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HomeMy WebLinkAboutKelly 91-03-15 90A730/90A735 CA_AT (s) ~cal 243 IN THE MATTER OF AN ARBITRATION BETWEEN NIAGARA COLLEGE OF APPLIED ARTS AND TECHNOLOGY (the College) - AND - ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (the Union) GRIEVANCES OF L. KELLY AND THE UNION BOARD OF ARBITRATION: (The Board) A. M. Kruger - Chairman R. J. Gallivan - Member B. Stephens - Member APPEARANCES: For the College - J. Baker and others For the Union - D. Wright HEARINGS AT NIAGARA FALLS, ONTARIO SEPTEMBER 5, 1990 AND JANUARY 14, 1991 Page 2 At the first hearing, the College raised an objection to the arbitrability of this matter arguing that the Union was estopped by its acquiescence to the disputed College policy that led to this grievance. It was agreed that these proceedings would be adjourned to provide the Union with time to prepare a response. When the Board reconvened on January 14, 1991, we were presented by the parties with the following Agreed Statement of Facts:- OPSEU # 90A730 - 90A735 In the Matter of a Grievance Arbitration BETWEEN: OPSEU (Kelly & Union Grievance) - and - NIAGARA COT.T.RGE OF APPLIED ARTS AND TECHNOLOGY AGREED STATEMENT OF FACT 1. The grievor Lucille Kelly is employed by the College as an Early Childhood Education Worker "A" in the Early Childhood Centre, Welland Campus. 2. The grievor has been employed with the College since August of 1984. 3. In August 1988, the grievor applied for and was hired into her current position. The position is, and was advertised as, a "ten month" position. That is, employees in the position would be employed from September to June annually and would be laid off for July and August. (see Appendixes A, B, and C) Page 3 4. Commencing March 16, 1989, the grievor was off work due to illness as a result of gall bladder surgery. The grievor remained off work and in receipt of benefits pursuant to the Short Term Disability Income Plan through June 30, 1989. 5. The grievor was, by medical certificate dated June 22, 1989, expected to be of adequate health to return to work as of August 1, 1989. (see Appendix D) 6. By letter dated May 15, 1989, the grievor was informed that she would be laid-off as of June 30, 1989 with a return date of September 5, 1989. The grievor did in fact return to work on this date. (see Appendix E, F and G) 7. The lay-off as of June 30, 1989 was the regular lay-off arising as a result of the grievor holding a "ten month" position. There are six other "ten month" employees who work with the grievor. Each was laid-off for the period June 30, 1989 through September 4, 1989. (see Appendix E) Dated January l~! , 1991 ~'~ for ~he Union ~/ q for the College In addition, both parties called witnesses to provide additional information to the Board. The statement of facts indicates that the grievor held a "ten month position". Provision for positions of less than twelve months is made in the collective agreement in the form of a letter inserted in the agreement in 1981 which states:- Page 4 Mr. Sean O'Flynn, President, Ontario Public Service Employees Union, 1901 Yonge Street, Toronto, Ontario. August 27, 1981 Dear Sir: LESS THAN 12 MONTH POSITIONS It is recognized that the Colleges have positions within the bargaining unit from time to time that, because, of the nature of the service rendered, require staffing for less than twelve (12) months a year. In such a case, where less than full time employment is identified prior to the time of hiring such employees, the College may effect a layoff of such employees for a period of up to but not exceeding three (3) months in any employment year without regard to the provisions of the Collective Agreement. Notwithstanding the foregoing, seniority and service shall accumulate for all purposes under the Collective Agreement during such period of layoff. This provision shall have no application where the employee in lieu of layoff hereunder has been granted a leave of absence in which case Article 14.2 shall have application. Prior to posting such a position, the College shall notify the Local Union of the circumstances and, where the Local Union requires discussion and explanation as to the basis for such a position being reduced to less than a twelve (12) month basis, it may request a meeting with the College, at which time a full explanation of the circumstances surrounding the designation of the position shall be given. Yours truly, A.M. Pesce, Secretary Staff Affairs Committee. 