HomeMy WebLinkAbout1989-0024.Buttery.91-03-27 ON I'ARIO EMPLOYES DE LA COURONNE
CROWN EMPI.. OYEES DE L 'ON TA RIO
GRIEYANCE C,OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
t80 OUN~AS STREET WEST, SUITE 2';00. TORONTO, ONTARiO., MSG 'rZ$ TELEPHONE/T~£EPHoNE: {~ ~6] 325
lBO, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO]. MSG 7Z8 FACSIM~LE/TE[..~COPiE .. (4 ~6; 325- ;396
24/89
IN THE MATTER OF AN AI~ITRAT~ON
Under
. THE CROWN E~PLOYEES COLLECTIVE BARGAIN~N~ ACT
Before
THE GRIEVANCE SETTLEMENT BO/~.D
BETWEEN
OPSEU (Buttery)
Grievor
- a~d -
The Crown in Right of Ontario
(Ministry of the Attorney General)
Employer
BEFORE: B. Kirkwood Vice-Chairperson
T. Browes-Bugden Member
M. O'Toole Member
FOR THE R. Healey
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE M. Migus
EMPLOYER Staff Relations Consultant
Human Resources Branch
Ministry fo the Attorney General
HEARING: November 21, 1990
Page 2 o
DECISION
The grievor claimed that she was unreasonably
denied short term sickness benefits pursuant to Article 52.1
of the collective agreement which states:
An employee who is unable to attend to his duties
due to sickness or injury is entitled to leave of
absence with pay as follows:
(i) with regular salary for the first six (6)
working days of absence,
(ii) with seventy-five (75%) of regular salary for
an additional one hundred twenty-four (124)
working days of absence in each calendar year.
The grievor has been employed on a full time
classified basis by the Ministry of the Attorney General
since June 1, 1987. She is currently employed as a Courtroom
and Records Clerk in the Provincial Court, Family Division in
Oshawa.
The grievor obtained maternity leave from August 8,
1988 to December 2, 1988. In a letter dated November 16,
1988 the grievor requested a three month 'unpaid leave of
absence to extend her maternity leave from December 4, 1988
to March 3, 1989 inclusive. On November 23, 1988, the
grievor's supervisor, Mrs. Mary Toman - the Court
Administrator and Justice of the Peace, approved the
grievor's request in writing and forwarded the approval to
her by mail in accordance with article 50.5 of the collective
agreement, which states:
If requested in writing at least four (4) weeks
prior to the date of expiry of her maternity leave,
an employee shall be entitled to a leave-of-absence
without pay of up to six (6) months.
Page 3
The grievor delivered a large baby boy on September~
12, 1988. As the grievor continued to be unwell after her
delivery and was dissatisfied with the medical attention that
she was receiving, she sought a second opinion from Dr. Leon
Irish. Dr. Irish saw her on November 24, 198s and determined
that the grievor had severe tissue and internal damage and
required immediate emergency surgery. Dr. Irish arranged for
a consultation with the surgeon later that evening and the
grievor was operated on November 24, 1988 at 9:00 a0m.
In the evening of November 24, 1988, the grievor,
who, was very upset with the sudden turn of events contacted
her friend and co-worker Josie Fogal and explained that she
would be requiring emergency surgery.
After the surgery, on Saturday, November 26, 1988,
the grievor again contacted Josie Fogal and told her that the
damage was more extensive than the doctors had expected and
that she would be requiring further surgery. She was also
upset that due to the medication that she received, she was
unabl~ to breast feed her child for a day, and had to give
her child to another nursing mother to feed.
She was subsequently operated again on December 22,
1988 and later at the end of March 1989.
The Office of the Provincial Court in Oshawa is a
very small office and does not have many employees. On
November 24, 1988, as the staff were leaving work, Josie
Fogal told the staff about the grievor's situation. She
believed the staff members included Marjorie Lee, Rena del
Gobbo, Mary Toman and Stella Baxter, the Assistant Deputy
Administrator.
Page 4 ,
On the Monday, following Josie Fogal's second
telephone conversation with the grievor, Josie Fogal recalled
speaking again to Rena del Gobbo and Marjorie Lee and
responding to various staff inquiries about the grievor's
health.
