HomeMy WebLinkAbout1991-0255.Arnold.93-04-28 : "~" ONTARIO I EMPLOY~'S DE LA COURONNE '['
~ '~"'J:"..": ' ~: '. ' CROWNEMPLc,,EI:S DEL'ONTARiO
~ GRIEVANCE C,OMMISSION DE
~- ." /l SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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255/91
IN THE M~TTER OF AN ARBITRATION
Under
THE CROWN B~PLOYEES COLLECTIVE BARGAINING ACT
Before
TH~ GRIEVANCE SB~T~BHENT BOARD
BETWEEN
0PSEU (Arnold)
Grievor
- a~d -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE: N. Dissanayake Vice-Chairperson-
E. Seymour Member
D. Montrose Member
FOR THE M. Doyle
UNION Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
FOR THE J. Ravenscroft
EMPLOYER Grievance officer
Ministry of Correctional Services
HEARING January 5, 1993
DECISION
This is a grievance filed by Mr. Ross Arnold, a
correctional officer employed at the Sault Ste Marie jail. It
raises once again the issue as to the rights of an employee
who is scheduled to work on a paid holiday, but is not able to
do so because of an illness.
The facts material to this grievance are not in dispute.
Under article 48.1 of the collective agreement Boxing Day on
December 26, 1990 was a paid holiday. The grievor was
scheduled to work on that day, but called in sick. There is
no dispute that the'grievor's absence was due to illness. In
accordance with longstanding practice extending back at least
to 1985, the employer treated the absence as a case of the
grievor having taken the paid holiday.
At the time, the grievor had in his sick credit bank, 5
of the 6 sick days he was entitled to under article 52.1 for
the calendar year 1990. The union contends that the employer
violated the collective agreement by characterizing the
grievor's absence on December 26th as a paid holiday taken,
and that he should have been treated as absent sick instead
and debited one of his remaining sick credits. By way of
remedy, the union seeks an order requiring the employer to
restore to the grievor his paid holiday entitlement by either
3
paying him for the day at straight time or by providing for
compensating leave.
The employer relied on a number of decisions of the Board
where this identical issue was dealt with by the Board. That
jurisprudence has been extensively reviewed in prior decisions
of the Board [See for eg. Re Berqsma 126/86 (Fisher) and R__e
Robertson, 641/85 (Springate)] and no purpose will be served
by repeating that exercise here. Suffice it to observe that
the Board's decisions have treated the employee's entitlement
differently, depending on whether the absence from scheduled
work on a paid holiday was a result of a compensable (WCB)
injury or a non-compensable illness. In the former situation
the Board has held that the employee is entitled to both the
paid holiday benefit and the benefits under article 54 in
respect of workers compensation. See, Re Charbonneau, 544/81
(Barton), application for judicial review dismissed July 4,
1985 (Ont. Div. Ct.); Re McDermid, 366/83 (Springate) and R_~e
Walberg 704/85 (Delisle). On the other hand, where the
absence is caused by a non-compensable illness, the Board has
held that the employee is limited to his entitlement for
holiday pay under article 19.2 and that he is not entitled to
sick pay benefits under article 52 (See, Re Cooper, 145/77
(Swan); He Martin, 434/81 (Delisle); Re Bergsma, (suDr~); R_ge
Robertson, (supra): Re Mandar, 1815/87 (Brandt) and Re Kent,
1999/86 (Watters).
4
In several "illness" cases, the union attempted to'
persuade the Board that the distinction drawn between
"illness" and "WCB" cases is irreconcilable and irrational,
and urged the Board to adopt the Charbonneau reasoning in
"illness" cases as well. Conversely, in several "WCB" cases
the employer argued that the Board should abandon the'
Charbonneau reasoning and apply the rationale in the "illness"
cases to "WCB" cases also. Despite this continuing debate,
the Board has maintained the two lines of cases consistently.
Nevertheless it is apparent from the decisions that the
Board has recognized that the different treatment of "illness"
and "WCB" cases is not completely rational. For example, in
Re Robertson (supra) at p. 13 the Board observed:
...We recognize that as a result of our conclusion
employees scheduled to work a holiday, but unable
to do so will be treated differently depending on
whether they are off work on workers' compensation
or because of a non work-related illness. This
result however, flows from the fact that the Board,
when dealing with an employee off work on workers'
compensation in Charbonneau, adopted a different
interpretation of the collective agreement than the
parties and the Board had previously applied to
employees who were ill.
