HomeMy WebLinkAboutShorting 99-11-01IN THE MATTER OF AN ARBITRATION
BETWEEN: ST. LAWRENCE
AND: ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION
AND IN THE MATTER OF THE GRIEVANCE OF GRAHAM SHORTING. GRIEVANCE
O.B. SHIME, Q.C. CHAIRPERSON
H. J. COOK NOMINEE FOR THE COLLEGE
NOMINEE FOR THE UNION
M. LYONS
APPEARANCES
COUNSEL, and others
C.L. KAY-AGGIO
for the College
REPRESENTATIVE, and others
G. LEEB
for the Union.
Hearings were held in this matter at Kingston, Ontario on May 5 and 18, 1999
AWARD
In this matter, the grievor claimed that College has violated the Collective
Agreement by not properly compensating him for the period September 1995 to August,
During the course of the proceedings, the grievor adjusted his claim and asserted
he had been ill and the College had not properly accommodated his disability; in addition,
he claimed the College had used sick benefits to pay him, rather than holiday pay.
College denied that there had been any violation of the Collective Agreement.
The grievor had been a professor with the College for approximately 20 years and
in 1995 he became ill with chronic fatigue syndrome. From September of 1995 he
received short-term disability benefits either in whole or in part, depending on how much
he worked. From January to May 1996, the grievor worked approximately 35% of the time
and on May 7th that arrangement ended. However, the grievor worked part-time in a
teaching capacity for the period May 7th to June 1996. On June 1996, the
grievor stopped working and commenced his vacation period and returned to teach
in the Fall of 1996. The grievor maintained that the College did not accommodate him for
the period May until June 1996, when he began his vacation.
The grievor testified that he had been a professor at the College for twenty years,
in the Faculty of Applied Arts and had taught English, Media Studies and Film.
of 1995, his workload was reduced to accommodate his illness. In November of 1995, his
illness was specifically diagnosed as chronic fatigue syndrome.
It is clear that the grievor attempted to work notwithstanding his debilitating
condition, and while it appears that he might have been totally disabled, there is no
question
that he is conscientious and attempted to work beyond his capacity. He worked
from September 1995, until May 7, 1996, and when he did not work full-time his salary
was topped off by utilizing sick credits. The grievor obtained work from the College from
May 7th to June in a non-teaching capacity, counselling applicants to the General
14th
Arts and Science Programs. The grievor stated that while he was not clear as to how he
came to be employed as a counsellor, he recalls speaking to Sharon Godfrey, the
departmental assistant, and requesting that she find him employment that was “not too
demanding”. When the counselling opportunity was offered, he took it.
had
in order to take a vacation; he was exhausted and under extreme stress because he
been denied LTD benefits. The grievor had requested some work subsequent to May 7,
1996, to see how much work he could do because he was driven by a strong work ethic
and it was important for him to work and to find a reasonable level of work. In May and
June of 1996, he did counselling and some course development for the courses for which
he was responsible. The grievor also maintains that in June of 1996, he took the first
after receiving advice from the director; he claimed only half of the time for June 13th and
he saw his doctor on June 1996,
When cross-examined, the grievor said that
and his doctor suggested that he stop work for a seven week period and accordingly he
took his vacation. The grievor admits that he may have told Sharon Godfrey that he was
too tired to continue and that he was going to take his vacation.
In August of 1996, the grievor initiated discussions to return to work with Mr. Pat
Finucan, the Director of the School of Applied Arts, and he returned to a 70% work level
which he had requested. The grievor also admitted that there was nothing that Pat
Finucan failed to do for him that he asked. The grievor does not blame anyone
individually for the difficulties he encountered, but maintains that the system failed him.
The claims that his accommodation for disability should be retroactive,
notwithstanding that he had made no request for further accommodation for the relevant
period; he also testified he was unaware that he could make a request at that time.
