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HomeMy WebLinkAboutGreenham 16-08-11In the Matter of an Arbitration Between United Counties of Leeds & Grenville Mapleview Lodge (Hereinafter referred to as "the Employer") Ontario Public Service Employees Union -- Local 494 (Hereinafter referred to as "the Union") Regarding: Sole Arbitrator: For the Society: For the Union: Grievance of April Greenharn Felicity D. Briggs Steven Menard, Counsel Jessica Greenwood, Counsel April Greenham is a Personal Support Worker ("PSW") with the Lodge who has been employed since early 2004. In July of 2014 she filed a grievance that alleged a violation of the Article 19.1 of the Collective Agreement that "stat.credits were not given to me while on maternity leave that two HR staff informed me I was entitled to..." She contended that the "stats" were later withdrawn in March of 2014 after she had taken time off relying on these paid lieu days being in her bank. By way of remedy she requested all lieu days flowing from paid holidays that fell during her pregnancy leave be placed in her bank. It is noted that during the course of the evidence and the submissions in this matter, the parties constantly referred to the issue as "stats" or "stat lieus". To be clear, the dispute is regarding days in lieu of Paid Holidays. It was the position of the Union that the grievor was entitled to have all seniority and service accumulate during the period of her pregnancy leave including the payment of statutory holidays. In the alternative, certain representations were made to the grievor that she relied upon and accordingly the holiday pay should be paid for this period. It was the Employer's view that the Collective Agreement does not provide an entitlement to the accumulation of Paid Holiday lieu days during pregnancy or parental leave. Entitlement to holiday pay is dependent on attendance at work. Further, there was never a promise to the grievor that would have led her to think that she was entitled to such a benefit. The grievor began working with the Lodge in 2004 in a part time capacity. While working as a part time PSW she took a pregnancy leave. She later became a full time PSW in 2007. Ms. Greenham encountered complications in her most recent pregnancy and was ordered by her physician to remain off work. This absence began on November 19, 2012. When she began her most recent pregnancy leave on February 25, 2013, she was the first person to take such a leave under the terms of the current Collective Agreement. She did not return to work until after the end of her pregnancy leave on March 4, 2014. As the result of a request — which will be discussed in further detail later — she was absent from the workplace from March 10th to the 15th 2014. When the grievor received her pay for this period of time it became clear to her that despite her request, the period from March 10 to 16, 2014 was considered vacation time and not Paid Holiday 1 lieu days. After considerable discussion between the grievor, the Union and the Employer, the instant grievance was filed. The relevant provisions of the Collective agreement are as follows: Article 15 — General Leaves of Absence 15.02 With the exception of Pregnancy/Parental Leave and STD/LTD the Employer's payments towards all group insurance benefits will be suspended at the onset of any leave of absence. They will be reinstated upon the return of the employee to full time duty. While on such leave, life and health benefits may be continued for up to twelve (12) months. However, the employee shall be responsible for the payment of the cost of these group insurance benefits at the current rate of premium. Such payment will be made to the Employer by post-dated cheques by the employee dated the first day of every month of leave. Article 19 — PregnancyLParental Leave 19.01 The leave of absence shall be in accordance with the provisions of the Employment Standards Act, 2000 as amended. a) The service requirement will be thirteen (13) weeks of continuous service. b) Credits for service and seniority shall accumulate for a period of up to fifty-two (52) weeks while an employee is on pregnancy & parental leave. 19.02 In addition to Employment Insurance benefits for fifteen (15) weeks pregnancy leave subject to approval by Human Resources & Development Canada, full-time employees eligible for and taking a pregnancy leave for seventeen (17) weeks will be eligible for a Supplementary Pregnancy Benefit, payable by the Counties, in accordance with the plan of the Counties. Such plan provides the full-time employee with seventy-five (75%) percent of their regular weekly pay immediately prior to their pregnancy leave to be payable to the employee for the two (2) week period waiting for Employment Insurance Benefits. Article 24— Paid Holidays 2 24.01 Full-time employees will be entitled to the following holidays: New Year's Day Canada Day (July 15t) Family Day Good Friday East Sunday Victoria Day Boxing Day Civic Day Labour Day Thanksgiving Day Christmas Day The above holidays shall be enjoyed on the day they are proclaimed by Federal, Provincial or Municipal Government. In the event that additional holidays are proclaimed by government and the total exceeds twelve (12) days per year, one day that is not covered by the Employment Standards Act from the list above shall be deleted. 24.02 In addition to the holidays listed above, each full-time employee shall be allowed two (2) paid holidays ("float .days"). The employee will be eligible to take the float day between the first day of the first pay commencing the payroll year and ending the last day of the last pay of the same payroll year. The date and time for taking the float day shall be mutually agreed upon by the employee and his/her supervisor giving consideration to the department's workload and operational requirements. In no event shall the float day be carried over into the next payroll year. 24.03 a) When any of the above noted holidays fall on an employee's scheduled day off, the employee shall receive another day off with pay at a time mutually agreed upon between the Employer and the employee and shall be arranged at least ten (10) days in advance. b) The Employer shall pay for the balance of any unused paid holiday lieu time on the final pay of the payroll year. Any pair[ holiday lieu time earned in December must be taken by June 30th of the following year. 24.04 Holiday pay will be computed on the basis of the number of hours the employee would otherwise work had there been no holiday, at his/her regular hourly rate. 3 24.05 a) Where an employee is scheduled to work on a holiday, he/she shall be paid at the rate of time and one-half (1 %) his/her regular straight time hourly rate for all hours so worked, and will be given a day off in lieu without loss of straight time earnings at a mutually convenient time, to be arranged at least ten (10) days in advance. b) An Employee who is scheduled to work on a recognized holiday and who fails to do so shall lose his/her entitlement for the