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HomeMy WebLinkAbout1988-0515.Aubin.88-12-16 ONTARIO EMPLOYES DE LA COURONN£ CROWN EMPL 0 YEE$ DE L 'ONTARtO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO, MSG 1Z8- SUITE2100 TELEPHONE/T~-t.-~'PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU 2100 (416) 598-0688 515/8~ IN THE MATTER OF AN ARBITRATION Under' THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (C. Aubin) Grievor - a~d - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: Pau]a Knopf Vice-Chairperson I. Freedman Member H. Roberts Member For the Grievor: R.R. Wells Counsel Gow]ing & Henderson Barristers & Solicitors For the Employer: M. Galway Staff Relations Officer Human Resources Management Ministry of Correctional Services HEARING: October 28, 1988 DECISION This grievance involves a claim for statutory holiday and vacation credits which are alleged should have accumulated while the grievor was off work on a Workers' Compensation claim. The parties were able to reach agreement on the facts which gave rise to the grievance. The relevant fac ts are as follows: The grievo~ is a Correctional Officer II at the Cornwall Jail. He commenced his employment with the Ministry in October t971. On October 24, 1984 he was injured in the course of his duties and received a Workers' Compensation Awar~. On September 11, 1985 he returned to work. As a result of this same injury, he was again off work beginning in March and received a continuation of the Workers' Compensation award in respect of this reoccurrence. In July 1987., the grievor's long-term income protection (LTIP) claim was approved retroactive to September 25, 1986. The grievor's LTIP's benefits were discontinued as of September 24, 1988. From March 1986 until August 1986, the gri'~vor was paid directly by the Ministry and not through the Workers' Compensation Board. Until June 1997, the grievor received monthly attendance records from the Employer. While the grievor was absent on his Workers' Compensation claim, he was scheduled to work twelve-hour shifts on three statutory holidays, being March 31, 1986, July 1, 1986 and August 4, 1986. He was not credited with statutory lieu days in respect of those three holidays.. However, for July 1, 1986 and August 4, '1986, the grievor was credited with eight hours' compensating overtime which were then applied to his absences. The result was tha-t only one half of a short-term sickness plan credit was deducted for ~ach of these twelve-hour shifts in contrast with the 1.5 credits deducted for the other shifts which were not worked. The grievor was not scheduled to work any holiday subsequent to August 4, 1986. In' January 1986 and January 1987, the grievor was credited with ~20 vacation days as per Article 47.4. For each month from September 1986 to August 1987, 1-2/3 vacation credits were deducted as unearned. In September 1987, the grievor's remaining credits were deleted by the Ministry in response to the retroactive approval of '~is LTIP claim. By January 1988, the §rievor was no longer on the Ministry payroll and was not credited for 20 vacation days. He received payments directly from the Workers' Compensation Board. At the time the grievance was filed, the grievor qualified under the Long Term Income Protection Pl'an but was receiving cheques from WCB because it amounted to a higher payment. But, in accordance with Article 42.3 of the collective agreement, %-he Employer was maintaining the grievor's benefits. The relevant provisions of the collective agreement are Articles 47.1(1)(b}, 47.2, 47.7, 47.5, 19.2, 54.2, 52.1. The Argument (a) Vacation Credits The parties' agree that the Employer improperly failed to give the grievor the vacation credits due to him while he was absent on a WCB claim. As a .result of ~he Sears (GSB File 1129/86) and Dupuis (GSB File 1335/86) cases, it is agreed that the grievor is entitled under Article 47.2 to accumulate vacation credits when he is off work on a WCB claim. The issue between the parties is what, if any, retroactive remedy is available to the grievor. - 3 - Counsel for the Union argues that since this is a continuin9 Grievance, there is really no claim' for retroactive relief. It was argued that at any given point in time, an employee's entitlement to vacation credits can be calculated and should reveal how much should be in that employee's "bank" of credits. Thus, it~was said that there is no retroactive application to the claim for relief but simply a request that the credit be Given at the point in time of the claim.. Counsel for the Union pointed out that beginninG in September 1986, the Employer began de{]uctin9 vacation credits from ti~e grievor and that the only way to pul the grievor back in the position he would have been bug for the breach by the Employer would D~ to issue declarations as to the amount of credit at a given point in time and to order that