We also note, that during that period, the grievor had a number of discussions with
Myrna Garrison, the Director of Compensation and Benefits at the College, concerning his
long-term disability claim, and ultimately, that claim was denied by the insurance
company. The grievor appealed and the appeal was also denied.
has been employed at the College for approximately 21 years, testified that she was the
liaison between Pat Finucan, who was located at the Cornwall campus, and the Faculty at
the Kingston campus.
workload, and contracts. Ms. Godfrey has known the grievor since 1981 and they have
a friendly relationship. In the Spring of 1996, the grievor asked for work and since there
booking half-hour appointments for students to discuss their
courses for the
of 1996. The counselling is done each year and is normally done by a full-time staff
and a part-time faculty member. Ms. Godfrey testified she discussed the work
with the grievor and particularly, what was involved, the hours that he wanted to work, and
out and he needed income.
Towards the end of the work period which ended on June 14th the
mentioned to Ms. Godfrey that he needed time off and was going to go to his cottage.
She testified that the grievor seemed pleased with the efforts she had made on his behalf.
If the grievor had asked for further work, there was work available.
She also stated the
grievor initiated his return to work in August of 1996.
When cross-examined, Ms. testified that
Pat Finucan made the decision
about the work to be given to the grievor. Mr. Finucan had requested she find some work
for the grievor since she was familiar with the workload available. When she spoke to the
health. When the approached her and told her that he needed work, she felt that
the workload was counselling because it was without pressure. She was aware of
easiest
the courses in the school and their requirements and maintained she chose the
counselling for the grievor’s benefit, and he appeared to be very pleased with the work
assignment. If the grievor had asked for full-time teaching she would have suggested he
teach biology. Ms. Godfrey maintained it was common knowledge that the grievor was
his health. He also advised her in June that he needed a break and was going to his
Ms. Godfrey felt that the grievor was not well at the time.He had just concluded
teaching one course from January to April and had not been well enough to teach the full
load. There were three sections to the course and he had taught one and his wife had
taught the other two since the was not capable of teaching all three. Ms. Godfrey
stated that on June 13th and the grievor was doing counselling because the time
sheets do not indicate that he was doing professional development work.
testified that Ms. Godfrey reported to him and was responsible for the administration and
secretarial duties at the Kingston campus.She under his direction, particularly
with respect to workload assignments for the faculty. He admitted to being more reliant on
M Godfrey than he might have been if he had been continuously present at the Kingston
S
campus.
assign him to a counselling position under the Collective Agreement. He was aware of the
with him about his progress, and
grievor’s illness and had had numerous conversations
about arrangements for his workload in relation to his illness. Those discussions involved
Mr. Finucan approved the counselling in May of 1996, based on the grievor requesting
work and Ms. Godfrey’s suggestion as to the work to be done.The grievor did not ask
for additional work.
During the period when the grievor was doing the counselling, Mr. Finucan had a
discussion with him as to how he was coping and discussed the state of his health.
According to Professor Finucan, he was told that “it was a struggle”, that the grievor was
not well, and that he was making exceptional efforts with his students. The grievor did not
Mr. Finucan also testified that course
say he was capable of taking on more work.
development work is normal activity in May and June and there is no additional
compensation for course development work.
Mr. Finucan was aware that the grievor’s LTD application was turned down in
the next request for work was made in August, which he approved.
friendly and had an amicable, close, and effective working relationship.
grievor ever asked was refused. In addition, Mr. Finucan wrote a letter on the grievor’s
behalf to try and assist him with his LTD claim. There was never a suggestion from the
being accommodated and, in addition, Mr. Finucan had
grievor that he was not
conversations with the chief steward and nothing was said about additional work for the
for alternate work and had simply responded to the grievor’s request by providing him with
a assignment. Mr. Finucan asserted that the College did not make an
independent proposal about other work because he understood that the grievor did not
want the College to make such a proposal. His personal understanding was that the
Mr. Finucan maintained
that he was operating on the basis that there was a limit on what the grievor was capable
of doing and he had no understanding that the grievor wanted more than what was being
provided to him at the time. If the grievor had wanted more work, Mr. Finucan was
prepared to find understood that the grievor being paid on an
work for him. He also
off loading basis or on the basis that the grievor was not doing teaching duties.