holiday pay and his/her entitlement for the lieu day with pay. 24.06 The eligibility for and payment of the paid holidays shall be in accordance with the Employment Standards Act. 24.07 There shall be no pyramiding or duplication of this benefit. Article 25 —Vacations 25.01 For the purpose of calculating entitlement: d) Vacation will not accrue during any absence exceeding thirty (30) continuous calendar days with the exception of maternity/parental leave and short term disability. Ms. Greenham testified that around the time her sick leave began in the November of 2012 she phoned Ms. Lindsay Armstrong, the then current Employee Services Representative. She had wanted to inquire about the status of her vacation and paid holidays during and after her pregnancy leave. She was worried that she might lose her entitlements. It was her evidence that Ms. Armstrong told her that she would not lose anything. Further, the grievor testified that Ms. Armstrong revealed during this conversation that she had been on pregnancy leave recently and she had not lost anything. The next contact the grievor had with the Employer regarding this matter was in January of 2014. She testified that she spoke with Ms. Melanie Cook, the Employee Service Representative who replaced Ms. Armstrong. The grievor asked for an update on her vacation entitlement because it was her hope to take time 4 off during the March break. There was discussion as to whether she could use her paid holiday lieu days from the year before for her time off during this period. Ms. Greenham testified that Ms. Cook told her that she could use those lieu days and as a result she submitted a vacation request form. Her request was granted. When she received her paystub following the March break she learned that all days of her absence were treated as vacation days and not Paid Holiday lieu days. She spoke with her Union representative, Ms. Rhonda Ferguson who handled her complaint with the Employer. The grievor received an email from Ms. Cook on April 3, 2014. It said: I spoke with Human Resources and it was explained to me that while an employee is on maternity leave, the employee accumulates vacation and seniority only. I looked at your various banks and I have the following information for you: Vacation 2013 — balance forward 112.5 hrs 2014 —allotment 150 hrs Taken since your return from maternity leave 37.50 hrs. Total hours remaining: 225.00 hrs Float Days You cannot carry floats (sic) days each year 2014 —allotment 15.00 hrs. Total hours remaining: 15.00 hrs. Stat Days 2013 — Balance forward 5.00 hrs into your 2014 bank Taken since your return from maternity leave 7.5 hrs Total hours remaining 0.50 hrs Sick Days You cannot carry over sick days each year Total sick leave for 2014 52.50 hrs 5 Please make sure you check the bottom of your pay slip each pay to see your balances of your banks (except for sick leave balance) to ensure you will be covered for any leaves you will be taking. In cross examination the grievor conceded the obvious, that is, that she was not scheduled to work any of the Paid Holidays that fell during her pregnancy leave. She further agreed that she had not had any scheduled days off during her leave. Indeed, her name did not even appear on the work schedule. When asked if she was sure she was told by Ms. Armstrong that she would not lose her lieu days from Paid Holidays she reiterated that she was told that she would not lose anything. When her recall was challenged she said that she recalled asking if she would lose her "stats and floats" and being told that Ms. Armstrong had said that she had not lost anything when she was on leave. Ms. Greenham was not sure why she had called her Union Representative immediately following her telephone conversation with Ms. Armstrong given that there was no dispute at that point in time. Ms. Greenham was told in her cross-examination that Ms. Armstrong would testify that she did not say that she would accumulate stats during her leave. She was asked her view of that and said that "it would be her word against mine". The grievor was also cross-examined about her discussion with Ms. Cook held in January of February of 2014. She agreed that she told Ms. Cook that Ms. Armstrong told her that her stats would accumulate during her leave. She testified that she just wanted to "double check" her entitlement before making her vacation request, "because a lot can happen in a year. Ms. Greenham said in her cross-examination that the reason she did not file a grievance immediately upon learning vacation time was utilized for the period of her March break absence was because she and the Union were in discussions with the Employer and waiting for a response as to its definition of the word "credits". 2 During her cross-examination the grievor was shown the vacation request form that she submitted for the March break time off. It revealed that she had checked both the "stat box" and the "vacation box" for utilization for her time off. She was challenged as to why she would do that if she thought she had many Paid Holiday Lieu days in the bank. She first said that she "always" filled out her time off requests in that fashion. She then she stated that she "usually" fills the forms out with both boxes checked. Finally, when shown some of her other vacation requests she responded that she "sometimes" fills out the form in this fashion. Indeed, of the twenty requests disclosed by the Employer, in seventeen she asked only for one type of leave, either vacation or paid holiday lieu days. The grievor denied that she checked off both "stats" and "vacation" because she knew that she did not have sufficient stats in her bank. When she was challenged about this she said that "it is obvious" and that "you can't rely" on the Employer. It was noted in re-examination of this area of questioning that a number of the seventeen requests referred to by the Employer many were requests for single days off. Ms. Rhonda Ferguson is a full time Registered Practical Nurse who has been with the Lodge since 2004. She has been the Union Steward for approximately three years and handles the majority of grievances filed by membership. She recalled that the grievor had telephoned her in December of 2013 to relay a recent conversation she had with Ms. Armstrong wherein she was told that she would lose no benefits or banks while on pregnancy leave. She also recalled the telephone conversation wherein the grievor relayed her discussion with Ms. Cook confirming the information she had earlier been given by Ms. Armstrong. Ms. Ferguson's next contact was when she received a copy of the email sent to the grievor by Ms. Cook in April of 2014. She then engaged in discussions with the Employer to attempt to clarify and resolve that matter. She thought because two Human Resource representatives "had told the grievor that she could use the stats for whatever purpose she might want", Ms. Greenham's complaint should be allowed. During these discussions Ms. Ferguson asked for "the definition of stat