HomeMy WebLinkAboutCormier 99-06-01 - calculation of sick leave credits and sick
Humber College and OPSEU (Cormier Grievance)
bank entitlements under the Academic Collective Agreement - decision released June 1999
-
MacDowell, Murray, Campbell (unanimous)
AWARD
What this case is about
This is the grievance of Shirley Cormier (“the grievor”) who challenges the way in
which the College has calculated the severance payment to which she was entitled upon her retirement
in December 1997. The dispute concerns the amount to be attributed to her accumulated and unused
sick leave credits. Ms. Cormier contends that the College has miscalculated the number of sick leave
credits remaining in her “bank”, and has therefore undervalued her retirement gratuity. To put the matter
colloquially: the grievor says that the College has taken too many credits out of her sick bank, with the
result that, when it came to evaluating what was left, the grievor was “short-changed”.
There is no dispute that, upon retirement, Ms. Cormier is entitled to “cash in” her
unused sick leave credits in this way. Ms. Cormier has been a teacher for many years, and is therefore
permitted to rely on Article 17.01 H of the Collective Agreement - a so-called “grand-fathering”
provision entitled “Protection of Existing Rights”. That provision applies only to professors who were
hiredbefore April 1, 1991, and permits this group of long service employees to “bank” their unused
sick leave credits, which can then be paid out “at the time of retirement, termination of employment or
layoff as a lump-sum gratuity calculated in accordance with the terms of the pre-existing Cumulative
-1-
Sick Leave Plans.....”. Ms. Cormier is among the group of senior employees entitled to this benefit.
The formula for calculating the retirement gratuity is not in dispute. It is a historical
artifact, which has been in place for a very long time. Indeed, Arbitrator Burkett observed more than 10
years ago that “it is not disputed that the system [of “cashing out” unused sick leave credits] pre-dates
collective bargaining” (See: OPSEU & Confederation College, Spence Grievance - decision issued on
April 13, 1988); and if that is correct, it goes back to the 1960's. Be that as it may, the formula then and
now provides for a payment that is capped at 50 % of an employee’s annual salary, and is calculated
this way:
Payment = credits* x 1 x Annual Salary
2 261
The question raised in this case is not the formula itself, but rather: how manyunused
sick credits did Ms. Cormier actually have at the time of her retirement ? This issue arises because
Ms.Cormier was sick from August 1996 until her retirement in December 1997, and therefore “used
up” quite a number of “credits” during this period. The question then is: how many credits did she “use
up” during her prolonged illness; and, thus, how many did she have left in December 1997, for the
purposes of calculating her retirement gratuity ? It is that number (*) which is used in the formula set out
above.
Ms.Cormier claims that, during her illness, the College deducted more sick credits than
it should have - with the result that she has a smaller bank left over for evaluation purposes. Mr.
-2-
Cormier says that the College has incorrectly deducted an extra “42 days” of sick credits. She seeks a
declaration to this effect, so that her retirement gratuity can be “correctly” calculated. In effect, she
seeks a direction that these “42 days” be “returned” to her bank, so as to generate an larger
“payment” on the formula set out above.
Much of the background is not in dispute - although, of course, the parties have
different views as to what the collective agreement requires. In setting out that background we have
relied primarily upon an “Agreed Statement of Fact” that was filed with the board, and was
supplemented, to some extent, in the course of oral submissions. It was not necessary to hear any
formal evidence.
Some background
Thegrievor was hired by the College in January 1969. She retired - almost 28 years
later - in December 1997. Prior to her retirement, the grievor was working in the Nursing Department,
and thus was part of the Academic Bargaining Unit represented by OPSEU.
On August 26, 1996 (i.e at the beginning of the 1996-97 academic year), the grievor
advised the College that she was ill, and made a claim for short term disability. That illness continued
until the date of her early retirement, on December 31, 1997. In other words, the grievor was away
from active employment for the entire 1996-97 academic year (10 months, September to June), and for
-3-
the first part of the 1997-98 academic year (4 months, from September to December 1997). There is
no dispute that the grievor was disabled and unable to work during this entire period.
