and statutory holidays are assumed in a continuing employment relationship and part of work assignments and the responsibilities of the professors and fall within the conditions applicable to the academic year.” Having duly considered those authorities and the helpful submissions of counsel, we have concluded that the grievance must be dismissed for the following reasons. We are not persuaded that entitlement to professional development days is a benefit which accrues to employees simply by virtue of the employment relationship. Indeed, our reading of Article 11.01 H of the Agreement leads us to conclude that entitlement to that benefit is dependent on the employee’s performance of work. The article working days does not merely refer to at least ten days of professional development but rather to at least ten working days of professional development, including one period of at least five consecutive Although in some other contexts the use of the adjective “working” might be merely intended to distinguish the days in question from the more general category of calendar days (which would include Saturdays and Sundays), in the context of Article 11.01 H we are satisfied that the term “working” was used because it was contemplated that a teacher, who would otherwise be required on those days to be engaged in teaching, preparation, evaluation, providing feedback to students, performing complementary functions, or otherwise “working” to perform the duties and responsibilities of his or her position, would by virtue of that Article be permitted instead to engage in professional development. Thus, the provision permits teachers to set aside the normal duties and responsibilities of their work, without loss of income, to engage in professional development for the benefit of themselves, their students, and the College. In the instant case, the grievor had not had any professional development days during the 1997-98 academic year prior to March 12, 1998, when he began to receive short term sick benefits as a result of his major depression illness. He continued to receive those benefits for the remainder of the academic year (and for part of the following academic year until November 30, 1998, when he began to receive long term disability benefits). Thus, from March 12, 1999 to the end of the 1997-98 academic year the grievor had no teaching obligations or other work-related duties and responsibilities from which he needed to be relieved in order to engage in “working days of professional development”. Although the writing of his Master’s research paper fell within the purview of “professional development” (which, as noted above, has a wide scope and includes activities such as working on a Master of Education degree), engaging in that activity during the course of his income-protected sick leave as a therapeutic exercise approved by his psychiatrist did not change the grievor’s status from a teacher on sick leave receiving short term sick benefits to a teacher on professional development receiving the salary normally paid to him for performing the work of his position. Denying the grievor professional development days during his period of disability was not violative of Article 4.01 A of the Agreement, nor of the Ontario Human Rights Code. As indicated above, entitlement to professional development days is based upon the performance of work and does not accrue simply by virtue of the existence of the employment relationship. Thus, it is compensatory in nature, and applying the analysis adopted by the Ontario Court of Appeal in the Orillia Soldiers Memorial Hospital case leads to the conclusion that denying it to the grievor in the circumstances of the instant case was not discriminatory. As noted above, when employees are absent for an entire academic year, their PD days are forfeited and not rolled over, and the same is true when employees who have not used all of their PD days are absent from sometime during the course of the academic year through to the end of that year. Accordingly, the grievor was treated the same in relation to professional development days as all other employees absent from work for comparable periods of time, who are the appropriate comparators in the instant case. Moreover, in the context of professional development, his circumstances enabled him to have the benefit of devoting more than ten days to writing his Master’s research paper during his sick leave without suffering any loss of income. Therefore, if the appropriate comparators were employees engaged in teaching, preparation, evaluation, providing feedback to students, performing complementary functions, and otherwise working to perform the duties and responsibilities of their positions, the grievor enjoyed greater professional development opportunities than those other employees and was not discriminated against in relation to them either. For the foregoing reasons, the grievance is hereby dismissed. rd DATED at Burlington, Ontario, this 3 day of August, 2000. Robert D. Howe I concur. “Rene St. Onge” College Nominee I dissent. "Sherril Murray” Union Nominee