HomeMy WebLinkAbout1989-0217.Bujeya.89-10-16 ONTARIO EMPLOY(JS DE LA COURONNE
CROWN EMPLOYEES DE &'ON TARIO
GRIEVANCE CQMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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217/89
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Bujeya)
Grievor.
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
Before:
E.K. Slone Vice-Chairperson
I. Thomson Member
E. 0rsini Member
For the Grievor: J. Ford
Grievance Officer
Ontario Public Service
Employees Union
For the Employer: C. Slater Senior Counsel
Management Board of Cabinet
Hearing: August 21, 1989
2
AWARD
This is a grievance of some novelty. The grievor complains
that the employer denied him paternity leave and other benefits
to which he claims he was entitled at the time of the birth of
his child in April 1989. He bases his claim on Article 50 of the
Collective Agreement, which reads in part as follows:
ARTICLE 50 - MATERNITY LEAVE
50.1 A Deputy Minister shall grant leave-of-absence
without pay and without accumulation of credits for the
purpose of childbirth to a female employee who has
served more than one (i) year including service as a
Crown employee immediately prior to her appointment to
the civil service.
50.2 The leave-of-absence shall be in accordance with the
provisions of The Employment Standards Act.
50.3.1 An employee entitled to maternity leave under this
Article, who provides the Employer with proof that she has
applied for and is eligible to receive unemployment
insurance benefits pursuant to Section $0, Unemployment
Insurance Act, I971, shall be paid an allowance in
accordance with the Supplementary Unemployment Benefit
Plan.
50.3.2 In respect of the period of maternity leave,
payments made according to the Supplementary Unemployment
Benefit Plan will consist of the following:
(a) for the first two (2) weeks, payments
equivalent to ninety-three percent (95~) of
the actual weekly rate of pay for her
classification, which she was receiving on
the last day worked prior to the commencement
of the maternity leave.
and
(b) up to a maximum of fifteen (i5)
additional weeks, payments equivalent to the
difference between the sum of the weekly UI
benefits the employee is eligible to receive
and any other earnings received by the
employee, and ninety-three percent (95X) of
the actual weekly rate of pay for her
classification, which she was receiving on
the last day worked prior to the commencement
of the maternity leave.
It is common ground that the grievor is a male person, but
it is argued that he would qualify if one gives effect to the
preamble to the Collective Agreement, which provides:
1. The purpose of this Agreement between the Employer and
the Union is to establish and maintain:
(a) satisfactory working conditions and
terms of employment for all employees who are
subject to this Agreement:
(b) a procedure for the prompt and equitable
handling of grievances and disputes.
2. It is understood that the provisions of this Agreement
apply equally to male and female employees.
The thrust of the Union's argument is that the preamble
overrides or modifies the specific terms of Article 50, thus
creating mn implied paternity benefit. To hold otherwise, it
says, would offend the equal application of the Agreement to both
males and females.
THE FACTS
As is usually the case, the disposition must depend on the
specific facts, which in this instance are not'seriously in
dispute. The parties proceeded on an agreed statement of facts,
supplemented with the short evidence of the grievor. The agreed
statement is as follows:
4
STATEMENT OF FACTS
1. Mr. Bujeya i~ employed at the Ministry of Correctional
Services as a Correctional Officer at the Metropolitan
Toronto West Detention Centre. He is a civil servant
classified at the Correctional Officer 2 level. Mr. Bujeya
works on a compressed work week schedule composed of 12 hour
shifts.
2. On or about February 27, 1989, Mr. Bujeya indicated to his
supervisor, William L. McArthur, that he intended to pursue
his eligibility for maternity benefits under the
Unemployment Insurance Act, R.S.C. 1985, with the
Unemployment Insurance Commission. He also indicated that
he intended to pursue the issue of his entitlement to
additional benefits, pursuant to Article 50 of the
Collective Agreement, from the Supplementary Unemployment
Benefit Plan maintained by the Respondent. He was advised
that he was not eligible for benefits under Article 50.
