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HomeMy WebLinkAbout1992-2350.Cleveland.93-10-06 - \. ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO ~, . . GRIEVANCE COMMISSION DE 1111 SETTLEMENT ' . REGLEMENT . '. BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO M5G lZ8 TELEPHONE ITELEPI-IONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FAC.SIMILE ITELEC.OPfE (416) 32671396 2350/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Cleveland) Grievor - and - The Crown in Right of ontario (Ministry of Correctional pervices) Employer BEFORE. s. stewart Vice-Chairperson J C Laniel Member F. Collict Member E'OR THE M Cheng GRIEVOR Counsel Scott & Aylen Barristers & Solicitors FOR THE M. Blight EMPLOYER Counsel Genest" Murray, DesBrisay, Lamek Barristers & Solicitors HEARING May 13; 1993 - ~ ~, DECISION In a .grievance dated August 10, 1992, Mr. c. Cleveland alleges that the Employer has failed to pay him in accordance with Article 48 1 and 54 2 of the Collective Agreement The parties were able to agree to most of the relevant facts, however, some evidence was called by the Union. The grievor is employed as a Correctional Officer at the Niagara Detention Centre. He sustained a work-related injury on May 8, 1992 and, as a result, was absent from work and in receipt of workers' compensation benefits between May 9, 1992 and May 26, 1992. Due to his absence the grievor was unable to work nine previously scheduled twelve hour shifts If the grievor had not been absent due to his injury he would have worked the 11:30 to 23:30 shift on May 18, 1992, the Victoria Day holiday referred to in Article 48 1 of the Collective Agreement. The grievor was paid twelve hours wages for the victoria Day statutory holiday at his regular rate. Eight hours were attributed to payment for the holiday, in accordance with the Employer's obligation for compensation for holidays not worked and the remaining four hours were attributed to payment for a worker's compensation absence. The grievor began the month of May, 1992 with an accumulated balance of twenty-four hours of statutory holiday entitlement. The closing balance for that month was the same figure. It is the position of the Union that the Employer ought ) to have attributed the entire twelve hours payment to workers' compensation and the grievor should be credited with statutory < . ~ 2 \ holiday entitlement for that day It is the position of the Employer that there has been no violation of the Collective Agreement and t~at the Employer has compensated Mr Cleveland in accordance with its obligations under the Collective Agreement. The relevant provisions of the Collective Agreement are the following Article 19 - Holiday Payment I 19 1 Where an employee works on a holiday included under Article 48 (Holidays), he shall be paid at the rate of two (2) times his basic hourly rate for all hours worked with a minimum credit of seven and one-quarter (7 1/4), eight (8) , or the number of regularly scheduled hours, as applicable. 19 2 In addition to the payment provided by section 19 1, an employee who works on the holiday shall receive either seven and one-quarter (7 1/4) or eight (8) hours pay as applicable at his basic hourly rate or compensating leave of seven and one-quarter (7 1/4) or eight (8) hours as applicable', provided the employee opts for compensating leave p~ior to the holiday 19 3 / It is understood that sections 19 1 and 19.2 I apply only to a~ employee who is authorized to work on the holiday and who actually works on the holiday, and that an employee who, for any reason, does not actually work on the holiday shall not be enti t.led to the payments described herein. 19.4 When a holiday included under Article 48 (Holidays) coincides with an employee's scheduled day off and he does not work on tha~ day, the employee shall be entitled to receive another day off Article 48 - Holidays - 48 1 An employee shall be entitled to the following paid holidays eaph year "- \ ------ - - -- -- -- ) 3 New Year's Day Good Friday Easter Monday victoria Day Canada Day civic Holiday Labour Day Thanksgiving Day Remembrance Day Christmas Day Boxing Day Any special holiday as proclaimed by the Governor General or Lieutenant Governor Article 54 - Workers' Compensation 54.1 Where an employee is absent by reason of an injury or an industrial disease for which a claim is made under The Workers' compensation Act, his salary shall continue to be paid for a period not exceeding thirty (30) days If an award is not made, any payments made under the foregoing provisions in excess of that to which he is entitled under sections 52 1 and 52.6 of Article 52 (Short Term Sickness Plan) shall be an amount owing by the employee to the Employer 54.2 Where an employee is absent by reason' of an injury or an industrial disease for which an award is made under The Workers' compensation Act, his salary shall continue to be paid for a period not exceeding three ( 3.) consecutive months or a total of sixty-five (65) working days where such absences are intermittent, following the date of the first absence because of the injury or industrial disease, and any absence in respect of the injury Qr industrial disease shall not be charged against his credits. ,- 54 3 Where an award is made under The Workers' Compensation Act to an employee that is less than the regular salary of the employee and the award applies for longer than the period setout in section 54 2 ~nd the employe~ has accumulated credits, his regular salary may be paid and_the difference between the regular salary paid after the period set out in section 54.2 and the compensation awarded shall be converted to its equivalent time and deducted from his accumulated credits 54 4 Where an employee rece:j.vesl an award under The Workers' compensation Act, and the award -applies for longer than the period set out in ~ - - - - ---- 1 ~ ~ ~ -~- ~ 4 section 54 2 (i e. three (3) months), the Employer will continue subsidies for Basic Life, L.T I.P , Supplementary Health and Hospital and the Dental Plan for the period du~ing which the employee is receiving the award. 