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HomeMy WebLinkAbout1988-0122.Harrison.88-10-04 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARtO ORIE¥~NCE C~OMMISSlON DE SETTLEMENT REGLEMENT BOARO DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. USG 1Z8- SUITE2100 TELEPHONE/T~t.~'PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G IZ8. BUREAU 2100 (416)598.0~88 0!22/88 IN THE MATTER OF AN ARBITRATION' Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before " THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Arthur Harrison) Grievor and The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: N.V. Dissanayake Vice Chairperson I.J. Thomson Member D. Montrose Membe~ For the Grievor: H.P. Stephenson ' Counsel Gowling & Henderson Barristers and Solicitors For the Employer: M. Galway Staff Relations Officer Staff Relations Branch Ministry of Correctional Services HearinB: August 5, 1988 DECISION This is a grievance dated February 1, 1985, stating "I grieve violation of article 48 and any other related articles," and claiming a remedy of "8 hours pay over and above my regular days pay, plus three (3) days off." The hearing proceeded on the basis of an "Agreed Statement of Facts" as follows: 1. The grievor, Mr. Arthur Harrison commenced employment with the Ministry of Correctional Services on January 31, 1972. He is classified as a Correctional ...Officer 2.at Millbrook Correctional Centre. 2. Mr. Harrison was scheduled to work the 07:00 to 15:15 hours shift on December 24, and December 25, ~987. December 25 is a holiday under. Article 48. of the collective agreement. 3. Early in December 1987, Mr, Harrison opted to receive a lieu day rather than monetary compensation for the work he was .scheduled to perform on December 25, 1987. 4. On ~ecember 34, 1957, Mr. Harrison's mother died. Mr. Harrison was'informed of her death' by the shift supervisor and was given permission to leave the institution. 5. Prior to his next scheduled shift, on December 25, 1987, Mr. Harrison phoned the institution and spoke to Mr. Barry Heard, shift supervisor, OM15. Mr. Harrison said at that time that he would report to work on December 25 if that was .what Mr. Heard wanted. Mr. Heard advised Mr. Harrison that he had been replaced, for December 25, and that he .need not report'for that 'shift. 6. December 26,. 1987 through to December 28, 1987 were regular days off for Mr. Harrison. Upon his return to work on December 29, he submitted a request for bereavement leave for Deoember 24 and December 25, 1987. This request has been a~tached as schedule A. The requested leave was approved by Mr. G. Preston, Superintendent, on the same date. 7. Mr. Harrison received 3/4 day bereavement leave on December 24. For December 25, he was subsequently deemed to have taken the holiday on the day on. which it occurred. He received eight hours pay for December 24"and eight hours holiday pay at his basic hourly rate for December 25. 8. Mr. Harrison is seeking an additional eight hours pay and three da~s off. 9. Mr. Harrison received the stage i response from Mr. Heard on February 3, 1988. in addition a number of exhibits were tendered on consent as evidence. A% the outset of' the hearing, Counsel for the grievor advised the Board that the only relief sought is "a lieu day, a vacation day or eight hours pay".v The provisions of the collective agreement which may be relevant to these proceedings are as follows: ARTICLE 19 - HOLIDAY .PAYMENT 19.1 Where an employee works on a holiday included under Article 48 (Holidays), he shall be paid at the rate of two (2) times his basic hourly rate for all hours worked with a minim%un credit of seven and one quarter (7 1/4), eight (8), or the number of regularly scheduled hours, as applicable. 4 19.2 In addition to the payment provided by section 19.1, an employee shall receive either -seven and one-quarter (7 1/4) or eigh~ (8) hours pay as applicable at his basic hourly rate or compensating leave of seven ~and one- quarter (7 1/4) or eight (8) hours as applicable, provided the employee opts for compensating leave prior to the holiday. ARTICLE 21 - NON-PYRAMIDING OF ?