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HomeMy WebLinkAbout1992-3278.Pound.96-02-08 ... EMPLOYES DE LA COURONNE ........ ONTARIO CROWN EMPLOYEES DE L'ONTARIO ~ II GRIEVANCE COMMISSION DE II SETT~EMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONErrELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 I GSB # 3278/92 OLBEU # OLB437/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT. BOARD BETWEEN ( OLBEU (Pound) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of ontario) Employer BEFORE: F. Briggs Vice-Chairperson FOR THE s. Philpott GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE A. Raso EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, storie Barristers & Solicitors HEARING August 23, 1995 >i " The gnevor, Karen Pound, was twice absent from work due to a compensable IDJmy She ultllnately returned to work III August of 1992 She gneves that she IS a victim of adverse Impact dlscnmmatlon because the Employer faded to allow her to contmue to accrue vacation and attendance credtts dWlllg the penod of her absence Without pay from work due to the compensable mJmy The parties agreed on the facts requrred to detefI1l).D.e tlus matter whIch are set out below' 1 This is no issue between the parties regarding the calculation Qf the grievor's vacation and/or attendance credits. That is, there were no errors in calculation made '- 2. On October 10, 1989, the grievor was injured at work and commenced an absence due to a compensable injury She was absent.until January 21, 1991, on which day she returned to work on modified duties. 3 From October 10, 1989, to January 10, 1990 the grievor received full salary with no reduction of accrued credits in accordance with Article 12.5 of the Collective Agreement. She also continued to accrue credits for that period. "Wh~re an employee is absent from work by reason of a condition for which the Workers' Compensation Board assumes liability, the . employee shall be eligible for Compensation Leave for a period not exceeding three (3) months or a total of sixty-five (65) working days where such absences are intermittent for each unrelated claim. During.such leave the employee shall receive full salary with no reduction of accrued credits but vacation and attendance credits shall continue to accumulate during the period. " 4 From January 11, 1990 to January 20, 1991 the grievor was paid Workers' Compensation benefits ("WC benefits") equal to 65 % of her regular salary, and her we benefits were "topped up" to 100% of her regular salary by an amount deducted from her accumulated vacation and attendance credits. It is the LeBO's policy to utilize an employee's attendance credits first to top up WC benefits to full salary, and then, if necessary, the employee is' given the bption to utilize vacation credits to top up to full salary The Grievor chose this option. During this period, the employee is considered to be on a leave of absence with pay for the purposes of accumulation of vacation credits and attendance 'credits and, accordingly, the grievor cOI).tinued to accrue credits for that period. 5 The grievor's accumulated vacation and attendance credits were exhausted on August 2, 1990 and thereafter, in accordance with Article 12 8 of the Collective Agreement she was considered on a leaye without pay Article 12.8 of the Collective Agreement provides "Where an employee receives an award under the Workers' Compensation Act, and the award applies for longer than the period set out in Article 12.5 I /" " and the employee has exhausted all accumulated credits, the employee will be considered on leave without pay .. 6 On October 24, 1991 the grievor suffered a recurrence of her injury She again received we benefits and drew from her bank of accumulated attendance and vacation credits to top up her income to 100 % of her regular salary Her accumulated credits were exhausted on November 20, 1991 and from that day until her return to modified work on August 4, 1992, she was considered to be on a leave without pay and accrued no further vacation or attendance credits for that period. 