54.5 Where an employee is absent by reason of an injury or an industria~ disease for which an award is made under The Workers' Compensation Act; the employee shall not be entitled to a \ leave-of-absence with pay under Article 52 (Short Term Sickness Plan) as an option following the expiry of the application of section 54 2 The issue in this grievance has been the subject of a number of decisions of this Board, most I recently in Ministry of correctionai Services and OPSEU. (Whittardl 255/91 (Watters) . In Whittard the Board noted that there had been a change in the language of the Collective Agreement that called the Board's past analysis of this issue into question. At pp 6-8, the decision states as follows: The issue raised in this proceeding has been addressed in several awards of this Board including Charbonneau and Mattison. In those cases the respective panels found that a grievor who could not work on a holiday as originally scheduled because of a compensable injury was entitled to both their regular pay under article 54 2 and holiday pay, or a lIeu day, under article 19. It is readily apparent that this resulted fr,om a conclusion that article 19 2, as then worded, was intended to apply to all employees and not simply to those who worked the holiday. After the award in Parsons, the Board treated article 19.2 as the source for holiday pay for all employees It is significant that the holiday article merely enumerated the holidays to be enjoyed each year. The provision did not then state that they were to be enjoyed as paid holidays. The Board was therefore compelled to look elsewhere for the source of holiday pay. 5 It was co~ceded by the Union that article 19 of the collective agreement could no longer support the result reached in Charbonneau and Mattison. As previously noted, the parties amended article 19 in the last round of negotiations More specifically, language was added to articles 19.2 and 19.3 the effect of which was to limit payment under 19 1 and 19 2 to employ~es who actually worked on the holiday The latter article could therefore have no impact on the facts of this case. The Union, therefore, relied exclusively on article 54 2 It is noteworthy that article 48.1 was also amended through the addQtion of the word "paid" prior to the word "holidays" This change created a "source" for payment, although arguably the quantum of same may still need to be ~ inferred from other articles 'The Board has reviewed the language found in article 54.2 We have not been persuaded that it supports the Union's claim. Firstly, the grievor was granted the paid holiday pursuant to article 48 Secondly, a reduction was not made against the holiday credits she had earned as of September 1, 1990. Given these facts, we cannot agree that an improper charge was applied. The Board further notes that the grievor received the benefit of continued salary under article 54 3 Her rights under that article were not compromised by the Employer's actions. As indicated above, the Employer was prepared to respect the threshold periods established therein. In this sense, the Board is satisfied that the grievor was credited to the full extent of her contractual entitlement. In summary, we think that the right to claim both salary an9 holiday pay, or compensating time off, ended with the amendments to the collective agreement The Board is unable to find that such entitlement flows from article 54.2 alone. The issue was subsequently considered by another Panel of this Board in Ministry of Correctional Services & OPSEU (Arnold) 255/91 (Dissanayake) In that case, the Board dealt with the situation of an employee who was absent from work due to illness The Arnold decision deals with the Board's jurisprudence following Charbonneau, noting the inconsistent o - - -' ~. -- - - -- - ~. - --~ --- " J r I) 6 treatment of absences due to illness and those due to absence on workers' compensation It is apparent that the change in the language of the Collective Agreement was not brought to the attention of the Board, nor was the Board's decision in Whittard In the Arnold case the Union advanced a legal argument that had not previously been addressed by the Board. The Board found that argument, based on the doctrine of "fundamental reason for absence" to be persuasive, and concluded that it ougQt to depart from its previous approach to this issue. At p 13 the Board states: We have concluded that "the doctrine of fundamental reason for the absence" is logical ( and meritorious and has direct application to the issue before us Indeed, employer counsel did not challenge either the merits or the