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HomeMy WebLinkAbout1992-2550.Pezuk.94-03-07 , .~ ~i;::~';i~~J~ ,'_//~'.,:: ONTARIO EMPLOYES DE LA COURONNE ....,'l~!. '~i'I':" CROWN EMPLOYEES DE L'ONTARIO . ':)~l?1.. ~~~~... ~ ~ \1~ 1 ;": ~}~" ~~}-~ ~ ~~ f"".l GRIEVANCE COMMISSION DE 1111 SETTLEMENT . REGlEMENT BOARD DES GRIEFS rso DUNDAS STREET WEST SUITe 2100, TORONTO. ONTARIO, M5G lZS TELEPHONEITELE:PHONE f416) 326-13S8 ISO RUE DUNDAS OUeST BUREAU 2100. TORONTO fONTARIO) M5G lZS FACSIMILEITELECOPIE (476) 326-1396 2550/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Pezuk) Grievor - - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE N. Oissanayake Vice-Chairperson FOR THE G. Adams GRIEVOR Grievance Officer Ontario Public Service E~ployees union FOR THE P. Toop EMPLOYER Employee Relations Officer Management Board Secretariat HEARING February 28, 1994 , 2 DECISION This matter was heard pursuant to the expedited arbitration procedure contained in the collective agreement between the parties. The grievor Mr. Dan Pazuk commenced employment with the Ministry of Health on February 28, 1966. From February 1983 until his retirement on November 30, 1992, Mr Pazuk was in receipt of Long-term Income Protection benefits in accordance with the collective agreement. The grievance arises out of a dispute between the parties as to the extent of Mr. Pazuk's period of continuous service for purposes of calculating his severance pay entitlement under the collective agreement. The relevant provision of the agreement reads: 53.6 For purposes of determining qualification for severance pay and the amount of severance pay to which an employee is entitled, an employee's continuous service shall not include any period" (a) When he is on leave-of-absence without pay for greater than thirty (30) days, or for a period which constitutes a hiatus in his service, i e : (1) Political Activity (P S A., S 12 5) (2) Lay-off (Article 24, Job Security) (3) Educational Leave (R.R.O 1980, Reg 881, S. 29; (b) When he is receiving benefits under the Long Term Income Protection Plan; (c) after the first six (6) months that he is receiving benefits pursuant to an award . 3 under The Workers' Compensation Act, but this clause shall not apply during a period when the accumulated credits of the employee are being converted and paid to the employee at a rate equal to the difference between the regular salary of the employee and the compensation awarded Pursuant to article 53 6(b) above, the employer excluded the peri.od during which Mr Pazuk was in receipt of LTIP benefits from his period of continuous service for purposes of calculating his severance pay entitlement The union agrees that the employer has thereby complied with article 53(6) (b). Therefore there is no claim that the collective agreement has been contravened. However, it is the union's position that Mr. Pazuk came within the "handicap" protection afforded by article A.1.1 of the collective agreement In other words, the union submits that by disregarding the period during which Mr Pazuk received LTIP benefits the employer has penalized him and that this constitutes discrimination because of handicap, which is a prohibited ground of discrimination under article All and the Human Rights Code, RSO 1990, C. H-19. On that basis, the union submits that I should declare article 53 (6) (b) to be null and void and direct the employer to consider the period in question as part of Mr Pazuk's period of continuous service . 4 The employer representative points out that the collective agreement specifically stipulates in article 27.16 that the Board "shall have no jurisdiction to alter, change, amend or enlarge any provision of the collective agreement" He submits that the union is in effe9t requesting the Board to strike out or ignore a very clear provision of the collective agreement That he submits is beyond the jurisdiction of the Board It is also submitted that, in any event, the union should be estopped from now arguing that the employer is not enti tIed to rely. on a provision to which the union had agreed. As the authors of Brown & Beatty, Canadian Labour Arbitration, (3rd Edition) state at p. 2-40 II it is now . . . established that where the provisions of a collective agreement are clearly contrary to a statute, the arbitrator is to treat that portion of the collective agreement as null and void gO 0 In my view that obligation of an arbitrator exists despite a provision such as article 27.16 which merely has the effect of making explicit the general principle that the arbitrator's mandate is to interpret and apply the collective agreement as he finds it That does not detract from the arbitrator's obligation not to enforce a provision of a collective agreement which is contrary to a statute For this purpose the arbitrator is entitled and indeed obligated to construe the relevant provisions of the statute See, Mcleod et al v. Egan et al 74 C L L C para 14,220 (s.c.c.) . ^ 5 In Re Beintner, 1841/87 (Roberts), the board observed at pp 10-11: On the