HomeMy WebLinkAbout1991-0572.Gratton.92-05-09~" ~,~:~'!'i' ' ~ ONTARIO EMPLOY~-S DE LA COURONNE
;~ · CROWN EMPLOYEES DE L'ONTARtO
GRIEYANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STRE~ WEST, SUITE 21~, TORONTO, ONTAR~. M$6 ~Z8 TELEPHONE?TELEPHONE: (4 ~6~ 326-
?80, RUE DUNDAS OUEST, BUREAU 2100, TO~ONTO ~ONTARIO]. MSG 1Z8 FAC$~MILE/T~L~COPIE : (4 ~61 325- ~g6
572/9~
iN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE B~GAINING ~CT
Before
THE ~RIEFANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Gratton)
Grievor
The Crown in Right of Ontario
(Ministry of Agriculture & Food)
Employer
BEFORE:' W. Kaplan vice-ChairPerson
J. C. Laniel Member
M. O'Toole Member
FOR THE R. Cote'
~RIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
~OR T~E R. Barrette
EMPLOYER Counsel
Management Board Secretariat
HEARIN~ October 29, 1991
February 6, 7, 1992
Introduction
By a grievance dated December 21,1990, Gilles 'Gratton, formerly a Building
Caretaker with the Ministry of Agriculture and Food in Alfred, alleges a
violation of Article 42 of the Collective Agreement. Mr. Gratton is totally
disabled and is in receipt of long-term disability payments. These
payments are calculated on the basis of an employee's salary at "the date of
disability." The main issue in dispute in this case is the grievor's "date of
disability," there being no issue as to how the payments should be
calculated once that date is determined.
In brief, the union took the position that "date of disability" meant the date
that the employee actually began to receive his or her Long Term Income
Plan benefits (hereinafter "LTIP"). The employer took the position that
under the plain and clear language of the Collective Agreement, "date of
disability" was the day the em.151oyee was medically determined to have
become totally disabled. The employer also took the alternative position
that the union was estopped from advancing an interpretation inconsistent
with the longstanding practice of the parties.
Before turning to the evidence, counsel for the employer raised two
preliminary objections, one questioning the Board's jurisdiction to grant
the remedy requested, the other dealing with the timeliness of the
grievance. The Board reserved its ruling on both Objections. At the end of
the day, a'nd for reasons which follow, the Board dismissed the second
preliminary objection. Given our disposition on the merits of the case, it is
not necessary for us to make a formal ruling on the first objection
concerning the Board's jurisdiction in cases of this kind, although it is our
view that the iurisdictional issue raised by counsel for the employer has
now been settled, affirming positively the Board's authority to hear and
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decide grievances relating to the alleged denial of benefits provided for in
the Collective Agreement (See. for example, OPSEU (Sekhon) v. Ministry of
Health (unreported decision of the Divisional Court dated September 9,
1986), Sekhon 418/83 (Saltman), ~ 1299/89 (Simmons) and Rhodes
866/90 (Dissanayake).)
Before turning to the evidence presented in this case, it is useful to set out
the relevant provisions of the Collective Agreement:
ARTICLE 42- LONG TERM INCOME PROTECTION
42.1 The Employer shall pay eighty-five percent
(85%) of the monthly premium of the Long Term fncome
Protection Plan.
42.2.1 (a) The Long Term Income Protection benefit is
sixty-six and two-thirds percent (66-2/3%) of the
1. employee's gross salary at the date of disability,
including any retroactive salary adjustment to which the
employee is entitled.
42.2.3 Long Term tncome Protection benefits
commence after a qualification period of six (6) months
from the date the employee becomes totally disabled,
untess the employee elects to continue to use
accumulated attendance credits on a day-to-day basis
after the six (6) month period.
42.2.4 Total disability means the continuous
inability as the resuit of illness, mental disorder, or
injury of the insured employee to perform any and every
duty of his normal occupation during the qualification
period, and during the first twenty-four (24) months of
the benefit period; and thereafter during the balance of
the benefit period, the inability of the employee to
perform any and every duty of any gainful occupation for
which he is reasonably fitted by education, training or
experience.
ARTICLE 46 - JOINT INSURANCE BENEFITS REVIEW .
COMMITTEE
46.1 The parties agree to continue the Joint
Insurance Benefits Review Committee. The terms of
reference are set out in Appendix 5 attached.