The parties are agreed that as of September 1,1996, the grievor had accumulated a
516.65
total of banked sick leave credits. The number originally recorded on the Statement of Facts
496.65
was - which is what the College communicated to the grievor in writing in November 1997,
shortly before the scheduled date for her early retirement However, in discussions prior to the hearing,
the parties agreed that this sum should be amended so as to add an additional 40 days (or two year’s)
worth of credits to the grievor’s sick bank. Accordingly, the parties are now agreed that the starting
536.65days
point for any future payout calculation, should really be a sick bank of .
On December 13, 1996 the grievor applied for early retirement under the College’s
1997 Early Leaving/Retirement Incentive Plan. The application was approved, and the grievor’s
retirement was scheduled to take effect on December 31, 1997.
On December 20, 1996, (when the grievor had been away from work for about 5
months) the College wrote to the grievor to advise her that her six month waiting period for Long Term
Disability (LTD) would end on February 21, 1997. The grievor was given the option of applying for
LTD as of that date, or continuing to use her accumulated sick leave credits until they were all
exhausted. The grievor was advised by the College that the LTD Plan would result in a payment to her
of approximately 90% of her net salary, whereas if she continued to use up her accumulated sick days,
-4-
she would be kept on the payroll at full salary. However, if she chose to continue on STD, and draw
on her sick leave credits to maintain full salary, those credits would be lost for the purposes of future use
or for any pay-out of retirement gratuity.
On January 20, 1997, the grievor wrote to the College to advise that she would not be
applying for LTD, because she hoped to be back at work before LTD would be necessary. She was
content to remain at full salary by drawing on her sick leave bank.
Sometime in October 1997, in anticipation of her impending retirement, the grievor
enquired about the status of her sick bank, and the payment that she could expect from liquidating any
unused sick credits. On October 28, 1997 the College generated a handwritten memo indicating
(according to its records) that upon her retirement the grievor would still have 161.65 accumulated sick
leave credits left in her bank, which, under the retirement gratuity formula, would generate a pay-out of
$19,521. This sum is mentioned in conjunction with another payment of $50,963 from the Early
Retirement Incentive Plan, making for a total payment to the grievor of $70,484. The memo mentions
various tax considerations (including the possible transfer of funds to an RRSP), and indicates that
pension election documents would be forwarded to the grievor in a month or so.
On November 26, 1997, the College wrote a rather long letter responding to an enquiry
from the grievor’s husband. That letter goes over some details of how the College arrived at its
calculation of the number of unused sick credits, and includes references to: the pay-out formula, the
-5-
collective agreement, how (in its view) a sick day was “valued”, and what the College saw as a
relationship between paid sick days, vacation and vacation pay. There is also a reference to a (then)
recentHumber College arbitration award (the so-called “Casey” decsion) made by an arbitration panel
chaired by Professor Schiff.
The letter from the College is dated November 26, 1997. We do not know when it was
mailed or how long it took to reach the grievor. We do know that by letter dated December 9, 1997,
the grievor recorded her disagreement with the College’s calculation, and set out her own explanation
for reaching a different result - primarily based upon the grievor’s reading of the Casey award, and the
grievor’s understanding of how “vacation” figured into the calculus. The grievor urged the College to
accept her assessment of her entitlement, and requested an answer from the College by December 15,
1997. The grievance was filed on December 17, 1997.
The parties are agreed that the academic year consists of 218 “working days”
between September and June. However, the College pays out the teachers’ salary over the whole
calendar year on a pro-rated basis - including over the summer months when most teachers are on
vacation. The teachers are paid every two weeks, and for that purpose, their “daily pay” is calculated
on the basis of 1/261 of annual salary - that is, as if the teaching year were 261 days, not 218 days.
This calculation is reflected in the sum dispersed to them every two weeks..
1/218
In other words, pay is earned on the basis of of total salary per day worked
-6-
1/261
during the academic year, but is paid out over the whole calendar year, on the basis of of salary
per day. Instead of getting paid at 1/218 of salary per day for each 2 week pay period during the
academic year and receiving no payment at all in the non-teaching months of July and August, each
teacher gets paid every two weeks over the whole year at 1/261 of salary per day. The income earned
in 10 months is notionally “stretched”, and “paid out” over 12 months.