3. Mr, Bu3eya's spouse was pregnant at the time of the request
and at the time of the filing of the grievance on March 16,
1989, Mr. Bujeya advised the Ministry at the time of the
request in February that his spouse was self-employed. She
did not apply for UIC benefits'as she had not contributed.
4. As a.result of the Ministry's position that Mr. Bu3eya was
not entitled to benefits under Article 50, he filed this
grievance on March 16, 1989.
5. After the birth of his child, Mr. Buj. eya took the equivalent
of nine 8-hour shifts off work in lieu time to be with his
family.
6. Mr. Bujeya applied for benefits under the Unemployment
Insurance Act. He did not present the Respondent with
written proof of his application and eligibility for
maternity benefits under the Act. Final confirmation could
not be obtained from UIC without the employer first
providing the necessary documentation to complete the claim.
He did not seek leave under any other provision of the
Collective Agreement.
The additional facts as we find them, are that at the same
time as he announced his intention to seek paternity benefits~the
grievor made a request that he be given his "Record of
Employment"~ which is evidently an important document without
which the UIC cannot process a claim or be satisfied that an
5
applicant is eligible for some benefits. The employer stated
that the grievor was not eligible and left it at that. Thus, no
Record of Employment was provided. On February 2?, 1989, the UIC
had advised the grievor in writing {Ex.4} that they required the
Record of Employment to process his claim. On March 23, 1989,
the UIC sent a further notice lex.3} to the grievor, which stated
inter alia as follows:
"This is to advise you that we cannot establish your
claim for benefit until you provide a Record of
Employment (ROE) for your last employment...
If you are unable to obtain the ROE from your last
employer, contact this office for assistance."
Notwithstanding the offer of assistance, the grievor wrote
to the UIC office on April 1, 1989 (Ex.5) and formally requested
that his application for benefits be placed on indefinite hold.
In the letter he commented "it is unfortunate but my
employer.,,refuses to acknowledge my right to maternity
benefits...Subsequently I have had the issue forwarded to the
Grievance Settlement Board for clarification."
The grievor testified that he never specifically requested
his Record of.Employment after February 27. It is by no means
clear that the employer understood what the grievor was asking
for, nor that the failure to provide same was impeding his
application for the benefit. The grievor must bear
responsibility for not having pressed the issue with the
employer, Had he done so and been refused, he could then have
availed himself of the UIC's offer of assistance. We take
'arbitral notice of the fact that the UIC has enforcement
machinery at its disposal to obtain Records of Employment from
recalcitrant employers who improperly withhold same from
employees. The grievor argued that the employer put him in a
"Catch 22" situation, where their failure to provide him with the
ROE made him unable to qualify for the benefit and provide proof
of same to the employer to satisfy the requirements of the
Collective Agreement. We cannot accept this excuse. The ROE
could have been obtained with due diligence,
?H~ LA~
There is no doubt that we live in a social climate where the
rights of fathers to benefit from government and employer-
sponsored programs are being harmonized to some extent with the
rights of mothers. These changes reflect a reality of greater
involvement of fathers in the nurturing of their children, which
is one of the consequences of the greater involvement of women
in, and their commitment to the work force. Probably the best
known example of paternal activism in regard to benefits is the
case of Schacter v, The Queen et al.; Women's Legal Education and
Action Fund, Intervenors (1988) 52 D.L.R, (4th) 525 (Fed. Ct.
