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HomeMy WebLinkAbout1994-0941DEWAR95_09_13 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 941/94 OPSEU # 94E107 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Dewar) Grievor - and - The Crown in Right of ontario (Ministry of the Solicitor General & Correctional Service) Employer BEFORE N Backhouse Vice-Chairperson FOR THE L. Yearwood GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE G Basanta EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services HEARING August 3, 1995 .. FILE NO 0941/94 IN THE MATTER OF AN ARBITRATION BETWEEN OPSEU "THE UNION" - and - THE CROWN IN RIGHT OF ONTARIO (Ministry of the Solicitor General and Correctional Services) "THE EMPLOYER" GRIEV ANCE OF MARK DEWAR BEFORE. NANCY BACKHOUSE CHAIRPERSON Heanng held August 3, 1995 In Toronto DECISION: The Gnevor alleges discrimination In not being given a lieu date for the May 23, 1994 Victoria Day hohday ARreed Statement of Facts The parties agreed to the following Statement of Facts. "1 The Grievor is a Correctional Officer 2 at the Metro Toronto East Detention Centre and has been employed wIth the Ministry since November, 1989 (See Appendix A) (None of the Appendices are reproduced here) 2. The Grievor sustained a work-related injury on May 9, 1994 and as a result was absent from work and in receipt of Workers' CompensatIon Benefits (WCB) from May la, 1994 to May 27, 1994 when he returned to 6 hour shifts/modified dutIes (See AppendIx B) f , 2. 3 Due to his absence, the grievor was unable to work 8 previously scheduled shifts (See Appendix B) 4. If the Gnevor had not been absent from work due to hIS injury, he would have worked a 12 hour shIft on May 23, 1994, the Victona Day holiday (See Appendix B) 5 The Grievor was credited with 12 hours regular pay on May 23, 1994 and experienced no loss of credits (See Appendix B) 6 At the end of the month of Apnl, 1994, the Grievor had 4.37 statutory holiday credits in his bank of credits (See Appendix B) 7 At the end of the month of May, 1994, the Grievor had 4.37 statutory holiday credits In his bank of credits (See Appendix B) " Relevant Provisions: The relevant provIsIons of the Collective Agreement are the following: Article A - No Discrimination/Employment Equity "A 11 There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, cItizenship, creed, sex, sexual onentation, age, marital status, family status, or handicap as defined In section 10(1) of the Ontario Human RIghts Code (OHRC) " Article 19 - Holiday Payment "191 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 compensatmg leave of seven and one- quarter (7-1/4) or eIght (8) hours as applicable, provIded the employee opts for compensating leave prior to the holiday 3 19.3 It is understood that sections 19 1 and 19.2 apply only to an 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 entitled to the payments described herein. 194 When a holiday Included under Article 48 (Hohdays) cOIncides with an employee's scheduled day off and he does not work on that day, the employee shall be entItled to receive another day off " Article 48 - Holidays "481 An employee shall be entitled to the following paid holidays each year 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" The other relevant statutory provIsions are as follows. Human Rights Code "5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, cItizenship, creed, sex, sexual orientation, age, marital status, family status or handicap 10(1) "Because of handicap" means for the reason that the person has or has had, or is believed to have or have had. (e) an injury or disability for which benefits were claimed or received under the Workers' CompensatlOn Act, " 11(1) "A right of a person under Part I is infringed where a requirement, qualification or factor eXIsts that is not dIscrimination on a prohibited ground but that results In the 4. 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, except where, (a) the reqUIrement, qualification or factor is reasonable and bona fide In the CIrcumstances, or (b) It is declared in this Act, other than In section 17, that to discrimInate because of such ground IS not an Infringement of a right. (2) The Commission, the board of inqUIry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide In the circumstances unless It IS satisfied that the needs of the group of which the person IS a member cannot be accommodated wIthout undue hardshIp on the person responsible for accommodating those needs, consIdering the cost, outside sources of funding, If any, and health and safety reqUIrements, If any" Ontario Labour Relations Act "45(8) JUrIsdiction and powers - An arbitrator or arbItration board shall make a final and conclusive settlement of the differences between the parties and, for that purpose, has the following powers. 