HomeMy WebLinkAboutAnger 04-05-01IN THE MATTER OF AN ARBITRATION
B E T W E E N :
COLLEGE COMPENSATION AND APPOINTMENTS COUNCIL
FOR COLLEGES OF APPLIED ARTS AND
TECHNOLOGY IN THE FORM OF ST. LAWRENCE COLLEGE
(hereinafter called the “College”)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(FOR ACADEMIC EMPLOYEES)
(hereinafter called the “Union”)
GRIEVANCE OF MONICA ANGER
OPSEU Grievance No. 2003-0417-0036
OPSEU File No. 2003-417-179
(hereinafter the “Grievor”)
BOARD OF ARBITRATION: Richard H. McLaren, Chairman
Sherrill Murray, Union Nominee
Richard O’Connor, College Nominee
COUNSEL FOR COLLEGE: Pat Brethour
COUNSEL FOR THE UNION: Paul Champ
A HEARING IN RELATION TO THIS MATTER WAS HELD AT KINGSTON, ONTARIO, ON
22 APRIL 2004.
PRELIMINARY AWARD
At the time of the hearing in Kingston, Ontario, the parties agreed that the Arbitration
Board was properly appointed. There were no objections as to the composition of the Board
of Arbitration nor as to its authority to issue a final and binding decision in this matter. The
College raised a preliminary objection as to the arbitrability of the matter. This Preliminary
Award deals with that objection.
The Grievor had been a full-time employee of the College as a professor in the Nursing
Department since October of 1989. She went on disability in 1996. In 1998 she returned to
work on a part time basis pursuant to a rehabilitation program. Her medical advisor
determined that she was capable of working 50% of the time and so advised the College and
the Long Term Disability {LTD} carrier the Sun Life Insurance Company {Sun Life}. She did
not always work 50% of the time and the College did not always pay her 50% of her salary
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under the Collective Agreement. A grievance was filed on the 26 of May, 2003, alleging:
That the College is violating Articles(s) 4/16/18 & JIC agreement
on Salary Allocation dated June 28, 2002 specifically but not
exclusively in that I have not been properly paid.
The settlement requested was for a declaration that the Collective Agreement had been
violated, that the Grievor be properly compensated and that the College adhere to the
Agreement.
The Grievor had been medically certified to participate in a rehabilitation program
which would permit her to work at 50% of her normal work level. While she worked at various
jobs assigned by the College she still received benefits from Sun Life. In being paid for the
work she did pursuant to the rehabilitation program the Grievor had not always been paid 50%
of her salary by the College. However, the College had rectified that aspect of her pay by the
time of her grievance. This gives rise to a preliminary objection by the College that the matter
is moot. If it is found that the grievance is not moot, it is asserted that the matter is inarbitrable
under the Collective Agreement because it involves the application and administration of the
LTD insurance policy. That is a matter that has been held historically to be outside the scope
of the Collective agreement and the grievance arbitration procedure. See the recent decision
between the parties involving the grievance of Mr. Grightmire.
In order for the parties Counsel to make argument to the Board of Arbitration they orally
articulated an Agreed Statement of Facts for the purposes of the preliminary determination.
The facts as agreed by Counsel are set out below.
1. Following a period on permanent disability that commenced in
October of 1996 the Grievor began a period of part time
employment with the College while continuing to receive LTD
benefits. This was commenced as a rehabilitation program
through Sun Life.
2. The Long Term Disability Plan is established pursuant to
Article 18.01 of the Collective Agreement, which provides
as follows:
18.01 Employees shall pay the full premium of the
present Long-Term Disability Plan, the benefit level to
be 60% of monthly base salary in effect as of the date
of disability reduced by: ...
3. Under Appendix 4 of the Collective Agreement, a Joint
Insurance Committee {JIC} is established with equal
representation from the Union and the College Compensation
and Appointments Council. The duties of the committee
amongst others include:
· Development of the Specifications for the public
tendering of any negoti ated benefits which may be
included in the Group Insurance Plan (to cover the
bargaining unit only); and
· Review of contentious claims and recommendations
thereon, when such claim problems have not been
resolved through existing administrative procedures.
4. The current carrier for LTD benefits is Sun Life.
5. The Council of Regents issued on 7 A ugust 2002 a
document entitled: Salary Allocation Guidelines-
Academic Staff. The document was prepared as a
result of cases brought to the JIC.
6. Benefits are described in a booklet entitled “Employee
Benefits for Academic Employees of the Ontario
Colleges of Applied Arts and Technology” effective
January 1, 2002 filed as Exhibit #8. This document was
developed by the JIC.
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7. Pursuant to the rehabilitation program the Grievor was
certified capable of returning to a workload of 50%.
