HomeMy WebLinkAbout1989-0997.Stachiw, Union & Policy.91-08-29 ONTA RIO EMPLOYES DE LA COUFtONNE
CROWN EMPLOYEES DE L 'ONTARIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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997/89, 1047/89
IN THE MATTER OF AN ARBiTI~TZON
Under
THE CROI~N F~4PLOYEE8 COLLECTIVE B~RGAINING ~CT
Be~o~e
T~ GR~EV~CE 8ETT~~ BO~
CUPE (Stachiw/Union Policy Grievance)
G~evo~
ana -
The Crown in Right of Ontario
· (Workers' Compensation Board)
Employer
BEFORE: S. Stewart Vice-Chairperson
J. Carruthers Member
A. Merritt Member
FOR THE B. Toop
GRIEVOR National Representative
CUPE Local 1750
FOR THE A. Rae
EMPLOYER Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
HEARING: April 5, 1991
DECISION
A Union policy grievance dated June 26, 1989. and the
individual grievance of Ms. S. Stachiw dated July 6, 1989
were before the Board. The issue raised by the grievances
is whether the Employer is entitled to adjust an employee's
continuous service date when an employee is absent and in
receipt of long term disability benefits. Ms. Stachiw~s
grievance also refers to an alteration of her seniority
date and/or her anniversary date as well as her continous
service date.
Ms. S. Stachiw is employed as a medical secretary at
the Thunder' Bay regional office of the Workers'
· Compensation Board. She commenced her employment with the
WCB on October 20, 1986. She was involved in a motor
vehicle accident on March 29, 1988, and was absent from
work as a result of that accident until November 22, 1988.
Between November 22, 1988 and September 11, 1989, Ms.
Stachiw returned to work on a part-time basis on
rehabilitative employment. She increased her working hours
gradually until she worked approximately one-half time.
Ms. Stachiw was on maternity leave between September 12,
1989 and March 12, 1990. She was on vacation between March
12, 1990 and March 30, 1990.
Ms. Stachiw returned to work on a full-time basis on
2
April 2, 1990. MS. Stachiw would ordinarily have been
eligible for. advancement on the salary grid on April 20,
1989. While the Employer initially adjusted Ms. Stachiw's
anniversary date by 157 days, this adjustment was
subsequently recognized by the Employer as incorrect and
she was to have advanced'on the grid effective the date of
her return to full-time employment. ~t was Ms. Stachiw's
evidence that she was not advanced on the grid until April
22, 1990. As well, it is the Union's position that Ms.
Stachiw should have advanced on the grid for the purposes
of th.e compensation that she was receiving at the time of
her ~nniversary date.
Ms. Stachiw's continuous service date was adjusted by
157 .days, from October 20, 1986 to May 27, 1987. This
change affected Ms. Stachiw's vacation enti=lement. Ms.
Scachiw's seniority date was not affected.
Ms. Stachiw received notice of this matter by letter
dated June 8, 1989. The letter states as follows:
CONTINUOUS SERVICE DATE ADJUSTMENT
In accordance with Article 4.1 of the Collective
Agreement, this is to advise you that your
'Continuous Service Date has been adjusted
to reflect a break in your continuous service.
This break in service was caused 'by your absence
from work, without pay from the Employer, for
157 working days during the 1988 calendar year.
Your Continuous Service Date has been adjusted
from October 20, 1986 to May 27, 1987.
3
Since vacation entitlement at the next higher level
is based on continuous service of the employee
with the employer, the date used to determine when
you would qualify to begin accruing vacation credits
at the next highest level has been delayed by the amount
of the adjustment outlined above.
Ms. Stachiw filed her grievance on July 6, 1989. She
subsequently received a further letter from the Employer
with respect to further adjustments made with respect to
the 1989 ualendar year.
It is the Union's position that an adjustment to the
continuous service date in these circumstances is in
contravention of the ~rovisions of the Collective Agreement
between the parties. It is the Employer's position that
such an adjustment is required by the provisions of the
Collective Agreement. The Employer relies on the past
practice and negotiating history of the parties as an aid
to the interpretation of the language of the Collective
Agreement. Alternatively, it is the Employer's position
that the Union is estopped from asserting the position it
advances in this proceeding by virtue of its failure to
challenge the Employer's position in the past.
