Loading...
HomeMy WebLinkAboutL.M. 10-04-29IN THE MATTER OF AN ARBITRATION Between: SURREY PLACE CENTRE (the "Employer") -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION ON BEHALF OF ITS LOCAL 511 (the "Union") and in the matter of a grievance relating to L.M. Russell Goodfellow — Sole Arbitrator APPEARANCES FOR THE EMPLOYER: Brian D. Mulroney, counsel Kate A. Zavitz, counsel Bruce Wilson Terri Hewitt Hilary Cook, counsel Beth Collier Charla Farmer Harvey Raft A hearing was held in this matter in Toronto on February 4, 2010. AWARD The Union alleges that the grievor was discharged without just cause or, in the alternative, that she is entitled to the continuation of certain benefits. The grievor's employment was terminated on or about November 19. 2007 for innocent absenteeism. In submitting that there was no just cause, the Union asserts only that the grievoes employment was terminated prematurely. The Union concedes that the grievor's employment could have been terminated, with just cause, approximately 14 months later — on or about January 21, 2009. As a practical matter, insofar as there is no suggestion that the grievor could have been working and earning wages from the Employer over the course of that 14 month period, the Union notes that what is at stake in the unjust dismissal allegation is simply the continuation of benefits for that period. Insofar as the Union's alternative argument, if successful, would result in the recovery of benefits for both that period and on into the future, it is that argument that is the more practically significant and, hence, that will be dealt with first. The claire that beneits must continue post -discharge The' Union's argument here is a pure legal one. It is that, under the terms of this collective agreement, individuals who cease to be employees while entitled to receive long term disability benefits are also entitled to the continuation of certain other benefits, specifically Supplementary Health and Hospital Insurance (SHHI) and Dental. The Employer responds in two ways. First, it submits that the. presumption in the case law is against any such outcome, with the result that clear and specific collective agreement language is required to achieve it. The Employer submits that there is no such Ianguage in this case and, indeed, the terms of the agreement are to the contrary. Second, the Employer asserts that the matter is res judicata. In support of the latter argument, the.. Employer relies on the award in Surrey Place Centre and OPSEU, dated December 13, 2001, unreported (McKechnie), in which the issue was whether the collective agreement precluded the termination of employees in receipt of L.T.I.P. benefits and in which the Union conceded (the Union submits inappropriately here) that benefits did not continue post -termination - In my view, it is unnecessary to pronounce on the second of the two arguments advanced by the Employer. Regardless of the effect, if any, of the earlier award on the present issue, I am not persuaded that the collective agreement supports the Union's claim. states: The principal provision relied on by the Union is. Article 39.3, which 39.3 The Employer will continue to make pension contributions and premium payments for the Dental Plan and for Supplementary Health and Hospital on behalf of the employee, at no cost to the employee, while the employee receives or is qualified to receive L.T.I.P. benefits under the plan, unless the employee is supplementing a W.S.I.B. award. 3 There is no dispute that the grievor is receiving, and is entitled to receive post -termination, L.T.I.P. benefits. 4n that basis, the Union submits, the Employer is required to "continue to make pension contributions and premium payments for the Dental Pian and for Supplementary Health and Hospital" on the grievor's behalf With the greatest of respect, I disagree. The issue here is the intention of the parties and, in my view, whether read in isolation or in context, Article 39.3 does not support the Union's interpretation. First, I note that the provision uses the word "employee". In its normal and natural usage, this means persons who are employed not persons who were employed_ Although the Union notes that the same word appears, for example, in the grievance procedure to describe the rights of persons to grieve their termination, I do not find that instructive in the present context. Second, Article 39.3 forms part of the provision dealing with L.T.I.P. benefits. The first two sub -articles (39.1 and 39.2) establish the amount of the employer contribution to premiums and the terms of the benefit. To the extent that Article 39.3 goes further and deals with the continuation of certain other benefits while on L.TI.P., it does not appear to address the issue raised here: the continuation, if any, of benefits post- termination. Under the terms of this agreement, such matters tend to be addressed, separately, within the context of the provision establishing the benefit in question. 