The College attempted to assign work as close to the
recommended amount as possible.
8. The College initially paid the Grievor an actual salary
based upon the actual workload as set out in Exhibit # 5.
The College later adjusted that payment to a constant
50 % regardless of wor kload except where the actual
work exceeded 50 % in which case the actual workload
was paid as an equivalent actual salary.
ARGUMENT
It is argued on behalf of the College that the grievance is not one properly before the
Arbitration Board because it involves the LTD provisions of the Agreement which are inarbitrable. It is
further submitted that the Board has no jurisdiction to hear the matter because the grievance is moot
to the extent it is about the non payment of salary. It is furt her submitted that the grievance is not
arbitrable because the LTD plan and the contract of insurance are outside the scope of the Collective
Agreement. The College submits that the only obligation it has under the Collective Agreement is to
arrange for the coverage and have a plan in place. It is submitted that the only other reference to
insurance is contained in Appendix 4 of the Collective Agreement where there is mention of a “Joint
Insurance Committee”. That provision sets up the purpose of the com mittee, which is to facilitate
communication between the Council of Regents and OPSEU and to report their discussions to the plan
carrier, Sun Life. It is further submitted that Sun Life is not a party to the Collective Agreement and,
therefore, is not part of the arbitration process contemplated by the it. There are a number of College
cases holding that the insurance policies are not incorporated into the Collective Agreement and
therefore not subject to a grievance.
In support of its position a reference was made to the following cases:
An unreported majority decision of a Board of Arbitration chaired by
Arbitrator Brent between Algonquin College and OPSEU involving the
grievance of S. O’Farrell dated January 3, 1985; an unreported
decision of a Board of Arbitration chaired by Arbitrator Shime between
George Brown College and OPSEU involving the grievance of W.
Tevens dated June 7, 1999; an unreported unanimous decision of a
Board of Arbitration chaired by Arbitrator Brent between George Brown
College and OPSEU involving the grievance of B. Richmond dated
June 14, 2001 and a unanimous decision of a Board of Arbitration
chaired by myself between this College and the Union involving the
grievance of D. Grightmire dated March 29, 2004.
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It is submitted on behalf of the Grievor and the Union that the matter is not to be considered
moot just because the Grievor has no monetary relief claim because the on-going relationship gives
rise to the apprehension that the issue may reoccur thereby justifying a declaratory award on the issue
of the monetary relief. It is further submitted that there is an issue within the Human Rights provision of
the Collective Agreement in Article 4. The characterization by the College that the matter is wholly
outside of the Collective Agreement ignores the Article 4 aspects of the grievance. Therefore, the
grievance is arbitrable.
In support of the position of the Union and the Grievor reference was made to the following
cases:
Fleet Industries Lid and I.A.M., Frontier Lodge No. 171 109 L.A.C. (4
th) 251 (Ontario 2002) and Sherbrooke Community S ociety an d
rd
Saskatchewan Union of Nurses, Local 2 L.A.C. (3) 97
(Saskatchewan, Norman 1981).
RELEVANT PROVISIONS OF THE COLLECTIVE AGREEMENT AND RELATED DOCUMENTS
Article 4
NO DISCRIMINATION
4.01 A The parties agree that, in accordance with the provisions of the
Ontario Human Rights Code, there shall be no discrimination or
harassment against any employee by the Union or the Colleges, by
reason of race, ancestry, place of origin, colour, ethnic origin,
citizenship, creed, sex, sexual orientation, age, record of offences,
marital status, family status or handicap.
4.01 B It is understood that nothing contained in 4.01 A limits the right
of an employee to grieve in accordance with the procedure as set forth
in Article 32, Grievance Procedures.
4.01 C The parties agree that the implementation of a special program
under Se ction 14 of the Human Rights Code, R.S.O., 1990, as
amended, shall be deemed not to contravene 4.01 A.
. . .
Article 6
MANAGEMENT FUNCTIONS
6.01 It is the exclusive function of the Colleges to:
(i) maintain order, discipline and efficiency;
(ii) hire, discharge, transfer, classify, assign,
appoint, promote, demote, lay off, recall and
suspend or otherwise discipline employees
subject to the right to lodge a grievance in the
manner and to the extent provided in this
Agreement ;
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(iii) manage the College and, without restricting the
generality of the foregoing, the right to plan,
direct and control operations, facilities,
programs, courses, systems and procedures,
direct its personnel, determine complement,
organization, methods and th e number,
location and classification of personnel
required from time to time, the number and
location of campuses and facilities, services to
be performed, the scheduling of assignments
and work, the extension, limitation, curtailment,
or cessation of operations and all other rights
and responsibilities not specifically modified
elsewhere in this Agreement;
6.02 The Colleges agree that these functions will be exercised in a
manner consistent with the provisions of this Agreement.