the vacation credits continue to accrue while the grievor is in receipt of Workers' Compensation benefits. It was argued that otherwise, the 9rievor would be able to achieve no realistic or satisfactory remedy. The Union was also seekinG an order that the grievor be paid the value of %he vacaLion credits which he is allowed to elect which he would have used up to top-up his Workers' Compensation Claims as of twenty days before the grievance until the date of the Award~. It was submitted if that is done the grievor would be put in the position he would have been in in May 1988 had there been no violation of the collective agreement. Otherwise, it was argued that the grievor would effectively lose the credits he would have accumulated for 1987 completely by December 3i, 1988 because of the application of Article 47.5. In response, the Employer argued t~at the vacation' credits accrue monthly and are credited at the outset of the calendar year. It was agreed th'at the failure to Give the grievor proper vacation credits amounts to a continuin~ grievance. However, it was said that the Grievor was essentially asking for retroactive remedy. It was argued - 4 - , that this was unfair to the Employer because the Employer was' not put on notice of the al-leged violation. It was argued that the reg:~lar "twenty-day rule" of grantin§ relief only %o twenty days before the grievance ought to apply. Counsel .' relied on the cases of Smith and ~i~istry o'~[ Community and Social Services, $SB File 237/81 (Roberts), Gam et al and MinistrZ of Community and Social Services, GSB File 1209/85 etc. (Verity) and RobEs et al. an.~ Ministr~ of Transportation_ and Communication, GSB File 462/86 etc. (Kennedy). Further, as part of a technical argument, it was argued that in January t988 the 9rievor was not credited with any vacation. This was said to be the last violation of the collective agreement. But, at the time of ~he grievance, being May 1585, there was no actual "deduction'' of vacation credits because the Employer considered that no credits existed. T~us, it was said that there was no actual violation o'f the collective a~reement. In the alternative, it was argued t.hat if the Board considered that the collective agreement was Drenched each month when the vacation credit ought to have been conside6ed, then the retroactivity cases should apply and the remedy should just ~o back to twenty days prior to the grievance. Counsel for the Union argued that while the grievor s Dein~ paid a full weekly salary through Workers' Compensaton, he is also entitled to eight hours' pay or a lieu day by virtue of Article 19.2. The Union relies strongly upon the case of CharDonneau and Mi_~nistry of Correc:~onal Services, GSB Fil~ 544/81 (Barton). It was argued that the rationale behind ~hat case was to provide as full as possible benefits to a person who was absent on a Workers' Compensation claim, tt was submitted that the situation .of the grievor is distinguishable from the decision in Mattison an~ Ministry_of Correctional Services, GSB File' - 5 - 228/87 (Ratushny) because the claim was under a different period of absence and it was said that that case did not definitively decide a situation such as the gr~evor's. It was argued that sisce the grievor was receiving his basic paycheque under Article 54, as did the grievor in the CharDonneau case, he should be entitled to benefits under Article 19.2. It was said that this was different than the situation of ~ grievor receiving benefits under Article 52 such as the grievor is the Mattison case. Counsel for ~e Employer argued that the Mattison decision should be read to restrict the application of Article 19.2 to employees receiving benefits under Article 54.2. It was said that it is "not logical" to seek to return to a situation where the benefits under Article 19.2 ar~ available when they are suspesde~ after 65 days of absence on WCB as is dictate~ by the CharDonneau decision. The Decision (a) Vacation Credits At the close of argument, the Board indicated to the parties that we would be able to render'an oral ruling to them on the issue of vacation credits. The followin~ reiterates and amplifies the oral ruling rendered to parties at t'he time of the hearing. It is now well established through the Sears and DuD_~ui_~s cases that an employee who is absent on a Workers' Compensation claim is entitled to vacation credits. In the situation of the grievor, the part{es agree that the cregits were not credited to the grievor and/or they were improperly deducted from the grievor. The only real question betwesn - 6 - i the parties was. what would be the appropriate remedy under the circumstances. A~a~n, the parties were in agreement that the Employer's violation of the collective agreement amounted to a ~continuing breach. But the question is whether the '~twen'ty-day rule" should apply to limit relief prior to ~w.