other hand, where the claim is that a provision of the collective agreement violates a public policy or is illegal because it contravenes a statute, arbitrators have not hesitated to consider the statute and render their interpretation of it. No one has ever doubted that in such a case a board of arbitration or arbitrator is obligated to acknowledge that impact and refuse to enforce the offending provisions. The employer did not seriously challenge the union's contention that article 53 6 (b) was contrary to the prohibition against discrimination "because of handicap Vi contained in the Human Rights Code. It was not the employer's position that the grievor did not come within the "handicaplU protection. However, the employer representative argued that the mere fact that the grievor was treated differently than other employees is of no cause for concern because collective agreements commonly treat different types of employees and different circumstances in different ways It is true that there is no requirement generally that all employees, no matter what the circumstances are, must be treated equally in a collective agreement. However, what the Human Riqhts Code and article A 1.1 require is that any discriminatory treatment of employees be not based on a prohibited ground, one of which is handicap - .' 6 Based on the facts and the submissions I received, I find that the result of enforcing article 53.6(b) is to discriminate against the grievor because of handicap, which is a prohibited ground under the Human Rights Code, which is incorporated in the collective agreement through article A 1.1 The next issue is, the employer r s submission that the union is estopped from relying on article A 1.1 or the Human Rights Code, because it agreed to article 53 6 (b) and was signatory to a collective agreement, which included article 536(b). One of the key ingredients for application of estoppel is detrimental reliance I have no facts before me to suggest any detriment the employer suffered as a result of the union's agreement to include article 53.6(b) in the collective agreement Indeed, it seems that the employer would have been bound by the prohibition in the Human Rights Code, no matter what the union had agreed to, because as noted any provision contrary to the Code would not be enforceable. More importantly, in my view a party cannot be estopped from relying upon the protection afforded by the Human Rights Code. The Code has quasi-constitutional status in that it has primacy over other statutes [section 47(2)]. Just as much as contractual provisions cannot prevent the application of the Human Rights Code, estoppel cannot have that result. In all . ;:- 7 of the circumstances, I find that the union is not estopped from relying on the Human Riahts Code. The employer submitted that if this grievance is successful, the union should be held jointly liable for the severance pay resulting from the grievor's period of LTIP, because the union was as responsible for the inclusion of article 53 6(b) in the collective agreement as the employer was. Reliance was placed on Re Central Okanaaan School District No. 23 v. Renaud, 92 C L L C. para 17, 032 (S C C ). , In my view the facts in the Renaud case are clearly distinguishable, and indeed are the opposite of the facts here There the employer made a proposal seeking the consent of the union to create an exemption from the provisions of the collective agreement, which would allow for the accommodation of the employee as required by the Human Riahts Act of B.C . The union refused In contrast, by pursuing Mr Pazuk's grievance, it was the union proposing an exemption from the offending provision of the collective agreement so that Mr. Pazuk's rights under the Human Riahts Code would be preserved. It was open for the employer to consent, but it chose not to. While the employer and the union jointly agreed to article 53.6(b) when the union realized that its enforcement compromised Mr Pazuk's statutory rights, it sought the employer's consent to rectify the situation. The employer by ~ ;. <> ). .' 8 denying the grievance, refused to do that but continued to pursue and rely on the offending provision In the circumstances, I find that the union should not be held responsible for any part of the severance pay entitlement of the gr ievor The employer is directed to disregard article 53.6(b) in calculating his entitlement, and to pay the severance pay forthwith The evidence indicates that the employer had forwarded severance pay to Mr Pazuk on the basis of its own calculations which Mr Pazuk had repeatedly refused to accept. Mr Pazuk ought to have accepted the payments tendered and pursued the grievance with regard to the difference In the circumstances, I do not find it appropriate to award any interest on the amounts owed by the employer. I remain seized in the event the parties encounter difficulty in implementing this decision Dated this 7th day of March, 1994 at Hamilton, ontario ~C~_.~--J~ "'-- ,./ -- .. , ----~ k Nlmal V Dlssanaya e vice-Chairperson