time" or credit. No response to this question was ever provided by the Employer. On May 5, 2014 Ms. Ferguson, wrote to Ms. Cook stating: I understand that April has been on leave. I have not followed up with this until now due to that leave. It is my understanding from April that she was told by two HR staff that she would be credited for the stat days while on mat leave ending in Feb. since this she has been told that was an error and one will not accrue stat time on maternity leave. This error may be an issue, as she has already used the stat days in March. My only question to this is under Article 19.02 b) it states "Credits for service and seniority shall accumulate for a period of up to 52 weeks while an employee is on pregnancy and parental leave". Is stat and vacation time included in the "credits for service" and what have we done for mat leave in the past? At the time Ms. Cook responded that she was unable to access certain information and once she was able to do that she would respond. Ms. Ferguson testified that she pointed out in her discussions with the Employer that stats accrue while employees are absent as the result of disability and so the same should apply for pregnancy leave. Ms. Cook ultimately replied to this point in an email dated July 11, 2014. It stated: The OPSEU collective agreement does not provide paid holidays to April Greenham that occurred while she was on pregnancy/parental leave from March 2013 to March 2014. In cross-examination Ms. Ferguson agreed that the Employer does not continue salary for employees on pregnancy leave while it does for those on sick leave. She confirmed that the grievor was the first full time member of the bargaining unit to take pregnancy leave under this Collective Agreement. Ms. Ferguson agreed that it is not the expectation of full time employees that they are entitled to eleven paid holidays at the beginning of each year. Eleven days are not put in a bank. Indeed, she conceded that they are "earned as the stat has passed". Ms. Lindsay Armstrong testified for the Employer. She began her employment in 2008 as Employee Services Representative and has worked in a few different positions leading to her current Job as Human Resources Coordinator. Ms. Armstrong recalled her telephone discussion with the grievor in February of 2013. She testified that the grievor called to ask "what would happen with her banked leave balances". She told the grievor that her vacation bank would remain as well as her full entitlement for 2013. She explained that if her float days had not been used by the end of 2012 they would be lost and that she would not accumulate a float day in 2013. She told Ms. Greenham that any stat days already accumulated up to the commencement of her pregnancy leave would remain in her bank but she would not accumulate any additional stat time during the leave. Ms. Armstrong's evidence was that she did not tell the grievor that she herself had accumulated stat days while on her own recent pregnancy leave because that was not the case. Ms. Armstrong also noted that another employee was on pregnancy leave during part of this period and did not receive credit for paid holidays during her leave and no grievance was filed. In cross-examination Ms. Armstrong conceded this it is possible that the grievor misunderstood their conversation regarding entitlements although she had no indication of confusion at the time. She agreed it was her responsibility to be clear in her communications with employees but stated if an employee needs clarification it should be sought. Ms. Melanie Cook also gave evidence in this proceeding. She recalled her telephone conversation with the grievor in January of 2013. Ms. Greenham had told her that she had spoken to Ms. Armstrong prior to the commencement of her leave and was told that stats accumulated during such leaves. Ms. Greenham asked Ms. Cook if this was still the case. Ms. Cook indicated that she did not see why the grievor would not accumulate but she would have to check this matter with Human Resources. Ms. Greenham also told her that she wanted to use paid holiday time when taking time off over the March break. Ms. Cook replied that she did not see a problem with that. At the time of this conversation Ms. Cook was relatively new to the workplace and had not worked in labour relations previously. She later spoke with a payroll representative who told her that Paid Holidays do not accumulate during pregnancy leaves. As a result of this conversation she sent the April 3, 2014 email to the grievor. She also telephoned the grievor to explain that she did not accumulate paid holidays during her leave. UNION SUBMISSIONS Ms. Greenwood, for the Union, contended that according to Article 24 of the Collective Agreement, all full time employees are entitled to pay for all of the paid holidays. Any disentitlement from such payment would require clear language which is not found in the Collective Agreement between these parties. Further, this provision makes clear that the Employment Standards Act governs the entitlement to paid holidays. In the alternative, the grievor took time off in March of 2013 as a direct result of the information given to her by two separate Human Resource personnel that she had sufficient Paid Holiday lieu days to cover the absence. In the event the Board does not agree that Paid Holidays accumulate during pregnancy leave, the grievor should be given back those days that were deducted from her vacation bank after her absence in March of 2013 because of the Employer's representations. IN According to the Union, as found in many Collective Agreements, members of this bargaining unit are compensated for Paid Holidays. Full time members of the bargaining unit are entitled to Paid Holidays in accordance with the ESA while payment is as set out in the Collective Agreement. if a full time employee works on a paid holiday they receive time and one half their regular straight time hourly rate for hours worked and receive a day off in lieu of the holiday. If they are not scheduled to work on the paid holiday they receive the day off with pay. Further, those on sick leave or short term disability continue to receive paid holiday pay as happened when the grievor was absent due to complications prior to her pregnancy leave commencement. It is clear in Article 19.01 that credits for service and seniority continue to accumulate for the first fifty-two weeks of a parental or pregnancy leave. It is the word "credit" that involved much discussion between the parties throughout this dispute as heard in the evidence. There can be no doubt, according to the Union, that credits include the payment of paid holidays during these leaves. There is certainly nothing in any provision — including Article 24 - Paid Holidays — that detracts from this benefit. Turning to the ESA the Union relied upon section 24 through 31, particularly section 29 which states: Paid Holiday not ordinarily a working day 29. (1) if a public holiday falls on a day that would not ordinarily