~EMIUM PAYMENTS 21.1 There shall be no duplication or pyramiding of any premium payments or compensating leave provided by this '~greement. ARTICLE 48 - HOLIDAYS~ 48.1 An employee shall, be entitled, to the. following holidays each year. New Year's Day Good Friday Easter Monday Victoria Day Canada Day Civic Holiday Labour Day Thanksgiving Day Remembrance Day Christmas Day Boxing Day Any special holiday as proclaimed by the Governor General or Lieutenant Governor. ARTICLE 49 - BEREAVEMENT LEAVE 49.1 An employee who would otherwise have been at- work shall be allowed u9 to three (3) days leave-of-absence with pay in the event of the death of his spouse, mother, father, mother-in-law, father-in-law, son, daughter, brother, sister, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, ward or guardian. · As indicated in the agreed statement, the grievor was scheduled to work on Christmas Day, which is declared as 'a holiday in article 48, On the 24th of December his mother passed away, and as a result, with L5 the permission .of his supervisor he absented himself from the scheduled shift on Christmas Day. He received eight hours pay for that day. There was some dispute as to what that pay represented. Counsel for the grievor contends that what was paid was bereavement leave pay under article 49 and' claims that in addition to the eight hours bereavement leave pay, the grievor should have been'Paid a further eight hours pay'" (or granted a lieu day) under article 19.2 Alternatively, it is submitted that if the Board concludes that the eight hours pay was holiday pay, then the grievor was entitled to receive a further · eight hours Day 'for bereavement leave which had been approved for Christmas Day. The Employer on the other hand submits that =he grievor was paid holiday .pay under article 19.2 or article 48 for Christmas Day, and that he has no further entitlement un,er the collective agreement. Stated broadly, the issue here is this. When a holiday falls at a time when an employee, is on bereavement leave, is the employee entitled to both holiday pay and bereavement leave pay or is he restricted to one or the other, This Board's jurisprudence in this area is far from consistent. There are different lines of cases, which 6 cannot'be reconciled in any rational way. This situation has arisen as a result of the lack of clarity in the language of the collective agreement provisions relating to holiday pay. One line of cases deals with holiday .... pay claims by employees on workers' compensation. In McDermid, 366/83 ($pringate) the grievor had been scheduled to work on two holidays designated in article 48, but did not do/ so because he went on workers' compensation. The Employer took the position that the employee had taken the two.holidays in question and was paid at his regular rate for both days under article. 19.2. The union claimed that, in addition, the grievor was entitled to 8 hours pay for each of the two days under the Workers Compensation provision of the collective agreement. The Board reviewed its prior cases at some length and summarized a number of approaches taken by the Board in the past. It emphasized t~hat none of the approaches could be viewed as unreasonable. In the end, the Board opted to follow the Board's decision in Charbonneau 544/81 (Barton).. That was also a case where the grievor was c%aiming both workers' compensation Day and holiday pay. In McDermid, the Board gave the reasons for following Charbonneau: This is one of those cases where arbitrators could give the same agreement language differ'ent, yet reasonable, interpretations. We are of the view,· however, that where reasonably possible the Board should strive for consistency when dealing with a 7 particular issue. To do otherwise would mean that the outcome of any particular grievance on an issue might depend of the composition of the Board panel assigned to hear the case.-In Charbonneau, 'the 'Board dealt with the very issue now before us, namely the holiday entitlement of an employee scheduled to work a holiday, but unable to do so because of a compensable injury. The majority award in Charbonneau was judicially reviewed by the Divisional Court, which declined to quash it. In the interests of a uniform approach to the issue, we propose to apply the reasoning in ~harbonneau to the grievance before, us. In doing so, we express no opinion as .to. whether the reasoning in Charbonneau should be applied to employees who are off work due to a non- compensable illness. ~. In Charbonneau and McDermid therefore, the Board seems to have established that where an employee, who is scheduled but does not work on a holiday because of a compensable injury, is entitled to both holiday pay under article 19..2 and workers compensation DaY under article 54.2. See also, ~alber~, 259/84 (Delisle). A directly opposite approach has been taken by the 8oard in "sickness cases", i.e. cases 'where an employee is scheduled to work on a