The Evidence
Many of the facts are not in dispute. The grievor began work with the
Ministry of Agriculture and Food (hereinafter "the employer") on September
6, 1965. His last position with the employer was that of Building
Caretaker, and his last day worked was April 15, 1988. On April 16, 1988,
the grievor began to receive Short Term Sickness Pian Benefits as provided
for by Article 52.1 of the Collective Agreement. These benefits were
calculated on the basis of his hourly rate as it was in April 1988, namely
$10.72 per hour. These Short Term Sickness Plan Benefits expired six
months later on October 16, 1988. At that time, the grievor made use o.f his
accumutated sick leave and in that way continued .to receive his full salary,
(which was subsequently retroactively adjusted to $11.20 per hour for the
period between January 1, 1988 and July 1, 1988, and then to $11.24 per
hour for the period between July 1, 1988 to December 31,1988, and then to
$12.54 per hour on January 1, 1989). The grievor's accumulated sick leave
benefits expired on or about February 10, 1989. At that time, the grievor
began to receive his LTIP. The LTiP amount was not, however, calculated on
the basis of the salary including all of the retroactive adjustments;
instead, it was calculated on the basis of his salary on his last day of work.
When the retroactive salary increase to $11.20 per hour came into effect,
the LTIP payments were recalculated. It is obvious that, for the purposes -
of this case, the "date of disability" is a critical issue, for its
determination will decide whether or not the grievor receives 66 2/3% of
$11.20 per hour or 66 2/3% of $12.54 per hour.
The griever applied for LTIP in advance of the expiry of his Short Term '
Sickness Plan Benefits and his accumulated sick leave. His application was
made on ,June 10, 1988 and approved in August 1988 effective February 10,
1988, on the basis of muscle atrophy of his right arm and leg due to polio.
The griever's application for LTIP indicates that the griever's date of "total
disability commenced" on "April 18, 1988." There was no dispute in these
proceedings with the fact that the griever is totally disabled.
The gdevor gave evidence with the assistance of an interpreter. He has a
grade five education, and he testified about some of the background of the
case with respect to the filing of his grievance. Suffice it to say that the
griever went to Florida in January 1990, and when he returned some time in
March he found a notice respecting retroactive pay, and so he went to see
the office manager where he used to work. The office manager, Mr. Clarence
· Ouellette, advised the griever that he would look after it, and subsequently
the griever received a check in the approximate amount of $5.00. The
griever went back to see the office manager, and later received another
cheque for the period between January 1,1989 and February 10, 1989.
Some time thereafter, the griever spoke with the union steward, Mr. Bob
Villeneuve, and asked him whether or not his LTIP benefits were being
properly calculated given the retroactive salary 'increase. Mr. Villeneuve
advised the griever to see his supervisor, Mr. Claude Gratton (no relation).
Mr. Gratton told the griever that he was not responsible for LTIP, and
sometime thereafter, the griever again spoke to Mr. Villeneuve, who wrote a
Ietter on the griever's behalf because the griever can neither read nor
write. This letter, which was introduced into evidence, is dated October 4,
1990, and is addressed to the Joint Insurance Benefits Review Committee
(hereinafter "the Committee"). In the letter, the griever requests that his
LTIP be calculated on the basis of his 1989 salary not his 1988 salary. The
letter sates that it "is only fair that LTfP PAYMENTS should 0nly be based
on the salary the individual was making the day prior to the official day he
embarked on LTIP." The letter asks the Committee to review the grievor's
claim.
Mr. Villeneuve also testified about the filing of this. grievance, and he told
the Board that he had some conversations with the grievor in September or
October 1990. Mr. Villeneuve generally corroborated Mr. Gratton's evidence,
and he testified that no objection about timeliness, was made before the
Committee, or in the pre-hearing, or at any time prior to the arbitration of
this case.
The evidence of the grievor and Mr. Oueilette completed the union's case in
chief, following which the employer called two witnesses.
Ms. G. Chang testified on behalf of the employer. She has longstanding
experience in the calculation and administration of benefits, and had
responsibility for the processing of the grievor's application. In addition,
Ms. Chang is a member of the Benefits Coordination Forum, which is an
inter-ministry group that has as its objective the bringing together of
benefit coordinators to discuss benefit issues. Ms. Chang testified that the
administration of LTIP has not changed in any material way since she first
began work in Human Resources in 1974.
Ms. Chang told the Board that an employee must be totally disabled in order
to qualify for LTIP, and she indicated that LTIP benefits do not commence
until after a six-month waiting period. This waiting period can, as already
noted, be extended by an employee using his or her attendance credits.