The grievor did not contact the office until
January 9, 1989, at which time, the grievor contacted Mary
Toman and asked her whether she was able to get short term
sickness benefits (S.T.S.) . Mary Toman immediately looked
into the matter and contacted Human Resources and advised the
grievor that she was not entitled to the same.
As a result of that response, this grievance was
instituted on February 2, 1989 to obtain these benefits.
The Union's counsel claimed that the right to sick
pay benefits under article 52.1 is separate from the
mandatory right to an extension of maternity leave if
requested by an employee pursuant to Article 50.5. He
claimed that the grievor was automatically entitled to S.T.S.
pursuant to Article 52.1 of the collective agreement, as a
result of illness.
The Union's counsel claimed that the management
knew that the grievor was ill and knew the extent of the
grievor's illness, when Josie Fogal advised the staff
including her supervisor, of the grievor's situation, prior
to the grievor starting the extended maternity leave He
asserted that the grievor withdrew her claim for the extended
maternity leave, when management learned of her situation
through Josie Fogal, and became entitled to the S.T.S. at the
completion of her maternity leave.
The Union's counsel submitted that although there
was no bad faith on the part of management, management was
Page 5
willfully blind to the grievor's illness and processed the
grievor's request for extended maternity leave in a
mechanical way.
The Union's counsel argued that the grievor's
situation was not like those situations in which the employee
sought S.T.S. after leave had begun, as the grievor had
become ill before her extended leave had started and the
employer was aware of her condition.
The Employer's counsel argued that although the
grievor retains a right, which is not unfettered, to withdraw
a request for leave, up to the time the leave is to begin,
the grievor did not withdraw her request for leave prior to
the leave commencing. Furthermore, even if the employer knew
or ought to have known that the grievor was ill, by virtue of
the office conversation, the employer could not rely upon
rumours within the office to withdraw the request for leave
for her.
The Employer's counsel submitted that the purpose
of the sick leave provisions in article 50.1, is to protect
employee's income in the event that he or she is unable to
attend to their official duties by reason of sickness or
injury and to provide employees with greater benefits than
they would otherwise be entitled under the ~mployment
~tandards Act.
She argued that while the grievor was on extended
maternity leave, the grievor was not in a position to suffer
a loss of earnings, which was a prerequisite of entitlement
under article 52.01 of the collective agreement. Therefore,
S.T.S. benefits are suspended while an employee is on
maternity leave and on extended maternity leave.
Page 6
There was no issue that the grievor was ill. Nor
was there any issue that the grlevor would be entitled t.n
S.T.S if she was not on leave.
Without a doubt, the grievor has gone through a
very traumatic period after having experienced a difficult
birth requiring emergency surgery on November 24, 1988 and
further extensive surgery on December 22, 1988. In addition,
she felt traumatized by having to have another nursing woman
feed her child, when she was unable to breastfeed her child
for a period of a day and a half, due to the medication she
received during the operation. We accept the grievor's
testimony that she was suffering both physically and
emotionally during this period of time. We also understand
that due to her situation, and the necessity to see her
doctors in the week following the surgery, that she was not
~h~n~n~ ~ h~r ~mn]~vm~n~ status and its ramifications~
However, as much as we sympathize with the grievor's
position, our jurisdiction is not to award damages or
she has undergone, but to consider and apply the collective
agreement.
As stated in Haliday and The Min4$try of Industry
and Tourism G.S.B. 94/78 (K.P. Swan):
...We should note that our jurisdiction is
statutory only, and has two main branches. First,
we are vested with jurisdiction to hear and to
determine disputes about the interpretation,
application, administration or alleged
contravention of the collective agreement: this
jurisdiction arises under s. 18 of the Crown
Employees Collective Bargaining Act. Second,
beyond that jurisdiction and independent of it, we
have the jurisdiction set out in s. 17(2) [now s.
