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HomeMy WebLinkAboutUnion/Jackson 16-06-06BETWEEN 1708/D IN THE MATTER OF AN ARBITRATION BROCKVILLE MENTAL HEALTH CENTRE (MEMBER OF THE ROYAL OTTAWA HEALTH CARE GROUP) ("the Hospital" / "the Employer") -AND- ONTARIO PUBLIC SERVICE EMPLOYEES UNION ON BEHALF OF ITS LOCAL 439 ("the Union") CONCERNING A UNION POLICY GRIEVANCE (#2015-0439-0029) AND THE INDIVIDUAL GRIEVANCE OF JILL JACKSON ("the Grievor") (#2015-0439-0038) Christopher Albertyn - Sole Arbitrator APPEARANCES Michael Fisher, Counsel Kevin Hudson, Local President Cindy Ladouceur, Vice -President Jill Jackson, Griever For the Employer: Marie -Pierre T. Pilon, Counsel Emma McEachran, Corporate Labour Relations Officer Attila Rezaie, Student -at -Law Hearing held in BROCKVILLE on May 11, 2016. Award issued on June 6, 2016. A '1 1. This award concerns an interpretation of a provision of the collective agreement. Both parties argue the provision is not ambiguous, but clear, although they have differing interpretations of what it means. 2. The Hospital says that, if I find the Union's interpretation to be correct, the Union is estopped from obtaining any relief. 3. Two grievances raise the issue: the first a Union policy grievance (#2015- 0439-0029), the second an individual grievance from Jill Jackson (#2015-0439- 0038). No relief is sought beyond a declaration of a breach of the collective agreement. 4. The provision concerns the calculation of sick leave entitlement when an employee returns to work at some point during the calendar year, following a period of absence that includes the start of the year. The provision, set out below, gives an annual sick leave entitlement of 28 days on January lst each year, for active employees. If an employee has been off work and returns during the year, the question arises as to what will be their sick leave entitlement for the remainder of the calendar year. The Union says the employee is entitled to the full annual entitlement; the Hospital says the employee's entitlement is prorated for the time remaining in the calendar year. 2 5. Ms. Jackson, the Grievor, left the workplace on sick leave in October 2013, went on LTD, and returned to work in July 2015. The Hospital prorated her 28 -day annual entitlement for the number of days that remained in the 2015 calendar year. The Union says that she ought to have been given her full 28 days. 6. Article 21.03 reads: Sick Leave Employees will receive 100% of the basic salary for the first 28 working days .of sickness or disability in a calendar year. New employees will receive a prorated amount on the basis of 2.33 days per month remaining in the calendar year since the day of hire but in any event not less than 7 days in the first year of employment. The benefit is 100% paid by the Hospital. There is no waiting period for sick leave benefits., The 28 days are reinstated each January 15`, for active employees, and are not cumulative from year to year. There is no cash value to these credits on termination of employment. After the 28 days of sick leave at 100% of salary are used and if the disability continues, a short-term disability plan is provided for permanent full-time employees or permanent regular part-time employees who have elected to receive benefits under Article 30.04 and who have at least 3 months of service with the Hospital. The short-term disability plan is insured by an insurance company that will pay up to 100% of the employee's weekly earnings up to a maximum benefit of $2,300 per week base[d] on the following years of service: Length of Service Total of Weekly Earnings Up to 2 years 75% 2 years ended and up to 3 years 80% 3 years and up to 4 years 90% 4 years or more 100% The short-term disability plan period will continue for a 17 -week period 3 which includes the 28 days of sick leave, provided the disability continues. Refer to "Schedule B" and "Schedule C" for Health & Welfare Benefits Summary 7. The Employer relies also on Article 13.08, which, it says, should be read with Article 21.03. The relevant portions read: Effect of Absence (a) It is understood that during an approved unpaid leave of absence not exceeding 30 continuous days or any approved absence paid by the Hospital, both seniority and service will accrue. During an unpaid absence exceeding 30 continuous calendar days, credit for service for purposes of salary increments, vacation, sick leave, or any other benefit under any provision of the Collective Agreement or elsewhere, shall be suspended; the benefits concerned appropriately reduced on a pro -rata basis and the employee's anniversary date adjusted accordingly. It is further understood that during such absence, credit for seniority shall be suspended and not accrue during the period of absence. Notwithstanding this provision, seniority shall accrue for a period of 30 months if an employee's absence is due to disability resulting in WSIB or LTD benefits. 8. The Union argues that Article 13.08 has no relevance to Article 21.03 because Article 13.08 deals with absence generally, while Article 21.03 deals with sick leave entitlements specifically and, where two provisions dealing with the similar entitlements conflict, the general provision must yield to the specific. Also, the Union says, Article 13.08 deals with unpaid leaves of absence, when 4 sick leave is a paid absence, whether it is paid directly by the Employer (the 28 days) or by the insurer (the STD and LTD coverage). 9. Regarding the language of Article 21.03 itself, the Union submits that the proration of the sick leave benefit for new employees necessarily implies that there is no proration for all other employees. 