be a working day for an employee or a day on which the employee is on vacation, the employer shall substitute another day that would ordinarily be a working day for the employee to take off work and for which he or she shall be paid public holiday pay as if the substitute day were a public holiday. (2) a day that is substituted for a public holiday under subsection (1) shall be, (a) a day that is no more than three months after the public holiday; or 11 (b) if the employee and the employer agree, a day that is no more than 12 months after the public holiday. Employee on leave or lay-off (2.1) If a public holiday falls on a day that would not ordinarily be a working day for an employee and the employee is on a leave of absence under section 46 or 48 or on a layoff on that day, the employee is entitled to public holiday pay for the day but has no entitlement under this Part with respect to the public holiday. The Union relied upon Re Toronto Transit Commission and ATU 2013 Carswell Ont 10971, 116 C.L.A.S. 25 (Slotnick); Re FBI Foods Ltd and UFCW Local 1172 -2 -FB! (1985), 22 L.A.C. (3rd) 157 (Emrich); Re City of Timmins (Golden Manor Home for the Aged & ONA (1987), 26.L.A.C. (3rd) 444 (Betcherman); and Re Chelsey Park Oxford & London and District Service Employees Union Local 220 (1959), 8 L.A.C. (4th) 1 (Mitchnick). The Union contended that the jurisprudence supports its view that Paid Holiday pay is an earned benefit which is negotiated as part of the compensation package that employees receive. If an employee is still "on the books", as the grievor was during the course of her pregnancy leave, there is a presumption that she is entitled to various benefits under the Collective Agreement. Article 24 provides that all full time employees are entitled to Paid Holidays and a scheme is set out for those working on the holiday and those that are not. There is nothing that disentitles the grievor to Paid Holiday pay during the period of her pregnancy leave. The Union's alternative argument was based on the various discussions Ms. Greenham had with two separate members of Human Resources. She asked and was told twice that she had paid holiday pay during her leave. It was certainly clear to Ms. Cook that the grievor thought she was entitled to paid holiday pay and she said nothing to dissuade her of her view. With this knowledge the grievor relied upon the Employer's representation and made a request for time off that 12 ultimately cost her vacation time. It was not apparent to the grievor until weeks after her leave that the Employer disagreed about paid holiday entitlement. At the very least, the grievor is entitled to have these vacation days restored to her bank. EMPLOYER SUBMISSIONS Mr. Menard, for the Employer, submitted that the onus is on the Union to show in clear and unequivocal terms that a monetary benefit is part of the employee's compensation package. No such evidence was provided to this Board. Turning first to the Union's alternative argument, the Employer suggested that the allegation of an estoppel is erroneous because an individual employee cannot enter into a private contract with the Employer if they are a member of a bargaining unit. Indeed, individual contracts are not enforceable. While this is the case in any particular unionized environment, in this instance Article 6.01 of the Collective Agreement between these parties makes it undeniable. That article — entitled Union Rights and Activities — is a complete response to the Union's assertion of an estoppel. It states, in part, "The Employer shall not bargain with or enter into any agreement with an employee or group of employees in the bargaining unit, with respect to the collective agreement." Surely such a provision applies to both lesser benefits and greater benefits than those found in the Collective Agreement, according to the Employer. Furthermore, the evidence heard in these proceedings also substantiated that no estoppel has occurred, asserted the Employer. There was no agreement to provide special accumulation of Paid Holidays to the grievor as attested both witnesses from Human Resources. It is accurate to say that Ms. Cook did not deny the accumulation immediately. However, she made clear that she had to check with Human Resources. Such a response is credible given that she had only worked for the County for a short time when this conversation took place. 13 The Employer questioned the grievor's veracity regarding her discussions about Paid Holidays with both Ms. Cook and Ms. Armstrong. The grievor could not recall dates and she took no contemporaneous notes. Further, she called her Union Steward following these discussions and yet could not explain why such a conversation might have been necessary. Ms. Greenham was equally equivocal about the taking of her March break time off. While she testified she submitted her request because she had all of the Paid Holidays accumulated during her pregnancy leave, on the actual vacation request form she indicated that the leave should be both vacation and stat holiday time. If she thought she had over ten Paid Holidays in the bank, why ask for any vacation time for a one-week absence? When challenged on her practice of vacation requests, her evidence changed once it became clear that the Employer had gathered the documents for admission at this hearing. Simply put, there is no credible evidence that the grievor would not have taken the time off in March of 2014 if she did not have a full bank of Paid Holidays. indeed, the only clear evidence before this Board is her vacation request form which reveals she was content to use both Paid Holidays and vacation days to manage the request for time off. The Employer contended that the answer to the issue before this Board is easily found in the language of the Collective Agreement. Article 19 — Pregnancy and parental leave is to "be in accordance with the provisions of the Employment Standards Act." Further, "credits for service and seniority shall accumulate for a period of up to fifty-two (52) weeks while an employee is on pregnancy & parental leave." Those two sentences must be read together and it is clear that the ESA does not provide an employee the right to Paid Holidays while on pregnancy or parental leave. Further, Paid Holidays are not included in "credits for seniority and service". Simply put, there is no connection between 19.01 and Article 24 -- Paid Holidays. Credit for service does not mean that an employee is treated as if she is actively at work. Entitlement to Paid Holidays is dependent upon attendance at work at a time proximate to the Holiday itself. If the Union's view was correct, clear language would have been agreed upon and set out in the 14 Collective Agreement. Neither the Collective Agreement nor the ESA provides such a benefit. The ESA states, under the section entitled "General Provisions Concerning Leaves" the following: 51.(1) During any leave under this Part, an employee continues to participate in each type of benefit plan described in subsection (2) that is related to his or her employment unless he or she elects in writing not to do so. 51.