While recognizing the absence of a rational basis for the
distinction between "WCB" and "illness" cases, the Board has
consistently held that neither line of cases can be said to be
manifestly wrong. Thus, in the interest of certainty, the
Board has refused to depart from its prior decisions, and the
5
two different lines of cases have been maintained. The
reasoning of the Board is demonstrated in the following
passage from Re Mandar (su~) at p. 7:
We agree with Counsel for the Union that there
is no rational basis upon which the distinction in
the two lines of cases can be maintained. However,
we are also unpersuaded that the approach taken by
the "illness" cases is manifestly wrong and should
therefore be overruled. The Board has frequently
stated that, in the interests of promoting
certainty and guidance to the parties in the
administration of the collective agreement, it
ought not to depart from its earlier decisions,
except where they are "manifestly wrong".
In refusing to depart from the previous decisions, the
Board held at pp. 7-8:
In the case at bar there are two prior
decisions, Robertson and Ber~sma, which are
directly on point and on which the Board has
reached the conclusion that the grievances.should
fail. Moreover, as indicated, the Board in each of
those cases has expressly rejected the invitation
to resolve the inconsistency between the two lines
of cases by overruling one of them.
Just as the Board was reluctant in McDermid to
overrule Charbonneau so are we reluctant to
overrule Robertson and Bergsma. Indeed, if
anything, the case against overruling these two
cases is stronger in that the Board in those cases
specifically entertained and rejected the very
argument which has been put before us.
As noted above we agree that the result is
anomalous. However, the remedy to correct that
anomaly must lie with the parties and should not be
accomplished by the Board disturbing a settled line
of cases.
Consequently, we regard the matter before us
to be disposed of in the same manner as the Board
has dealt with this · issue in Robertson and in
Ber~sma. In the result the grievance is dismissed.
In Re Kent (su__up_~), where the facts were almost identical
to.the facts before us, the Board concluded at p. 8:
In the final analysis, we are not prepared to
depart from the logic expressed in the above-cited
awards. In the circumstances of this case, they
clearly limit entitlement to the payment provided
for by article 19.2 plus the additional four hours
of sick leave under article 52.1. We have not been
persuaded that the earlier line of awards are
manifestly wrong or that exceptional circumstances
exist which would justify a refusal on our part to
follow same.
Union counsel recognized the existence of this line of
cases dealing with absence on a paid holiday due to non-
compensable illness. She did not argue that the Board should
reconcile the two lines of cases by applying the "WCB"
approach to this case. Nor did she go so far as to submit
that the "illness" line of cases is manifestly wrong.
However, she contends that we should not feel bound by the
prior decisions because she was relying on a legal argument
which had not been considered in any of the prior "illness"
decisions. She submits that in the circumstances the Board
should decide the grievance on the merits of her legal
argument without regard to the prior jurisprudence.
Union counsel's legal argument is based on "the doctrine
of fundamental reason for absence". This doctrine was applied
?
in Re Atlas Steels Co., (1972), 24 L.A.C. 171 (Weatherill).
In that case there was a scheduled plant shut-down from July
20 to August 2, 1970. The grievor was scheduled to take his
vacation at that time. However, he fell ill on July 10th and
continued to be ill during the shut-down period, and was paid
weekly indemnity under the collective agreement for that
period. The employer took the position that the grievor in
fact had not been on vacation, but absent ill during this
period, and rescheduled a vacation for him for the period
August 30 to September 12, 1970. The grievor g~ieved,
claiming that he should be deemed to have been on vacation
during the plant shut-down, and paid vacation pay instead of
sick pay. He claimed that he was entitled to work during
August 30 to September 12, i970 and earn his normal wages, and
sought compensation for the earnings lost.
The Board set out the issue for determination as one of
characterization of the absence during the shut-down period.
