HomeMy WebLinkAboutMcIntosh 17-02-20
IN THE MATTER OF AN ARBITRATION
BETWEEN
ORNGE
(the “Employer”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION,
LOCAL 505
(the “Union”)
GRIEVANCE OF ELIZABETE McINTOSH
(OPSEU#2015-0505-0011)
SOLE ARBITRATOR: John Stout
APPEARANCES:
For the Employer:
Craig Rix - Hicks Morley
Ryan Plener – Student-at-Law
Daryl Eway – Director Orgne Operations
LeeAnne Leo – HR Business Partner
For the Union:
Richard Blair – Ryder Wright
Andrew McIlroy – President Local 505
Elizabete McIntosh
HEARING HELD IN TORONTO, ONTARIO ON FEBRUARY 3, 2017
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AWARD
[1] This matter concerns a grievance filed by OPSEU (the “Union”) on June 1,
2015 (the “grievance”). The grievance was filed on behalf of Elizabete McIntosh (the
“Grievor”), who claims that ORNGE (the “Employer”) violated article 3 of the
Collective Agreement by not converting her “stat” day into a sick day.
FACTUAL BACKGROUND
[2] The parties provided me with an “agreed statement of facts,” together with
some agreed upon documents. The agreed statement of facts provides as follows:
Agreed statement of facts
1. The grievor is a communications officer with the employer, ORNGE.
2. The Collective Agreement provides for statutory holidays, and where an individual
works on a statutory holiday, to be provided with time and a half as well as a day off
in lieu to be scheduled “by mutual agreement”, which is accomplished in practice by
a bidding system.
3. The grievor had to bid to take a “stat day”, or day in lieu, for May 9, 2015. That date
had been established in accordance with the usual practice for scheduling such
“stat” days, as per LOU #7. Her schedule is set out at Appendix #1.
4. The grievor was scheduled to work May 6th, 7th and 8th.
5. On May 6th the grievor left early from work due to illness. The grievor called in sick
for each of her May 7th and 8th shifts. The grievor called the Employer on May 8th to
book sick for May 9- her pre-booked stat day.
6. The grievor was asked to produce a medical note on May 6th. The grievor obtained a
note on May 7th, and produced upon her return, noting she was off sick until May 11,
2015 (see Appendix #2). There is no dispute that the grievor was ill for the period
set out on the medical note.
7. On May 8th, Operation Control Manager Fabiano Medugno advised the Crew
Planner/Scheduler Trish Bastone, that the grievor had a stat day booked for the 9th
and therefore would not need to draw on her sick bank. See Appendix #3.
8. On May 17th, the grievor requested that the May 9th stat day be restored to her bank
and May 9th treated as a sick day. That request was denied on May 21st.
9. The grievance was filed June 1st, 2015. See Appendix #4.
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10. The collective agreement contains no specific language dealing with the question of
converting a statutory holiday, a lieu day, or vacation in cases where an employee is
ill on the day or days in question.
1. The grievor seeks that a “stat day” – a day in lieu – be returned to her bank to be
used at a future time.
THE COLLECTIVE AGREEMENT
[3] The relevant provisions of the Collective Agreement referred to by the
parties in their submissions are as follows:
3.01 The Union recognizes and acknowledges that the Management of the
Company and direction of the working forces are fixed exclusively in the
Company and without restricting the generality of the foregoing, the Union
acknowledges that it is the exclusive function of the Company to:
(a) maintain order, discipline and efficiency;
(b) hire, assign, direct, promote, demote, classify, transfer, layoff, recall
and, for just cause, to suspend, discharge or otherwise discipline
employees subject t the right of the employees to grieve to the extent
and manner provided herein if t he provisions of this Agreement are
violated in the exercises of these rights;
(c) determine the nature and kind of business conducted by Ornge the
methods and techniques of work, the schedules of work, number of
personnel to be employed, to make studies of and to institute changes
in jobs and job assignments, the extension, limitation, curtailment or
cessation of operations and to determine all other functions and
prerogatives here before invested in and exercise by Ornge which shall
remain solely with Ornge;
(d) make and enforce and alter from time to time reasonable rules and
regulations to be observed by the employees;
(e) have the sole and exclusive jurisdiction over all operations, buildings,
facilities and equipment.
3.02 Ornge agrees not to exercise these functions in a manner inconsistent with
provisions of the Collective Agreement.
17.04 An employee required to work on any of the above-mentioned holidays
shall be paid for all work performed at one and one half times (1 ½ x) the
regular hourly rate for all normal hours of work on that day and shall
receive another day off with pay in lieu of the holiday. Such day will be
subject to agreement between the Company and the employee.
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17.06 When a holiday included under this Article coincides with an employee’s
scheduled day off and he or she does not work on that day, the employee
shall be entitled, at their choice, with employer agreement, to receive
another day or a day’s pay.