It is not disputed that the teachers find it convenient to receive regular pay cheques over
the summer months when they are not working - even though this means that they will receive a little less
every two weeks during the academic year.
As we understand it, the College also pays out “sick pay” on the basis of covering the
teacher’s normal daily pay that they are accustomed to receive - which is to say, 1/261 of annual salary
per day. In this sense, the College says, someone on a fully-funded sick leave is treated in the same
manner as if s/he had been at work. S/he receives the same amount over the entire calendar year as s/he
would have received if she had been working. Her “sick pay” cheques, like her regular pay cheques,
are calculated at 1/261 of annual salary per day, over whole year, including the summer months.
It is at this point that the dispute arises, because in conjunction with this practice (in the
grievor’s case at least) the College says that it can deduct 261 sick credits. The difference between the
grievor and the College (42 sick days/credits), is linked to the difference between the 218 teaching
days over which salary is earned, and the 261 days over which that salary is customarily paid out.
-7-
As we understand it, the College says that a “sick pay day” or “sick credit” is valued at
1/261 of annual salary. Sick pay replaces income, and the income it replaces is the income that
employees would customarily receive (not what they earn) if they were not sick - - which the
College says is 1/261 per day over the whole year. The College points out that the retirement gratuity
formula purports to assign a value for a “sick day” of 1/261. Thus , in its letter of November 27, 1997
the College says that “one has to apply 261 sick credits to receive the equivalent of an annual salary
over a 12 month period”. The College says that both its pay-out practice and the formula underlying
Article 17.01 H, support this way of evaluating a “sick day” or “sick credit”; and when that value is
known, it is simple arithmetic to determine how much to draw from the grievor’s bank.
Starting from this assumption - that a sick credit is valued at 1/261 - the College’s
approach is to deduct 261 sick credits per calendar year, so as to maintain the same income stream that
an able-bodied teacher would expect to receive over that calendar year. That is why the College has
purportedly “deducted” sick credits “over the summer” when most employees are on vacation. It has
deducted 218 credits to cover the teaching days that the grievor missed during the regular school year;
and it has also deducted an additional 42 credits, while it continued to pay the grievor at the rate of
1/261 of salary per day for each two week pay period during July and August. According to the
College, deducting 261 credits is necessary to “finance” the grievor’s full salary over the entire year.
The grievor misses 218 work days, but that costs her 261 sick day credits.
-8-
The grievor disagrees. She says that the value of a sick credit is 1/218 of salary, and
that it is wrong to deduct “sick credits”, or attribute “sick pay days”, to a period during the summer
months when she would not be doing any teaching. In her submission, one cannot “work backwards”
from article 17.01 H to Article 17.01 F 1. Article 17.01 F 1 (STD) is a free standing benefit provision
applicable to everyone in the bargaining unit; while Article 17.01 H is a “grandfathering” of previous
benefits applicable only to a group of senior employees. One cannot use this special provision to cut
down or qualify a clear right to STD payments. The terms of the retirement gratuity (counting only half
the unused credits, capping the total at 50% of salary, and using a multiplier of 1/261) have nothing to
do with the income replacement provided in the STD Plan. Nor can her rights under Article 17.01 F 1
be diminished because of the practice of “spreading” 10 months of earned income over the entire
calendar year - however convenient that practice may be.
In the grievor’s submission, debits and credits are regulated by Article 17.01 F 1, and
that clause does not authorize any “debits” from her sick bank during the summer months.
An aside on the timeliness of this grievance
There was some preliminary dispute between the parties as to whether this grievance
was “timely” - which is very important under this collective agreement, because the time limits are
“mandatory”. Article 32.01 of the agreement begins this way:
-9-
It is the mutual desire of the parties that complaints of employees be
adjusted as quickly as possible and it is understood that if an employee
has a complaint, the employee shall discuss it with the employee’s
immediate supervisor within 20 days after the circumstances giving
rise to the complaint have occurred or havecome or ought
reasonably to have come to the attention of the employee in order
to give the immediate supervisor an opportunity of adjusting the
complaint......