7 The periods in respect of which the grievor was in receipt only of we benefits (when her accumulated credits were exhausted) are deemed to be without pay by Article 12.8 of the Collective Agreement. Article 12.8 leaves without pay, as well as other types of leaves without pay have historically been treated by the parties as a hiatus in the accumulation of vacation and attendance credits in accordance with Article 15 1 of the Collective Agreement which provides. "Leave of absence without pay and without accumulation of credits may be granted to an employee by the Employers. " 8. The parties have historically treated employees as entitled to accumulate vacation and attendance credits only when the employee is at work or on a leave of absence with pay for at least one full day during a calendar month. This is in accordance with Articles 8.7, 9 4 and 9.5 of the Collective Agreement which provide as follows. "Except as provided under Article 8 8 below, an employee is entitled to vacation credits under Article 8.6 in respect of a calendar month in which he/she is at work or on a leave of absence with pay for at least one (1) full \ day .. "An employee is entitled to attendance credits under Article 9,.2 in respect of a calendar month in which he/she is at work or on leave-of-absence with pay for at least one (1) full day .. "Notwithstanding the provisions of Article 9 4 an employee is not entitled to attendance credits under Article 9 2 in respect of a month in which the employee is absent from work." Ms. Phtlpott, for the Umon, remforced that there IS no dIspute between the partIes that the current practIce of non acclUnulatIon of benefits dunng an unpaId leave of absence has been In effect for a conSIderable penod and contmues to the present day However, It was the Umon's pOSItIon that to allow the non acclUnulatlOn of benefits to employees absent on Worker's CompensatIon IS contrary to the proVISIons of the Human Rights Code, R.S 0 2 ~ / 1990, c H-19(heremafter referred to as "the Code" The relevant sections of the Code are as follows 5 (I) Every person has a right to equal treattnent with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap 10 In Part I and in this Part, "because of handicap" means for the reason that the person has or has had, or is believed to 1 have had, } (e) an injury or disability for which benefits were claimed or received under the Workers' Compensation Act; 17 (1) A right of a person under this Act is not infringer for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap The Dmon subffiltted that to tie the accrual of vacatIon and attendance credIts to actual attendance at work, gIVen that the gnevor was absent from work due to a compensable illJury, IS d1scnmmallon. The Dillon had two arguments for the Board to conSIder The fIrst was that the gnevor was treated dIfferently from other employees on other types of leaves of absence WIthout pay The second SubffilssIOn, ill the alternatIve, IS that the gr1evor was treated d1fferently than everyone else m the bargammg urnt. i Regardmg the first argument, the Dmon suggested that m accordance WIth Artlcle 12 of the CollectIve Agreement, members of the bargammg urnt are entItled to sickness and mJUJY leave The CollectIve Agreement also prOVIdes for a vanety of other leaves mcludmg, but not lumted to, matermty leave, military leave, and bereavement leave Some of those leaves \ allow for the contInuatIon of wages and accumulatIon of benefIts In some prOVISIOns, like materruty leave there IS a penod of compen.satIon and a penod of absence WIthout pay All employees should be treated m the same fasmon despIte" the reason for therr absence from the workplace That IS to say that all employees who are on leaves of absence ought to be able to accrue vacatIon and attendance credIts. 3 L Ms Plulpott asked the Board to consIder some recent cases. In Re Riverdale Hospital (Board of Governors) and Canadian Union of Public Employees, Local 79 (1993), 39 L.A.C (4th) 63 (Stewart), a gnevance was allowed that adjusted an employees semonty after i an absence due to a maternIty leave. The arbItranon board detenmned that the gnevor was absent- on a leave WIthout pay and was treated dIfferently from other employees m the ... bargalntng UnIt who were absent WIthout pay, contrary to the Code. \ In Re Memorial Hospital, Bomanville and Ontario Nurses' Association (1993), 35 L.A.C (4th) 401, ArbItrator Thorne found thata nurse was nnproperly temnnated when the HOSpItal dIscharged her m accordance WIth a "deemed termmanon" proVIsIon. The gnevor had been absent from work due to a dIsabilIty for whIch she was receIvmg long term dIsabilIty Insurance for a penod ill excess of thrrty months. The board of