holiday, but does not do so because of a non-compensable 'sickness. The "sickness cases" are reviewed at some length by the Board in Robertson, 0641/85 (Springate), an award dated January 28, 1988. We do not propose to repeat this review. However, we note that in all of the early sickness cases, the grievors' claim was that in addition to eight hours pay received under article 19.2, he/she was 8 entitled to a further eight hours pay at the. rate stipulated under article 19.1. The Board has consistently rejected such claims on the basis tha5 article 19.1 only applies where the employee actually works on a holiday. In some cases the Board has also held that the ~rohibition a~ainst pyramiding premium payments or compensating leave precluded a Ciaim under article 19,1. See for example, Martin 36/81 (Detisle).~ In contrast, in Kober=son, the grievor nad been paid holiday Day under article 19.2 and the union claimed additional pay, not under article 19.1, but sick DaY under article 51.1. In support of its position, the union relied on Charbonneau. The Board noted that this was the first time a claim had been made for sick Day in addition to holiday pay. under article 19. The Board came =o the conclusion that there was a common understanding by the employer and the union that an ill emDIoyee is _not entitled to sick pay in addition to holiday Day and that the only uncertainty in all of the prior cases was as to whether the holiday Day should be calcuiated under article 19.1 as if the ill employee had actually worked on the holiday, As noted earlier the Board has held on a number of occasions that article 19.1 does not apply where an employee, for whatever reason, does not actually work on 9 the holiday. The Board in Robertson observed that the decision of the Board'in ~harbonneau that an employee on a compensable injury is entitled to' both workers compensation and holiday 'pay under article 19.2, was made "not withstanding the jurisprudence and prior common understanding of the parties that an ill employee Was entitled only to payment under article 19". Vice- Chairman Springate observed that the Dane.! he chaired in McDermid followed the reasoning in Charbonneau "in the interests of a consistent approach to employees o'f~ on workers compensation". Considering the outcome in the prior Board decisions relating to non-comPensable iltness, the Board concluded that a policy in. favour of consistency 'does not indicate that Charbonneau should be applied to non' work-related illness cases. In ~he · result, the Board in. Robertson elected to "follow the past understanding of the parties and the Board, namely .that the entitlement of an employee off work. due to illness is to be found only undeT article 19." See also, Ber~sma, 126/86 (Fisher). We merel~ observe, as some other previous panels of this Board have done, that we have been unable to find a rational explanation as to why an employee can claim workers compensation and holiday pay, but not sick pay and holiday pay. The only.distinction between two cases i0 may well be that in the former case the employee broke his hand a: work and in the latter he broke his hand outside the work place. We are unable to ra~iona!ise why the location where the in3ury, occurred should dictate opposite results. This is in o~r view a distinction without a difference and only .serves to underscore the inconsistency Of the Board's decisions. In the recent decision in Mandar 1815/87 {Brands) the Board agreed with the union's contention that there is no rational basis upon which the two lines of cases (i.e. sickness and compensable injury) can be maintained. However, it rejected the union's submission that the inconsistency should be reconciled by applying the Charbonneau reasoning to illness situations also. In so doing, the Board stated: However, we are also unpersuaded that the approach taken by 'the "illness" cases is manifestl~ wrong and should therefore be overruled. The Board has frequently stated that, in the interests of promoting and guidance to the parties in' the administration of the collective agreement, it ought not to depart from its earlier decisions, except where they are "manifestly wrong" . Thus the Board followed the approach taken in the other illness.cases such as Robertson and Bergsma, which in turn were also decided mainly, on the basis of the need for consistency. See also the decision dated 11 August %5, 19B8 in Pavlovski, 0042/86 (Sprin~a~e), where the majority declines ~o apply the Charbonneau approach to a sickness, situation.. Therefore now- we have a "consistent" ~ine of sickness cases reaching one result' and another "consistent" line of compensable injury cases'reaching a directly opposite result, although .