At DP. 174-175 the Board held:
That is primarily a question of fact. In the
circumstances of this case, it is our view that the
fact that a scheduled vacation period fell within a
period of time when the grievor was absent due to
illness for which he was indemnified did not alter
his status as an employee absent by reason of
illness. In this we do not rely on the provision
in para. 9.02 above that the purpose of the
vacation with pay plan is to furnish employees with
"a period of rest and recreation". It may be that,
during his illness, the grievor did obtain some
rest and recreation. Conversely, an employee on
vacation may not get much rest or recreation (as
was perhaps the situation in the Molson's case),
8
but his status as an employee on vacation would not
change for that reason. Rather, we think that it
is the fundamental reason for the employee's
absenc~ from work which must govern the
characterization of that period of absence. If the
plant shut down had been scheduled for some other
period of time it would, in our view, by anomalous
- for the reasons we give here - for the grievor to
insist on his right to work through that period,
since he had taken his vacation while he had been
sick. At least in the instant case, it is our view
that the grievor was absent by reason of illness
for the period in question, and that he was
properly required to take his vacation at a
subsequent time. Put another way - as some
employees might wish to do - he was entitled to a
real vacation at some other time.
(Emphasis added)
Counsel also cited Re Government of Province of Alberta,
(1991) 20 L.A.C. (4th) 318 (McFetridge), where the Board
followed Re Atlas Steels and applied the fundamental reason
for the absence test to characterize a situation where the
grievor was both ill and on maternity leave at the same time.
The Board atp. 326 stated that "To unravel this puzzle it is
necessary for us to determine whether she was absent because
she was ill or because she was pregnant."
Union counsel urges us to determine this grievance also
by applying that test, and asking the question, "Was the
fundamental reason for the grievor's absence on December 26,
1990, the fact that he was ill, or the fact that it was a paid
holiday under the collective agreement?" She points out that
the answer is clear. If the grievor had notfallen ill he
would have worked on December 26th as scheduled. In other
words, illness was the fundamental, and indeed the only,
reason for his absence that day. Therefore, it is submitted
that the absence in question should be characterized as a sick
day and not as a paid holiday taken.
In a recent decision in Re Lambert & Slauqht, 2615/86
(Verity) this Board applied the fundamental reason test. There
the grievors had worked on paid holidays and accumulated lieu
time credits as per their option under article 19-2 of the
collective agreement. Subsequently, the grievors and the
employer agreed on dates when the holidays in lieu will be
taken. The grievors fell ill and were absent on those dates.
The employer nevertheless treated the grievors as having taken
the in lieu days as scheduled. The grievors claimed that
their absences should have been considered to be sick days
instead.
The Board decision refers to the jurisprudence discussed
above. However, it is apparent that the Board did not
consider the issue before it to be the same as that considered
in those decisions. Thus at p. 9 the Board states:
The narrow issue in this dispute does not
appear to have been previously considered by the
Grievance Settlement Board. The issue is whether
or not the grievors are entitled to sick pay under
Article 52 for days on which they were ill and
which had been previously scheduled for
compensating leave.
~0
Having determined that the issue before it was a new one
not previously dealt with by the Board, the Board pointed out
what it considered to be a significant distinction in the
facts. In the prior "illness" line of cases, the grievor was
scheduled to work on a paid holiday, but did not work because
of illness. In Re Lambert & Slaught, the grievors had already
worked on the paid holidays and earned compensating lieu days.
The illnesses occurred on those scheduled in lieu days. The
Board felt that these facts presented a more compelling claim
to the grievors. Thus at p. 12 the Board stated:
In the instant grievances, the Board is of the
opinion that the grievors have submitted a more
compelling claim to full recognition of lieu day
entitlement than in Charbonneau, due to the fact
that they actually worked the statutory holiday in
order to earn the compensating leave. The Union's
argument, we think, is persuasive.
The Board went on to review the purposes of holiday pay
and sick pay, and concluded that they are benefits intended to
serve quite different purposes. At pp. 14-15 the Board
observed:
The fundamental reason for the grievors'
absences from work on the days in question was a
result of illness in Lambert's case and injury in
Slaught's case, not compensatinq leave. Both
grievors were paid sick pay for days before and
after the designated lieu days.