According to Ms. Chang, the date of disability is the last day that the
7
employee was at work earning his or her regular salary, and in the instant
case, that day was April 15, 1988. The gdevor's entitlement was
calculated ir~ June 1988 after he submitted his application. The employer
determined that the grievor was receiving an hourly rate of $10.72 per hour
at that time, and this rate formed the basis for determining his LTIP
entitlement. Subsequently, the grievor and other employees received a
retroactive salary increase, bringing the grievor's salary to $11.20 at his
last day of work. His LTIP benefits were then revised to incorporate this
increase.
Ms, Joan Dunn also testified on behalf of the employer. Ms. Dunn is the
Senior Benefits Advisor in the Management Board Secretariat, and.is also a
member of the Committee. Ms. Dunn testified that as.of June 1991 there
were approximately 2500 bargaining unit employees on LTIP. Ms. Dunn
adopted Ms. Chang's evidence and testified that the method of determining
the date of disabifity has been the same for as long as she can remember.
A number of documents were introduced into evidence including a brochure
entitled: ".information for Civil Servants Who are Absent for an Extended
Period Because of Illness or Injury." It states, in part, that "the plan pays a
monthly benefit equal to 66 2/3% of your monthly gross pay at the date of
disability, and includes any retroactive saiary change which is effective on
or before the date you became disabled." Aisc introduced were a 1980
brochure which states that the LTtP pays "66 2/3% of the pay you were
receiving on the day you became disabled;" an extract from the Manual of
Administration, prepared in March 1986, which states in part; "The Long
Term Income Protection Plan provides income for eligible employees
following a qualifying period of six continuous months absence from the
date of total disability;" a brochure entitled "Sick Leave and Insurance
8
Plans" distributed to all bargaining unit employees in 1986 and all newly
hired employees thereafter, which states that the LTIP "pays a monthly
benefit equal to 66 2/3% of your monthly gross salary at the date of your
disability including any retroactive salary adjustments;" and a copy of the
LTrP agreement between the employer and the Confederation Life Insurance
Company. This latter plan indicates, in par[, that "upon receipt of due proof
submitted during the 6 month period immediately following the Qualifying
Period that an insured employee prior to his attainment of 64 years, 6
months of age became and remained totally disabled continuously for the
Qualifying Period, Confederation Life will pay him the Monthly benefit."
Ms. Dunn described the activities of the Committee, which include the
discussion of policy issues, the consideratien of issues arising from claims
and the review of financial reports from the insurance, carrier. Ms. Dunn
noted that the Committee has both union and management representatives,
and it serves as a forum for discussion of issues of mutual concern to the
parties. The'LTIP came into effect in 1975, and Ms. Dunn testified that in
preparation for this hearing she reviewed all the Committee files dealing
with LTtP claims. The only issue relating to LTIP that she could find in the
files was an expression of concern, in the summer and fall of 1990, relating
to the indexation of LTIP benefits.
Ms. Dunn also described a 1990 publication entitled "A Guide to Your
Benefits" which was introduced into evidence. Ms. Dunn testified that she
sent a copy of a draft of this booklet to Shirley McVittie, who is an OPSEU
representative on the Committee, in October 1990. Ms. McVittie, who gave
evidence in reply, subsequently raised some questions and concerns about
this book[et, but none of these questions and concerns related the
determination of the date of disability. A letter from Ms. McVittie to Ms.
Dunn was introduced into' evidence and it supports this evidence. The
relevant portion of this booklet states that LTIP benefits "are based on
what your salary was on your last day of work, including any retroactive
changes to your salary." Ms. Dunn testified that if the union interpretation
of "date of disability" was upheld, it would likely require a new contract
with the insurance carrier, along with an additional insurance expense.
In cross-examination, Ms. Dunn was asked a number of questions about the
implications of upholding the union's interpretation of date of disability,
and it is fair to say that the evidence on the impact of such an
interpretation is speculative at best. Ms. Dunn's evidence completed the
employer's case.
When the hearing resumed, Ms. Shirley McVittie was called to give reply
evidence on behalf of the union. Ms. McVittie has been employed by. the
union since 1974 and has been a benefits counselor since 1981. Her job
includes counselling union members about benefit entitlement and assisting
them in making LTIP claims. Ms. McVittie has served on the Committee
since 1981, and she told the Board that there have been periodic changes to
the insurance plan, which have involved amendments to that plan.