Leaves of absence are provided for in Article 16 of the
Collective Agreement that was in effect at the time the
grievance w~s filed. Sick leave is referred to in Article
~6.O8 which states that~ "The.current practice concerning
sick leave shall be continued for the duration of this
4
Agreement, where it does not-conflict with the provisions
of this Agreement." Article 16.10 provides that:
With the exception of section 7, Maternity Leave of
Absence and Section 9, Adoption Leave, where absence
under this article is without pay,' there shall be
no accumulation of service or attendance credits.
"Service" is not specifically defined in the Collective
~Agreement, however seniority is defined in Article 4.01 as
"the length of continuous service in the bargaining unit".
~--~. Article 4.03 of the Collective Agreement provides for loss
of seniority and continuous service in certain specified
instances, such as termination of employment. Long term
disability insurance is referred to'in Article 21 of the
Collective Agreement as an employee benefit and is referred
to further in'Appendix 3 of the Collective Agreement where
the provisions of the plan are detailed. There is no
explicit reference in the provisions of the Collective
.. Agreement to the effect of long term disability on
continuous service. Article 11 of the Collective Agreement
deals with vacations and Article 11.01 provides that:
The calculation of vacation leave and vacation
pay entitlement, will be based on the employee's
continuous service from his most recent date of
hire, and shall be computed as of his anniversary
date and each anniversary date thereafter.
Article 11.03 (e) of the Collective Agreement provides
that:
Notwithstanding the above, accumulation of vacation
entitlement shall not be earned for any unpaid
continuous absence of twenty-three (23) consecutive
working days. Where intermittent return to work
is less than five working days, the absence ~hall
be considered continuous for the purposes of these
calculations ·
Schedule A of the Collective Agreement contains a salary
grid for employees in the grievor's classification, with
advancement based on the anniversary date. Article 1 of
Schedule A provides that: "The anniversary date is based on
the date the employee commenced on the current job. This
may be either the date of hire or the date of a subsequent
transfer." Article 2 of Schedule A goes on to provide that
the time periods referred to on the salary grid are
reflections of the anniversary date.
In accordance With the provisions o.f ~he Collective
Agreement Ms. Stachiw was in receipt of payment from the
Employer for the first sixty days of her absence based on
accumulated attendance credits. Long term disability
commences after sixty days of absence. Between sixty and
ninety days of absence and two-thirds of the employee's
salary is paid directly by the Employer. For absences
extending beyond ninety days, as was the case with Ms.
Stachiw, two-thirds of the employee's salary is paid by the
Employer' s insurer.
There was some suggestion in correspondence from the
Employer to the Union and in the submissions of the Union
that the only period in which continuous service is
affected is the period in which an employee is in receipt
6
of long term disability benefits from the insurer.
However, according to Mr. Baldwin's evidence in re-
examination, for the first sixty day period an employee's
continuous service is adjusted based on the number of days
that the employee does not have attendance credits. For
the period between sixty and ninety days there is an
adjustment of one-third of a day for each day that
attendance credits are not used to top up the two-thirds
salary. For the period between sixty and ninety days, the
. adjustment is based on one day for each day of absence
unless the employee still has and uses attendance credits,
in which case there is an adjustment of two-thirds of a
day. In Ms. S{achiw~s case, this calculation resulted im
what might be described as a debit' of 167.25 days.
However, there is a grace period of ten days, which
resulted in the advancement of' Ms. Stachiw's cohtinuous
service date by 157 days for 1988. The Board's
understanding of the dispute put before it for resolution
with respect to the adjustment 'to the continuous service
date is limited to the actions that the Employer takes with
respect to adjustment to the continuous service date while
an employee is in receipt of long term disability benefits
from the insurer.
Both the Union and the EmplOyer adduced evidence with
respect to the practice at the workplace with respect to
?
the effect of absences on continuous service.
Mr. E. Baldwin has been employed in the position of
Employee Relations Specialist with the WCB since I978. He
is responsible for the administration of the Collective
Agreement and has been a member of the Employer's
bargaining committee since 1978. Mr. Baldwin testified
that he was involved in making the adjustment to Ms.
