HomeMy WebLinkAboutNorth 99-07-02IN THE OF AN ARBITRATION
NIAGARA COLLEGE
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
AND IN THE OF THE GRIEVANCE OF A. NORTH
BOARD OF ARBITRATION:
MAUREEN K. CHAIR
JACQUELINE CAMPBELL, COLLEGE NOMINEE
EDWARD SEYMOUR, UNION NOMINEE
FOR THE COLLEGE:
BRENDA J. COUNSEL
FOR THE UNION:
OMORUYI, COUNSEL
988560
April 30,
AWARD
This case involves two interrelated claims, one for sick pay and the
other for vacation entitlement, on behalf of the Grievor, Angela North, who is
The relevant facts are as follows: On April 16, 1998, the Grievor, a
work until August 24, 1998. There was no dispute that the College was aware of
of Health and Community Studies, who was responsible for the Correctional
June, 1998, the last day being June 19, 1998. Thereafter, in accordance with its
normal practice, the College scheduled a two-month summer vacation period.
From April 16 to June 19, 1998, the Grievor was in receipt of sick
benefits. Thereafter, from June until August the Grievor’s sick benefits
I
were suspended as she was deemed to have been on vacation.
notwithstanding that the Correctional Worker Programme was not offered in the
More particularly, the Union submitted that the College violated the
collective agreement by unilaterally altering the Grievor’s status for the period in
The
Union further submitted that (1) it is the fundamental reason for an employee’s
absence which governs the characterization of the period of absence; and (2) as
the fundamental reason for the Grievor’s absence was a stroke, the proper
payable. Finally, the Union submitted that, as a matter of fairness, the Grievor
vacation at a later date. In this regard, the Union argued that had the Grievor’s
illness taken place earlier in the academic year and not extended into the normal
vacation period, she would have been entitled to sick pay for the entire period of
her illness and to her full vacation entitlement thereafter. Accordingly, as a matter
of fairness, she should not be deprived of her full sick leave and vacation leave
entitlements simply because the timing of her illness was such as to coincide with
The College submitted that (1) under the collective agreement,
WORKLOAD
When preparation, evaluation, feedback to students and
complementary functions can be appropriately performed outside the
College, scheduling shall be at the discretion of the teacher, subject to the
to the extent it be feasible in the several colleges to do so, be from
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
A full-time employee who has completed one full academic
years service with the College shall be entitled to a vacation of two months
In scheduling vacations, the College will take into
consideration the maintenance of proper and efficient staffing of College
programs and operations and the requests of employees. The College will
notify employees of their vacation period at least four weeks prior to the
It is understood that
commencement of the vacation period concerned.
following notification of vacation periods, vacation schedules may be
changed in circumstances beyond the College’s control or by mutual
agreement. The College agrees that seniority shall be given consideration
17.01 A
17.01 F
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
credit represents 100% of regular pay for one working day) and shall be
Debits shall made from the total
The collective agreement provides for an academic year of 10
see Re Ontario Public Service Emolovees Union and The Ontario Council of
Reaents for Colleaes of Applied and Technoloav (Conestoaa Colleae);
Grievance of Membury, November 26, 1976 (O’Shea (unreported)); Re Humber
Colleae of Applied Arts and Technolcov and Ontario Public Service Emolovees’
also well established that, regardless of the intervals at which it is paid, annual
salary is earned over the course of the academic year and the normal two-month
vacation period is unpaid: see Re Ontario Public Service Emolovees Union and
The Ontario Council of Reaents for Colleaes of Applied Arts and Technoloqy
(Conestoaa Colleae), Re Colleae of Arts and Technoloqy
and Ontario Public Service Union; Grievance of Bell, September 15,
Of and Technoloqv and
6
June where feasible) points to a vacation period of July and August,
it was agreed that this right is not unlimited. However, so long as the College
maintained that it was entitled to treat the Grievor in the same manner as other
set out in Article 15.02. That Article also provides for four weeks’ notice of the
May 22, 1998, a standard form memorandum was issued advising employees of
their vacation entitlement and that if no other vacation period was requested, the
standard vacation period of June 22 to August 21, 1998 would apply. Although a
memorandum of this nature was addressed to the Grievor and although the
mail was hand delivered by a number of co-workers who visited during
the period of her convalescence, the Grievor did not recall having received it.
absence was a medical one, she was entitled to benefits for the period from
June 22 to August 21, 1998. In addition, the Union submitted that the College
violated the collective agreement by altering the Grievor’s status for the period in
Nevertheless, the Board cannot accept these submissions. Article 17.01 F of the
collective agreement provides for the payment of sick pay for an employee who
“would otherwise be scheduled to work” in the amount of 100 percent of the
employee’s regular pay for up to and including 20 working days plus any unused
as to the availability of unused sick leave credits (the evidence being that, as of
April 16, 1998, the Grievor had some accumulated sick leave credits).
Furthermore, there can be no question that the Grievor was not otherwise
was not offered during the summer months and as she was not otherwise
Moreover, although
scheduled to work following the end of the academic year.
College, these are functions which are performed during the academic year
College followed its usual practice of scheduling vacations during the summer
finds that there was no impediment to scheduling her on vacation notwithstanding
In the result the grievance must be dismissed.
DATED :AT TORONTO, this~'"Xday of~'19'~99.
,,,, .... Chair
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College Nominee
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Union Nominee