Ms. McVittie told (he Board that she was on the Committee when it
considered the grievor's insured benefits grievance under Article 27 of the
Collective Agreement, and that no timeliness issue was raised at that time.
Moreover, it was Ms. McVittie's evidence that there are many delays in the
processing and consideration of LTIP claims, and that these delays'can be
explained by the fact that the individuals in question are sick. At the
Committee level, time limits have never been a barrier to the consideration
of a claim.
Ms. McVittie testified about the process in fiiing a claim, and pointed out
that this process generally involves the employee, his or her doctor and the
employer. In general, the union only becomes involved if there is some
problem in the processing of a claim, or if a claim has been denied. To Ms.
McVittie's knowledge, no one has ever grieved the issue in the instant case,
and she suggested in her evidence that one reason for this might be because
the jurisdiction of the Board to hear and determine benefits grievances has
only recently been resolved. Ms. McVittie gave some speculative evidence
about the number of persons who would be similarly situated to the grievor
with respect to having the wage rate for their position change, but not be
retroactive, between the last day of work and the receipt of the first LTIP
payment. In Ms. McVittie's view, there would not be many people in this
category, and she questioned Ms. Dunn's evidence that the union's
interpretation of date of disability would have a negative impact on the
premiums that were paid. In Ms. McVittie's view, the change could be made
by an amendment to the contract, as other changes have been made in the
past.
Ms. McVittie also testified about the draft booklet sent to her by Ms. Dunn
for comments in the fall of 1990. Ms. McVittie testified that the union has
never Said that it agrees with the employer's interpretation set out in that
booklet that date of disability means the last day of work', and the fact that
Ms. McVittie did not raise anY disagreement with it in her letter to Ms. Dunn
did not mean that she agreed with it. Ms. McVittie told the Board that her
letter, in which she commented on some areas of disagreement with the
interpretation set out in the draft booklet, was not intended to be
completely comprehensive; rather, what it did was bring to Ms. Dunn's
attention some of the issues that immediately struck Ms. McVittie when she
read through the ~aft. Moreover, Ms. McVittie testified that the Committee
had already di§cussed the Gratton case by this time, and so the employer
was aware of the union position with respect to the date of disability.
In cross-examination, Ms. McVittie testified that she has advised
employees about how their LTIP benefits are calculated, and she agreed that
she has tdJd employees that they are only entitled to retroactive salary
increases that come into effect for the period the employee was actuaIly
working. When there is no dispute about the medical evidence, MS. McVittie
advises employees that the date of disability is the date the employee's
doctor certifies that employee to be totally disabled. Ms. McVittie could
not recall the Committee ever discussing the issue of how date of
disability was determined, and told the Board that she had no knowledge of
the union ever making any formal objections to the employer about the
statements contained in the various booklets introduced into evidence. Ms.
McVittie agreed that her evidence about whether or not the union's
interpretation of date of disability would require re-tendering of the
insurance contract, or additional premiums, was speculative, albeit based
on her experience in the benefits area.
The evidence having been completed, the case proceeded to argument.
Union Argument
Union counsel began by noting that while an employee is in the six-month
waiting period for LTIP, premium deductions of 15% continue, and these
deductions are based on the employee's salary. Accordingly, if an
employee's salary increases in the' six-month period, but that increase is
not retroactive, then the employee is left in the unfair situation of paying a
higher percentage of his or her salary in premiums during the six months,
but not receiving the benefit of those premiums when he or she eventually
go~s on LTIP. Having made this point, which was further elaborated on later
in argument, counsel turned to the other issues in dispute.
In counsel's view, there were four issues before the Board that needed to bE,
addressed: 1) the timeliness objection, 2) the determination of the date of
diSability, 3) the estoppel claim of the employer, and 4) the Board's
jurisdiction to award the remedy requested. With respect to the final
issue, union counsel requested the Board, should it find for the grievor, to
make a declaration to that effect, and remain seized with respect to the
implementation of the award should the parties not be able to come to an
agreement.