95 Page 5 Appendix 14 of the Collective Agreement provides for the creation of a Joint Insurance Committee. Late in 1983, a Union representative on this Committee Ms. Beverley Allan asked for an interpretation of the short term disability (STD) and long term disability plans. Her question was whether an employee who was in receipt of STD benefits and then laid off would qualify for STD benefits while on lay off. A College nominee, Mr. Harley Smith undertook to provide an interpretation. He wrote Ms. Allan on December 2, 1983 to indicate that his conclusion was that STD benefits would cease during the period of layoff. In his view an employee received STD benefits only as long as there was an employment relationship. A layoff broke that relationship and therefore, terminated the payment of STD benefits. He went on to discuss the issue of Long Term Disability but his response to this issue is not relevant to the matter before us. We have appended the full text of Mr. Smith's letter. The only response of the Union to Mr. Smith's letter was a discussion at the Joint Insurance Committee meeting of January 10, 1984. Ms. Allan indicated that she intended to distribute Mr. Smith's letter to the Union's locals and asked that steps be taken to inform the management of the colleges of this inter- pretation. Mr. Smith agreed to do so and did in fact write the personnel directors of the colleges to convey his December 2 letter to them. There was no written or oral objection by the Union to this interpretation. However, Ms. Allan testified before this Board Page 6 that at the time she assumed that this discussion dealt with twelve month employees and not those employed for less than twelve months. The College seems to have adopted another view of the matter. Ms. Janice Balasak, the Manager of Human Resources at the College, testified that in 1985 she applied Mr. Smith's interpre- tation by terminating STD benefits for Ms. M. Beckett, a ten month employee. Ms. Beckett was ill and in receipt of STD benefits when her ten months ended and she went on layoff during July and August. Ms. Beckett was advised to apply for Unemploy- ment Insurance benefits by the College. Ms. Beckett did not inform the Union nor did she grieve. The matter before us arises from events that occurred in the spring and summer of 1989. The grievor was employed in a ten month position. She regularly worked from September through June and was laid off during July and August. In 1989, she had been in receipt of STD benefits beginning in March 1989 when the time came for her two month (July and August) layoff. The College, acting on its understanding of the policy as outlined in Mr. Smith's letter and as applied in the case of Ms. Beckett, term- inated Ms. Kelly's STD benefits. Ms. Kelly grieved asking that she be paid these benefits during the month of July when she was still unfit to return to work. She makes no claim for benefits in August because she was fit for work beginning August 1. Before turning to the argument submitted to us, we should note that Ms. Rose, a ten month employee at the College, told Page 7 this Board that while she is on summer layoff, she is in receipt of benefits under the plans for dental care, glasses and so on and that there is a deduction from her pay cheque for her share of the cost of such benefits. The College did not challenge her evidence in this regard. THE ISSUES There are two issues before this Board. The first is whether the Union is estopped from raising this grievance as a result of the events in late 1983 - early 1984 involving Ms. Allan and Mr. Smith and the Joint Insurance Committee. The other issue is whether under this collective agreement employees in "Less Than 12 Month Positions" who are in receipt of STD benefits at the time of their regularly scheduled layoff are entitled to continued STD benefits while sick during the layoff period. THE COLLEGE POSITION The College argues that the union is estopped from raising this issue as a result of the events involving Ms. Allan and Mr. Smith in late 1983 and early 1984. It was the Union that asked for an opinion on the elegibility for STD benefits for those who were laid off while on benefits. Mr. Smith responded and it was the Union that asked that his response be widely distributed. The Union never challenged or objected to Mr. Smith's letter. It could have done so at the time or later. Management was led to believe that there was agreement between the parties on Mr. Page 8 Smith's opinion and management acted in good faith on this basis. The Union does not deny that it accepted Mr. Smith's opinion but states that it accepted that opinion