arbItratIOn found that the hOSpItal could not termmate the gnevor's employment as she was enntled to the same standard as other employees, that IS, Just cause for wscharge. It was decIded that the matter was sImIlar to Re Corporation of City of Stratford and Canadian Union of Public ) Employees, Local 197 (1990), 13 L.A.C. (4th) 1 (MarszewsKi). In that decIsIon, whIch was upheld In DiVIsIonal Court, It was found that a "deemed termmanon" was contrary to the Code because the gnevor was "not enntled to challenge hIs termmanon pursuant to the Just cause standard" It was argued by the Umon that these cases stand for the propOSItIon that employees ought ,not to be penalIzed for an absence due to a handIcap In the mstant matter, the gnevor was penaltzed by the Employer's dIsallowmg theaccumulanon ofvacatlon and attendance credIts for the penod of her absence The Uillon also relIed on Re Victoria County Memorial Hospital and Canadian Auto Workers, Local 607 (1994), 42 L.A.C (4th) 194 (O'Connell) and Re Toronto Hospital and Ontario Nurses' Association (1992), 31 L.A.C (4th) 44 (P Plcher) 4 I The altematlve pOSItlon of the Umon IS that the gnevor ought to be treated the same as other members of the bargaInIng umt. That IS to say that she Ms Pound ought to be allowed to accrue vacatlon and attendance credIts rrrespectlve of whether she attended at work. As her co-workers accumulated these benefits, so should the gnevor The Employer's faIlure to allow thIS accrual IS dISCrImmatory because the gnevor was absent from work due to a dlsabIhty If not for her handIcap, she would have been present at work and accrumg the benefits. Ms. Raso, for the Employer, asked the Board to keep m mind that the Umon has not alleged that there IS any VIolanon of the Collecnve Agreement. Rather, It was asserted by the Umon that the Collecnve Agreement IS mscnmmatol)' and should, m part, be struck down. It IS the pos1110n of the Employer that there IS no adverse nnpact dIscnmmanon regardmg the gnevor and therefore the Code has not been offended and this matter must be dIstnlssed. The past pracnceof the Employer IS that all employees, rrrespectlve of the reasons for theIr absence, are treated equally That IS to say employees do not contInue to accumulate vacatIOn and attendance cremtsdurmg the penod of any absence whIch IS WithOut pay The Employer, like the Dmon, referred to a number of preVIOUS cases. In Re Andrews v. Law Society of British Columbia (1989), 10 C.H.R.R. D/5719 (S C C) dIscnmmatlon was defined takmg mto account the fmdmgs~of other courts. It was stated at page 173 that "It arIses where an employer adopts a rule or standard. wh,tch has a dISCntmnatory effect upon a prohibIted ground on one employee or group of employees in that It nnposes, because of some speCIal charactensnc of the employee or group, obhganons, penaltles, or restnchve condItIOns not unposed on other members of the work force" Ms. Raso subffiltted that two elements must be present for a fmdmg of dIscnmtnatlon. FIrst, there must be a causal connectlon between the group bemg demed and a prohibIted ground. S In the Instant matter, the gnevor IS not bemg treated differently Any employee who IS absent Without pay has not and does not accumulate vacatIon or attendance credIts. ThIs IS not a prohibIted ground under the Code and therefore there IS no causal connectlon. Second, there must be a restrIctIOn wluch IS not Imposed on other employees. ObVIously, as stated above, any employees who IS absent Without pay IS not accumulatmg vacatlon or attendance crewts. Therefore, the gnevor IS treated the same as other employees. The Code does not address employees WIth dIfferent attendance records. ThIs very Issue was conSIdered by'a board of arbltraoon m Re Windsor Western Hospital and Ontario ~ubli~ Service Employees Union (October 24, 1994), unreported (Stanley) The HOSpItal dId not allow the gnevor to accrue vacaoon and SIck leave enotlement durmg t the penod that the gnevor was absent on a compensable mjury and m receIpt of Worker's Compensatlon Benefits. In consIdenng the matter, the Board stated at pages 11 and 12 The issue we !TIust decide is whether the provision in the collective agreement which denies employees on a leave of absence the right to accrue vacation and sick leave is discriminatory " If it is, it can only be so becaUse of the broader def'mition of discrimination found in S 11 of the Code. In