With re. spect to the timeliness issue, counsel argued that the employer has
waived any objection it may have had, and pointed out that'the union only
received notice of this objection immediately prior to the first day of
hearing. Moreover, counsel reviewed the grievor's evidence, and argued that
by the fall of 1990, the grievor finally determined, after making a number
of inquiries in the months previous to that, that he was not receiving what
he considered to be his proper entitlement. He notified the employer of this
within twenty days of making that determination, and accordingly the
grievance was timely. Counsel also pointed out that this is not a case of a
sophisticated grievor, and he observed that given the complicated
calculations involved in determining LTIP entitlement, it was hardly
surprising that it would take some time for the grievor to realize that he
was being improperly paid. Counsel atso referred to Ms. McVittie's
evidence, both to the effect that the timeliness issue was not raised at the
Committee stage, and noted that many of these cases are technically out of
time because the employees are totally disabled and often have other
13
priorities.
Turning to the merits, counsel argued that the term "date of disability"
under 42.2.1 refers to the first day that a claimant begins to receive LTIP
benefits, and accordingly, that the grievor's benefits should be calculated
on the basis of what his salary would have been in February 1989, not what
it was on his ~ast.day of work in April 1988.
Counsel argued that this in. terpretation could be maintained by the language
of different subsections of Article 42. Counsel pointed out Article 42.2.1
refers to "date of disability," while Article 42.2.3 refers to the date that
the employee becomes totally disabled, and Article 42.2.4, which defines
total disability, does so in the context of both the pre- and post-qualifying
periods. None of these provisions defined the term as the last day worked
by an employee. What was required, therefore, was to consider the term in'.
the context of this provision and in the cor~text of the benefit scheme more
broadly construed.
Counsel referred to the Short Term Sickness Plan described in Article 52.
That plan provides for an employee to receive 75% of his or her salary
during the six-month qualifying period, and this salary is paid on the basis
of the wage fn effect at the time the employee is receiving the benefit. It
is not based on the salary the employee was receiving on his or her last day
of work. Counsel pointed out that employees, as was the.case with the
grievor, can extend this period by using their attendance credits. The
grievor was able to extend this period by approximately four months, during
which time he was receiving a benefit based on the salary he would have
been receiving if he was working. He was also making a benefit premium
'payment based on this higher salary.
Counsel noted that the. effect of the employer's interpretation of date of
disability in this case was for the grievor to falf backwards in salary when
he began to receive his LTiP benefits, even though he had been paying a
higher amount in premiums in the six-month waiting period and in the four
month additional period which followed. Counsel argued that this could not
have been the intention of the parties. In counsel's view, there were two
important dates. The first important date was the last day of work. This
date was important because it marks the start of the six-month waiting
period. Just because an employeebegins the six-month waiting period does
not necessarily mean that he or she will proceed inevitably to LTIP. He or
she may recover. Alternatively, he or she may suffer another injury.
Accordingly, the important day for determining the' date of disability, in
counsel's view, is the first day of benefits. And that being the case, the
grievor should have his benefits calculated on the basis of the Salary he
would have been receiving if he had been working on that first day.
Counsel also made some anticipatory submissions with respect to the
employer's estoppel argument. Counsel referred to the law generally, and
cited a number of cases to the Board including Re Elan Tool and Die. 18
L.A.C. (3d) 17 (Weatherill), Re Northwest Territories, 5 L.A.C. (4th) 1
(Chertkow), Re Monarch Fine Foods Co.. 18 L.A.C. 257 (Schiff), and Re Phs. rrna
Plus Druamarts Ltd.. 14 L.A.C. (4th) 303 (Stanley). Counsel argued that
while it was true enough that the union never contested the manner in
which the employer administered the LTIP benefit,'there was never any
deliberate or conscious acquiescence with the employer's practice. This
sirence could not be described as a representation, and there was not, in any
event, any detrimental reliance. In counsel's view, ,there was no evidence
indicating that recognition of the union's interpretation would involve any
additional premium expense, which would be shared by the parties
according to the formula set out in the Collective Agreement. Very simply,
in counsel's submission, the ingredients necessary for an estoppel had not
been established.
With respect to the most recent employer pamphlet and the statement
therein defining the date of disability, counsel noted that Ms. McVittie
testified that she did not intend her comments to be comprehensive, and
that when she was asked for comments the instant grievance had already
been filed putting the employer on notice that the union contested its
interpretation. Counsel also observed that with this one exception, none of
the brochures discussing eligibility for benefits introduced into evidence
defined "date of disability" as an employee's last day of work.
Employer Argument '
Employer counsel argued that the different provisions found in Article 42
were clear and unambiguous, when read alone, when read in context of
Article as a whole, and when read in context of the benefit scheme
generally. In the alternative, counsel argued that if the Board found that
the clause was ambiguous, then the Board had the jurisdiction to look at
past practice as an aid to its interpretation of the in~ention of the parties.