only for twelve month employees. However, nothing in the discussion on the Joint Insurance Committee supported that view. Ms. Allan's question and Mr. Smith's response covered all employees on STD who are laid off and not just twelve month employees on STD who are laid off. Even if the Board should reject the estoppel argument, the College feels it acted in accordance with the collective agreement in its treatment of Ms. Kelly. Ms. Kelly's job is from September through June. She is on layoff during July and August and knows that this is a condition of her employment. She is entitled to STD benefits to replace lost income while she is ill but there is no lost income during July and August because she is not at work then and would have no income even if she were not ill. She and the Union knew this is so from the time she was hired. Article 8.3.1. says the STD benefits are fixed at 75% of "regular earnings". Ms. Kelly's regular earnings in July and August are zero. For these reasons, even if twelve month employees would be entitled to STD benefits while ill and on layoff, she is not entitled to such benefits. THE UNION'S POSITION The Union argues that there is no estoppel in this matter. Ms. Allan testified that when she raised the issue of STD Page 9 benefits in 1983, her intention was to deal only with twelve month employees. She was convinced that ten month employees would be covered by STD benefits and that there was no need to clarify the matter. For estoppel one needs an intentional representation which is relied on to one's detriment. Here there was no intention by the Union to deal with ten month employees. Nor is there any evidence that the College relied on the Union's acquiescence to its detriment. The Joint Insurance Committee is not a collective bargaining committee. The College never raised this issue at bargaining sessions subsequent to January 1984. In any case Mr. Smith's letter did not apply to employees like Ms. Kelly. It applied to those whose "work was no longer needed." But Ms. Kelly and the College knew her work was needed again in September. The STD benefits, Mr. Smith testified, continue as long as the employment relationship is not broken. Under this agreement, employees in "Less Than 12 Month Positions" continue to accumulate seniority and service "for all purposes" during their annual layoff. Their employment relationship is not broken by layoff in the way it would be for other employees on layoff. Ms. Rose's testimony that other benefits continue in the summer for these employees provided further support for this position. The arbitration jurisprudence overwhelmingly supports the view that employees on STD who are laid off must continue to receive STD benefits. It would take an explicit clause in the collective agreement to produce a different result and nothing in Page 10 section 8.1.3. Short Term Disability mentions special treatment for Less Than 12 Month Employees. If employees are already in receipt of STD benefits at the time of a layoff, their benefits continue during the layoff unless they are no longer ill or for other reasons would lose entitlement to STD benefits. The person on STD benefits at the time of a layoff is away from work because of illness and not because of the layoff. Unless the agreement says otherwise, the layoff per se cannot change this and deprive employees of a vested benefit. It may appear odd that by being on STD at the time of layoff employees are better off than they would be had they not been ill when layoff began. However, as we have indicated arbitrators are nearly unanimous in so ruling. One must bear in mind that the healthy employee on layoff can seek other employment while this is not possible for someone on STD benefits at the time of layoff. THE AWARD The first issue for this Board to determine is whether the Union and Ms. Kelly are estopped from raising this grievance as a result of the events in late 1983 and early 1984 described above. We have considered this matter carefully and we conclude that the Union and Ms. Kelly are estopped from raising this grievance. It was the Union through Ms. Allan that requested the opinion of Mr. Smith and more important, it was Ms. Allan who asked that this letter be widely distributed. Ms. Allan's request Page 11 covered employees on STD without qualification, and Mr. Smith's response also applied to employees on STD without qualification. As for the words in the third paragraph of the letter which the Union claims led it to believe that the reply did not apply to those working less than twelve months, we