~he Board' has admitted that these two lines of cases cannot be rationalised. The case before this panel is not a compensable injury situation or a sickness situation. -It is a bereavement leave situation. The grievance claims a violation of article 48 and related articles. The Employer urges this Board.to follow the "sickness" line of cases. The union submits we should follow the "workers' compensation" line of cases. The evidence is clear that the grievor requested bereavement leave for part ' o'f December 24 and D~cember 25, 1987. It is also clear from exhibit 2 that the request for bereavement leave was approved in writing. See also para.6 of the agreed statement of fact. Thus, there is no doubt that bereavement leave was granted ~or December 25. The grievor was paid for eigh~ hours at 12 regular rates for that day. The ~rievor Grieved, claiming a violation of "article. 48 and any other related articles". The first step reply da~ed February 3, 1988 which was filed in evidence, reads as follows: This is to acknowledge receipt of your grievance, dated February 1, 1988, with states: "I grieve violation of Article 48 and.any other related articles.." Your settlement desired s~ates: "8 hours pay over and above my regular fays pay, plus three {3) days off}." I have carefully reviewed the circumstances surrounding your grievance. Records indicate you were granted bereavement leave on December 24th. and 25th., 1987, as a result of a death in your family. As a result,'you did not work your scheduled shift from 07:00 hours to 15:15 hours on December 25th., 1987. Since you did not work on the holiday, you.are not entitled to holiday payment, as specified under Article 19 of the Collective AGreement. Therefore, your ~rievance is denied. (Emphasis added) There- can be no doubt from the above that the grievor was on bereavement leave on the 25th of December and was paid bereavement leave pay and that the employer was claiming that he was not entitled to any further pal~ment under article 19 because he did not work On the holiday. On the contrary, in the step two redly dated April 28, 1988, the Employer takes a completely differen~ 13 position. In part it s~a=es "As you were absen~ zrom du~y on December 25, 1987, iT was considered' =ha% you had taken the statutory holiday on the day i.t occurred." The Employer has thus shifted its position mid-stream in the grievance procedure. Perhaps, it realized that bereavement leave should not .have been granted in =he first place, or perhaps the Employer felt that its'legal position would be stronger in resisting a claim for bereavement leave Day. Nevertheless, the Employer's first step reply and more importantly'the evidence as to what actually transpired clearly indicates, and we so find, that the grievor was granted~bereavement leave for December 25, and was accordingly paid under article 49. The issue in this grievance is whether he is also entitled to claim holiday DaY under article 19.2. . We do not ~ind any rational ,.basis for preferring either of the "sickness" or "workers compensation" lines of cases when' determining a bereavement leave s~tua~ion. The employer relies on Pullano 730/83 (Jolliffe), and submits that we ought to follow 'it, because tha~ case, like the present one, dealt with a bereavement leave situation. In Pullano, the grievor was scheduled to work on October 10, 1983. However, hiS father died on October 14 9. He requested bereavement leave for October 9 and 10 and did .not work on those dates. He was ~aid hours regular pay for each day. The Board was called upon to deal wi~h a number of issues: (1) Whether the grievor was entitled to premium pay under article 19.1; (2) Whether he had a claim under article 19.2; (3) Whether the EmPloyer was obliged to grant three days bereavement leave. With respect to the claim under artict'e 19.2 the Board concluded thaz 5he grievor had no claim. Its reasoning is found fn the following passage: The grievor claims "my 8 hrs. lieu time" a claim obviously based on 19.2. But 19.2 follows immediately after 19.1 and bpgins with the words "In addition to the payment provided by Section t9.1..." There cannot be addition to the payment provided by. 19.1 unless there was in fact a payment due under 19.'1. To hold otherwise would mean that al__l employees would be entitled, to premium pay or a lieu day whether they worked on the holiday or