Then Article 32.05 A provides:
If the grievor fails to act within the time limits set out at any Complaint
or Grievance Step, the grievance will be considered abandoned.
However, having reviewed the facts, we are satisfied that the grievor did file her
complaint and grievance within the time limits prescribed in the agreement. There was nothing tardy
about the grievor’s actions - especially since she was disabled and off work at the time. Indeed, for
someone away from the work place and (according to the College) eligible for long term disability, the
grievor articulated her concerns, in writing, with considerable clarity and dispatch.
In our view, there was nothing for the grievor to complain about until she received the
College’s letter of November 26, 1997, setting out its position with respect to the calculation of her sick
pay credits. What transpired before that, was an effort to clarify the College’s approach; and the
grievor was in no position to complain about anything, until the College did that. Nor could the parties
have intended that any question or enquiry from an employee should be addressed by filing a formal
complaint or grievance, lest it later be said that s/he did not move quickly enough. That is not a practical
or sensible reading of Article 32.01. On the contrary. The dialogue in which the grievor engaged was a
-10-
perfectly reasonable effort to discern whether there was anything to complain about.
In this respect, it is not without significance that the agreement specifically contemplates
that the circumstances giving rise to a grievance may not immediately “come to the attention” of the
employee affected. It recognizes that it may take some time before a source of complaint is identified.
And lest it be thought that the “numbers problem” should have been instantly recognized and quantified,
it must be remembered that, upon much later reflection, the College itself changed its position and
recalculated the size of the grievor’s sick bank.
If a sophisticated employer took some considerable time to recognize and finalize how
thegrievor’s entitlements should be calculated, it is hardly surprising that it took the grievor a while to
sort out the situation from her perspective.
In our view, the cause for complaint did not come to the grievor’s attention until the
grievor received the College’s letter of November 27, 1997.Her response and “complaint” about the
College’s calculation was launched by letter dated December 9, 1997, and the grievance itself is dated
December 17, 1997.
-11-
In our opinion, that grievance was timely.
Some provisions of the Collective Agreement
It is trite to say that the accumulation or reduction of sick leave credits is governed by
the terms of the collective agreement - not the College’s administrative practices. So it may be useful at
this point to set out some of the contract language.
SHORT TERM DISABILITY PLAN (STD)
17.01A Effective April 1991, all full-time employees shall be covered
by this plan.
17.01B This plan shall be funded by the College.
Benefit Year
17.01D 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
.........[text not relevant]
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) and shall be carried forward to
the next benefit year. Debits shall be made from the total assigned benefit
-12-
on a day-for-day basis.
17.01 F 4 During the period defined in 17.01 F 1 a participating employee
who is absent due to injury or illness on the day before or after
a holiday as defined in 16.01 shall receive pay for the holiday at the rate
defined in 17.01 F.
Expiry of Credits
17.01G Subject to 17.01 H, upon retirement layoff or termination of employment,
any credits standing in the name of the employee shall be
canceled and shall be of no effect.
Protection of Existing Rights
17.01H Notwithstanding 17.01 G, employees hired before April 1, 1991,
shall be entitled to utilize available credits (or portion thereof) at the time of retirement,
termination of employment or layoff as a lump-sum gratuity
calculated in accordance with the terms of the pre-existing Cumulative Sick
Leave Plans, where applicable and where the employee is eligible and shall
not exceed the amount of one half the employer’s annual salary as of the date
of the separation.
WORKLOAD
11.03 The academic year shall be ten months in duration and shall, to
the extent it be feasible in the several colleges to do so be from September 1
to the following June 30. The academic year shall in any event permit year
round operation and where a college determines the needs of any program otherwise,
then the scheduling of a teacher in one or both of the months of
July and August shall be on consent or rotational basis.