Counsel also argued that the union was estopped from arguing an
interpretation inconsistent with the interpretation that has been appiied
and acquiesced in by the union since LTIP was first introddced in 1975.
Counsel argued that the evidence established that the griever was totally
disabled on April 1.8, 1988, and that his last day of work was April 15,
1988. The Board was referred to some medical records prepared by the
griever's physician to that effect. This was, counsel argued, the "date of
disability," and this was the date that the grievor's benefit crystallized.
His LTIP was calculated based on his salary on this date, as adjusted for a
retroactive increase. Counsel agreed that during the six-month waiting
period, and for the approximate four months thereafter when the grievor
used his attendance credits, he w~ts receiving benefits based on an
increased salary, and that this increased salary was not used in the
calculation of his LTIP when he began to receive those particular benefits.
Counsel noted that the Collective Agreement provisions referring to the
Short Term Sickness Plan provide for benefits based on "regular salary," and
this is why the grievor was paid on that basis. In counsel's view, this had
nothing to do with the date of disability, and the calculation of benefits
based on salary at that date.
Counsel also argued that the definition of "total disability" in Article 4.2.2.4
supported th'e employer's case, and that the grievor had been determined to
be totally disabled in April 1988. He remained totally disabled throughout
the qualifying period, and when it was over. When he had exhausted his
attendance credits, he went on LTtP because he continued to be totally
disabled. He did not become "totally disabled" immediately prior to going on
LTIP; he had, counsel argued, been totally disabled since April, and that
was, counsel submitted, his "date of disability." NO other interpretation
made any sense, and counsel also argued that there was no provision in
Article 42 or anywhere else in the Collective Agreement stating that an
employee was entitled to anything other than his salary along with
retroactive increases at the date of disability, The Collective Agreement
did not provide that an employee was entitled to an LTiP calculated on the
basis of the salary he or she would have received had he or she been
working the day before the LTIP benefits began. In counsel's submission,
the employer had properly calculated the grievor's entitlement, and he was
receiving the benefits provided for in the Collective Agreement.
Even assuming for the sake of argument, that the Collective Agreement
provisions were ambiguous, counsel argued that the past practice supported
the employer's interpretation of the provision. Counsel referred to the
evidence of Ms. Chang and Ms. Dunn, and it was to the effect that the "date
of disability" has always been interpreted to be the date at which an
employee was no longer able to work because of total disability, and that
this interpretation was verified by the various brochures and pamphlets
introduced into evidence. Counsel noted that prior to the instant grievance,
no complaints or concerns had been raised about this issue.
Counsel made a number of submissions with respect to the timeliness of
the grievance, and argued that the evidence indicated that the grievor did
not file his grievance within the time mandated in the Collective
Agreement. On this basis alone, counsel argued, the grievance should be
dismissed. Counsel also argued that an estoppel had been established in
this case, and she carefully reviewed with the Board the evidence and legal
principfes which she submitted supported this assertion.
Decision
Before turning to the merits of this case, and to the different arguments
advanced by the parties, it is appropriate to deal with the employer's
preliminary, objection respecting timeliness. Under Article 27.9.1, a
grievor must bring a complaint that he or she has been denied benefits
provided for in Article 42 of the Collective Agreement to the attention of
his or her supervisor within twenty days of first becoming aware of the
complaint. While the evidence in this case indicates that the grievor may
have had some inkling of a complaint upon his return from Florida in March
of 1990, we are satisfied on the basis of the evidence which we heard, that
he did not really became aware of his complaint until after he spoke with
the office manager, with Mr. Gratton and with the union steward. As a
result of these discussions, the grievor became aware of his complaint, and
as soon as he did, certainly within the twenty days mandated' in the
Collective Agreement, he filed a grievance with respect to it. While it is
true enough that the grievor's evidence, and that of the union steward, was
not entirely clear on what happened when, it should perhaps be borne in
mind in this case that the grievor was totally disabled, that he has a very
limited education, and that he cannot read or write. In these
circumstances, and given the evidence that we heard, we find the grievance
to be timely. In making this determination, the evidence of Ms. Shirley
McVittie is worth bearing in mind. It will be recalled that she testified
that virtually all the grievances with respect to benefits are !echnically
out of time, and that this is hardly Surprising given.that the g. rievors are
sick and, in the case of those who apply for LTIP, are totally disabled.