=nty days before the filing of the grievance or whether the Union was really seeking a retroactive remedy. We f~lly adopt and accept the cases cited to us by Ms. Galway in her excellent argument as to the impact of the twenty-day rule. These cases stress that there is as unfairness to an employer if an arbitration Board can issue a remedy extending beyond the time that the employer realized that its actions were being put in question. We accept that there would be an unfairness to an employer to allow'a continuing Drench to go unopposed and then to have the 'a~le~a~ion of violation sprung upon the employer by a long , delayed grievance. In the case a.t hand, ~here is no suggestion that Employer was put on notice by the Union or the grievor that the Employer's conduct would be challenged. However, similarly, there was no dispute that the grievo'r himself was unaware that the Employer was failin~ to give ~him the vacation credits due to him and was deducting credits which h'ad already accumulated. Thus, neither party seemed to know w~at the other was doing. However, in a situation where an employer has breached the collective agreement and the union or the employee has no way of knowing or being informed that the .breach ~ook place or is taking place, the union or the employee cannot be expected to launch a chai[enge against the employer's improper conduct. Nor can they be deemed to have lost or abandoned their rights under the collective agreement. - 7 - As the decision in .B_oyl_e and Ministr_y__~ Transportation and Communications, 675/85 (Brandt) points out, equity in good labour relations must allow us to give effect to collective agreement rights, even despite the twenty-day rule in some circumstances. The facts in the particular case Oefore us persuade us that this is an appropriate case to relax against the twenty-day rule. The 9rievor had no way of knowing that the Employer was improperly failin9 to credit him with vacation credits. The Employer's internal system of calculating vacatioa credits was not communicated to the grievor or the Union. The grievor cannot be held responsible for not having informed himself because he is entitled to presume that the collective agreement is ~ein~ applied correctly. Because we are i~ a situation of a continuing breach and a situation where the vacation credits .can and shouid be able to be calculated at any given point in time, we are also not convinced that the Union was actually seeking retroactive relief. Thus, for all these reasons, we agree with the Union's submission that a declaration is appropriate that takes into account all the vacation credits to which the grievor is entitled. Hence, we rendered an oral ruling which We hereby confirm and declare that the grievor is entitled to: (a) 28-2/3 days' vacation credits as of April 1988; that vacation credits continue to accrue while he is off work on his Workers' Compensation claim in accordance with the formula in the collective agreement; and (c) the grievor is entitles under Article 54.3 to elect to utilize these accrued,credits to augment his Workers' Compensation income. (D) Holiday Pay The Grievance Settlement Board has wrestled many times with the qu~s'tion of entitlement to statutory holiday pay when a person is off work due to illness or injury, De it work-related or not. The Charbonneau and Mattison decisions cited above recite the various situations the Board has faced in attempting to assist the parties in the application an~ interpretation of the collective agreement provisions for statutory h61iday pay. It is perhaps useful to summarize the results and conclusions of these cases: (a) Payment under Article 19.2 is the source holiday PaY. (b 'The payment under Article 19.1 is only for hours worked unless the employee is unable to worx or because ne or she is sent home by Employer. (See Cooper 145/77 (Swan) and Martin 434/81 (Delisle).) (c Payment under Article 19.2 may De available for all employees an~ not just those requireJ to work on statutory holidays. (See Parsons, 81/78 (Pritchard).) (d The Parsons decision was refined to declare that an employee absent from work on a Workers' Compensation claim, during the first 65 days of his absence is enti-tled to a regular salary un.