4 Thus, in respect of L.T.I.P. benefits, Article 39 continues: 39.5 Long Term Income Protection coverage will terminate at the end of the calendar month in which an employee ceases to be an employee. If the employee is totally disabled on the date their insurance terminates, they shall continue to be insured for that disability. The existence of this provision suggests that where, as here, the parties intend a specific benefit to continue post termination — in this case L.T.I.P. — they do so expressly and within the confines of the provision that establishes the benefit. And, it is perhaps worth nothing that the extension of the L.T.I.P. benefit post termination is both specific and limited; that is, it only applies in respect of the disability that was in play at the time of termination. The benefits that are in issue here — SHM and Dental — are dealt with in Articles 41 and 42 respectively. After following the same format as the L_T.I.P. provision. (i.e. setting out, at length, in the opening sub -articles, the various services and benefits covered), the SHHI article continues: 41.3 It is not necessary for an employee or dependents to be confined to hospital to be eligible for benefits under this plan. If an employee is totally disabled or their dependent is confined to hospital on the date their Supplementary Health and Hospital Insurance terminates, benefits shall be payable until the earliest of. the date the total disability ceases, the date their dependent is discharged from hospital, or the expiration of,six (6) months from the date of termination of insurance. 5 41.4 Where an employee is totally disabled, coverage for Supplementary Health and Hospital insurance will cease at the end of the month in which the employee receives their Iast_pay from the Employer, except as provided in section 39.3 of Article 39 (Long Term Income Protection). If an employee wishes to have Supplementary Health and Hospital Insurance continued, arrangements may be made through the Human. Resources Office. The employee shall pay the full premium. Describing the terms of Article 41.3 as a bit of a puzzle, the Employer suggests that the use of the phrase the "earliest of and the reference to "the date of termination of insurance" are inconsistent with an intention to provide for the continuation of benefits for as long as the total disability continues, even after termination of employment; I agree. Further, along the same lines, I note that Article 41.4 provides for the termination of coverage at the point at which "the employee receives their last pay from the Employer, except as provided in section 39.3" (emphasis added). The reference to the receipt by the employee of their last pay from the employer would appear to reveal an intention for SHHI benefits to terminate when the individual is totally disabled while still employed unless they are in receipt of L.T.I.P. benefits while still employed. Had the parties wished those benefits to continue post termination of employment they could have and, no—doubt, would have said so in precisely the same manner that they did in Article 39.5. Additional support for this interpretation is found in the next two sentences that permit the employee to continue the SHHI coverage by making arrangements with the Human Resources Office and paying the full premium. In my view, this would be a highly unusual arrangement to establish with former employees. M Turning to the provision establishing the Dental Pian, which follows a similar structure, the concluding Article states: CANCELLATION 42.4 All coverage under this plan will cease on the date of termination of employment. This provision is crystal clear with respect to dental coverage — one of the two subjects expressly, and seemingly indistinguishably, dealt with in Article 39.3: dental coverage ceases with termination of employment_ fn respect of that coverage, the Union suggests that this is a "general" provision that is overridden by the specific terms of Article 39.3. 1 cannot agree. In my view the two provisions stand together in precisely the manner suggested by the Employer. Dental coverage, and benefits, cease upon the termination of employment but not prior thereto provided the employee is in receipt of L.T.I.P. benefits. It means that "employees" within Article 39.3 refers to actual employees, even those who may not be working (and receiving pay from the Employer), provided they are in receipt of L.T.I.P. benefits. And, it lends support to the Employer's argument that Article 39.3, in dealing with dental benefits and SEM benefits together, is concerned — in both cases -- with situations of ongoing employment. For these reasons, I find that the Union's interpretative argument — that the specified benefits continue post -termination — fails. 7 The claim that the dischgr e was effected orematurely This argument was based on the following agreed statement of facts (from which certain introductory paragraphs and documentary references have been deleted): The grievor was hired by SPC on August 8, 2000 as a regular full -tune employee. Her title was Divisional Secretary, Adult Services Division. Her date of birth is June 5, 1953. 