Initially, both grievors were scheduled to
work on the days in question. Had the lieu days
been observed in the normal fashion, obviously they
would have been non-working days. However, in
these particular circumstances, the Board is
satisfied that the days in question remained work
days for which the grievors were entitled to
benefits provided under Article 52. In that
Article there is no exclusion of sick benefits for
employees ill on compensating leave. Similarly,
there is no provision in the Collective Agreement
to disentitle employees from applying one earned
benefit rather than another. In our opinion, it is
not for the employer alone to determine which
earned benefit shall apply.
(Emphasis added)
At p. 16, the majority of the Board concluded that the
employer violated article 52 by deducting in-lieu credits and
denying sick leave pay for the days in question.
It is apparent that the Board in Re Lambert & Slauqht did
not feel constrained by the previous decisions of the Board
because it considered the issue before it to be a new issue.
Thus the Board accepted the union's submissions on the proper
characterization of the absences in question.
Unlike the Board in Re Lambert & Slau~ht (supra), we
cannot distinguish the facts or the legal issue before us from
the facts and issue decided in the "illness" line of cases.
We have to squarely face the question whether the legal
doctrine relied upon by the union is sufficiently meritorious
and persuasive as would cause us to depart from an established
line of previous Board decisions.
We have carefully reviewed the previous decisions of the
Board, but have not been able to find any legal principle or
even any logical explanation, which permits the treatment of
an absence caused by one specific and undisputed reason, as
having been caused by some other reason. What the decisions
indicate is that in practice the employer has had such "a
practice dating back to at least the early 1970's". (Re
Robertson, supra, p.2). The Board has shown a reluctance to
disturb what it considered to be an established practice
because of its Dolicy interests of "promoting certainty and
guidance to the parties in the administration of the
collective agreement" (Re Mender, s~_~, p. 7). In addition
the Board in its later decisions has recognized that the
parties as well as the Board has an understanding as to how
the collective agreement ought to be administered. Thus in Re
Robertson, supra, at p. 13, the Board observed:
We are satisfied that in the instant case we
should follow the past understanding of the parties
and the Board, namely that the entitlement of an
employee off work due to illness is to be found
only under Article 19.
As a number of passages quoted above indicate, while
recognizing that the past decisions are not rational, the
Board has been reluctant to find that they are "manifestly
wrong". In those circumstances, the Board gave overriding
consideration and weight to a policy promoting certainty.
In the particular circumstances, the Board's conclusion
that the interpretation was not manifestly wrong and its
consequent reluctance to disturb an established practice is
understandable. In those cases the Board was not faced with
a countervailing legal principle which suggested a different
interpretation. We are in a different position. Union
counsel has directly put before the Board a specific legal
principle which she submits should govern the interpretation
of the collective agreement in the particular situation. The
Board must either apply that doctrine in determining this
grievance or reject it.
We have concluded that "the doctrine of fundamental
reason for the absence" is logical and meritorious and has
direct application to the issue before us. Indeed, employer
counsel did not challenge either the merits or the
applicability of the doctrine. She simply urged the Board not
to depart from its prior jurisprudence.
There can be no doubt that holiday pay and sick pay are
separate and independent benefits negotiated by the parties,
and that they serve distinct purposes. The purpose of holiday
pay was canvassed by the Board in Re Bell, 116/78 (Swinton) at
p. 5:
Premium payments for holiday work are designed to
achieve the same purposes - to compensate the
employee at a bonus rate for work performed on a
holiday to which he is entitled by the collective
agreement or a statute and to discourage the
employer from demanding such work unless necessary
or important. The importance of the entitlement to
statutory holidays is well described in Re Sealed
Power Corp. of Canada Ltd. (1971), 22 L.A.C. 371 at
373 (Shime) as follows:
"Whatever the original social or
religious reasons, certain statutory
holidays are now a basic part of the
Canadian industrial fabric and employees
expect to receive the statutory holiday
with payment or added compensation to
their usual wage rate if they work on
that day, while employers anticipate
granting the statutory holiday or paying
compensation in addition to the usual
wage rate if they require their employees
to work on those days .... In most cases
certain statutory holidays have become so
entrenched that an employee will consider
the day off with pay as a right rather
than a privilege. The holiday is as an
opportunity to engage in social or
religious activity without loss of
income, but it is also viewed as an
opportunity for relief from the normal
work pattern and its attendant
pressures."