Article 17
SHORT TERM DISABILITY PLAN (STD)
Participation
17.01 A Effective April 1, 1991, all full-time employees shall be
covered by this plan.
Funding
17.01 B This plan shall be funded by the College.
. . .
Article 18
LONG-TERM DISABILITY PLAN (LTD)
18.01 Employees shall pay the full premium of the present Long-Term
Disability Plan, the benefit level to be 60% of monthly base salary in
effect as of the date of disability reduced by:
(i) any form of salary continuation from the
employer or benefit from an employer
sponsored retirement or pension plan;
(ii) any basic disability benefits payable from
government sponsored income security
programs (e.g. C/QPP, W.S.I., E.I., or similar
programs);
But this amount shall not be reduced by amounts payable under:
(i) any privately sponsored group disability
insurance plan;
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(ii) any increase in benefit arising from the C/QPP
as a result of an adjustment in the Consumer
Price Index.
Article 19
OTHER INSURANCE PLANS
Extended Health Plan
19.01 The College shall pay 100% of the billed premium of the
Extended Health Plan for employees covered thereby and subject to
st
the eligibility requirements of the Plan. Effective October 1, 2001, the
Extended Health Plan shall be amended to provide for a comb ined
maximum annual coverage for all covered paramedical services of
$1,500.00.
. . .
APPENDIX IV
JOINT INSURANCE COMMITTEE
Purpose of the Committee
1 A The purpose of the Joint Insurance Committee is to facilitate
communication between the Council of Regents and OPSEU on the
subject of group insurance applicable to the Academic Staff Bargaining
Unit, including Basic Life, Supplementary Life Insurance, Ext ended
Health Insurance, Long Term Disability Insurance, the Dental Plan and
such other negotiated benefits that may, from time to time, be included
in the group insurance plan.
1 B Nothing herein shall prevent this Committee from meeting jointly
with any comparable committee, if established, concerning the Support
Staff Bargaining Unit should it be mutually agreed between this
Committee and such other Committee.
1 C It is understood that the group insurance benefits to be
provided to employees and the cost sharing arrangements shall be as
set out in the applicable Agreement and the matters for consideration
by this Committee shall be only as set out in these terms of reference.
. . .
Composition of the Committee
2 The Committee shall be composed of an equal number of
representatives from the Council and OPSEU with not more than eight
representatives in total. At meetings of the Committee each party may
be accompanied by up to two resource persons to provide actuarial or
other technical advice. Additionally, when necessary, representatives
of insurance carriers shall attend meetings to provide information but
shall not act as resource persons for either party.
Duties of the Committee
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3 The duties of the Committee shall consist of the following:
· development of the specifications for the public
tendering of any negotiated benefits which may be
included in the Group Insurance Plan (to cover the
bargaining unit only);
· consideration and examination of all tenders submitted
in response to the specifications for tender and
preparation of a report thereon;
· recommendation to the Council of Regents on the
selection of the insurance carrier or carriers to
underwrite the Group Insurance Plans;
· consideration and recommendation to the Council of
Regents on the renewal of existing contracts of
insurance upon expiry;
· review of the financial reports on the Group Insurance
Plan; and
· review of contentious claims and rec ommendations
thereon, which such claim problems have not been
resolved through the existing administrative
procedures.
RELATED DOCUMENTS
ACADEMIC STAFF Salary Allocation and Income Replacement Guidelines for SHORT AND LONG
TERM DISABILITY (June 28, 2002).
. . .
6. Basic Principles of Salary Allocation Under
Rehabilitation/Return to Work;
Once a determination has been made that the employee is capable of
returning to work, an employee’s capability to undertake rehabilitation
work shall be expressed as a fraction of a whole job. The fraction shall
be determined by the employee and Sun Life Counselor in consultation
with the employee’s medical advisor(s). The information on the fraction
of time will be provided to the College in writing. Subsequently, the
College will conduct a workload assignment meeting with the employee.
In determining the workload assignment on return from illness/injury,
consideration should be given to issues such as:
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· the length of time the individual has been absent from
work
· the possible need for accommodation
· the need for preparation time prior to student contact
The assignment and consequent pay is to be reviewed in accordance
with the physician’s recommendation.
The fraction of time shall be used to determine:
$ the maximum assignable contact hours
$ the maximum assignable workload hours (include
preparation, evaluation and complementary function)
$ the fraction of the employee’ s salary that will be
payable.
The rehabilitation assignment should be documented like that of a full-
time/full-load employee. A SWF should be prepared to document the
assignment and a note should be added to the SWF indicating the
assignment is based on a rehabilitation arrangement with Sun Life.