Finucan does not recall conversations about professional development, but he has no
reason to doubt that the
did the work.
Myrna Garrison, who has been the Director of Compensation and Benefits since
1988, testified about her conversations and communications with the grievor concerning
his claim for both short-term and long-term disability benefits. Ms. Garrison also testified
as to the procedures followed and communications concerning the grievor’s claim and
appeal for the LTD claim. She stated that the grievor did not indicate he was looking for
.
more work at any time.
He did not request Ms. Garrison to look for modified work, and did
not indicate that he had asked anyone else for modified work.
She stated that all the
with respect to accommodating disabled employees is to respond to requests, but
maintained that the grievor’s medical certificates indicated he was unable to work. Those
physicians’ statements were part of the grievor’s LTD claim
Based on these facts the
Union submits that there are two issues to be decided.
The first issue concerns the failure of the College to accommodate the grievor for the
period May 7th to June 14th. The second issue concerns 1995-96 when the grievor
reduced
worked on a basis. The Union claims that the grievor should receive holiday pay
and instead the College deducted sick credits for those days. The Union maintains that
Christmas Holidays pursuant to Article 17.01 F4 of the Collective Agreement.
As to the first issue, the Union further maintains that the College did not attempt to
find work for the grievor fur May 8th to June 14th. The Union claims someone
should have been specifically assigned to consider the situation with disabled employees.
The Union argues that work was bargaining unit work, and the grievor should
The Union does not claim that the College did not act in
be compensated on that basis.
a bona fide way, but submits that the College had a further duty to provide him with
additional work. The Union further maintains that on June 13th and June the grievor
performed work as a professor and was not properly compensated for that work.
As to the second issue the Union relies on Article 17.01 F4 and maintains that the
grievor should have received holiday pay and not lose sick pay since holiday pay is a
and denied a holiday entitlement because the employee is ill.
The College submits that all the grievor’s requests for work were answered and
satisfied. He received reduced work when he requested it, he was given counselling work
when he requested work, and when he requested that he return to work in August of 1996
that request was also satisfied. At no point did the grievor seek anything than the
work that he was given, and his actions make it clear that he was barely coping with the
work that he was assigned. The College argues that the grievor never claimed that he
wanted additional work. The College further maintains that compensation was not an
issue in these proceedings and no mention was made as to the amount of compensation
recourse to his Union, and neither the grievor nor anyone
for the claimed that the
College was not doing enough for the grievor during the relevant period.
The College
asserts that the grievor had a duty to make his needs known and denies there has been
a failure to accommodate.
scheme for persons who are receiving sick benefits and the grievor fell squarely within the
.
meaning and was properly compensated. The College argues that Article
of Article 17.01
fell within the comprehensive provisions of Article 17 for those receiving sick benefits.
We now turn to the claim for increased accommodation by the College. On June
11 th, 1996, toward the tail-end of the period for which the grievor claimed more work, he
wrote a letter to Sun Life Assurance Company of Canada concerning the appeal of his
disability claim. In that letter he dealt with his continuing illness at great length. He
discussed his fatigue and stated, “I wake up in the morning feeling extremely tired”, and
“Sometimes the fatigue persists throughout the day, on other days it comes and goes in
He maintained “after working three or four days at the College doing academic
counselling (Tuesday, Wednesday, Thursday) I must spend the next four days
recuperating. I have reduced physical activity in my life considerably.”
He indicated he was in great pain and stated my back pain is so severe
that I have extreme difficulty focussing and communicating effectively.”The grievor was
seeing a chiropractor twice a week. He further asserted that he had headaches and
facial numbness and that his symptoms were worse when he attended at St. Lawrence
College, The grievor also stated that he had digestive disturbances, light-headedness,
concentration problems, trouble absorbing information, remembering information, and
recording data accurately. He maintained “this latter problem has become particularly
pronounced when I give academic counselling to a few students in a row.” He also claimed
“when I look over my daily work, I detect a large number of letter and word omissions in my
writing. During conversations with students, I still occasionally forget key names and
words, something rarely did before I became ill.” The grievor asserted that he was
emotionally and psychologically depleted. He stated that he had good days and bad days
and that his condition was “maddeningly variable”.