VACATIONS
15.01A A full time employee who has completed one full academic
year’s service with the College shall be entitled to a vacation of two months
-13-
as scheduled by the College.
th
15.01B A teacher assigned to teach for an additional month (11 month)
over the normal teaching schedule of the equivalent to ten months as part of a
continuous 12 month program shall be entitled to a vacation of one month, as
scheduled by the College. Such teacher shall also receive a bonus of ten percent
of the employee’s annual salary for the additionaleleventh month of teaching
assignment to be paid on completion of such assignment. A teacher assigned to
teach in the eleventh month for less than a full month will be entitled to a pro-
rata amount pftje ten percent bonus referred to above, to be paid on
completion of such assignment. A member of the teaching faculty teaching in a
continuous program shall not be required to teach for more than 12 consecutive
months without a scheduled vacation of at least one month [emphasis added].
Discussion and Decision
The dispute in this case arises from the calculation of a retirement gratuity, but what it
really centers on, is the administration of the grievor’s sick leave bank - the accumulation and debiting of
her “credits”. That process is governed by Article 17.01 F 1 reproduced above. So it is necessary to
look at that provision in its contractual context.
Like Professor Schiff, we begin by observing that teachers are paid an annual salary as
defined by the salary grid, in return for which they are required to undertake specified teaching duties
over a 10 month academic year. That 10 month academic year, from September 1 to June 30, is
stipulated in Article 11. Article 15 then provides for a 2 month “vacation” in the months of July and
th
August. And if a teacher works an additional 11 month, into what would normally be the vacation
period, s/he gets an additional bonusof 10% on top of her regular annual salary (See Article 15.01 B).
-14-
In other words, a teacher “earns” her full salary by teaching over the academic year of
10 months, which it is agreed, involves 218 teaching days. If she does additional teaching, she is paid
extra. And if, for example, she were to quit on day 219, at the end of her regularly scheduled 10 month
teaching period, she would have done all the work that was necessary to earnher full salary -
whether or not what she had earned had, as yet, been fully paid out to her. A teacher earns her salary
at the rate of 1/218 per teaching day during the 10 month academic year, even though, for convenience,
payments are stretched out over 12 months.
However, we do not think that this manner of dispersing earned income - be it bi-
weekly, or monthly, or in one lump sum - affects the amount that the teacher earns or must be paid. It
is an administrative convenience, that is nowhere spelled out in the agreement, and in no way affects
either the interpretation of the agreement or the way in which salary is earned. To put the matter another
way: the grievor’s entitlements under the agreement do not change because of the way that the College
chooses to disperse earned income.
There is nothing particularly novel about this proposition. It flows from the language of
the collective agreement, from the agreed facts, and from arbitration awards such as Confederation
College -Spence Grievance (above).
InConfederation College, an employee was absent from work and missed a number of
teaching days because she was on maternity leave, and the question was how much could be deducted
-15-
from the grievor’s salary for the days that she missed. The board concluded that, since there were 215
teaching days in the relevant academic year, the College could deduct 1/215 of annual salary for every
work day missed, because “where a teacher is required to work 215 days over a 10 month period,
he/she earns 1/215 of annual salary for each day worked “. It did not matter that the practice of the
College was to pay out 1/261 of salary per day over a 12 month period (the union’s argument in that
case). The grievor earned 1/215 of salary for each day worked, so she lost 1/215 of salary for each
work day missed. The value of a work day was 1/215 of salary - which is what the employer argued in
that case.
The panel in Confederation College also observed that “it can no longer be disputed
that under this agreement the normal two month vacation is unpaid”), citing a number of other College
awards to that effect. And there seems to be no doubt about that proposition either. Teachers are paid
for the 10 month academic year, then get two months of unpaid vacation.
This collective agreement does not provide for a paid vacation like some “industrial
agreements” do; and there appears to be no obligation to apply the Employment StandardsAct (which,
strictly speaking may not apply to this species of Crown employee). Rather, the vacation is either
“unpaid”, or any sum referable to the scheduled 2 months off is already notionally built into the annual
salary. That is what prompted Professor Schiff to comment:
We are inclined to think that s. 15.01 A does not require full work
attendance in the immediately preceding academic year to justify the
vacation. What the provision probably demands in only employment by
the College for one year or more. That certainly was the reading of its
-16-
identically - worded predecessor by the board chaired by Don O’Shea
in an award issued in 1976 respecting Conestoga College (Membury
Grievance). Be that as it may, we need not decide the point; even if the
provision read as the College wants, it would only allow reducing
vacation entitlement to less than two months. The employee would then
be on vacation for some lesser time (and for the rest we assume on
some kind of leave). So reading the provision would not allow the
College to reduce the dollar amount of salary instalments during July
and August below one-twelfth of the salary the professor is entitled to
receive according to the Article 14, and the College’s practice of
monthly payments.