Stachiw's continuous service date and that he did so in
accordance with the same practice that he has used since
1978. Until Decemer, 1988, an employee's seniority date
was also adjusted, a matter which will be discussed in more
detai~ below. Mr. Baldwin stated that in January of each
year he goes through the process of adjustment for each
calendar year as described with respect to Ms. Stachiw.
Since 1986 he has sent individual letters to employees,
similar to the letter sent to Ms. Stachiw which is referred
to above. Mr. Baldwin estimated that he sent 80 to 100
such letters per year since 1986. Copies of these letters
are not sent to the Union. Prior to 1986 it appears that
notification to employees and the Union with respect to
such adjustment was accomplished by the posting of the
seniority list. The Union was also provided with a list of
employees who are on leave of absence.
Mr. Baldwin gave evidence with respect to four
8
grievances that were filed in connection with this issue.
Three grievances were filed in 1978 and one grievance was
filed in January, 1988. Ail of the grievances filed in
1978 refer to an improper seniority date being posted. Two
of the grievances arose with respect to an absence while
~ployees were on maternity leave and one arose due to an
absence on long term disability benefits. The grievances
were denied by the Employer and were not pursued by the
Union. There was no provision comparable to the current
16.10 in the Collective Agreement at that time, however it
appeared in the 1980-1 Collective Agreement. The maternity
leave provision of the 1980-81 Collective Agreement was
amended to state that: "Employees shall continue to.
accumulate seniority and service benefits during maternity
leave". 'Subsequently, a simila.r specific reference to
adoption leave was incorPOrated into the Collective
Agreement as well.
In 1988, a grievance was filed by Ms. G. Cornet who
was absent from work and in receipt of long term disability
benefits. Her seniority and .continuous service dates were
adjuste~ as a result. Mr. Baldwin stated that his
recollection was that the Union expressed concerns about
the adjustment to her seniority in connection with this
grievance. He was uncertain as to whether the issue of
continuous service was discussed. The Employer replied to
9
the grievance objecting to its timeliness and further
indicating that it was the Employer's view that its actions
were in accordance with the provisions of the Collective
Agreement. In the second and third step reply there is a
reference to the Employer's actions being in accordance
with its longstanding practice. The matter was referred to
arbitration. However, by letter dated September 2, 1988
the grievance was withdrawn by the Union. There was no
reason given for the withdrawal of the grievance nor was
the withdrawal of the grievance stated to be "without
prejudice". Mr. Baldwin skated that by virtue of the fact
that the union did not pursue the matter of continuous
service he concluded tha~ the Union accepted the Employer's
interpretation of the Collective Agreement. He stated that
if the Employer had been aware that the Union was
challenging the manner in which continuous service had been
dealt with it would have raised the matter at negotiations
in order to preserve its position.
Ms. C. Haffenden testified on behalf of the Union.
.She is an employee of the WCB and has been involved with
the Union since 1976. She has been on the executive board
of the Union since 1979. At the time of the grievance she
was president of the Local Union. Ms. Haffenden testified
that she was not aware of the grievances that were filed in
1978. She stated that the Cornet grievance in 1988 was
10
withdrawn because it was untimely by a few months and that
it was the Union's view that it was appropriate for the
issue of seniority to be discussed with the Employer. Ms.
Haffenden stated that from the Union's perspectiv~
seniority and service were "the same thing". She stated
that it was only in connection with the present grievances
that the Union came to understand that the Employer viewed
them differently and that the Employer's adjustments to
continuous service dates affected vacation entitlement.
Following the withdrawal of the Cornet grievance there
was correspondence between the representatives of the
parties with respect to this matter. In a letter dated
December 5, 1988, Mr. M. Charboneau, a staff representative
with the Union, advised the Employer that it was the
Union's position that an employee should not suffer a break
in seniority for any period of time when in receipt of long
term disability benefits and that the Union did not agree
with the way the Employer was administering the Collective
Agreement. By letter dated December 7, 1988, Mr. B. Homer,
Manager, Staff Relations, responded that the Employer had
been administering the Collective Agreement in this manner
since 1978, with full knowledge of the Union and requested
the Union's authorization in writing if it wished the
Employer to change this practice. Mr. Charboneau responded
by letter dated January 9, 1989, in which he stated that:
11
"the Union only became aware of the extent of .[the
Employer's] practice with the Cornet grievance". The
letter goes on to state that: "no adjustments to an
employee's seniority should be made for any period of time
when they are in receipt of LTD benefits. Since this
matter was brought to your attention on December 5, 1988
the union will not insist on any readjustments prior to
this date". Service was not addressed.