During periods when teaching contact hours are not available (i.e. the
non-teaching period), the employee continues as a reduced load
employee on the same basis (ratio) as the arrangement existing
immediately prior to the non-teaching period.
DECISION
The root case on the arbitrability of a dispute under the LTD benefit is the Algonquin case,
supra. The issue in that case was to determine if the Grievor was entitled to a certain level of LTD
benefit. The board of arbitration found that the college was under no obligation to provide a certain
level of benefit and the dispute was one between the insurance carrier and the Grievor not involving
the college. The matter was determined to be inarbitrable because the board of arbitration lacked the
jurisdiction to enforce any obligations of the Sun Life as the insurance carrier for the LTD benefit.
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In the most recent George Brown decision, supra, the issue
involved the manner in which the
benefit should be calculated. The
board of arbitration unanimously
determined at p. 7 that:... If the
dispute is that the insurance company
is misinterpreting the plan or
misapplying it, then that is a matt er
which is not arbitrable under the
collective agreement ...
The board went on to cite with approval the earlier George Brown decision, supra, by Arbitrator Shime
in which it was found that a board of arbitration only has jurisdiction inside the Collective Agreement
and the insurance issue before it was outside the agreement thereby causing the board of arbitration
to have no jurisdiction to deal with the issues raised
Based upon the foregoing arbitral jurisprudence and the Grightmire decision,supra, between
these parties this Board must conclude, as it did in the Grightmire decision, that the Board of
Arbitration is without jurisdiction to deal with the salary allocation issue under the LTD benefit in so far
as it involves interpreting the LTD benefit or determining if it has been misapplied. Therefore it follows
that we have no jurisdiction to review the Salary Allocation Guidelines for Academic Staff filed as Ex.
#3. However, that does not conclude the issues arising for preliminary determination.
The parties have agreed in Article 4 of the Collective Agreement that there is to be no
discrimination or harassment against any employee by the Union or the Colleges. Under the Ontario
Human Rights Code the College has an obligation to accommodate its employees who have suffered
disability and may be in receipt of the LTD benefit. The Union has a like obligation to assist their
members in matters related to return to work. To the extent that the Grievor has been on Long Term
Disability since 1996 the Board of Arbitration has through Article 4 jurisdiction to deal with matters
arising in connection with the obligations of both the College and the Union contained in that article
which may also intersect with the LTD benefit. Therefore, this grievance is unlike the cases cited to
this Board by the College in that the Collective Agreement by Article 4 may come into play in
connection with the LTD insurance policy. Therefore, to this extent the Board of Arbitration does have
jurisdiction over the grievance and the preliminary objection of the College must be denied with respect
to this aspect of our jurisdiction.
In exercising the jurisdiction found by this Board to exist, it could review the issue of the
connection between workload on a rehabilitation plan sanctioned by the insurance carrier and the
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payment of wages in connection thereto if the issue is within the language of Article 4. We do not have
to undertake such an analysis in this case because of the view we take of the alternate preliminary
objection by the College. On the facts of this case the College has made an adjustment of salary
payments to reflect a payment of 50% of salary which is in accordance with the workload the Grievor is
considered by appropriate medical personnel to be capable of performing. There is therefore, no
monetary issue to be determined by this Board arising out of the grievance. Therefore, we agree with
the preliminary objection of the College that the grievance is moot and ought not to be arbitrated. We
therefore, are not required to determine if the Collective Agreement in Article 4 is applicable to this
dispute because there is no longer any dispute requiring consideration which might bring into play
Article 4.
This Board of Arbitration is deciding an individual grievance not a policy grievance. Such a
grievance is one for determining rights based grievances. There is no longer a dispute giving rise to a
grievance as to compensation under the LTD benefit. The workload provided was because of the
employer’s duty to accommodate. The workload or the pay related thereto for the accommodated
employee may potentially come within the language of Article 4. However, because the grievance is
moot there is no basis for the Board to determ ine rights. We respectfully disagree with those
arbitration cases which might conclude that there is a continuing issue of a policy nature to be resolved
in this mater as being applicable herein. The cases cited by the Union are distinguished and not
applied in this proceeding.
Based upon all of the foregoing it is found that the matter is moot and the preliminary objection
of the College is upheld. Therefore, this Board must hereby order that the grievance be dismissed.
DATED at LONDON, ONTARIO THIS DAY of MAY, 2004.
__________________________________
Richard H. McLaren, C.Arb.
Chairman
I concur / dissent
Sherrill Murray, Union Nominee
I concur / dissent__________________________________
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Richard O’Connor, College Nominee
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