10. The Grievor has not been actively employed by SPC since August 2006. 11. On November 30, 2006 Gabrielle Bochynck, SPC Human Resources Director wrote to the Grievor's doctor asking that the doctor consider referring the Grievor to a counselling program provided by the employer's EAP provider. 12. The Grievor initially received Short -Term Disability benefits. These ended on or about February 22, 2007. 13. Following the expiry of her Short -Terra Disability benefits, the Grievor approached Gabrielle Bochynek, the then Human Resources Director of SPC on two occasions to request a severance package. 14. On or about February 12, 2007, Sun Life, SPC's Long -Term Disability carrier, copied SPC on a letter to the Grievor, advising her that her application for Long-term Disability benefits had been approved, subject to the Grievor obtaining a psychiatric consultation. 15. On or about March 27, 2006, Sun Life again wrote to the Grievor, reciting a conversation of March 26 in which the Grievor said that she would not attend an Independent Medical Evaluation ("IME"), scheduled for April 2. Sun Life cancelled the IME and advised the Grievor that if she did not contact it in order to comply with the terms of the LTD policy, it would terminate her benefits. 16. Mr. Bochynek wrote to the Grievor by letter dated March 30, 2007, suggesting that it might not be in the Grievor's best interests to receive a severance package while her application for Long -Term Disability benefits was pending. Ms. Bochynek suggested to the Grievor that she discuss the matter with her family and her physician before proceeding farther. However, if the Grievor wished to receive a severance package, SPC would provide her with one, calculated using the same principles it did when it was reducing administrative staff in 2004. 17. On April 4, 2007 Gabrielle Bochynek wrote to Beth Collier, president of the local union, to inform her that in order to proceed with the Grievor's Long Term Disability claim Sun Life would require the Grievor to attend a psychiatric assessment. 18. On or about May 17, 2007, Sun Life again wrote to the Grievor. advising her that her Long -Term Disability benefits would cease in August, 2007, unless she had undergone the necessary psychiatric consultation. 19. In or about June, 2007, Gabrielle Bochynek resigned her employment. SPC hired Mr. Bruce Wilson to be its Vice President, Human Resources and Organizational Development. 20. On or about July 16, 2007, Bruce Wilson wrote to the Grievor, requesting that she meet with him and with Beth Collier. President of the Local Union, to discuss the fact that Sun Life planned to terminate her LTD benefits, effective August 15, and had advised her to contact Human Resources. Mr. Wilson asked the Grievor to telephone him before July 25. 21. A meeting was arranged for July 26, 2007. The Grievor advised Mr. Wilson that she would not meet anyone on the SPC premises so the meeting was scheduled for the cafeteria of Women's College Hospital, across the street from SPC. The Grievor did not attend the July 26 meeting. 22. On July 27, Mr. Wilson again wrote to the Grievor. He noted that the Grievor's Long -Term Disability benefits were scheduled to be terminated on August 15, 2007 and that the Grievor had until August 17 to appeal Sun Life's decision. Mr. Wilson requested that the Grievor meet with him and Ms. Collier, again at Women's College Hospital, on August 13, 2007 to discuss matters. 23. Once again, the Grievor failed to attend the August 13 meeting. 24. On August 13, 2007, Ms. Collier wrote to Ms. Yvonne Pigozzo, the Grievor's Sun Life Case Manager, expressing concerns about the Grievor's well-being. 25. On or about August 14, 2007, Mr. Wilson again wrote to the Grievor, noting that she had not attended the July 26 or August 13, 2007 meetings and instructing her how to appeal the termination of her Long -Tenn Disability benefits, scheduled to occur the following day. 26. Also on August 14, Mr. Wilson wrote to Dr. Anca Facy, the Grievor's family physician, expressing his concern about matters. 27. Mr. Wilson wrote a third letter on August 14 to Ms_ Pigozzo of Sun Life, offering his opinion that she was not able to return to work and suggesting another psychiatric assessment or IME. Ms. Pigozzo's August 22 reply, denying these requests, is found at Tab 13 of the Document Brief. 28. On August 30, 2007, Mr. Wilson wrote to the Grievor, noting that he had been advised that she did not appeal the discontinuation of her Long -Term Disability benefits. The letter referred to the Grievor's status as "unpaid leave of absence". The letter indicated that SPC would continue to provide her with health and dental benefits. 29. On September 11, 2007, Mr. Wilson wrote to the Grievor, indicating that she had not been in contact with SPC following receipt of the August 30 letter, requesting that the Grievor contact him by September 24 and advising that SPC would take steps to terminate her employment if she failed to attend. 