(2) Subsections (1) applies with respect to pension plans, insurance plans, accidental death plans. Extended health plans, dental plans and any prescribed type of benefit plan. As noted above, Section 51.(2) sets out the types of benefit plans that continue while on these leaves and Paid Holidays is not included, according to the Employer. Mr. Menard noted that Article 25.01(d) establishes that vacation does not accrue in leaves exceeding thirty continuous calendar days except for pregnancy leave and short term disability leaves. If the same was true for Paid Holiday accumulation, the parties would have and should have made that entitlement clear. The Employer submitted that Article 24 sets out that there are two ways an employee is entitled for a lieu day from a Paid Holiday. The first is if the day fell on a vacation or regular day off and the second is if the actual Paid Holiday was worked another day off in lieu is banked. Neither apply in the circumstances of this case. The grievor did not work on the holidays. Indeed, she was not even on the work schedule. The Employer relied upon Re Hotel Dieu Kingston & A.A.H.P.O. (1994), 45 L.A.C. (Wh) 54 (R. Brown); Re Orillia Soldiers' Memorial Hospital and ONA [1999], 169 D.L.R. (41i') 489; Re Participating Hospitals and ONA (October 30, 1992), 15 unreported (Brent); Re Almonte General Hospital and CUPE — Local 3022 (November 25, 2012), unreported (Briggs); Re Health Employers Association of British Columbia and Hospital Employees, Union — Local 180 (1996), 54 L.A.C. (4th) 35 (Morrison); Re County of Middlesex & CAW Local 302 (2002), 109 L.A.C. (4th) 110 (Lynk); Re Capital Care Group Inc. & United Nurses of Alberta, Local 118 (2007), 157 L.A.C. (4th) 12 (Warren); Re Wiresmith Ltd. And USWA.(1988), 34 L.A.C. (3d) 104 (Brunner); Re Sealed Power Corp. of Canada Ltd. & UWA Local 569 (1971), 22 L.A.C. 371 (Shime); and Re Participating Hospitals and ONA (May 30, 1989) unreported (Brent). UNION REPLY SUBMISSIONS Ms. Greenwood said in her reply that this case is unlike most instances of estoppel. In this matter the Employer and the employee did not act together to provide a greater or lesser benefit than is found in the Collective Agreement. There was no action that was contradictory to the provisions. Indeed, in this case there was no understanding as to the meaning of the Collective Agreement as the grievor was the first full time employee to take pregnancy leave. The Union responded that there is nothing in Article 24 that allows for an exemption from payment of Paid Holidays in the event of a pregnancy or parental leave. Where an exception was to be in effect the parties agreed to clear language. Article 24 is the full answer to the matter of the grievor's eligibility for Paid Holiday pay. Finally, the Union noted that the Re Almonte (supra) case can be distinguished on the basis of the language of that particular Collective Agreement. In the case before this Board, there is no provision that makes clear that all benefits are discontinued after thirty days of any unpaid absence. This Board should be guided by the decision in Re TTC (supra) particularly the finding that there is a presumption that Paid Holidays is a benefit and part of the compensation package. W-1 DECISION There are two issues in this dispute. The first is whether the grievor should have accumulated Paid Holiday lieu days during the course of her pregnancy leave. The second, which is the Union's alternative argument, is whether the grievor should have the vacation days that she utilized during her March break 2014 absence returned because of certain representations made to her by the Employer. I will deal with these issues seriatim. One of the fundamental disputes between these parties is whether the Paid Holidays under this Collective Agreement are an earned benefit or, in other words, part of the total compensation package. Indeed, the Employer suggested that there was an onus on the Union is prove that Paid Holidays are part of the monetary package enjoyed by members of this bargaining Union. I cannot agree. There is much jurisprudence on this point and although there has been some evolution over the years in this regard, I think it is fair to say that the law is settled on this point. In Re FBI Foods (supra) Arbitrator Emrich said, in 1985 the following, in part, at paragraph 15 after reviewing a decision rendered in 1968: At p. 376, the board distinguishes entitlement of employees laid off from that of employees on maternity leave on the basis that in the former situation there is a lack of work available whereas in the latter situation, work is available, but the employee has requested time away from the job. In considering the effect of this award, the board notes that since this award was decided, the arbitral jurisprudence has evolved to favour the approach that payment for statutory holidays is to be regarded as an earned benefit for work already performed rather than as an income protection device: see Brown and Beatty, Canadian Labour Arbitration, 2" d ed. (1984), para. 8:3110, p. 568, footnote 262, and cases cited therein. In Re City of Timmins (supra), Arbitrator Betcherman determined in 1987 the following found at paragraph 7: ��1 It is well established that holiday pay is an earned benefit: Re Galco Food Products Ltd. and Allied Food Workers (1978), 18 L.A.C. (2d) 220 (Beck). But unlike wages, which afford direct compensation for work performed currently, holiday pay is an indirect extra monetary benefit for work performed in the past. In Re T.C.F. of Canada Ltd and Textile Workers' Union of America, Local 1332 (1972), 1 L.A.C. (2d) 382 (Adell), which awarded holiday pay to laid off employees, it was stated [at p. 384] that holiday pay "is an additional form of payment for work already done, and it must therefore be viewed not from the vantage point of the holiday itself but from that of the period of work for which it provides extra remuneration". Thus holiday pay does not depend on the employee being at work when the holiday occurs. Moreover, since holiday pay is viewed as compensation for past work, I cannot accept the distinction drawn by the employer between employees on lay-off and those on maternity leave. I agree with those comments. However, like Arbitrator Betcherman, 1 am of the view that Paid Holidays having the status of an earned benefit is not, in and of itself, determinative. The Employer urged that I follow the decision in Re Almonte (supra). In that decision 1 found that employees on pregnancy leave were not entitled to Paid Holiday pay. However, as noted by the Union nominee in his dissent, my decision was based largely on the presence of a Collective Agreement provision which stated: During any unpaid absence exceeding thirty (30) continuous calendar days, credit for service for the purposes of salary increment, vacation, sick leave and any other benefits under the provisions of the collective agreement or