The policy is based on the mistaken assumption that the collective
agreement and especially article 15.01 A provide for vacation pay -
that is, special pay referable to the two months vacation s.15.01 a
contemplates - separate and apart from the yearly salary set by the grid.
The idea of such special vacation pay is drawn from the industrial model
where hourly rated employees receive wages that cover only their hours
and days of actual work. Entitlements to vacations and to vacation pay
are added on by specific formulas in the collective agreements providing
paid vacations of certain lengths defined by periods of employment or
service. That model is not duplicated in this collective
agreement......Here as we have said, even though professors have
duties during only ten of the twelve months, they are entitled to receive a
salary of a certain dollar amount referable to the calendar, payable as
the College has chosen to do, in twelve monthly instalments. No
separate vacation pay is contemplated or payable and no credits for
vacation or vacation pay are needed. Certainly s. 15.10 A contains no
reference to vacation pay or credits. Instead, payment to cover vacation
is built into the annual salary...
What a teacher is receiving during the summer is not “vacation pay”. It is not an “add
on”. Rather, it is a portion of the stipulated salary that she has already earned (by working over the
218 teaching days) and is being dispersed at a later date. It is not something “in addition” to salary. So
again: if a professor taught all 218 days then quit at the end of the school year, s/he would be entitled to
this already earned but as yet unpaid amount. She would be entitled to full salary - whatever timetable
-17-
on which it might ultimately be paid out.
But what if a teacher missed some of those 218 workdays - not as in Confederation
College by reason of maternity, but rather, as here, because she was sick ? How does that affect her
income flow and (the problem in the present case) her sick leave credits? Prima facie, a lost work day
means a loss of 1/218 of salary (as in Confederation College) unless there is something in the collective
agreement to modify that result. And in our view, that is what is addressed by Article 17.01 F 1.
Let us begin by noting that the STD plan is designed to replace the income that employees
would otherwise lose when they miss work because of illness. It is not an “add on” either. Nor is it an
“earned benefit” in the sense that it is directly related to any particular number of prior days worked.
The plan is not “funded by work” like some benefit schemes are. It is wholly funded by the College (see
Article 17.01 B). Thus new employees are eligible for benefits from their first day of service; and
thereafter, all employees get an automatic allotment of 20 days credits in every “benefit year”. The
“benefit year” runs from September 1 to August 31 - that is, parallel to the 10 month academic year
and the two months following - which is ordinarily vacation, but during which some professors may be
required to teach.
As we read it, the purpose of the STD article is to ensure that someone who is sick and
misses work during the regular school year will not lose income (what happened to the grievor in
Confederation College). Instead, she will continue to receive “100% of her regular pay” for at least the
-18-
20 days available to her in that benefit year, plus however many extra sick days her accumulated sick
bank can support.
However, it is important to note that benefits under Article 17.01 F 1 are only available
for participating employees WHO WOULD OTHERWISE BE SCHEDULED TO WORK. Leaving
statutory holidays aside for the moment, a disabled worker could only claim sick benefits for lost
scheduled working days - which is to say, for lost teaching days during the 10 month academic year.
It is a scheme for replacing the income that an employee loses if she is sick on a work day.
Given the way that Article 17.01 F 1 is framed, it is clear that the formula for STD
payments, and thus for debiting sick credits, simply does not apply in the vacation period, when
employees would not be scheduled to work. The 20 days per benefit year can only be used (and we
would also say “used up”) during the academic year, when teachers are scheduled to work. Their
regular salary continues under Article 17.01 F 1 only for periods when they would be teaching.
In other words, teachers cannot make a claim under 17.01 F 1 for periods of illness
during their stipulated vacation period, because they have not lost any scheduled work opportunities
during that time. If they are ill during the summer, they cannot make a claim under the STD plan. And
there cannot be any debits either.