Moreover, there is no evidence of any prejudice to the employer, nor were
the employer's concerns raised until just prior to the hearing of this case.
Accordingly, we dismiss the employer's timeliness objection and will now
deal with the merits.
Having carefully considered the evidence and arguments of the parties, we
have come to the conclusion that this grievance should be dismissed.
-Notwithstanding our considerable personal sympathy for the grievor, it
cannot be said, on the evidence and arguments before us, that the Collective,
Agreement has been infringed. If anything, the terms and provisions of that
agreement have been properly applied and the grievor is receiving the
benefits to which he is entitled, in reaching this conclusion, it is not
necessary to deal with the estoppel argument raised by the employer, for
we are satisfied that provisions in question are not ambiguous, and to the
extent that the Collective Agreement can be characterized as ambiguous,
the past practice of the parties provides evidence of their intentions.
It is our view that "date of disability" must mean the date atwhich an
employee is determined to be totally disabled by his or her physician. It
cannot mean the date at which that employee begins to receive LTIP
benefits, for to qualify for those benefits the employee must have been
totally disabled for at least the six months prior, and, in the instant case,
for that additional period of time in which the grievor was making use of
his attendance credits. If the employee was totally disabled throughout the
qualification period, it could hardly be said that his or her date of
disability was the date immediately prior to receiving LTIP. Article 42.2.3
clearly states that LTIP will be paid six months after the employee
becomes totally disabled. This can only mean that 6 months (or even longer
if attendance credits are used) prior to the receipt of LTIP that the
employee was totally disabled. And this earlier date is the date of
disability.
Very simply, the scheme set out in the Collective Agreement envisages an
employee stopping work as a result of becoming totally disabled and then
receiving short term sickness benefits for a six month period. If at the
expiry of this period, the employee continues to be totally disabled, then he
or she will have qualified for and will become eligible for LTtP benefits.
These benefits will be calculated on the basis of the employee's salary,
including any retroactive adjustm'ents, on the date the employee became
disabled, which will, in most cases, be the date that the employee stopped
working. This is exactly what took place in the instant case.
This interpretation is also supported by the requirement that LTIP benefits
be calculated so as to include any retroactive salary increases. The very
fact that increases that are "retroactive" are included in determining the
amount for LTIP calculation is further evidence that "date of disability" is
the last day of work and not the day immediately, prior to the employee
beginning to receive LTIP benefits.
In our view, the evidence of past practice supports the interpretation of the
Collective Agreement advanced by the employer. Given the unsettled state
of jurisprudence with respect to the jurisdiction of the Board in benefits
cases, it may not be surprising that there were no grievances filed in
respect of this issue prior to the instant one. But at the same time, prior
to this case, there were no concerns or questions about the practice of the
employer, and there is no evidence that the union ever took issue with it.
Instead, the evidence'indicates that since 1975 the employer has
consistently interpreted "date of disability" in the manner followed in this
case, and that the union has accepted that interpretation. Indeed, union
representatives have counseled employees that "date of disability" is the
date at which the employee is unable to continue working prior to the
commencement of the six-month waiting period. To a more limited extent,
the various brochures and pamphlets introduced into evidence provide
further evidence of the practice, and ultimately the intention of the parties.
Having reached this conclusion, it is not necessary for us to address the
estoppel argument advanced by the employer.
In denying this grievance, we note that there appears to be an anomaly in
the fact that an employee will pay premiums on benefits received during
the six-month waiting period, and during any extended period that might be
available as a result of attendance credits, and that these premiums are
based on the employee's regular salary, which, in the instant case, is a
salary high%~r than the one used to cafculate the griever's LTIP entitlement.
As union counsel noted, the griever paid these higher premiums but was
then denied the benefit of those higher premiums when he went on LTIP, for
his LTIP was calculated on the salary he received on his last day of work
adjusted for a retroactive increase. In the instant case, this indeed appears
to be true, but this is what the parties agreed to in their Collective
Agreement. They agreed that LTIP would be calculated based on salary at
date of disability, and they agreed that during the six-month qualifying
period, employees will receive their regular salary and they will pay
benefit premiums based on that salary.
Accordingly, and for the foregoing reasons, the grievance is dismissed.
DATED at Ottawa this 9th day of u,,,~'¢.u;?-z 992
William Kaplan
Vice-Chairperson
Member
M. O'Toole
Member