elsewhere shall be suspended for the period of the absence in excess of thirty (30) continuous calendar days, the benefits concerned appropriately reduced on a pro rata basis and the employee's anniversary date adjusted accordingly. In addition, the employee will become responsible for full payment of any subsidized employee benefits in which he/she is participating for the period of the absence, except that the Hospital will continue to pay its share of the premiums up to thirty (30) months while an employee is in receipt of WSIB or LTD benefits. Such payment shall also 18 continue while an employee is on sick leave (including the Employment Insurance Period) to a maximum of thirty (30 months) from the time the absence commenced. Notwithstanding this provision, service shall accrue for a period of fifteen weeks if an employee's absence is due to a disability resulting in WSIB or LTD benefits. Not surprisingly, in that dispute much emphasis was placed on the issue of whether pregnancy leaves are to be considered paid or unpaid leave. After a review of the jurisprudence to that point, I found that pregnancy leave was to be considered an unpaid leave. of absence and as a result — given the language of that Collective Agreement - I found Paid Holiday pay was not owing to the grievor for the Paid Holidays that occurred after the first thirty days of her pregnancy leave. It was noted at page 13 of that decision: It is fair to say that it is now trite law that pregnancy and parental leaves are to be considered unpaid leaves of absence. in Re Windsor Regional Hospital and OPSEU, Local 143 (July 5, 2000, unreported (Raymond), the first question for Arbitrator Raymond was to determine whether pregnancy and parental leaves are unpaid leaves of absence. He said, at para 9: In respect of the first question, the Employer relies upon arbitral jurisprudence in support of its view that the pregnancy and parental leave is an absence without pay. The collective agreement contains a provision "topping -up" the Employment Insurance benefits that an employee receives during a pregnancy or parental leave to eighty- four percent of the regular weekly earnings. The Employer submits that even though there is a "top -up" of Employment Insurance benefits during the pregnancy or parental leave, that leave of absence is nevertheless a leave of absence without pay. In particular, the Employer relies upon the decision of Arbitrator Brent in Re ONA and a Group of Hospitals listed in Appendix A, (unreported, May 30, 1959). In that decision it is found that when an employee receives EI benefits (then called UI) and a SUB payment (what I have referred to as "top -up") that those payments are not earnings, in part, because if the "top -up" was earnings that would reduce the EI benefit. The Employer argues that even when there is a payment by the Employer 19 to the employee on pregnancy or parental leave by way of topping - up employment insurance benefits, those payments are not earnings. Put another way, it is a leave of absence without pay. Other arbitrations decisions have followed this premise and I was informed that the counsel for the Employer is not aware of any case that suggests that when an employee is on EI benefits with an employer top -up that it is considered to be a leave of absence with pay. In Re Almonte (supra), as in all disputes, the decision was driven by the terms and provisions of the Collective Agreement at hand. There is no provision in the instant Collective Agreement that is akin to Article 9.04 in Re Almonte (supra). Much of the jurisprudence provided considers employee entitlement to various provisions — vacation and bereavement leave and paid holidays — when absent from the workplace due to WSIB, LTD, pregnancy or parental leave, or other paid and unpaid leaves. Some of the case law is helpful while much is of no assistance because of the particular provisions of the collective agreement at issue. The Union contended that Re TTC (supra) is entirely on point. It is an interesting decision. The issue in the case is whether employees were entitled to "statutory and other holidays when they have been off work for more than six months while receiving or claiming workers' compensation benefits." The first arbitration award regarding this grievance was determined in favour of the Union. In the first decision it was found at (approximately) page 23: In my view, there is no ambiguity in Section 14 of the Collective Agreement. Statutory and designated holidays are payable to all employees covered by the Collective Agreement and the exclusions or qualifications stipulated in this section are of no force and effect for the reasons previously stated. Statutory and designated holiday pay is part of the employment compensation package that was negotiated between the Commission and the Union. Active employment prior and post the statutory and designated holidays (birthday and floater) is no longer a requirement by virtue of Section 26(2) of the Employment Standards Act, a position that was accepted by both counsel at the hearing. Although I agree that the 20 Commission's past "practice", namely the payment of statutory and designated holidays (birthday and floater) for the first six months of absence on account of a compensable injury by an employee who is either awaiting the outcome of his/her application or is paid WSIB benefits and the subsequent "cutoff after the employee is transferred to "inactive status" is part of the factual matrix, I do not find this of assistance in the interpretation of what I view to be unambiguous words of Section 14 of the Collective Agreement. 1, accordingly, hold that all employees of the Commission who are either awaiting the result of their application or are in receipt of WSIB benefits whether before or after transfer to inactive status or the inactive payroll are entitled to statutory and designated holidays with pay. This decision was referred by the Commission to Divisional Court which overturned a portion of the award. The Court said, in part: The Arbitrator held, at page 30, "All employees covered by this grievance are entitled to statutory and designated holidays under Section 14 of the Collective Agreement but none of the employees are entitled to bereavement leave under Section 20 of the Collective Agreement." Earlier at p.23 he said that employees "who are either awaiting the result of their application or are in receipt of WSIB benefits whether before or after transfer to inactive status or the inactive payroll are entitled to statutory and designated holidays with pay." It is difficult to determine from the foregoing language whether the arbitrator intended to award statutory holiday pay on the basis of eight hours of wages or whether he had declined to deal with quantum at all. There is no explicit quantification of the benefit, but in the face of s. 24(1) of the ESA, the payment would be zero under the statutory formula for any employee who had not worked for at least four weeks before the work week in which the