cannot accept this view. Certainly if the Union felt this, it should have raised the matter at the time. The College was entitled to believe that the parties had agreed that STD benefits would cease when employees were laid off. Under this agreement, Ms. Kelly was on layoff during July and August. The agreement reached in 1983-84 favoured the colleges, and had the Union objected to Mr. Smith's view, the colleges could have raised the matter in collective bargaining. However, the understanding reached in 1983-84 made it unnecessary even to consider such a move. The College relied on the understanding reached at the Joint Insurance Committee. We find all the elements required for estoppel to be present. For this reason we dismiss both the grievance of Ms. Kelly and the grievance of the Union. Before we conclude, for the guidance of the parties, we wish to note that, had the Joint Insurance Committee not discussed the issue, we believe that all employees on STD benefits at the time of layoff would be entitled to continue on STD benefits as if no layoff had occurred. This is the overwhelming view of arbitrators who have dealt with this issue in the past and we concur in that view. (See, for examples Re Page 12 Canadian Broadcasting Corporation and Canadian Union of Public Employees 18 LAC (3d) 317). Furthermore, we believe that the reasoning of the earlier awards would apply to Less Than 12 Month Employees. We state this to guide the parties in their approach to this matter in a future round of negotiations. DATED at Toronto, Ontario thisj~-~-'day of March, 1991. B. Stephens O~[a[lo :' i~ .~ .-' · STAFF RELATIONS SECTI~¥ Minist~ Of ~. ' ~3~ ~ (416)~$-6641 Colleges and .~. ,,,., -r Ou~n $ Par, Universities Toronto. Ontario December 2, 1983 Ms. Beverley Allan, Algonquin College, 1385 Woodroffe Avenue, Nepean, Ontario. K2G D~a: 5ev: I mus% a~cio[:ize for ;h~ iencth of time tha~ lapsed Defore res~cndinc %c the ~wc issues upon which I ~romlsed ~o give vou md' views at the Support Staff Joint Insurance Commlt%ee meeting of October 5, !9~3. You will recall that I said that ! would give you my interpretation of how the Supper% Staff Agree- men~ applies In the event an employee is laid off while on S.T.D. The following is ~us; %hat. Inasmuch as ~he -i~cumstances tha~ b~ing about la',,- cfr are rooted in the fact that work which was once needed to be performed is no longer needed, the state of boa!tn of the incumm~n= employee does no; change this fact. T~us the prcvis;ons of sections 14 and 15 of the Agreement operate as laid ou%. .-. and S.T.D. Dene=its are continoent upon beinc an employee. If, as a result of lay-off, the em- ployment relationship is broken, $.T.D. benefits end in the s. ame wa~, pay would end. With respect to the application of the Long Term Disability Plan to an employee who is laid off, eligibility' for benefits hinges on the established date of disability. If the disability occurs while the disabled person is an employee, i.e., before the date of layoff, then the insurance carrier has full liability for the claim in the same manner as if that person had not been laid off. However, if the disability occurs after the person ceases to be an employee, then L.T.D. benefits would not be payable.. MS. Beverley Allan December 2, 1983 From the above, you can see that it is possible for an employee to be on S.T.D. , have a period of no income resulting from lay-off, and then commence L.T.D. benefits. The foregoing is my understanding of these issues, and I hope I have helped to clarify them for you. Yours very truly, H. E. Smith Co-ordinator Staff Relations/Benefits Section HES:n ADDENDUM - R.J. GA~LLIVAN I concur in the ~ecision to ~ismiss the grievances because of the union's long-standing acquiescence in the College's internretation of the consequence of a layoff on the sick oay olan. However, I must dissociate myself from the last oaragranh of the award and the Chairman's remarks, clearly obiter dictum, on how the collective agreement might be interoreted in the light of arbitral jurisoru~ence. I believe his internretation is incorrect for a number of reasons, including the fact that the emnloyment conditions of "Less Than Twelve Month" emoloyees are quite distinguishable from those full-time emnloyees ~ealt with in the other arbitration awards to which we were referred. IN THE MATT~t OP /%N A~BITRATION B E T W R B N: NIA~%RA COLLEGE (The "Employer-) ONT~IO ~UBLIC SERVICE F~PLOYEES, UNION (The ,,union,,) AND THE GR/EV~NCE OF K. KELLY AND THE ~ON I have had an opportunity to review the majority award in