22.01 Effective January 1st, 2014, the first four (4) days or part thereof of absence
shall be drawn from credits acquired in the following manner:
(a) Sick leave will be earned at the rate of twelve (12) hours per month and
shall be credited to the employee’s sick bank on a monthly basis.
Employees on an unpaid absence for the duration of a calendar month
shall not accrue sick leave credits for the month of absence.
(b) Where the Company has a reasonable concern about sick usage, the
Company may require an employee to submit a doctor’s note. The
Company will reimburse the cost of such note with receipt.
(c) Employees will be permitted to have a maximum number of sick time
hours that will not exceed two hundred and sixteen (216) hours.
(d) New full time employees will be credited with thirty six (36) hours of
sick time in advance of their actual accrual.
LETTER OF UNDERSTANDING #7
(see Article 24)
Scheduling of Vacation and Statutory Holiday With Pay
The EERC will meet in September of each year to determine a process for vacation
bidding. It is agreed the following guidelines will apply.
All vacation and statutory holiday credits accrued under Article 17.06 will be bid in
order of seniority within each shift and classification. Employees can hold back a
maximum of seventy two (72) hours in this bidding process.
There will normally be a minimum of one vacation slot, per line, per classification
available for bidding.
The vacation and statutory bidding process will begin no earlier than November 1st
and be completed no longer than November 30th annually.
Signed at Toronto, this 25th day of February, 2014.
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SUBMISSIONS
[4] The Union frames the issue as being whether the Grievor should be
characterized as being absent due to sickness or receive a stat lieu day. The Union
argues that in this situation the “fundamental reason for absence doctrine” ought to
be applied. The Union submits that the fundamental reason for the Grievor’s
absence was sickness and therefore she should not be required to lose her stat lieu
day.
[5] The Union acknowledges that there is no specific language in the Collective
Agreement addressing this issue. However, the Union points to articles 17.04 and
article 22.01 of the Collective Agreement and takes the position that where an
illness commences and carries into what was a previously scheduled lieu day, then
the illness is what characterizes the absence. In these circumstances, the Union
argues that the Grievor should not lose the benefit of the lieu day just because the
lieu day was previously booked.
[6] The Union seeks restoration of the Grievor’s entitlement to a lieu day and an
order that the May 8th absence should be paid as a sick day.
[7] The Union relies on the following awards: Atlas Steel Co. (1972), 24 L.A.C.
171 (Weatherill); Alberta vs. A.U.P.E. (1991), 20 L.A.C. (4th) 318 (Franklin); Nova
Scotia (Department of Human Resources) v. NSGEU (1998), 81 L.A.C. (4th) 236
(Archibald); City of Toronto and Toronto Professional Firefighters Association, Local
3888, Unreported Award dated January 31, 2008 (Goodfellow); City of Toronto and
Toronto Civic Employees’ Union, Local 416 (Balchand) (2015), CanLII 58391 (Stout).
[8] The Employer submits that the situation at hand is distinguishable from a
number of the awards relied upon by the Union. The Employer notes that this case
deals with a stat lieu day and not vacation or maternity leave. The Employer takes
the position that the issue before me is not the application of the fundamental
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reason for absence doctrine, but rather a question of the rights and obligations
provided for under the Collective Agreement.
[9] The Employer points out that the only provision referenced in the grievance
is article 3 of the Collective Agreement. The Employer submits that there is no
obligation under article 3 to convert a previously scheduled stat lieu day to a sick
day at an employee’s request.
[10] The Employer notes that the Grievor has not lost any pay nor has she lost
any right. The Employer argues that it would be improper to read into the Collective
Agreement a right of substitution where none has been bargained for by the parties.
[11] The Employer relies on the following awards: Toronto East General Hospital
v. SEIU, Local 204 (1989), 7 L.A.C. (4th) 147 (Mitchnick); Bell Canada v. CTEA (1978),
18 L.A.C (2d) 68 (Weatherill); Brown Shoe Co. of Canada Limited v. UFCW Local 175
(1998), 71 L.A.C. (4th) 19 (Starkman); The Queen Elizabeth Hospital and Ontario
Nurses’ Association (Marok) (1985), Unreported Award (Dun); and City of Toronto v.
Toronto Civic Employees’ Union, Local 416 (Balchand), supra.
DECISION
[12] The matter before me is a grievance alleging that the Employer violated
article 3 of the Collective Agreement by not converting a stat day into a sick day.