In this collective agreement, the employer must not
only compensate for a guaranteed number of hours
for holiday work at premium rates, Dut must also
provide compensating leave or equivalent pay for
the day which would have been taken as compensating
leave (Article 19.2)."
In Re Lambert & Slau~ht, su_~up_~_~, at p. 13, the Board
described the purpose of sick pay provisions as follows:
On the other hand, the sick pay plan is to
provide earnings relief in periods of incapacity
caused by illness or injury. Sick pay is in the
nature of an indemnification for loss of earnings
due to incapability to attend work due to illness
or injury. Article 52 provides a short-term sick
plan and authorizes a leave-of-absence to employees
unable to attend to duties due to sickness or
injury. Such an employee is entitled to full
salary for the first six working days of absence
and thereafter for the next 124 working days of
absence at 75% of regular salary.
Keeping in mind these distinct purposes served by holiday
pay and sick pay respectively, it logically follows that each
type of benefit must be paid to serve the purpose for which it
was negotiated. On the facts before us, it is beyond any
dispute that the only reason the grievor was absent on
December 26, 1990 was because he was ill. If not for his
illness he would have worked that day, because as far as he
was concerned it was a work day for him. Looking at it from
another angle, the fact that December 26, 1990 happened to be
one of the paid holidays listed in article 48 had nothing to
do with why the grievor did not work that day. The grievor
was scheduled to work that day, but did not do so only because
of illness. That is the very situation which is intended to
be indemnified through the short-term sick plan in article 52.
What the doctrine of "the fundamental reason for the
absence" requires is that where an employee is absent, his or
her benefit entitlement must be based on the fundamental
reason for the absence. In some cases, this doctrine favours
employee. In others, as in Re Atlas Steels (supra), it works
to the disadvantage of the employee. Yet in each case the
result is logical and predictable, and more importantly, in
conformity with the intended purpose of the benefit provisions
of the collective agreement.
We agree that the Board should not lightly depart from
its prior jurisprudence. We are mindful of the caution made
by Chairman Shime in Re Blake et al, 1276/87, which was relied
on by .employer counsel. However, we find the union's
submissions based on the doctrine of fundamental reason for
the absence to be extremely logical and persuasive. The prior
decisions were decided on the basis of a practice and an
understanding on the part of the employer and the Board. The
decisions do not disclose any legal principle or logical
reasoning which justifies the result. There is no suggestion
of estoppel operating against the union. The practice is one
applied by the employer unilaterally. In the absence of a
countervailing principle which indicates strongly the
appropriateness of a different result, it may be justifiable
to refuse to depart from an established line of cases and to
give priority to the policy considerations favouring the
certainty of the law. However, in our respectful view, where
we are satisfied that those cases run counter to a very
logical and Dersuasive legal principle on interpretation of
the benefit provisions of a collective agreement, it would not
be proper for this Board to ignore that principle and simply
defer to the prior decisions, which were reached without a
consideration of that legal principle.
17
Extreme circumstances exist here to determine this
grievance on the merits of the legal submissions before us,
without being constrained by past decisions rendered without
a consideration of a valid legal principle put before us. The
grievor had sick credits in his bank and was absent on
December 26, 1990 due to sickness. Since the reason for the
absence was sickness and not the paid holiday, that absence
should have been charged against his sick credits and he
should have been paid sick pay under article 52. The employer
contravened the collective agreement by failing to do so and
by treating the absent day as a paid holiday. Since holiday
pay and sick pay are both separately provided in the
collective agreement no issue of pyramiding arises in this
case.
Accordingly, the employer is directed to amend its
records to indicate that the grievor was absent sick on the
day in question and to restore to the grievor a credit for a
compensating leave for one day. The grievor of course will be
entitled to sick pay for his absence on December 26, 1990.
The Board remains seized in the event the parties
encounter difficulty in implementing the terms of this
decision.
Dated this 28th day of April, 1993 at Hamilton, Ontario.
Vice-Chairperson
E. Seymour
Member
D. Montrose
Member