As previously indicated, Ms. Haffenden stated that the
Union only became awar~ that the Employer distinguished
between continuous service and seniority in the context of
the discussions surrounding the present grievances. She
stated that in the course of discussions with the Employer
it became clear that the Employer was adjusting continuous
service dates, affecting vacation entltlement, as a result
of absences on long term disability. Following a meeting
to discuss the Union's policy grievance, in a letter dated
July 12, 1989, Mr. Homer wrote a letter to the Union
requesting written confirmation with respect to its
position with respect to accumulation of seniority. Mr.
Homer distinguishes between seniority and service.credits
in this letter. In a letter dated September 15, 1989 Ms.
J. Bruce replied to Mr. Homer, referring to the earlie~
correspondence from Mr. Charbonneau and advising him that
it was the Union's position that entitlement to vacation
leave was not properly affected by a leave when the
employment relationship continues.
We will deal first with the issue of advancement on
the salary grid. As previously noted, the Employer did not
consider the grievor's absence on sick leave to .affect her
anniversary date and thus her progression on the salary
grid. However, it was the Employer's position that it does
not affect an employee's rate of pay until the time that
the employee returns to work on a full-time basis. Schedule
A of the+ Collective Agreement is clear in providing that
the advancement of an employee is determined on the basis
of that person's anniversary date. There is no
restriction, implicit or explicit, with respect to the
determination of the anniversary date of an employee for
the purposes of advancement on the grid. However, the
provisions relating to the payment of long term disability
benefits state that LTD benefits are based on: "the
employee's gross regular salary as of the date of the
disability". Accordingly,. it is clear that if an
employee's anniversary date coincides with the time at
which 'the employee is totally disabled and .is off work in
receipt of LTD benefits, those benefits are not increased
by virtue of the employee's anniversary date. The
provisions of the Collective Agreement relating to LTD
benefits go on, however, to deal with the situation where
13
an employee returns to work on rehabilitative employment
and provide that: "LTD will provide 66-2/3 of normal salary
less 50~ of rehabilitative employment earnings."
In our view, the employee's "normal salary" for the
purposes of LTD is fixed by the earlier provision
specifically quantifying LTD benefits as the employee's
gross regular salary as at the date of the disability.
However, there is no restriction with respect to
rehabilitative employment earnings that an employee
receives when returning to work for the Employer. Given
the unrestricted language of the Collective Agreement with
respect ~o advancement on the grid and the fact that there
is no logical reason that an employee who returns to'work
on rehabilitative employment should not advance on the grid
on her anniversary date in terms of compensation, it is our
conclusion that the Employer's compensation of Ms. Stachiw
for the work that she performed when she returned to
rehabilitative employment is a violation of the Collective
Agreement. In o~r view, the extrinsic evidence adduced
establishes neither an ambiguity or an estoppel in this
regard. While the Collective Agreement has been
administered in this manner for some time, this would not
appear to be a situtation where a large number of employees
would be affected. We cannot accept that it is reasonable
to expect the Union to have been aware of the practice. It
14
is most unlikely that all employees in receipt of long term
disability benefits would have returned to rehabilitative
employment with the Employer. Of those who would have
returned to work, only some would have had an anniversary
date at the relevant time. Accordingly, it is our
conclusion that Ms. Stachiw ought properly to have advanced
on the salary grid in accordance with her anniversary date
and paid in accordance with that increased rate for the
hours of work that she performed for the Employer while
performing rehabilitative employment. However, in
accordance with Appendix C of the Collective Agreement, Ms.
Stachiw's LTD benefits are reduced by the amount that her
total earnings exceed 100% of her earnings at the time of
her disability.