accordance with that section, what we hav~ to ask is whether the collective agreement provision - "results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member" The "group" which the collective agreement singles out to deny accrual of sick leave and vacation is not "a group of persons who are identified by a prohibited ground of discrimination" The group denied accrual of sick leave and vacation is all those employees who are on leaves of absence. The Code does not list "being on a leave of absence" as a prohibited ground of discrimination. It might be argued that employees with a "disability" are a group within this. larger group and are therefore cov:ered by the language. That is really the essence of constructive discrimination - that a general innocuous exclusion sweeps in all members of a protected group In this case there are really two protected groups - those with "handicap" and the person who is defined as handicapped because he/she "has or has had, or is believed to have or have had an injury or disability for which benefits were claimed or received under the Workers' Compensation Act." However, not all employees with a handicap, or all employees who have or have haQ an injury for which benefits are claimed, are going to be on leaves of absence Thus the general exclusion does not sweep in all or even a majority of the members of a protected group If we had to decide whether the qualification was reasonable and bona fide, since it is accepted in so many collective agreements that vacation and sick leave are benefits earned 6 through attendance at work, we would conclude that the qualification in this case is reasonable and bona fide. The Employer argued that Article 12.5 of the CollectIve Agreement allows employees to contmue to accumulate vacatIOn and attendance credIts for the first SIXty five days of an absence from work for whIch the Worker's CompensatIon assumes lIabIlIty DunngthIs penod oftnne the employees are paId 1000/0 ofthelf regular salary Employees do not cease accrumg those benefits untIl such Ume as they are on a leave of absence WIthout pay It IS that change m theIr status whIch dIsallows the conUnuaoon of benefit accrual. Ms. Raso asserted that It has been deCIded that Worker's Compensaoon Benefits are not msurable earnmgs for the purposes of Unemployment Insurance accordmg to Re Blondin v. Minister of Employment (1988),89 C.L.L.C 12,020 (F C.A.) It was suggested that tlus ) IS an analogous SItuatIon. Therefore, there can be. httle doubt that employees who are absent from work and who are m receIpt of Worker's Compensation Benefits are to be conSIdered to be employees absent from work WIthout pay The Employer subtmtted that the appropnate group of comparators are other employees on unpaId leaves of absence and not the rest of th~ bargalntng unit. In Re Canadian Airlines International Ltd. And Canadian Union of Public Employees, Airline Division (1993), 32 L.A.C (4th) 398 (Spnngate), It was determmed that It IS not dlSCnmtnatlon for the employer to treat employees absent from work dIfferently from employees remalntng at work. It was stated at page 408 If taken to its logical conclusion the union's position would appear to require that an employer "make whole" an employee on maternity leave and treat her for pay and benefit purposes as if she was still actively at work. The Canadian ~uman Rights Act prohibits an employer from differentiating adversely in relation to an employee based on a prohibited groWld of discrimination. To conclude that this goes beyond requiring that employees on maternity leave be treated as well as other employees off work for health-related reasons, and instead requires that they be treated in the same manner as employees actively at work, would require that I give the Act an 7 \ interpretation much broader than similar provisions have been given tb date. As indicated above, the arbitral, jurisprudence, although limited, has rejected this type of approach. Further, although the Supreme Court of Canada in the Brooks case expressed concern about pregnant women bearing a disproponionate amount- of the costs of procreation, it did not adopt the approach being advanced by the union. Instead the coun held only that employees on maternity leave were entitled to be treated in a manner similar to other employees who were off work for health-related reasons. The Employer also rehed on Re Hickling