18(2)], quoted above. We have no authority to
intercede between the parties; we do not have any
inherent jurisdiction to do justice - or what we
conceive to be justice - or to provide remedies, no
matter how desperately a particular case may cry
Page 7
out for relief. The Board is a creature of state,
and derives its jurisdiction solely from the
statute. The only exception to that rule is that
the parties may provide for certain matters in a
collective agreement, and our jurisdiction is thus
broadened to the extent they have done so. Beyond
this circumscribed jurisdiction, the Board's legal
authority is non-existent, and any decision
rendered beyond those limits would be a nullity and
liable to be quashed before a court.
The questions this Board must resolve are:
1) did the grievor withdrew her request for the
extended maternity leave; and
2) if the grievor did not withdraw her request
for the leave, is the grievor entitled in any
event by virtue of her condition to the
benefits under article 52.1 of the collective
agreement, if she was on leave.
There are several dangers to the Union's position
that the grievor withdrew her request to take a further leave
of absence through reliance on the information given to the
office and to management. The first is that if we were to
accept this claim, such a finding would effectively require
the employer to make decisions affecting the employee based
upon gossip and without first hand information. A decision
that the employer may make may not conform with the facts nor
with the employee's intention. For example, if the employer,
upon hearing of the grievor's illness,and assuming that the
illness was an accurate reflection of her state, terminated
the grievor's request for leave, placed the grievor on
S.T.S., to provide her with income thereby losing her right
to any further extended leave, as any further request would
be out of time, the grievor would have had to go back to work
as soon as she was well. That decision may have been
appropriate for one employee, but another may have wanted to
Page 8
take the unpaid leave and be off work for that period of
time, even if she were to get better in the interim.
It would deprive the employee of control over the
decision making process. Although the grievor had quite a
few medical appointments in the week following her surgery,
and had concerns other than whether she was to be paid, the
grievor remains responsible for decisions affecting her
status and neither the employer nor the Board should nor
could take away the grievor's right to make these important
decisions. However, it is therefore the grievor's
responsibility to ensure that her decision is conveyed to the
management.
Alternatively, it would place an onerous burden on
the employer to follow up any information that it may receive
about an employee, to ensure that the information is accurate
and the appropriate decisions are made. There is no
provision in the collective agreement that provides that
obligation and if the employer was to be placed in that
position, it could easily lead to an invasion in good faith
into the employee's private domain, in the employer's attempt
to ensure that information which it receives is accurate.
Therefore, we must consider what directions did the
grievor give the employer.
Pursuant to article 50.5, the grievor made a
request for the extended leave, which was approved and
processed on November 23, 1988. It was recognized by both
parties that the employer had no discretion to refuse the
request for leave if sought by an employee in writing as it
was mandatory right. The grievor acknowledged that she
received the approval during the week of November 28, 1988.
She therefore had received the approval prior to the
expiration o~ her maternity leave.
Page 9
Josie Fogal testified that she spoke to the grievor
as a' friend and learned of the grievor's situation. She
spoke to the staff, which included Mary Toman.
Mary Toman recognized that the' office was very
small and the staff interacted on both a business and social
level. However, although Mary Toman did not dispute that she
may have been told of the grievor's situation, she did not
recall learning of the grievor's situation, until the grievor
visited her on January 9, 1989.
In this case, the grievor's last direction was by
written request for the extended leave. There was no
evidence that she changed her mind and that she conveyed that
information to management. The evidence is to the contrary.
Josie Fogal testified that she was not given any direction to
advise management that the grievor no longer wished to take
the extended leave. Therefore, although we accept Josie
Fogal's evidence that she advised the staff including Mary
Toman and Stella Baxter of the grievor's situation, we do not
find that that the grievor provided either Josie Fogal or her
employer with authorization to cancel the request for leave.
Therefore, we do not find that the grievor withdrew
her request for unpaid leave.
The second issue that this matter raises is to
consider whether the grievor is entitled in any event, to
sick pay benefits.