We now turn to the issue of whether an. employee's
continuous service is appropriately adjusted for purposes
of vacation leave and vacation entitlement when an employee
is in receipt of long term disability payments.
critical question under the language of the Collective
Agreement is the meaning of "continuous service" under
Article i1.O1 of the Collective Agreement. We cannot agree
with Mr. Toop's submission that Article 4.03, dealing with
the loss of seniority and continuous service is of
assistance. The issue here is the accumulation of service
rather than the loss of service. Article 16.10 addresses
the issue of accumulation of service and provides that,
aside from certain specified exceptions, "where there is
absence under this Article without pay, there shall be no
accumulation of service". Accordingly, the issue to be
determined in this case is whether Ms. Stachiw's absence is
properly characterized as an absence without pay.
It is our view that a plain reading of the provisions
of the Collective Agreement compels the conclusion that Ms.
Stachiw's absence while in receipt of disability benefits
from the Employer's insurer is properly characterized as an
absence with pay. Aside from the fact that for a portion
of the period of the time that she was paid by the insurer,
during the period of her rehabilitative employment, she was
also pai. d directly by the Employer for work performed for
the Employer, the payments that she received from the
insurer were paid by the insurer pursuant to the Employer's
obligation established by the Collective Agreement.
An analagous situation was before this Board in Sears
1129/86 (Picher), in which the issue was whether an
employee off work and in receipt of workers' compensation
benefits was "on leave with pay" for the purposes of
accrual of vacation' credits. In that case, the Board
concluded that the grievor was on leave with pay. The fact
that the funds that the employee received in that instance
16
were not directly from the employer and that the employee
was not~ in receipt of his- full salary did not deter the
Board from reaching that conclusion. In Dupuis, 1335/86
(Knopf) the Board followed Sears in concluding that an
employee who was off work in receipt of workers'
compensation benefits was on leave with pay for purposes of
vacation entitlement.
It is our view that the language of the Collective
Agreement as well as the decisions of this Board support
the conclusion that employees who are off work in receipt
of long term disability benefits from the Employer's
insurer in the. circumstances Of Ms. Stachiw are on leave
with pay~for the purposes'of Vacation entitlement. While,
as Ms. Rae. emphasized, sick leave is not specifically
enumerated.as one of the kinds of leave that will not
affect continuous service in Article 16.10, the provisions
of the Collective Agreement clearly contemplate
accumulation of service in circumstances of paid leave,
other than the two specific types of leave referred to
explicitly. It is our conclusion that the leave of an
employee when in receipt of long term disability benefits
from the Employer's insurer falls squarely within the
exception of leave with pay within the meaning of the
Collective Agreement. It is also our view that the
provisions of the Collective Agreement in this regard are
17
not patently ambiguous. Nor can we conclude that they are
latently ambiguous when they are considered in light of the
extrinsic evidence that was adduced°
We will now address the issue of estoppel. Ms. Rae
relies on thelongstanding and open practice of the
Employer with respect to adjustment of service for vacation
purposes for employees who are in receipt of long term
disability benefits in support of an estoppel. As welI,
she relies on the changes in the language of the Collective
Agreement which, in her submission, reflect an
understanding on the part of the Union that there is a
distinction between Seniority and service.
The manner in which the Employer has administered the
Collective Agreement for a number of years is significant.
Even accepting that the Union was not aware that the
Employer was making adjustmenps to continuous service date
affecting vacation entitlement, this does not dispose of
the estoppel argument. As the decisions referred to us by
Ms. Rae indicate, arbitrators'have found the representation
necessary for the establishment of an estoppel where the
party against whom the estoppel is alleged ought reasonably
to have been aware of the practice of the other party. The
appropriate considerations are perhaps best expressed in
Board of Commissioners of Police for the Cit~ of Owen Sound
(1984) 14 L.A.C. (3d) 46 (Picher) at p.58:
... I am satisfied, given the figures which
were at all time available to the association
that it reasonably should have known how art.
14 was being applied. To put it differently,
for many years the association had constructive
notice of the employer's calculation of sick-
leave credits. It would be inequitable to
let it now assert the rights of an ignorant
party which has just discovered a violation of
its rights. The board of commissioners has
relied on the acquiescence of the association,
and has accordingly geared its financial planning
and expectations for the life of the current
collective agreement.