v. Lanark Leeds and Grenville County (1986), 7 C H.R.R. D/3546 (Board of InqUIry), Re Stelco Inc., Hilton Works and United Steelworkers of America, Local 1005 (February 13, 1995), unreported (0 Gray), Re Glen Haven Manor Corp. and Canadian Union of Public Employees, Local 2330 (1991), 19 L.A.C. (4th) (Darby), Re Town of Ajax and Canadian Union of Public Employees, Local I 54 (1991), 23 L.A.C. (4th) 77 (Rayner), Re The Hamilton Entertainment and Convention Centre and International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 129 (October 30, 1993), ~nreported (Marcotte), Re Family Service Association of Metropolitan Toronto and Ontario Public Service Employees Union, Local 594 (October 19, 1994), unreporte.d ) (Schrfl), Re Versa Services Ltd. And Milk & Bread Drivers, Dairy Employees Caterers & Allied Employees Union, Local 647 (1994),39 L.A.C. (4th) 196 (R. M. Brown). Ms. Raso contended that the partIes ill the mstant matter are sophIsncated and'knowledgable They knew the Code and have known theIr obhganons for some tune. It IS clea; from the language of the CollectIve Agreement and the long standmg practIce that the partIes knew that they were not offendmg the Code. / The Employer asserted that, m consIdenng the affect of the Code, thIs Board must dIfferentIate between Issues of partICIpatIon for employment and matters of compensatIOn for employment. SectIOn 17 of the Code requIres the accommodatIOn for people WIth I hanqlcaps to enable them access to employment. However, the Issue at bar IS not a matter 8 . i' o~ accommodatIOn but one of compensanon. At page 20 of Re Stelco (supra), It was stated. Section 17 of the Code makes it clear that a difference in treaUllent will not infringe the Code if it flows from an incapacity which cannot be accommodated, even if the incapacity is a result of handicap. Counsel for the union acknowledged during argument that the Code did not oblige the employer to pay wages to the grievor for the period he was absent due to his compensable injury, in the amount he would have earned had he worked during that period. This must surely be so. If there has been no denial or work contrary to the Code during that period - and there is no suggestion that there has - then it is difficult to see how it could have i been a breach of the Code that he was not paid for work he did not and could not perform. Although counsel for the union resisted so characterizing it,. the vacation pay in issue here is another element of the compensation to which an employee becomes entitled for performing work during the "vacation year" When all of the vacation pay provisions of article 11 are read together, it is apparent that, like wage compensation, the amount of that additional, deferred compensation depends on, the amount of work performed, although the relationship is not as linear as it is for wages. Like wages, vacation pay is earned by performing work. ) - . 'he Employer asserted that the Board ought to take mto account that the Code does not obhge the employer to pay an InJured worker one hundred percent of theIr wages. Further, I It does not reqUITe employers to pay full vacaoon payor other benefits. In summary, the I ( Board was asked to dISffilSS the gnevance. DECISION After careful consideraoon of the able'submIsslons put forward by counsel for the partIes and thesubstanoal Junsprudence prOVIded, I am of the VIew that this gnevance must fail. I have been persuaded by the Employer's subtmSSIon that there are two aspects to the matter of dlscflIllmatlon regardmg employment whIch fall mtotwo categones, partIcIpatlon and compensanon. The matter at Issue IS one of compensaoon. The Employer's long standmg and contlnlimg pracoce of dIsallowmg the accrual of vacaoon and attendance benefits while ~ employees are absent Without pay IS not a matter of dIscntmnatIOn wluch Impacts upon an employees' access to employment. It IS a matter of an employees ' level of compensatIon. The Collective Agreement between these partIes IS clear that atte'ndance benefits and 9 . ~. vacanon benefits ate earned by attendance III the workplace after the lllltlal sIxty-five days consIdered m Aitlcle 12.5 The mstant matter dIffers from most of the cases put forward by the Umon. In those cases, the gnevors' employment was tenmnated m accordance WIth a "deemed tenmnatlon" proVISIon. That IS to say that employees were termInated aftef a speCIfied penod of