Now, employees who are sick during July and August may still get whatever they have
-19-
already “earned” during the academic year. So if someone had worked the full 218 teaching days
during the academic year, then fell ill in August, she would receive the same stream of earned (but not
yet dispersed) income that she would otherwise be entitled to, whether or not she was sick. However,
no STD claim could be made and no sick credits would be used up. Her income stream would simply
be maintained, as with healthy employees, out of already earned income.
But what of someone like the grievor, who did miss quite a lot of scheduled work time -
in her case all 218 teaching days in academic year 1996-97, as well as several months work in
academic year 1997-98 ? Again, it is necessary to look at Article 17.01 F 1 -- keeping in mind what
that clause is designed to do.
As we have already noted, in order to receive any payment under Article 17.01 F 1 an
individual must be a participating employee who is sick and “would otherwise be scheduled to work”.
So sick credits can only be used - and in our view used up - during the academic year when the
claimant would otherwise be teaching. An individual draws on her sick credits (including banked ones)
in order to provide pay for the days when she was scheduled to teach, but couldn’t teach because of
illness.
However, when the Article is read as a whole, it is our view that such payment
replaces the earnings of a lost scheduledwork day. The scheme is designed to replace lost
earningsfrom lost work days; and, to the extent of an individual’s sick credits, put her in the position
-20-
that she would have been in had she not been sick. In our view, the phrases “100% of regular pay
for... workingdays”, “one credit represents 100% ofregular pay for one working day”, and
“Debits shall be made ....on a day-for-day basis”, all support the conclusion that the wage
replacement created by Article 17.01 F 1 is based upon 1/218 of salary - what the individual would
earn by working for a scheduled work day, but can’t earn because of illness. In income terms, it makes
disabled workers whole to the extent of their accumulated sick credits. It
replaces the “regular pay” for the working day lost, so that the more sick credits an employee has,
the longer she will receive full salary. And debits are done on a day for day basis as well : for every lost
scheduled work day replaced by STD, one loses one sick credit.
The STD plan provides income replacement for work opportunities lost during the 10
month academic year. The calculation of and entitlement to STD are wholly unrelated to the
administrative practice of paying out earned income over a period greater than the 10 months in which it
is earned. The way in which earned income is ultimately dispersed, does not diminish or change what an
employee is entitled to under Article 17.01 F 1.
Accordingly, what does the grievor get for a scheduled work day that she cannot work
because of illness” ? In our view, she gets 100% of the regular pay that she would have earned on that
one working day. It is an amount of money referable to that day.
-21-
And what is the value of the regular pay for one working day ? In our view, it is
1/218 of the regular salary - as arbitrator Burkett found in Confederation College, and is the amount
that, it is agreed, a teacher would earn for each day worked. The formula for replacing lost income or
accumulating unused credits, is done on a day to day basis, at the rate of 100% of regular pay for one
working day. Similarly, any debiting is done, as necessary, on the same “day for day” basis.
To be a bit colloquial again : a teacher may lose a workday because of illness, but under
the STD plan she will continue to receive 100% of her pay for that day; and in order to do that, she will
expend one sick day credit. It is a simple and symmetrical formula which is totally congruent with the
“day for day” concept reflected in the language of the agreement. It accomplishes the “insurance” or
“income replacement” purpose which lies at the heart of Article 17.01 F 1; and it does that, without
requiring the application of STD during the summer when, on the wording of the Article, no benefit
amount could be claimed or payable.
As we understand the College’s position, it would have us read the words “regular pay
for one working day” to mean the amount that the College chooses to disperse, on a daily basis, over
261 days of the calendar year - some of which are working days and some of which are not. It wants to
maintain the income stream on a basis administratively determined (i.e without regard to anything in the
agreement), then feed that back into the interpretation of Article 17.01 F 1. It also wants to deduct an
additional sick credits for days during the summer which are not scheduled work days. In the result,
it wants to deduct far more sick credits than the number of work days missed for which an STD claim
-22-
could be made. Instead of deducting 218 credits, it wants to deduct 261. It wants to debit on more than
a “day for day basis”.