not. This would place them all on a footing of equality (so far as 19.2 is concerned) with those obliged to work on a holida~ instead of enjoying- it. It is impossible to believe that this was really the intention of the parties. What they in=ended was that those who could not get the freedom to celebrate a holiday would receive instea~ (and in addition to the premium pay in 19.1) either pay for one shift or another day off. Th~ Employer urges this Board to once again strive for consistency and follow Pullano. ~his Board fully endorses "the need for consistency", which has always been a principle followed by the Board. However, we are not satisfied that in these particular circumstances should follow ?ullano, simply because it was 'also a "bereavemen~ leave case~'. What the Board should focus upon is no~ the label (sickness, workers' compensation bereavement leave etc.) attached' to a'case, bus issue that is to be decided. Thai issue here is conditions under which holiday pay may be claimed under article 9.12. In Pullano the Board decided that only an employee who actually works on the holiday is so entitled. Under that .reasoning, the grievor here will also have no entitlement under article 19.2 because he did not work on the holiday in question. After careful consideration, we have come to the conclusion that in the particular circumstances, the policy in favour of consistency does not favour this panel following the Pu!lano decisi6n with respect to the proper interpretation of article 19.2. On the contrary that policy would suggest that we ought to reject .Pullano. A review of' the Board's prior decisions shows that the Board has' consistently held that, while working on the holiday is a prerequisite for entitlement to premium pay under article 19.1, all employees, whether they work or not, are entitled to holiday pay under article 19.2. Thus in Robertson, .the Board observed: "As discussed below, Board jurisprudence regards article 19.2 as being applicable both to employees who work and those who do'not work a holiday". In Mandar, the Board had this to say about the state of the Board's jurisprudence on article 19.2: It is sufficient to note tha~ in the cases which have come before the Board on the application of the holiday pay provisions, it has generally been assumed that payment of holiday pay for employees not scheduled to work derives from article 19.2. The only exception to that is Pullano 730/83 where the Board reasoned that, .since Article i9.1 clearly apDiies only where employees acsualiy work the holiday, and since article 19.2 · begins with the words "in addition to the payment provided by section 19.1", it mus~ follow that an employee cannot qualify under article 19.2 unless or unti~ he or she has qualified under Article 19.1. (Emphasis added) See also, the decision da%ed August 15, 1988 in Pavlovsky (supra). Thus, in our view, with respect to the meaning of article 19~2, it is Pu!lano that represents an isolated depar:ure from a consistent line of Board decisions holding that article 19.2 applies to all employees, whether they work the holiday or not. In arriving a6 the latter interpretation the. Board, in Parsons, 31/78 (Pritchard) reasoned as follows: Our reading of Article 19 is tha~ it's~ands apart from and independen~ of Article (47.1). On this interpretation, the functions of Artioles 19.1 and 19.2 are to set out the entitlement of an individual who is required to work on a statutory holiday. On this 17 reading, Article 19.1 provides for the usual overtime rates and Article 19.2 provides for an additional bonus of eight hours' pay for being r~quired to work on a statutomy holiday. In effect,. then, this reading sees Articles 19.1 and 19.2 providin~ for pay at the rates of 2-1/2' times the hours worked while entitlement to eight hours' pay pursuant Article .(47.1) remains unaffected. This, or course, is the grievor's position. It is rendered plausible by the wording of Ar=£cies 19.1 and 19.2. The opening words of 19.2, "in addition to 'the payment provided by Section 19.1", clearly link the two provisions leading to the conclusion that Article 19.2, tike Article 19.1, is concerned exclusively with the payment of persons who are required to work on statutory holidays. 