holiday occurred. What, then, would "entitled to statutory and designated holidays" mean? It is uncontroverted that the Commission's argument before the arbitrator centred on s 24(1) of the ESA. There is no provision in the collective agreement that provides a formula for the calculation of statutory holiday pay and as there is no factual finding importing the alleged past practice of 21 paying eight hours into the collective agreement, it is, in our view, not possible to discern a line of logic that results in an employee being entitled to payment of money for statutory holidays where he or she has not worked the four weeks referred to in s. 24(1). The decision does not meet the standard of reasonableness in Dunsmuir in that it is lacking in justification and intelligibility. .....The issue of the relevant employees' entitlement to pay for statutory holidays and/or designated holidays its referred to a new arbitrator for determination. In the hearing held following the Divisional Court decision, chaired by Arbitrator Slotnick, the Union urged that the original award was overturned because there was no consideration of whether the averaging formula as set out in s. 24(1) of the ESA was applicable to TTC employees. For that reason, it proffered evidence that revealed the Commission had never used the averaging formula and consequently it did not apply. Employees were always paid eight hours and should continue to receive that amount, according to the Union, irrespective of whether they were characterized as active (absent for less than six months) or inactive (absent for longer than six months). In his decision Arbitrator Slotnick notes that the issue before him is narrowed to whether employees who have been off work on WSIB for more than six months are entitled to be paid any money for holidays. In finding for the Union he said, in part, at paragraph 42: ....The Court, in my opinion, left it to the parties to provide more evidence and argument on that questions, and to the second arbitrator to decide whether the formula in the Act governs or whether there are provisions in the collective agreement that apply. While there is no "formula" in the collective agreement in the sense of a mathematical calculation as set out in Section 24 of the Employment Standards Act, 2000, I read the Court decision as saying it is still possible for an arbitrator to conclude that the collective agreement mandates eight hours of pay for each holiday for employees covered by this grievance. The Arbitrator then notes that there are "numerous" references throughout the collective agreement to eight hours' pay for holidays. He also rejected the 22 Commission's contention that the eight hours does not apply to those who have been absent for more than six months — finding that there were not two separate categories of employees and there was no "cut-off of six months' absence or reference to inactive status." He then noted, at para 44: Given the language of the collective agreement — which, it must be remembered, contains no distinction between active and inactive employees — and given the practice of paying a full day's holiday pay to those who are off work for the first six months, I cannot find any basis for applying the formula in the Employment Standards Act, 2000 simply because the employee has passed the six-month point of absence from work. The six-month dividing line does not appear to be anywhere in the collective agreement. Finally, at para 55 he found: In summary, my conclusion is that the collective agreement is consistent in providing for a regular day's pay for each holiday to employees covered by this agreement, including those off work due to occupational injury, whether they have active or inactive status. As confirmed in the case law cited above, holiday pay is part of the compensation package and there is nothing inequitable about an employee receiving both holiday pay and workers' compensation benefits at the same time, since they exist for separate purposes. Nevertheless, it might seem odd and counterintuitive that an employee who has been off work for two years, for example, would still receive holiday pay. Indeed, this result gives me pause, but I have concluded that the collective agreement — once the qualifiers are eliminated, as they are agreed to be — mandates it. Should the TTC wish to make a change, it must bargain it with the Union. While I take no issue with the decision in Re TTC (supra), I am compelled to disagree with the Union that it is directly on point with the matter before this Board. Employees on WSIB, Short Term and Long Term Disability are on paid leaves of absence while pregnancy leaves are unpaid leaves. For the purposes of Holiday Ray — this distinction is critical. Further, Arbitrator Slotnick was seized of an extremely narrow issue in an almost unique fact situation. 23 Generally speaking, there are two components to Holiday entitlement. The first has to do with payment for the holiday while the other has to do with the time off for the holiday. I will consider these components separately. As noted above, Article 24.06 of the Collective Agreement clearly states the .degree of guidance from the Employment Standards Act. It states: 24.06 The eligibility for and payment of the paid holidays shall be in accordance with the Employment Standards Act. Turning first to the ESA environment as if there were no Collective Agreement in place. Section 24 of the ESA addresses the payment entitlement as follows: 24.(1) An employee's public holiday pay for a given public holiday shall be equal to, (a) the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20; or (b) if some other manner of calculation is prescribed, the amount determined using that manner of calculation. 2000, c.41. s.24(1); 2002, c. 18, Sched. J, s. 3 (12). It is apparent from the above that the ESA at s. 24(1) inserts a formula that calculates holiday pay based on earnings in the prior four weeks. Accordingly, someone on an extended leave might be entitled to some Holiday Pay for any holidays that occurred within the first four weeks of the leave because the formula includes earnings as far back as four weeks in time. Holidays occurring beyond the first four weeks of an unpaid leave would result in a zero payment because the four-week period prior to the holiday would capture no earnings. Further, after the return to work, if the first holidays occur within the first four weeks, the four-week period in the formula may capture weeks during the leave where there were no earnings. 