~]er Article 54.2 and is also entitled to eight hours' pay or a lieu day under Article 19.2 on a statutory holiday. (See Charbonneau, 544/S! (Barton).) (e The Cha.rbonneau decision was then restricted to a situation where an employee is off work on a Workers' Compensation claim and is on a leave of absence with pay as per Article 52.1 (i.e. after the first 65 days of absence and before entitlement to LTIP arises). In that situation it was ~eclared that there" 1s no entitlement to th'e extra holiday pay or lieu time for s~atutory holida.vs in which t~e. employee nas already r~ceiv~ eight hours' pay under Article 19.2. (See Mattison, suer.a_.) For the period of absence when a person is entitled to LTIP, there is no entitlement to extra holiday, pay under Article 42. However the Board has so far declined to order payment for regular holiday pay under Article 19.2 on the basis of the evidence before it. (See Mattison, s_~_um~ra. ) Employees off work due to a Workers' Compensation illness or a non-compensable illness are treated differently. In the latter case, ~urther holiday payments (i.e. beyond Article 19.2) are not available. (See Robertson, 641/85.) These various panels dealing with these issues have expressed dissatisfaction with the conclusions of .their predecessors. Criticisms have also ~een leveled at the imprecision of ~he contractual language that has led to the s[ate of confusion in t~e jurisprudence. But all the panels cited above have alt recognize~ the impor[ance of consistency of interpretation to allow the parties to rely upon the past directions of this Boart~. We are also aware of the high test that must De passed to depart from earlier decisions. See Chairman Shime's comments on Blake et al. and Amalgamate~ Transit Union_et al., 1276/87 et al., where he says: ... We recognize that there may be exceptional circumstances where an earlier 5ecision of this Board [might have] to be reviewed. At this point we are not prepared to delienate what constitutes exceptional circumstances and the flushin§ out of that standard will be determined on a case by case bas. is, The onus will be on the party seeking review %o establish exceptional circumstances ( Page 9 ). No counsel in our case has asked us to depart from the earlier jurisprudence but each says that the current state of the case law supports their positions. On the facts at hand, the period in question is the time when the grievor was qualified for coverage for LTIP under Article 47. Precisely like the .facts in the Mattison case, the grievor in our case found himself in a position that Workers' Compensation benefits exceeded those provided by LTIP and so he was removed from the Ministry payroll and received Workers' Compensation benefits directly from that Board. He. in fact receives a regular bi-weekly paycheque from the Workers' Compensation regardless of whether there is a statutory holiday or not. What he is seekin9 now is a further eight hours' pay under Article 19.2 The Mattison case states clearly that the Charbonneau decision "should not be extended to a claim Ear holiday pay under Article 52.1 even thou§h the injury in question might have been work-related." (Page 7) In other words, it suggests that paymen.ts under Article 19.2 should be restricted to when Article 54.2 applies, i.e., from the 1st to the 65~h day of absence on a Workers' compensation claim. - 11- The claim for additional holiday pay is not available if the absence is under Article 52.1. But the question then arises as to what occurs when the absence extends and brings an employee under Article 42 or 54.3. We see nothing in the language of the collective agreement to suggest that entitlements under Article 19.2 should resume once an absence extends beyond the coverage of Article 52.1, even if the absence is due to a Workers' Compensation claim. The language of Article 54.3 does not compel such an interpretation. Nor does it seem logical that the parties would negotiate an a~reement that was intended to grant extra statutory holiday pay during an initial absence, remove it for a period such as in the Mattison case and then restore it again. There is no rationale for such provisions. It is more likely that the entitlements would be withdrawn at a specific point, i.e. after 65 days and remain withdrawn. Further, we must echo precisely the words in Mattison with respect to the same question when the Board wrote at page 8 :. With respect to the period after' April 7, 1987, it follows that the Grievor is not entitled to ex%fa holiday pay under Article 42. Is she entitled to regular holiday pay for this period under Article 19.277 The Board received little argument on this issue apart from the counsel fo~ the Grievor taking the position that she was still an employee and counsel for the employer taking the' position that she was no longer on the payroll. The Board was simply informed that the Grievor' receives a bi-weekly cheque from the Workers' Compensation 'Board without any indication as to whether it includes compensation for the L.T.I.P. plan under section 42. In these limited circumstances, we are unable to make an order for payment under Article 19.2. As a panel we found ourselves with precisely the same type of evidence and ~hus would decline to offer such a payment. But - 12- more importantly, we also can see no basis for the order the Union seeks given the l~anguage of the collective agreement as it has peen interpreted and. applied by the Board in' the past. Therefore, this portion of the grievance fails. DATED at Toronto, Ontario this 16th day of December, 1988.