30. On September 26, 2007, Mr. Wilson again wrote to the Grievor. He indicated that he had already written five letters to her and that she had either cancelled or failed to attend meetings scheduled for July 26 and August 13. The letter stated that SPC would schedule one final meeting to deal with the issues surrounding the Grievor's absence, that the Grievor should respond to the request by October 12 and that, if she failed to do so, SPC would terminate her employment. I. The Grievor telephoned Mr. Wilson on September 28, requesting that the meeting be scheduled for October 16 at 2:00 p.m. A copy of Mr.. Wilson's confirming letter is attached at Tab 4 of . the Supplementary Book of Documents. 32. The Grievor failed to attend on October 15 and, when contacted, said that she thought the meeting had been scheduled for October 18. The meeting was rescheduled to October 18 and the grievor was warned that a failure to attend would result in termination. 33. On October 18 the meeting took place between Mr. Wilson, Mr. Collier and the Grievor. At that time, the Grievor stated that she continued to be interested in receiving a voluntary exit package. 34. On October 31, Mr. Wilson wrote to the Grievor, recounting the history of SPC's dealings with her over the issue of her absence from work. Mr. Wilson advised the Grievor that, on or before November 16, she would be required to: (i) accept SPC's severance offer; (ii) return to work; or (iii) resign. If SPC did not 10 hear from the Grievor by November 16, it would terminate her employment. 35. The Grievor did not respond to the above letter. On November 19, 2007, Mr. Wilson wrote to her, terminating her employment. For reasons that are material to the parties' arguments, I note that the following paragraphs deal with post -termination events: 36. On November 27, 2007 Mr. Wilson wrote to Ms. Collier stating that the courier company was reporting that the Grievor had refused to accept the delivery of the letter of termination on three occasions. A series of e-mails between Mr. Wilson and Ms. Collier dated November 27th and 30th are attached at Tabs 6 and 8 of the Supplementary Book of Documents. 37. In March 2008, the Grievor was evicted from her apartment for non-payment of rent. A notice of eviction is attached at Tab 8 of the Supplementary Book of Documents. 38. At some point in March or April 2008 [name omitted] and [name omitted], the Grievor's sister and brother-in-law went by "the Grievor's apartment at 1400 Bathurst Street. They received no answer to their knocking. Another tenant advised them to speak to the superintendent of the building, as the Grievor had been evicted. On speaking with the superintendant he confined that the Grievor had been evicted some days earlier. 39. The couple then filed a missing persons report with the police and set about searching the neighbourhood for the Grievor. A copy of the Toronto Police Service news release for April 7 and April 10 2008 are attached at Tab 9 of the Supplemental Book of Documents. 40. On or about April 7, 2008 [name of Grievor's sister omitted] contacted Mr. Wilson and Ms. Collier and informed them that the Grievor was missing. 41. On April 9, 2008 the Grievor arrived barefoot at St. Michael's Hospital where she was admitted for treatment. 42. Once under medical treatment the Grievor was found to have a number of medical diagnoses including intra -cranial bleeding, vascular dementia, and paranoia. 43. On April 16, 2008 Ms. Wilson wrote to Ms. Collier informing her that he had spoken to the hospital where the Grievor was 11 under care and planned to communicate with the Grievor's sister regarding the Grievor's employment. 44. In or about June, 2008, Mr. Wilson received a telephone call from Mr. Richard Levy of the Office of the Public Guardian and Trustee, advising that the Public Guardian. and Trustee had been appointed to manage the Grievor's affairs, under the Substitute Decisions &t. Mr. Levy confirmed the telephone call in writing. 45. On August 1, 2008, Mr. Levy wrote to Mr. Wilson, requesting documents relating to the Grievor's employment with SPC. 46. Thereafter, MT. Levy telephone Ms. Wilson to request that SPC reinstate the Grievor in employment and that it write to the Hospitals of Ontario Pension Plan ("HOOPP"), requesting that HOOPP allow the Grievor to continue to accrue service under HOOPP, SPC contacted HOOPP regarding the matter. 47. On or about August 7, 2008, Sun Life reinstated the Grievor's LTD coverage, retroactive to August 15, 2007. 48. On August 22, 2008, Mr. Levy wrote to SPC, enclosing a letter from HOOPP to the Office of the Public Guardian and Trustee, advising the Grievor's employment had been terminated. 49. On August 28, 2008, Mr. Levy wrote to SPC, requesting inter alfa, that SPC reinstate the Grievor in employment. Mr. Wilson advised Mr. Levy that he could not negotiate terms and conditions of employment with him, advised him to contact " OPSEU and himself contacted OPSEU. Copies of Mr. Wilson's correspondence to Mr. Levy and to Andrew Zima of the Local Union are found at Tabs 24 and 25 of the Document Brief. 