24 As set out above, in s. 24 (1) b of the ESA Holiday Pay might be according to "some other manner of calculation". In this Collective Agreement the parties have agreed to some other manner of calculation. It is useful to set out Article 24.04 again. It states: Holiday pay will be computed on the basis of the number of hours the employee would otherwise work had there been no holiday, at his/her regular hourly rate. Unlike the ESA, this Collective Agreement does not look back to the previous four- week period. Rather, it considers the number of hours the employee would otherwise have worked had there been no holiday. During an extended unpaid leave, there are zero hours being worked during the leave. Therefore, the Holiday Pay is reduced to zero for any Paid Holidays occurring during the period of the leave. After the leave is over however, Paid Holiday pay is fully restored because the Collective Agreement manner of calculation does not look back to the previous four-week period. As a result, because, during the leave "the number of hours the employee would otherwise work had there been no holiday" is zero, there is no Holiday Pay owing to the grievor for the holidays occurring during her pregnancy leave. I turn now to the matter of whether the grievor was entitled to lieu time off as a result of Paid Holidays that occurred during her leave. In cases where the Paid Holiday occurs during a leave of absence, the ESA is clear. It states: Employee on leave or lay-off 29 (2.1) If a public holiday falls on a day that would not ordinarily be a working day for an employee and the employee is on a leave of absence under section 46 or 48 or on a layoff on that day, the employee is entitled to public holiday pay for the day but has no entitlement under this Part with respect to the public holiday, This section is determinative that there is "no entitlement under this Part with respect to the public holiday." As a result, the grievor is not entitled to lieu time off as a result of the Paid Holiday. It should be noted that the words "the 25 employee is entitled to public holiday pay for the day" refers back to the calculation of Holiday Pay that was set out in section 24. These words are necessary in the statute and refer to the holiday pay entitlement found in section 24. In some employment settings it could result in a holiday payment based on the formula that looks back four weeks or perhaps some other agreed manner of calculation. However, that is not the case in the present instance. As previously noted, this Collective Agreement calculates Holiday Pay on "the number of hours the employee would otherwise work had there been no holiday" which, for the grievor, amounts to zero. I am buttressed in my view by the fact that the parties specifically addressed earned benefits that are to continue during pregnancy leave. In Article 25.01(d) it is said that "vacations will not accrue during any absence exceeding thirty (30) continuous calendar days with the exception of maternity/parental leave and short term disability". If the parties intended for Paid Holidays to continue to accrue during maternity leave they could have made it clear as they did for vacation entitlement. They did not. Accordingly, the grievor is not entitled to Holiday Pay or time off for the Paid Holidays that occurred during her pregnancy leave. now turn to the Union's alternative argument that the grievor is at least entitled to have the vacation days she took in March of 2014 returned to her bank. It was asserted that she took these five days off as a result of being told by the Employer that she had at her disposal all of the Paid Holidays lieu days that occurred during her leave. The Union urged that the days should be restored because of this representation. The evidence in this regard was not congruent as between the witnesses for Union and the Employer. It is interesting that in the grievor's evidence in chief she said that Ms. Armstrong told her that she would not "lose her entitlements." Ms. Greenham stated that she "wanted to know if she lost stats when on leave — if 1 26 had them when I came back or not and she (Ms. Armstrong) told me 1 would not lose anything." Ms. Ferguson's evidence was very similar. She testified that the grievor called her after her discussion with Ms. Armstrong and she was told that "she would lose no benefits or bank while she was off on maternity leave." It may very well be that this was the language of that conversation. What is not clear to me is what was meant by the phrase, "not lose". Did it mean that if the grievor had any banked Paid Holidays would they still be in her bank when she returned? That none of her lieu days would be lost? This would have been a legitimate question given that Article 24.02 states, in part, that "in no event shall the float day be carried over into the next payroll year" and the grievor had 16 hours of float days banked at the commencement of her pregnancy leave. Or was the phrase "not lose" meant to convey that she would continue to accumulate Paid Holidays during her leave? Given the ambiguity of this phrase, I think it is entirely possible that what Ms. Armstrong said — or meant to say - was not what Ms. Greenham heard or understood her to say. I find it interesting that the grievor felt the need to have this conversation again with the Employer. She called to speak about this matter a second time and spoke with Ms. Cook. I give little weight to the conversation held between Ms. Cook and the grievor about Paid Holidays because the discussion began with Ms. Greenham telling Ms. Cook that Ms. Armstrong had already assured her that she was entitled continue to accumulate Paid Holidays and so Ms. Cook would have participated in that conversation accordingly. Further, I accept Ms. Cook's evidence that while she could not see why the grievor could not use her accumulated Paid Holidays for a March break vacation, she also said that she had to check with others before giving a definitive answer because she was relatively new in her position at the time. However, it is disturbing that this conversation took place in the month before the grievor's return to work but she did not get a response from Ms. Cook until April 3, 2014. According to the documents provided it appears that Ms. Cook knew on January 23, 2014 what the Employer's view of the grievor entitlement to 27 Paid Holiday was but did not convey that information until after the March break time was taken by the grievor. That delay was unexplained and most unfortunate. The Employer urged that the grievor knew she was not entitled to accumulate Paid Holidays because in her time off request she checked off both "vacation" and "stats" boxes. While I do not think that this fact is — in and of itself - determinative, I agree that it is odd that if the grievor thought she had a dozen accumulated Paid Holidays in the bank she would check that vacation time should be utilized for her time off request. After considering the inconsistent evidence and the ambiguity of the conversations held about the grievor's Paid Holiday entitlement and the vacation request form itself, I am drawn to the conclusion that the Employer did not — as contended by the Union — make a representation to the grievor that she was entitled to all of the Paid Holidays that occurred during the course of her pregnancy leave. Accordingly, the Union's alternative argument fails. For all of those reasons, the grievance is dismissed. Dated in Picton, this 11th day of August, 2016. Felicity D. Briggs W