The Employer's interpretation of the Collective
Agreement has been reflected in a practice that was carried
out .openly for many years, since 1978. While the
infonnation provided to employees and the Union in terms of
the seniority list and the listing of persons on leave of
absence did not initially specifically indicate that
vacati6n entitlement would be affected, the Union has been
well aware, as evidenced by the grievanc.es in 1978, that
seniority was affected'. Given the Employer's open practice
and the Union's equation of seniority with service in light
of the clear reference to service in the vacation pay
provision of the Collective Agreement, the Union ought
reasonably to have been aware of the Employer's practice.
We note, in this regard, that one of the grievances in 1978
dealt specifically with an absence on long term disability
in the context of seniority. In 1988, when the Cornet
grievance was filed, again a grievance arising out of an
19
absence on long term disability benefits, the Employer had
been sending out letters explicitly referring to the effect
of absences on vacation entitlement for two years. While
Mr. Charbonneau subsequently made the Union's positio~
clear with respect to accumulation of seniority when on
LTD, this was done during the term of the Collective
Agreement under which the present grievances arise.
As in the Owen Sound case, supra, the matter has
financial implications for the Employer. In this respect
the Union's assertion of its strict legal rights in light
of an open and unchallenged practic9 that the Union ought
reasonably to have been aware of results in a detriment to
the Employer. In ordinary circumstances, where a finding
of estoppel is made during the currency of a Collectitve
Agreement, the appropriate remedial order is that the Union
is estopped from asserting its rights under the Collective
Agreement until its expiry, to provide the Employer with
the opportunity to raise the matter at negotiations in
order to preserve its position.
In this case, however, since the filing of this
grievance, the parties have entered into a new Collective
Agreement. The new Collective Agreement was signed on
October 24, 1990. The Employer did not specifically raise
the issue of the effect of an absence on vacation
20
entitlement at negotiations. It was Mr Toop's submission
that if the Board were to find an estoppel, it should
conclude that following the filing of this grievance and
Ms. Bruce's letter of September 15, 1989, the Employer was
clearly on notice of the Union's position and had an'
obligation to raise that issue at the last set of
negotiations.
We agree with this submission.. We cannot accept Ms.
Rae's submission that the Union's notice was in any way
· ambiguous or unclear. According to Ms. Haffenden's
uncontradicted evidence, the Union's.objection to the
Employer'~ practice with.respect to adjustment o~ service
and its effect on vacation entitlement in the context of an
employee on long term disability benefits was specifically
raised in the context of the Stachiw grievance. As Ms. Rae
points out', Ms. Bruce's letter of September 15, 1989 does
no% specifically refer to employees in receipt of long term
disability benefits. Mowever, the letter clearly covers
such situations and the Union had expressed its position in
connection with the Stachiw grievance. It is our view that
after the filing of the Stachiw grievance and the September
15, 1989 letter from Ms. Bruce, the Employer was on notice
that the Union was objecting to the Employer's longstanding
practice. This notice was provided to the Employer prior
to the parties entering into the successor Collective
21
Agreement. Having been put on notice of ~he Union's
~:~osition and having failed to pursue the rt~tter at
negotiations, the estoppel upon which the Employer was
entitled to rely in defense to th9 Union grievanoe and Ms.
Stachiw's grievance must be found to have come to an end.
The grievances are allowed in part. For the foregoing
reasons it is our conclusion that the Employer violated the
Collective Agreement in delaying Ms. Stachiw's advancement
on the salary grid. She was entitled to be compensated at
her new rate at the time of her anniversary date for the
hours worked after her return to rehabilitative employment
and subseqently. Her payments are to be recalculated and
she is to be compensated accordingly. It is also our
conclusion that the Employer has violated the Collective
Agreement in adjusting an employee.'s continuous service for
" purposes of vacation when an employee is off work in
.receipt of long term disability benefits paid for by the
EmploYer's insurer. However, for the reasons outlined
,above, it is our conclusion that the Union is estopped from
relying on its strict legal rights during the term of the
Collective Agreement under which the Union grievance and
· the grievance of Ms. Stachiw arose. However, that estoppel
ended on October 24, 1990, the time a new Collective
Agreement was entered into.
22
The Board will remain seized in the event that the
parties experience any difficulties wi%h respect to the
implementation of this decision'.
Dated at Toronto, this Z~'hday of August, 1991
S. L. Stewart - Vice-Chairperson
A. Merrit - Member