10. As to the reference to "active employees" having the 28 days reinstated each January 15`, both parties accept that the 28 -day entitlement occurs when the employee is back at work, hence active. 11. The Employer argues there is no conflict between the provisions of Article 21.03 and Article 13.08, and that they should be read consistently. The Employer says that an employee on short-term or long-term disability is on an approved unpaid leave of absence because the benefit is paid by the insurer, not the Employer. 12. The Union refers to the provision which sets out how seniority is accumulated. The relevant portion of Article 13.04 reads: Accumulation of Seniority (a) ... (b) Seniority and service will continue to accumulate during any approved leave that does not constitute a break in service. (c) Seniority for regular part-time and casual employees shall accumulate based on actual hours worked, exclusive of overtime. 5 13. The Union relies on this provision to show that, by contrast, the sick leave entitlement of 28 days is not dependent on service (as seniority is for full-time employees), nor on hours worked (as seniority is for regular part-time and casual employees), but that it is an annual entitlement which arises as soon as an employee returns to work. 14. The Employer's practice of prorating the sick leave entitlement, as was done in Ms. Jackson's case, goes back at least 12 years, over several collective agreements, and likely before that. The Employer suggests that its consistent past practice should be considered as an aid to interpretation. 15. The parties refer to various cases that describe the principles of contract interpretation for sick leave entitlement: OPG v. CUPS (PWU) Local 1000 (Wage Maintenance Grievance), [2012] O.L.A.A. No. 45 (Albertyn), para. 34; DHL Express (Canada) Ltd. and CAW Canada (2004), 124 L.A.C. (4') 271 (Hamilton), para. 76; ETFO v. Lambton Kent District School Board (Martin Grievance) (2007), 164 L.A.C. (4t') 430 (Etherington), paras. 21-23; Grand Erie District School Board v. OSSTF, D.23 (Sick Leave Grievance), [2008] O.L.A.A. No. 44 (Knopf), para. 20; Algonquin College and OPSEU (1986), 22 L.A.C. (3d) 129 (Brent), para. 17; and First Ontario Credit Union Ltd. v. COPE, Local 343 (Staffing Ratio Grievance), [2006] O.L.A.A. No. 49 (Nairn), paras. 38, 39. 16. Under Article 21.03, to receive the 28 -day sick leave entitlement on January I" each year, an employee must be "active". Both parties accept that Ms. Jackson was not an active employee on January 1, 2015. Both accept she became an active employee in July 2015. 17. As the Union argues, the parties specifically addressed themselves to the question of prorating the sick leave entitlement. They decided to include a prorating provision for new employees, but they did not do so for existing employees, like Ms. Jackson. This difference is important for the proper interpretation of the provision. The parties' specific choice on the matter leads to the conclusion that they intended that, if an employee becomes active during the course of a calendar year, the employee must be given the full 28 -day entitlement. 18. This interpretation of the provision is supported if one considers an example. Compare an Employee A to Ms. Jackson. Say Employee A was active during the month of January only. Employee A then goes on sick leave. Employee A would be entitled to their full annual 28 days of paid sick leave. Employee A never returns to work during the calendar year (being off on STD and LTD). There would be no clawback of the paid 28 days. Contrast this with Ms. Jackson. When she returned in July she had her annual entitlement prorated, say, to 14 days of paid sick leave. Let us say she worked steadily from then on, working much more than the month that Employee A worked in January. She would still be entitled, on the Employer's case, to only the prorated 14 days of sick leave. So, although Ms. Jackson worked much more than Employee A in the calendar year concerned, she would have only half of Employee A's paid sick leave entitlement. There is no logical justification for this discrepancy, and Article 21.03 does not contemplate it. There is no reason why an employee should get less sick leave entitlement depending upon when they are off on sick leave during the year because, as the Union argues, the 28 -day paid entitlement is not dependent on service, nor on hours worked, and nor on when one's illness absence occurs. As long as an employee is active during the calendar year, they are entitled to their 28 days of paid sick leave. 19. Accordingly, I find that, under Article 21.03, an active employee (other than a new employee) is entitled to the full 28 -day sick leave payment each calendar year, irrespective of when they return to work after a period of absence. 20. The provisions of Article 13.08, referred to by the Employer, do not alter this conclusion. For periods of absence beyond 30 continuous days, that Article deals with unpaid leave. Sick leave is not unpaid leave. The first 28 days are paid directly by the Employer, the days after that are either STD or LTD absences, paid by the insurer. Whether the payment is from the Employer directly, or from the insurer, the employee is on a paid leave. Therefore Article 13.08 is intended for a different purpose, not to address the situation involved in this case. The provision falls under Article 13, which is concerned with Seniority, how it is obtained, how it is maintained, and when it is lost. Article 13.04 is there to address the circumstances when seniority is either lost or retained. It does not deal with the situation of this case. 21. This means that the Union is successful on the grievances. There is still 0 the matter of the Employer's estoppel defence to consider, though. 