applicability of the doctrine. She simply urged the Board not to depart from its prior jurisprudence. At pp 15-17, after reviewing the distinct purposes of holiday ) pay and sick pay, the Board goes on to state: Keeping in mind these distinct purposes served by holiday pay and sick pay respectively, it logically follows that each type of benefit must be paid to serve the purpose for which it was negotiated On the facts before us, it is beyond any dispute that the only reason the grievor was absent , on December 26, 1990 was because he was ill. If not for his illness he would have worked that day, because as far as he was concerned it was a work day for him. Looking at it from another angle, the fact that December 26, 1990 happened to be one of the paid holidays listed in article 48 had nothing to do with why the grievor did not work that day. The grievor was scheduled to work that day, but: did not do so only because of illness. That is the very situation which is intended-to be ~ ---_..~_._- . ^ -; 7 indemnified through the short-term sick plan in article 52 What the doctrine of "the fundamental reason for the absence" requires is that where an employee is absent, his or her benefit entitlement must be based on the fundamental reason for the absence In some cases, this doctrine favours the employee. In others, as in Re Atlas Steels (supra) , it works to the disadvantage of the employee Yet in each case the result is logical and predictable, and more importantly, in conformity with the intended purpose of the benefit provisions' of the collective agreement We agree that the Board should not lightly depart from its prior jurisprudence. We are mindful of the ca~tion made by Chairman - Shime in Re Blake et aI, 1276/87, which was relied on by employer counsel However, we find the union's submissions based on the doctrine of fundamental reason for absence to be extremely logical and persuasive The prior decisions were decided on the basis of a practice and an understanding on the part of the employer and the Board. The decisions do not disclose any legal principle or logical reasoning which justifies the result. There is no suggestion of estoppel operating against the union. The practice is one applied by the employer unilat~rally. In the absence of a counter- vailing principle which indicates strongly the appropriateness of a different result, it may be justifiable to refuse to depart from an established line of cases and to give priority to the policy considerations favouring the certainty of the law However, in our respectful view, where we are satisfied that those cases run counter to a very logical and persuasive legal principle on interpretation of the benefit provisions of a collective agreement, it would not be proper for this Board to ignore that principle and simply defer to the prior decisions, which r were reached without a consideration, of that legal principle Extreme circumstances exist here to determine this grievance on the merits of the legal submissions before us, withou~ being constrained ! . ,I' 8 by past decisions rendered without a consideration of a valid legal principle put before us. The grievor had sick credits in his bank and was absent on December 26, 1990 due to sickness. Since the reason for the absence was sickness and not the paid holiday, that absence should have been charged against his sick credits and he should have been paid sick pay under article 52. The employer contravened the collective agreement by failing to do so and by treating the absent day as a paid holiday since holiday pay and sick pay are both separately provided in the coll~ctive agreement no issue of pyramiding arises in this case In our view, the analysis in, Arnold is persuasive and we have no hesitation in accepting the principle articulated in that decision. However, in light of the change in the language of the Collective Agreement referred to in Whittard, a matter which was not considered in Arnold, we are unable to accept that the principle expressed in Arnold Should be followed There was a negotiated change in the language of the Collective Agreement which removed the basis upon which the Union had successfully claimed ,entitlement to holiday pay and regular pay in cases such ! I . It was conceded by the Union in as Charbonneau and Matt1son Whittard that Article 19 of the Collective Agreement could no longer support the result in those cases. In all instances the role of an arbitrator or arbitration board is to determine the intention of the parties The application of general doctrines such as "fundamental reason for absence" is subject to the conclusions that result from more specific indications of the intention of the parties The change in the language of the Collective Agreement which removed the basis upon whichithis kind - -. - ~ . .u _ - ./ ,~ '. .! ," .- 9 of claim has been accepted by this Board is a more specific I indication of the intention of the parties We agree with' the analysis in Whittard as to the effect of the change in the language of the Collective Agreement We accept the Employer's position that the grievor was compensated in accordance with the entitlements provided for in the Collective Agreement Accordingly, the grievance is dismissed Dated at Toronto, this 6th day of October, 1993 / ~ u.va.u1"" S.L stewart - Vice-Chairperson I J C Laniel - Member W -7 F , \