tlme and WIthout any consIderaoon of whether there was Just cause for the dIscharge. The protectI.on of the standard of Just cause IS afforded to all other employees and fOf an employer to dtsentltle handIcapped people to the protectlon of the JUst cause standard would clearly be dIscnmtnaoon. That demal of the protectlon of Just cause was an employment partICIpation matter, not a matter of compensaoon. In the mstant matter, the contInuatlon of the gnevor's status of employment was not affected. ThIs was not a matter of employment status or semonty accrual but rather an issue concermng the grtevor's ability to accrue certaIn benefits dunng her unpatd leave of apsence. The Umon suggested, in the alternaove, that the appropriate group to compare the gnevor to IS the entrre bargammg unIt Agam, I cannot agree. The appropnate employees to consIder m c:letermmmg adverse impact rn.scrnnmatlon for this gnevor are other employees on leaves of absence WIthout pay Employees on leaves of absence WIthout pay m receIpt of Worker's Compensaoon Benefits are not being treated dIfferently than other employees who were on leaves of absence for other reasons. The scheme under thIs CollectIve Agreement prOVIdes that employees at work will accrue certam benefits and those who are not at work and are not bemg paId by the employer, do not. Employees who are absent from work and m receIpt of Worker's CompensatIOn Benefits are paId an amount of money that IS less than what employees attendmg at work would otherwIse earn. As III the Stelco case, there was no suggesoon from the Umon that the gnevor was - 10 II I ", .;;, monetanly compensated m an amount that is contrary to the Code. Durmg the penod when she was m receIpt of Worker's Compensanon Benefits, Ms. Pound was compensated m a manner that was conSIstent WIth the Code. The fact that she dId not contmue to accrue certam benefits which were earned by her co-workers who attended at work is not dIscnmmatory The earnmg of those benefits is dependant upon attendance at work. That qualIficatIon does not, m my VIew, offend the Code. As noted m Versa Services (supra), Secnon 17 cannot be held to mean that a handicapped / person should receIve the same compensanon as others in the work place because there IS no reference to compensatIOn m that sectlon. ArbItrator R. M. Brown thought It noteworthy that the legtslatlOn was lackmg a proVISIon for equality of com pens au on. He found that the absence ~bf such a provisIOn mdIcates a legIslative mtenuon to "apply a wfferent understandmg of equalIty to matter of compensation" He contmued that a hanwcapped employee had only the nght to be compensated in the same way as an employee WIthout a handIcap In the mstant matter the gnevor was treated m the same fasmon as any other I I employee who was absent from work WIthout pay I --' I A number of boards of arbItrauon have spent much tune and deliberauon on this Issue. Determtmng whether there IS a contraventIon of human nghts legislanon reqUIres the most thoughtful and careful consIderanon. It IS essenual that adJudIcators are assured that employees do not lose employment benefits based on a ground wmch IS prohibIted by the legIslanon. In the mstant CollectIVe Agreement, the partIes speCIfically put theIr mmd to proVIdmg a benefit specIfically for employees absent due to a compensable fiJury or Illness At ArtIcle 125, those employees have theIr pay kept whole and receIve all benefits for the fIrst three months. After that three month (or SIxty-five day) penod, those employees are treated like 11 / j ~ , Ji other employees who are absent from the workplace wIthout pay At the pomt where they are beIng paid a lesser amount, their benefits are also reduced. Indeed, at that pomt employees who are on a leave WIthout pay who are m receIpt of Worker's CompensatIOn Benefits are treated equally to those employees who are on other unpaId leaves of absence It IS undoubtedly unfortunate that employees, like the gnevor,become mJUJed or ill as a result of theIr employment. However, I am of the VIew that the gnevot was neIther treated dIfferently than any other employee who was absent from work WIthout .pay nor was she dIscnmmated agamst when she was dIsallowed from conUnumg to accrue vacauon and attendance credIts. F or all of those reasons, the gnevance IS mStmssed. oronto, this 8thday of February 1996 r-- --. FelIcIty D Bnggs Vice ChaIT (' 12 ! I I.