There was no dispute that if the grievor 'were on
maternity leave that the grievor would not be entitled to
S.T.S. The foundation of this principle arises from the
application of cases such as Tracey and the Crown in R~ht of
Ontario (M~ni~try of Correc~ionsl Services) G.S.B. 137/78
Page 10 ~
(K.P.Swan), which canvassed the distinction between the
differential treatment of "childbirth" on the one hand and
"sickness or injury" on the other, and OPSEU(Conway et alt
and the Crown in Right of Ontario (Ministry of Community ~n.1
Soc{~] Seivices) {Minlstry of Natural Resources) Ministry o[
Revenue) G.S.B. 1482/85; 1497/85; 1498/85; 1534/85; 0087/86
(D. Kates) which reviewed the development of maternity leave
provisions, its relationship to the ~nlp]oyment Standards Ac~
and the place of S.T.S.
AS of December 4, 1988, the grievor was on extended
leave. The Union likened the grievor's position to the
position found in OPSF. U (Lambert and Slaught) and the Right
Qf Ontario (Ministry o~ Correction~ ] Services) G.S.B.
#2615/86 (R.L.Verity) .
In Lambert and Sl~ught (supra), the Board found
that the entitlement to lieu days and the entitlement to sick
pay benefits are independent of each other, and as there was
no exclusion in the lieu day provisions to sick day benefits,
the grievors were not prevented from applying for one or the
other benefit. The Board recognized that the right to
statutory holidays has moved from a privilege granted to the
employees to almost a right of the employees, such that if
the employer requires the employee to work on the statutory
day, that employee is compensated and provided a lieu day.
To not allow the employees to choose to apply for the sick
pay benefits, would have had the affect of eroding the
grievor's rights to the statutory holiday or compensation for
its loss. The Board also found that the grievors were
excused from their duties, not because of the compensation
leave, but because of their illness.
We find that Lambert ~nd Sl~ught case is different
from the grievor's case in that it was the employer's actions
and decisions that required the employees to work on the
Page 11
statutory day thereby triggering the grievors' right to the
lieu day. In the case before us, it was the grievor who
chose to take the unpaid leave of absence and not the
employer who required her to take it. It was the grievor who
asked to be relieved of the obligation to work in exchange
for relieving the employer of the obligation to pay her.
As in l.ambert ~ Slaugh~ (supra) article 52.1 does
not specifically exclude article 50.5 and there is no direct
connection with article 50.5, nevertheless, in order to be
entitled to the benefit under article 52.1, the grievor must
still be able to meet the preconditions set out in the
article. She must be unable to attend to her duties due to
sickness or injury, if that were the case she would be'
entitled to be compensated for her loss of earnings for the
period that she was i1%, in accordance with the terms of
article 52.1.
Although the leave of absence which was considered
in Tichinoff and the Crown in Right of Ontario {Ministry of
CQrrec~ion~l Services} G.S.B. $ 900/88 (J.D.McCamus) was a
discretionary leave and the leave being considered here is
mandatory, the effect of the leave remains the same in that
the employee is be excused from duties for a period of time
and the employer is excused from the obligation to pay the
employee for that period of time. As stated at page 17 of
the decision:
...A person who has waived his or her right to
earnings is not, in our view, in a position to
claim entitlement to sick pay which, as the Board
noted in l.ambert & Slaught, has as its purpose the
provision of "earnings relief in periods of
incapacity caused by illness or injury." p. 13. In
the language of Article 52,1, sick pay benefits are
extended to "an employee who is unable to attend to
his duties due to sickness or injury..." An
employee who has applied for and been granted a
leave-of-absence without pay has no "duties" during
Page 12 ·
that period. This indeed, may be said to be the
point of the exercise. In this sense, we believe
that the Grievor's claim to entitlement to sick pay
benefits is inconsistent with the Grievor's status
of being on leave-of-absence without pay.
In this case, had the grievor been scheduled for
work, the grievor's condition would have prevented her from
performing her duties, but she chose to be excused from those
duties when she requested the leave of absence. Therefore,
as the grievor has been excused from her duties at work, due
to her leave, she could not fulfill the prerequisite set out
in article 52.1 of the collective agreement that she was
unable to attend to her duties because of illness.
Therefore, the grievor is not entitled to S.T.S and
this grievance is dismissed.
Dated at Toronto, this 21th day of March ., 199t.
B.A. Kirkwood, Vice-Chairperson
"Dissent" (without written reason)
T. Browes-Budgen, Member
M O'Toole, Member