The grievor then referred to the demands of teaching and added that “my greatest
fear is that if I do too much I will fall into a complete state of exhaustion as I did in late
September 1995 when Dr. recommended that I stop working completely.”
went on to state “I believe it is my professional duty to deliver to the best of my abilities,
something I cannot do at especially if the workload is too large.”
The grievor acknowledged that he was impaired, forgets information and materials,
and question period. He also indicated that reading, marking and class preparations can
be increasingly taxing. The grievor concluded that he believed
af present am
(emphasis added). The grievor was also
unable to do the entire job was hired to do.”
unable to put a numerical
figure on the degree of severity of his disability at that time, but
did indicate he had “limited energy.”
Also, on June 1996, Dr. the grievor’s doctor, wrote to Sun Life
Assurance Company and stated that the grievor’s condition would be considered
moderately severe and places restrictions primarily on the duration of his activities rather
The current of activity time
than the activities per se. He also stated
of Mr. Shorting’s mental and physical
employment) appears to be nearly the extent
This is of course primarily a symptomatic illness and there is no objective
(emphasis added).
measure for this.”
Based on the grievor’s evidence, his letter and Dr. Monahan’s letter, we are unable
able to do it. There is no doubt that the grievor wanted to work and was very diligent in
attempting to obtain work, but we are not satisfied that the grievor was capable of
performing more work if it had been assigned to him. It is reasonable to infer from all the
evidence that the counselling work was the full extent of the grievor’s capacity and that he
was unable to do more work.
Godfrey, we are satisfied
that, in the circumstances, the College took reasonable
measures and acted in a bona fide manner in finding work for the grievor. This was not
a hostile situation. The grievor was friendly with both Ms. Godfrey and Mr. Finucan and
had a number of conversations with
them concerning his illness and his capacity for work.
It was against this background, that Ms. Godfrey under the direction of Mr. Finucan,
assessed the grievor’s needs and provided him with counselling work. Counsel for the
College is quite correct in saying all of grievor’s requests for work were honoured by the
Both the grievor’s evidence and the evidence of Dr. suggest that the
How the full extent of the grievor’s capabilities
grievor had a limited capacity for work.
could have been more objectively assessed by the College is not clear. The College made
--
on the
an assessment based on the information that was communicated to it, and based
Dr. conceded that the grievor
was working to capacity and that there was no objective measure for his illness. If Dr.
could not measure it objectively, how could the College be expected to measure
his illness so as to conclude he could do more work.Moreover, there was a duty on the
grievor and the Union to assist reaching an appropriate accommodation. That duty at
the very least demands that the Union and/or the employee inform the employer that he
or she is capable of performing more work . In the absence of such information the
Its duty was not one of perfection, but rather to take
College cannot be faulted.
reasonable measures to accommodate the grievor, which it did. Central Okanaqan School
Accordingly the grievor’s claim for
--
additional compensation arising from a failure to accommodate is dismissed.
As to the amount of compensation during that period, it appears that there was
some special arrangement between the College and the Union with respect to this
time counselling work which was not to be as counselling within the meaning
of the Collective Agreement.However, that was a matter that was not fully explored at the
hearing and we are not satisfied on the balance of probabilities that the grievor’s claim for
additional compensation for counselling within the meaning of the Collective Agreement
should be allowed. Accordingly, the grievor’s claim for additional compensation in that
regard is dismissed.
that he attended on two days for professional
However, the grievor testified
development activity and Mr. Finucan testified that if the grievor did so claim, he had no
reason to doubt him. Moreover, Mr. Finucan suggested that the grievor should be
believed. The grievor
stated he was told to claim the amount of time as counselling and
However,
no doubt that explains the time sheets and Ms. Godfrey’s view of the situation.
based on all the evidence we accept the grievor’s testimony that he did attend for
professional counselling on June 13th and 14th and we determine that the grievor should
be compensated at the appropriate rate of pay in an amount to be determined by the
parties. Failing agreement we will remain seized of that issue.