In our view, the position advanced by the College is not supported by the language of
the Collective Agreement. Specifically : debits cannot be made during the summer for days when an
individual is not scheduled to work. Nor can the College deduct more “credits” than the number of
missedwork days.
We can understand why the College might look at the formula that lies behind Article
17.01 H
, and conclude that for the purposes of that article “the parties” had assigned a “regular
working day” the value of 1/261. That is a number appearing in the formula, and for retirement gratuity
calculation purposes the College may well be right. However, we do not think that this formula (which,
as we understand it, is a carryover from pre collective bargaining days, and does not even apply to the
whole bargaining unit) determines the meaning to be ascribed to Article 17.01 F 1.
Rather, we prefer the simpler, and in our view, more probable interpretation set out
above: if a teacher is sick during the academic year, she uses one sick credit for every teaching day lost,
to replace the earnings that would otherwise be lost that day: 1/218 of salary. She is maintained in the
same position as if she had not been ill. If she has enough sick leave credits, there is full income
replacement that may then be dispersed in accordance with the College’s general practice - mostly
around the time that the income is earned or replaced, but holding a little bit back during each pay
-23-
period so that the total salary can be stretched out into the summer.
In the instant case, the grievor had hundreds of banked sick days - far more credits than
she needed to cover all of the days that she “otherwise would have been entitled to work” between the
end of August 1996 and the end of December 1997. In her case, the limit of “20working days in any
one benefit year” is not really relevant. Accordingly, it is our view that the number of credits that
should be deducted from her sick bank is the number of days that she was scheduled to work, but
could not work, because of her disability.
As a result of the STD Plan, the grievor’s salary should remain the same as if she were
working, because she had enough credits on a one for one basis to cover all of the missed time (“regular
pay for one working day”) x (the number of days off). The grievor does not get sick pay during the
summer; but what she has earned (through STD income replacement) during the regular academic year
“covers” that portion of her salary dispersed during the summer - just as if she had been working.
For the foregoing reasons, we are satisfied that the College is not entitled to deduct sick
credits for periods during the summer when the grievor was not scheduled to work. Those credits must
be restored to her sick bank, and are therefore available for calculations under Article 17.01 H, on the
interpretation set out above.
The grievor does not have to “pay anything back” to continue to receive her regular
-24-
income stream during the summer, without deduction of sick credits; because by deducting credits
during the academic year on a one credit per work day lost basis, she has built up (“earned” via the
income replacement formula in 17.01 F 1) an income entitlement sufficient to support her normal salary
payments over the summer - just as if she had not been sick at all.
In summary, it is our view that the College has erred in its calculation of the number of
days left in the grievor’s sick leave bank. The College must therefore recalculate her entitlement, in
accordance with the principles and interpretation set out in the Award.
The Holiday Issue
The panel was advised that the parties had a subsidiary issue respecting the
interpretation of Article 17.01 F 4, which deals with certain “holidays” mentioned in Article 16.01:
Good Friday, Victoria Day, Canada Day, Civic Holiday, Labour Day, Thanksgiving Day, and the
holiday period between December 25 and January 1. These are not scheduled work days, and Article
16.01 says that they will be “granted” to an employee “without reduction of salary”. In common
parlance, these are “holidays with pay” : the employee is not required to work, but, by the same token,
loses none of his/her salary.
This is not an income replacement mechanism for particular employees who are ill.
Rather it is a benefit that is nominally available to anyone who is an “employee” covered by the
-25-
agreement. Nevertheless, for individuals who are receiving STD payments, Article 16.01 has to be
read together with Article 17.01 F 4; and the parties apparently have some disagreement about how
that should be done.
However, the parties chose not to address that issue before us. They said that they
would consider the matter further, and address it if necessary, after they received our award on the
more general matter in dispute. So we make no further comment at this point. We merely remain seized
(as we were asked to do) in respect of this issue, and also in respect of any other issues arising from
the implementation of the declarations made above.
Dated at Toronto, this day of 1999.
--------------------------------------
R.O.MacDowell, for the Board
-26-