50. On December 16, Mr. Tony Balenzano of the Office of the Public Guardian and Trustee advised that the Grievor's sister, [name omitted], had been appointed as her guardian. 51. On or about January 21, 2009, SPC received the correspondence found at Tab 27 of the Documents Brief regarding the Grievor's prognosis. 52. The Grievor's Long -Term Disability benefits, including a waiver of premium with respect to Group Life Insurance coverage, were reinstated, effective August, 2008, retroactive to August 15, 2007. 51. The Grievor now resides in a nursing home as she is unable to care for herself. 54. SPC has paid the Grievor termination pay and severance pay, pursuant to the Employment Standards Act. 12 Based on these facts, the Union submits that the Employer acted prematurely in terminating the grievor's employment for innocent absenteeism on November 19, 2007, The Union submits that, as of that date, the second part of the well- known two-part test (ie. excessive absenteeism in the past and no reasonable prospect for regular attendance in the future) had not been, met. The Union submits that the precise nature of the grievor's condition was unknown as of that date and it remained unknown until January 21, 2009 when, pursuant to the correspondence referred to in paragraph 50, the Employer was advised by Sun Life that the grievor was expected to never be able to return to work and that her L.T.I.P. claim had been approved. While conceding that the Employer "bent over backwards" in attempting to obtain the necessary information, the Union submits that that is not enough. The grievor was terminated for innocent absenteeism, not for being away without leave, and, according to the Union, the facts necessary to support such a termination did not exist on November 19, 2007. I agree with the Union that the relevant date for assessing the legitimacy of the discharge is November 19, 2007. In so stating, I reject an aspect of the Employer's argument that the decision of the Supreme Court of Canada in Syndicat des Employees de Techniques Professionelles et de Bureau d Hydro -Quebec, Section Locale 2000 v. Hydro Quebec, [2008] 2 S.C.R. 561, permits me to consider post -termination events or information to, in effect, confirm or validate the legitimacy of the earlier decision -- should any such validation be needed. In my view, however, such confirmation or validation is not needed: the facts that were in place at that time were more than sufficient 13 to draw a reliable inference about the prospects for the grievor's regular attendance at work in the future or, in this case, the lack thereof. This, it must be said, is a truly unfortunate case. It is impossible to read the agreed facts and not be moved by the terrible misfortune of the grievor's situation. That, however, cannot form the basis for this decision. The question to be addressed is not whether the grievor's circumstances are such as would benefit, in even some limited or modest way, from a finding in her favour, but whether, objectively speaking, as of November 19, 2007, it could be said that there was no reasonable prospect for her regular attendance at work in the future. Reading the facts with that issue in mind, the result, in my view, is plain. As of November 19, 2007, the grievor had already been off work for some 15 months. The precise reasons, as either may or may not have been known at that time, are not given in the agreed facts but what was known is that they were sufficient to first entitle her to short-term disability payments and then to cause Sun Life to provide L.T.I.P. benefits for several months, effectively on a without prejudice basis, while awaiting further information. In addition, there were the facts that the grievor had: (i) repeatedly evinced a desire not to return to work by seeking a severance package — an initiative that, it would appear, only failed to come to fruition because of efforts by the Employer to assist her in obtaining L_T.I.P. benefits; (ii) repeatedly failed to respond to attempts both by the Employer and the Union to clarify her situation and to assist her in potentially securing L.T_I.P. benefits rather than a severance package; and (iii) failed to communicate with Sun Life concerning the continuation or resuscitation of L.T.I.P. benefits. Thus, when the past and present were put together by the Employer in 14 November 2007, there was more than enough to conclude that the employment relationship was moribund. The Employer was not required to await a medical diagnosis, that may or may not have ever been forthcoming or, for that matter, a determination by Sun Life about the availability of L.T.I.P. benefits, before acting. The Employer was amply entitled to effect a termination for innocent absenteeism at the time that it did, if not sooner. For all of these reasons, the grievance is respectfully dismissed. DATED at Toronto this 29th day of April, 2010. E—Or—M Goodfellow - Sole Arbitrator