We now turn to the relationship between statutory holidays and short-term disability
plan. The relevant provisions of the Collective Agreement are as follows:
Article 16
HOLIDAYS
An employee
will be granted the following holidays on the day
Civic Holiday
Good Friday
Victoria Day Day
Thanksgiving Day
Canada Day
An employee will be granted the holiday period of December
25th to January 1st inclusive without reduction of salary.
Article 17
SHORT-TERM DISABILITY PLAN (STD)
Participation
Effective April 1991, all full-time employees shall be covered
by this
plan.
Benefits
17.01 During absences due
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 next benefit
the year. Debits shall be from the total
assigned benefit on a day-for-day basis.
During absences due to illness or injury in excess of the
accumulated days referred to in 17.01 F 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 and the date the employee would
normally qualify for LTD.
Where the qualifying period for LTD has expired, and the
or her name under this plan, such credits may, at the election of the
employee, be utilized by the employee instead of LTD benefits, until the
employee elects to take LTD benefits, if qualified.
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
During the period defined in 17.01 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
Application for benefits under the plan shall be made at such
time and in such manner as the College shall determine and shall be
supported by such medical evidence, if any, as the College may require.
that under Article and B, employees are to receive the
It is apparent,
statutory holidays along with the December 25th to January 1st holiday period
appropriate
which would include Christmas Day, Boxing Day and New Years Day without a reduction
of salary. In effect, employees are to be paid for those holidays.
However, Article 17 of the Collective Agreement, in our view, is a comprehensive
plan to deal with employees who are receiving short-term disability benefits.
Where
employees are absent due to illness or injury they are entitled to receive either 100% of
Article 17.01 F4, guarantees that employees who are injured or ill shall receive pay for the
holiday in the same manner as employees who are not ill. The Article ensures that
employees receiving short-term disability benefits shall not be penalized when holidays
arise during the period that they are injured or ill; the holidays are to be considered as
days for which the employee is entitled to receive “pay for the holiday”.
is to the same effect, but for employees who are only receiving 75% of their regular pay.
Since holiday pay is an earned benefit, Article and 1701 F5 ensure that
and not deprived of their holiday pay. Thus, for example, Article 17.01 F4 ensures that a
participating employee not be deprived of his/her holiday pay merely because that
employee is absent on the day before or day after a holiday as defined in Article 16.01.
The reference in Article to Article is to establish the “rate” to be paid
participating employees and similarly, the reference in Article 17.01 F5 to Article 17.01 F2
is to establish the “rate” to be paid. Since employees who participate in the STD plan are
the references to the “rate” in Articles 17.01 and 17.01 F2
pay
are merely to ensure that payment for holiday pay is consistent with the rate of pay that the
employee is receiving under the STD plan.The references in both Articles are not to
deprive an employee of holiday pay but merely to ensure that the rate for the holiday pay,
is consistent with the payment
that the participating employee is receiving under the STD
plan. If it had been intended that employees not receive holiday pay and only be entitled
to their sick benefits, Articles 17.01 F4 and 17.01 would have provided that employees
shall be paid in accordance Article 17.01 and 17.01 and not simply at the “rate”.
he was a participating employee in the STD plan under Article 17. We will remain seized
of that issue should the parties be unable to agree on the amount.
For the reasons given, the grievance is denied in part and allowed in part.
DATED AT TORONTO THIS 1st DAY OF NOVEMBER, 1999
O.B. Q.C.
CHAIRPERSON
Concur”
H.J. COOK
NOMINEE FOR THE COLLEGE
M. LYONS
NOMINEE FOR THE UNION