[13] I accept that the “fundamental reason for absence doctrine”, enunciated by
Arbitrator Weatherill in Atlas Steel, supra, has been accepted by many arbitrators
(including myself), and applied in a number situations. However, I note that the
majority of the awards applying the fundamental reason for absence doctrine seem
to concern the rescheduling of vacation when a grievor became sick. One of the
awards relied upon by the Union involved a grievor who became ill prior to a
scheduled maternity leave, see Alberta v. A.U.P.E, supra. None of the awards
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provided to me appear to apply the fundamental reason for absence doctrine to a
situation involving an illness prior to a scheduled lieu day.
[14] As I said in City of Toronto, supra, it is my view that the language of the
applicable collective agreement must always drive the result. An arbitrator cannot
be a slave to a particular doctrine at the expense of the parties’ written agreement.
Rather, the exercise must always be guided by the language chosen by the parties,
interpreted in context.
[15] There is no doubt that in this case, the Grievor was absent from her
scheduled work due to illness on May 6, 7 and 8, 2015. The Grievor was paid sick
credits for these three days of absence in accordance with the Collective Agreement.
[16] In my view, the Grievor was not absent from work due to illness on May 9,
2015. I say this because the Grievor was not required to be at work that day. Rather,
the Grievor had bid and been awarded that day off as her lieu stat day pursuant to
the process under Letter of Understanding #7.
[17] There is no doubt that the Grievor was also sick on that day. However, the
fact remains that she was not required to be at work that day in accordance with
Letter of Understanding #7. Furthermore, Letter of Understanding #7 makes no
provision for rescheduling a lieu day that has been bid on and awarded.
[18] The only language, found in this Collective Agreement, addressing the
rescheduling of a holiday is the language found in articles 17.04 and 17.06. If an
employee is required to work on a holiday or the holiday falls on an employee’s
regular day off then they may reschedule their holiday. In such situations the
parties have agreed to the bidding process found in Letter of Understanding #7.
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[19] There is nothing in this Collective Agreement that requires the Employer to
reschedule a holiday or a stat lieu day that was awarded pursuant to Letter of
Understanding #7.
[20] The parties could have provided for rescheduling a lieu day when an
employee fell sick. However, for whatever reason, they did not provide for such a
situation. Frankly this is not too surprising. It would be rare to find any such
language applicable to an employee who fell sick on a holiday, let alone a n employee
who fell sick on a lieu day scheduled in place of a holiday.
[21] I find that in the context of a lieu day scheduled in place of a holiday, there is
no requirement in this Collective Agreement to reschedule or convert the lieu day to
a sick day when an employee falls ill.
[22] The grievance alleges a violation of article 3, “Management’s Rights”. Article
3 requires that the Employer not exercise their rights in a manner inconsistent with
the Collective Agreement. I find that the Employer has not exercised their rights in
violation of this provision.
[23] The Employer’s failure to reschedule the Grievor’s lieu day or convert her
lieu day to a sick day is not inconsistent with the terms of the Collective Agreement.
As indicated earlier, the Collective Agreement does not require rescheduling or a
converting a lieu day to a sick day in these circumstances.
[24] Furthermore, even if I were to infer that management must exercise their
rights reasonably, and I do not believe it is necessary for me to do so in this matter, I
do not find the conduct of the Employer to be unreasonable in these circumstances.
[25] In this situation, the Employer treated the Grievor exactly the same as any
other employee who might fall ill on a holiday. It certainly is open to the Employer
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to permit rescheduling on a compassionate basis. However, there is no requirement
under the Collective Agreement to do so.
[26] My conclusion in this matter is supported by the awards provided by the
Employer. As stated by Arbitrator Weatherill in Bell Canada v. CTEA, supra, at
paragraph 16:
Illness on a holiday does not, in itself, entitle one to another holiday. In terms of
the instant case, illness on a day off with pay is not, without more, or without clear
provision to that effect in the Collective Agreement, sufficient to entitle the
employee to another day off with pay. In the instant case, January 3, 1977 was a
day off with pay for the Grievor. She was off work on that day, and she was paid. It
has not been shown that, under this Collective Agreement, she was entitled to any
other payment.
[27] I note that Bell Canada, supra, was decided by Arbitrator Weatherill, who
was the very same arbitrator who decided Atlas Steel, supra. Arbitrator Weatherill’s
rationale in Bell Canada, supra, was also followed by Arbitrator Mitchnick
addressing a similar situation (stat lieu days) in his Toronto East General Hospital,
supra, award.
[28] In my view, the application of the fundamental reason for absence doctrine
is not a matter of mechanical application to the facts before an arbitrator. Rather, as
demonstrated by the Bell Canada, supra, and Toronto East General, supra, awards,
each and every situation must be examined in context and having regard to the
language in the collective agreement.
[29] Accordingly, after carefully considering the language in the Collective
Agreement and the submission of the parties, I find I must dismiss the grievance.
Dated at Toronto, Ontario this 20th day of February, 2017.
“John Stout”
John Stout - Arbitrator
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