this case and I do not agree. To begin, I should say that I do agree with the majority conclusion that if there is no estoppel found than the union's case must succeed. In my view, however, there is no estoppel made out by the employer. There was no representation by the union for the employer to rely on nor was there any detrimental reliance on the employer's part. Exhibit #5 is the letter of December 2, 1983. It contains the views expressed by Mr. Harley Smith at the Support Staff Joint Insurance committee meeting on October 5, 1983. The most significant passage in the letter can be found in paragraph 3: "Pay and STD benefits are contingent upon being an employee. If, as a result of layoff, the emDlovment relation~ip is brokeD, STD benefits end in the same way pay would end." (My emphasis) This passage makes it clear that Mr. Smith is only referring to permanent layoffs in his letter. This is precisely why I asked questions at the hearing about the employment status of Ms. Kelly. At the end of his evidence Mr. Smith confirmed for me that Ms. Kelly, as a 10 month employee, was regularly laid-off and regularly rehired and that her emDloyment status was not therefore broken. The collective agreement continues Ms. Kelly's employment status and her status is confirmed by the fact that 10 month employee~ continue ~o receive other benefits during the seasonal layoff. If Ms. Kelly's employment relationship with the College had been broken she would not have received benefits, she would not have had the right to return to work at the end of the summer, her seniority would not have. been continuous when she returned, and so on. In my view, the union had the right to rely on the employer's clear undertakingthat STDbenefits are contingent upon being an employee and that such benefits would only cease when the employment relationship was broken. The employer Cannot a~gue that Ms. Kelly was not an employee during the entire period or that her employment relationship was ever broken. Given the clarity of language used by Mr. Smith in his letter, I do not see that there was any need for the union to raise the matter of STD benefits for 10 month employees, as is suggested on page 11 of the award. The union had every right to accept the letter as written and to expect the employer to live up to the ~00'39Wd A~3S 9NIIgBSNO3 NOINn NO~ ~B:~! ~G, ~! ~W interpretation given. I would put the onus the other way - if the employer had intended to include less than 12 month employees in the letter, than it should have made that clear. Instead, the employer used limiting language in paragraph 3 that, by any reasonable interpretation, covers only those individuals whose employment relationship is severed. The employer should now be prepared to live by its own words. The context in which Exhibit #5 was written also reinforces my conclusion that the union did not make the representation claimed by the employer. Bev Allen was the union. representative on the Joint Insurance Committee. It was her inquiry that ultimately led to the opinion expressed by Mr. ~mith in Exhibit #5. Ms. Allen testified that she a~ed Mr. Smith for the opinion because at the time there had been a number of 12 month employees laid off at Algonquin College in ottawa. Ms. Allen described these layoffs aB a "traumatic experience" for all College employees and so she had raised the ~uestion as part of a general concern about what might happen elsewhere. Ms. Allen made it clear that it was never her understanding that the position expressed in Exhibit #5 applied to 10 month employees. In addition, there'cannot be any estoppel because, there was no detrimental reliance. Foregoing the opportunity to raise an issue at collective bargaining cannot be viewed as sufficient detrimental reliance. We did not hear any evidence that the employer even for a moment considered submitting a bargaining proposal about STD benefits for 10 month employees. The evidence of Ms. Jennice Balask, the Human Resources Manager for Niagara College, was that the matter was never raised in bargaining and, indeed, there was "never any discussion around this". S00'39Wd A~3S 9NIIqnSNOg NOINn NO~ 8Z:~! IG, ~[ 4 The only basis for detrimental reliance, therefore, is the assumption that the employer would have raised the matter in bargaining if the union had expressed its position earlier. That is simply too tenuous to be considered detrimental reliance. There being no ground for estoppel, the union's case ought to succeed. Ail of which is respectfully submitted. DATED AT TORONTO this 14th day of March, 1991.