'If Ar=ic!e '19.2 is limited to this function,., then it is an easy step to conclude that the entitlement of 20 hours pursuant to Article 19.1 and 19.2 for working on a statutory holiday should be added to the basic entitlement to 8 hours' pay pursuant to Article (~7.1) of all employees in the bargaining unit. Despite the plausibility of this interpretation, we are forced by the language of the relevant articles and ~he presumed intent and expectations of the ~parties to reject it. We read Article 19.2 as having a more expansive function than that which the grievor accords it. We accept the Ministry's argument that Article 19.2 should be read as providing that all employees, whether or not they are required to work on a statutory holiday,' are entitled to eight hours" pay for that. day. In a sense, then, this merely confirms the entitlement to' pay for statutory holidays that we would likely, if required, have inferred from Article (47.1). Read in this light, the introductory wor~s of Article 19.2, "in addition to the payment provided by Section 19.1", are not a limitation on the scope of the application of Article 19.2 but rather a confirmation ~ha= any entitlement earned under Article 19.1 is in addition to and not in 1.leu of the Ar=icie 19.2 entitlement. 18 We agree with this reasoning. Additionally, obaerve that article 48 merely lis~$ ~he d~$igna~ed holidays. It does not se= out uhe method and quantum-cf compensation ~or the holiday, indeed, it does ncu even stipulate that the designated holidays are holidays. There has to be some authority in the. collective agreement providing for payment on the holidays. That source is article 19.2. Following that reasoning, we are led'to =he result that the grievor was entitled to be paid holiday pay in accordance with article 19.2 despite the fac~ that hE did not work on the holiday because he was on bereavement leave. Although article ~.1 was mentioned several times during the course of the hearing, the Employer did not rely on it in the ~inal ~ubmissions. Nevertheless, it is appropriate to consider whether the fact that the grievor had already received bereavement leave pay prevents him from also claiming holiday pay under article 19.2 to which he i~ otherwise entitled. Article 21.1 quoted above prohibits "the duplication or pyramiding of any premium payments or compensating leave provided by this Agreement". 19 The prohibiton is not agains% pyramiding of benefits but of premium payments. We have doubzs :kaz the payment made under article 19.2 or bereavemenz under article 49 can properly be descriDed as payments" within the meaning of article 2i. On :he ~ontrary, they are distindt benefits to which an employee may be entitled to. 'While the payment holiday pay (or the granting of an in lieu day) may az first blush be seen as a form of pyramiding sense of an employee being paid %wice for :he same day, not all such s'ituations have been considered as coming within the prohibition. Arbitrators have held that where an employee is entitled to two independent benefits under separate provisions, of the collective agreemen~ the prohibition against pyramiding dces not apply. See, Re American 'Can of Canada Ltd., (1980 26 L.A.C. (2d) 189 (M. Picker} and Re. North York General Hospital, (1980) 27 L.A.C. (2d) 64 (Shime}. See, also this Board;'s decision in McDermid. (su__u~} concluding that, article 21 does not prevent an employee claiming bath holiday. ;ay under article. 19.2, and worker's compensation under article 53.2 (now 54). This Board is similarly of the opinion tha= holiday pay under article 19.2 and bereavement pay under article 49 are separate benefits negotiated on behalf of 2O employees independently of each o~her and the prohibition in article 21 does not apply to 'this situation. it follows from all of the above findings of the Board that this grievance succeeds. The grievor has requested by way of remedy "a lieu day, a vacation day or eight hours pay". We do not regard a vacation day as an appropriate remedy. Therefore consi'dering the ~ime that has elapsed since the violation, we direct unless a lieu day can be agreed upon to the satisfaction of both pa~ties within ten days of the rec'eip% of ~nis award by the Employer, the grievor be paid eight hours pay at his regular rate. We have noted the anomalous state of the law dealing with the holiday pay provisions under the collective agreement. We agree with the Board in Ma~dar that "the ~medy to ~orrect that anomaly must lie with .the parties." Vice-Chairman Te~litsky in Kello~ 222/84 noted that "Article 19 has been a prolific source of 21 grievances". The parties are urged to take steps ~o clarify article 19 at the bargaining 'table and pu~ an end to the reDetitive li=igation. Dated at Hamilton, Ontario, this 4th Day of October, 1988. Nimai V. Dis~nayake Vice Chairperson Member D. Member