22. The relevant facts for the estoppel are the following. The Employer's practice is of long standing, over several collective agreements. The practice has been in place for at least 12 years. The Union has had knowledge of it at least since November 17, 2011, when it filed a grievance on this very issue. 23. In response to that grievance, on December 22, 2011, the Employer explained its prorating practice and its interpretation of the collective agreement. Some time later, on November 27, 2012, the Union withdrew the grievance, without prejudice. 24. The parties' current collective agreement is from April 1, 2012 to March 31, 2017. Although the collective agreement has run from April 1, 2012, before the date on which the grievance was withdrawn, it became effective retroactively as a consequence of an interest arbitration award issued on February 13, 2014. Hence, when the issues for the current collective agreement crystalized between the parties, prior to the interest arbitration hearing on January 28 and 31, 2014, the Union's November 13, 2011 grievance had long before been withdrawn. 25. What conclusion is to be drawn from the Union's withdrawal of the grievance? The Union says the grievance gave notice that it was not accepting the Employer's prorating practice, and that the Employer ought then to have raised M the matter in bargaining for the current collective agreement. The Employer responds, in my view correctly, that once the Union withdrew the grievance, albeit without prejudice, the Employer was entitled to rely on the Union's representation that it was not pursuing its challenge to the Employer's practice and that, as a consequence, there was no need for the Employer to raise the matter in bargaining. 26. Estoppel applied to this case requires: a) a clear and unequivocal representation by the Union that it accepts the Employer's prorating practice; b) that the representation is intended by the Union to be relied on by the Hospital; and c) that the Hospital relied on the representation to its detriment. The representation to the Hospital was the Union's withdrawal of its grievance. By withdrawing the grievance the Union was representing to the Employer that the Union was not pursuing its challenge to the Employer's practice. The Hospital's reasonable assumptions were that it could continue to act as it had done in the past and that it did not need to negotiate a change to Article 21.03. For these reasons the Hospital took no steps to propose an alteration to the Article in the most recent round of bargaining. Its detriment, from relying on the Union's representation, is that it lost the opportunity to negotiate the change. To paraphrase Board of Commissioners of Police for the City of Owen Sound and Owen Sound Police Association (1984), 14 L.A.C. (3d) 46 (M. Picher), at p.57, the Employer was "encouraged by the apparent acquiescence" of the Union in the Employer's "unwavering method of calculating sick -leave credits down through the years": see Domglas Inc. and Aluminum, Brick and Glassworkers International Union, Local 2606 (1994), 40 L.A.C. (4`h) 398 (Keller), at paras. 37-38. 10 27. The parties cited the following cases concerning estoppel: Simcoe (County) v. SEIU, Local I Canada (Bockus Grievance) (2009), 182 L.A.C. (4`) 170 (Knopf), paras. 14-15; DHL Express (Canada) Ltd. and CAW -Canada, Locs. 4215, 144 & 4278 (2004), 124 L.A.C. (4t) 613 (Hamilton), para. 96 onwards; Thunder Bay (City) v. CUPS, Local 87 (Clubhouse Employees Grievance) (2000), 86 L.A.C. (4`h) 289 (Sarra), para. 39 onwards; St. Michael's Hospital v. SEIU, Local 1 Canada (Collective Agreement Grievance) (2012), 215 L.A.C. (4t'') 366 (Schmidt), para. 91; Cronkwright Transport Ltd. and Teamsters, Loc. 879 (1990), 13 L.A.C. (4`h) 205 (Marcotte), para. 69. 28. In the cases cited by the Union, no estoppel was found to exist. But the facts in the present case are only partially similar to the facts in those cases. The present case has in common that the union put the employer on notice of its challenge to the employer's practice and, as here, the employer tools no steps to negotiate a change to the collective agreement provision. But that is where the similarity ends. Those cases do not have the further feature of the union withdrawing its challenge to the practice, as we have in the present case. 29. Given this important distinction and the conclusions I have reached, it would be inequitable to require the Hospital to cease its current practice until the parties have negotiated a renewal collective agreement, following the expiry of the current collective agreement on March 31, 2017. The Hospital must have the opportunity to propose changes in bargaining for the renewal collective agreement. 11 30. Accordingly, on the merits of the interpretation of Article 21.03 of the collective agreement, the grievances are upheld. I make the declaration sought by the Union that the Hospital's practice of prorating the 28 -day sick leave entitlement under Article 21.03 violates the provision. However, given the estoppel I find to apply, the effect of this result will not be felt until the conclusion of a fresh collective agreement between the parties, assuming no alteration to Article 21.03. DATED at TORONTO on June 6, 2016. Christopher J. Albertyn Arbitrator