Trial Div.) The plaintiff Schacter was a father of a newborn
child who applied for paternity benefits under the Unemployment
Insurance Act. In that case, the scheme of the Act was carefully
examined. Under s.30 maternity benefits are available to the
7
natural mother of a child, while under s.32 either the father or
mother of an adopted child may obtain an equivalent benefit. For
natural fathers, there is no apparent benefit. It was argued and
upheld in that case that the scheme offends the equality section
of the Charter of Rights and Freedoms, since it denies a natural
father the benefit that it confers on an adoptive father. Thus,
the Court declared that the plaintiff ought to be able to claim a
benefit equivalent to that offered to adoptive fathers under
s.32. His actual entitlement would depend on the facts of his
case as found by the UIC. But the Court did not base its
decision on any finding that the plaintiff was being
discriminated against on the basis of sex, nor did it find that
the plaintiff could claim a benefit under s.30 Of the Act. The
following passage from the judgment of Strayer J. at p.§45 is
instructive:
"Nor in my view can the denial of benefits to natural parents
under s.32 [the adoption benefit] be considered offset by the
'maternity benefits available to the natural mother u.nder s.30. The
purpose and principal effects of s.30 are quite different. Section
30 is structured to benefit pregnant women and pregnant women
only. What a claimant must prove for entitlement to benefits is
the fact that she is expecting. Once that is established, benefits
are payable to her even if she experiences a still birth. If
instead she has a baby, the benefits incidentally assist her in
whatever care of the baby she is able to provide after birth until
the fifteen weeks of benefits expire. Expert evidence presented
before me underlined the physical demands put on pregnant
women and new mothers, which demands of themselves justify a
period of at least 15 weeks free from outside paid employment."
Ultimately, the Court in Schacter in effect ordered
Parliament to amend the legislation to extend a paternity benefit
to natural fathers equivalent to the adoptive father benefit. As
far as we are aware, s.30 of the Act remains intact and solely
available to pregnant females.
DISPOSITION
We are of the view that this grievance must fail for a
number of reasons, which we will explain in no particular order
of importance.
A. The maternity leave benefit available under Article 60.1
is expressly made by Article 50.2 "in accordance with the
provisions of the Employment Standards Act". That Act in fact
refers to "Pregnancy Leave" and provides in s.36 that an
"employee who is prelnant [and who meets the qualifying period]
...shall be entitled...to a leave of absence of at least
seventeen weeks from her employment...commencing during the
period of eleven weeks immediately preceding the estimated day of
her delivery." (emphasis mine) This benefit is clearly intended
for women who are pregnant and who will be delivering a child.
The Collective Agreement does no more than incorporate this
benefit (while also shortening the qualifying period to a small
extent), and the employer was correct in recognizing that the
maternity benefit is simply not available to a male employee. If
the Ontario Legislature chooses to amend the legislation to
extend an equivalent benefit to fathers, then it would become at
least arguable, notwithstanding the language of the Collective
Agreement, that such a paternity benefit is automatically
9
parachuted into the Collective Agreement. 'But such is not the
case as the law currently stands,
B. Article 50.3.1 requires as a prerequisite to obtaining
the SUB allowance that the employer be provided with proof of
eligibility under Section 30 of the Unemployment Insurance Act.
· As already observed, under the current state of the law, s.30
benefits are only available to pregnant women. It is unlikely in
the extreme that the grievor could ever have succeeded in
obtaining a s.30 benefit, although he might.have obtained a
different benefit similar to that obtained in Schacter. As such,
the grievor has failed to establish on a balance of probabilities
that he did or even could have satisfied the prerequisite of
showing eligibility fOr a s.30 unemployment insurance benefit.
The SUB plan is a top-up provision, and the grievor has nothing
to top up. The grievor cannot escape the consequences of his own
failure to pursue with vigour his application to the UIC for a
benefit. Had he done so, the situation before us would be
clearer - although not necessarily in the grievor's favour. We
are stuck with the law as it stands, and we have no jurisdiction
to extend the application of the Unemployment Insurance Act,
Only the Court or Parliament can do that, If in the future some
male person can persuade the Courts or Parliament to extend s.30
to males, then it would become at least arguable that the top-up
benefit would also apply to males.
C, The plain wording of the Collective Agreement in our
opinion is clearly aimed at females. Looking again at the
10
provision, with emphasis added, shows the extent to which the
drafters of the Article took care to use the female gender:
ARTICLE §0 - MATERNITY LEAVE
50.1 A Deputy Minister s~all grant leave-of-absence
without pay and without accumulation of credits for the
purpose of childbirth to a female employee who has
served more than one (I) year including service as a
Crown employee immediately prior to her appointment to
the civil service.
50.2 The leave-of-absence shall be in accordance with the
provisions of The Employment Standards Act.
50.3.1 An employee entitled to maternit.¥ leave under this
Article, who provides the Employer with proof that she has
applied for and is eligible to receive unemployment
insurance benefits pursuant to Section 30, Unemployment
Insurance Act, 1971, shall be paid an allowance in
accordance with the Supplementary Unemployment Benefit
P1 an.
50.3.2 In respect of the period of maternity leave,
payments made according to the Supplementary Unemployment
Benefit Plan will consist of the following:
(a) for the first two (2) weeks, payments
equivalent to ninety-three percent (95~) of
the actual weekly rate of pay for .her
classification, which she was receiving on
the last day worked prior to the commencement
of the maternity leave.
and
(b) up to a maximum of fifteen (15)
additional weeks, payments equivalent to the
difference between the sum of the weekly UI
benefits the employee is eligible to receive
and any other earnings received by the
employee, and ninety-three percent (g3~) of
the actual weekly rate of pay for her
classification, which she was receiving on
the last day worked prior to the commencement
of the maternity, leave.
It is our view that the general language of the preamble to
the Collective Agreement does not override the very specific
wording of Article §0. The preamble is analogous to definitions
contained in some agreements. It has been held that where
definitions in a collective agreement conflict with or contradict
an operative provision thereof, the operative provision must
prevail: Re United Electrical Workers, Local 512 and Tun~-Sol of
Canada Ltd. (1964) 1§ L,A.C. 161 (Reville); approved by this
Board in Re Ontario Housi~i Corporation and C.U.P.E, Local 767,
GSB 4/77 (Swan). If there is a conflict between the preamble and
Article 50, on this principle Article 50 will prevail over the
preamble. However, we are not of the view that there is such a
conflict. Both parties to the Agreement must be taken to have
understood that there are some differences between males and
females in terms of their special needs which must be
accommodated by the employer. Equal application of the Agreement
surely does not mean that those special needs are ignored, or
that the measures adopted to meet those needs are extended to the
other gender whether they are needed or not. What it means in
our view is that there ought to be no arbitrary discrimination in
the application of the agreement, and in particular there should
be no discrimination based on the use of either the male or
female gender in the choice of pronouns in a particular Article.
Perusing the Collective Agreement, we find many instances where
the pronoun "he" is used, where the context does not clearly
restrict itself to male.employees, (Presumably the drafters of
the Collective Agreement did not find it convenient continuously
to refer to "he or she", ~hich is becoming fairly~popular in
statutory drafting circles.) In such a case the preamble to the
Collective Agreement assures us that the specific provision is
intended to apply equally to males and females.
D. We must be mindful of the provisions of Article 27.16 of
the Collective Agreement, which provides:
27.16 The Grievance Settlement Board shall have no
jurisdiction to alter, change, amend or enlarge any
provision of the Collective Agreement..
In this case, where the wording of Article 50 is quite
clear, we would risk falling afoul of Article 27.16 if we were to
find an implied paternity benefit.
E. While this is not dispositive of the issue, we feel
compelled to comment on the fact that the grievor failed to avail
himself of other provisions in the Collective Agreement.
Specifically, he could have asked for a leave of absence under
Article 29.1, which provides:
ARTICLE 29 - LEAVE WITHOUT PAY
29. i Leave-of absence without pay and without the
accumulation of credits may ~e granted to an employee
by his Deputy Minister.
We recognize that this provision is discretionary while
Article 50.1 is mandatoryj but a desire to stay at home. with a
newborn child would probably have been seen as a valid and
compelling reason for a leave-of-absence. Had the grievor sought
and obtained a leave under this Article, half the battle at least
would have been won.
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CONCLUSION
In conclusion, therefore, we find that for all of the above
reasons the grievor has failed to show that the employer has in
any way violated the Collective Agreement, and the. grievance is
therefore dismissed. We cannot say what the result might be if
changes are made to either of the Employment Standards Act or
the Unemployment Insurance Act, whether at the urging of the
courts or on the legislatures' own initiative. That is not the
case before us,
Dated at Toronto this 16 day of October, 1989.
Eric K. Slone, Vice-Chairperson
I~../~.'m.~on, Member
E. %~sini,~ Member