3 To interpret and apply the reqUIrements of human rIghts and other employment-related statutes, despIte any conflict between those requirements and the terms of the collective agreement. " History of Issue: HistOrIcally, deCIsIOns of this Board treated employees' entitlements differently depending on whether absences from scheduled work on a paId holiday were a result of a compensable (WCB) injury or non-compensable illness. Articles 19 and 48 were amended by the parties in the negotiations which culminated In the January 1, 1989 to December 31, 1991 Collective Agreement and now reflect a clear Intention that no entitlement to premIUm hohday payor days off in heu arises where an employee, for any reason, does not work the holiday 5 (Whittard, 2618/90 (Watters), Cleveland, 2350/92 (Stewart), Rundle, 2259/92 (Kaufman), The Human Rights Argument: It IS the Union's position that, notwIthstanding the amendment to Article 19.3, by denymg the Grievor a lieu day for being unable to work the Victona Day paid holiday, the Employer discriminated against the Gnevor because of his handicap The Union submits that while a provisIOn in the Collective Agreement whIch denied the holiday premium to anyone who dId not actually work the hohday may be neutral on its face, m its application there was adverse discrimination on a prohibited ground of discrimination, namely handIcap This, according to the Union, resulted in a contravention of S 11(1) of the Human Rights Code. Definition of "Because of Handicap'" The basIs upon which the Grievor seeks protection under Article A.l and the Human Rights Code IS that he was dIscnminated against because of handicap S 10(1)(e) of the Code defines "because of handIcap" as including "an mJury or disabIlity for whIch benefits were claImed or received under the Workers' Compensation Act." The Grievor, who was absent from work due to a work-related injury and m receipt of WCB, clearly comes wIthin the definition of "handIcap" in S 10(1) (e) of the Code. (See Martin, 1582/91 (Dissanayake)) Adverse Effect Discrimination. The Union relies upon the case of Ontano (H uman Ri gh ts Commission) and O'Malley v Simpsons-Sears Ltd, [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102 in support of its argument that the effect of Article 19 on the Grievor was discrimmatory and therefore contravened the Code At issue in O'Malley was whether or not a work requirement to work on Saturday, Imposed on all employees for business reasons, dIscnminated agamst the appellant because It required her to act contrary to her religIOUS beliefs and did not so affect other members of the employed group The Court held at page 3 "An employment rule, honestly made for sound economic and business reasons and equally applicable to all to whom it is mtended to 6 apply, may nevertheless be dIscriminatory if it affects a person or persons differently from others to whom It is intended to apply The intent to discrimmate is not a govermng factor m construing human nghts legIslation aimed at elIminatmg discnmmation. Rather, It is the result or effect of the alleged discriminatory action that IS sigmficant. The aim of the Ontano Human Rights Code IS to remove discnmmation -- its main approach IS not to punish the discnminator but to provIde relief to the victim of dIscnmination." At p 18, the Court stated. "A dIstinction must be made between what I would describe as dIrect dIscriminatIOn and the concept already referred to as adverse effect dIscriminatIOn in connection wIth employment. Direct discnmmation occurs in thIS connection where an employer adopts a practice or rule which on its face discriminates on a prohibIted ground. For example, "No CatholIcs or no women or no blacks employed here." There is, of course, no dIsagreement in the case at bar that direct discnmination of that nature would contravene the Act. On the other hand, there is the concept of adverse effect diSCrImination. It arises where an employer for genuine busmess reasons adopts a rule or standard WhICh IS on ItS face neutral, and which will apply equally to all employees, but whIch has a dIscnmmatory effect upon a prohibIted ground on one employee or group of employees in that It Imposes, because of some special characterIstic of the employee or group, oblIgations, penalties, or restrictive conditions not Imposed on other members of the work force " The Court in O'Malley opted for a broad purposive approach to the Human Rights Code, stating at pages 12 - 13 "Legislation of this type is of a special nature, not quite constitutional but certamly more than the ordmary - and It IS for the courts to seek out its purpose and give it effect. The Code aims at the removal of discrimma tion. This is to state the obvious Its main approach, however, is not to punish the dIscrIminator, but rather to provIde relief for the victims of discnmmation. It IS the result or the effect of the action complained of which is significant. If it does, in fact, cause discrImmation, if its effect is to Impose on one person or group of persons obligations, penaltIes, or restrictive conditIOns not Imposed on other members of the community, it is dIscriminatory" The Union further relied upon Thorne v Emerson Electric Canada Ltd. 18 C.H.R.R D/510 where the complainant's seniorIty was adjusted m accordance wIth the collective agreement by deductmg approxImately six months for a perIod 7 she was absent from work due to a work-related injury The Board found that the complainant was handicapped because she was receiving WCB during her one and a half year's absence. The Board noted that the collective agreement was neutral on Its face, that is, it applied to any employee who was absent for more than one year Thus, any employee taking a leave of absence to retram for two years would lose one year of seniority The Board found that constructive or unintentional discrimination was prohibited by section 11 of the Human Rights Code and that the complamant bemg a member of a specific class which protects it under the Code, handicapped in this case, was adversely affected by the provision in the collective agreement in that she lost six months' seniority because she was handicapped. Although the provision in the collective agreement was neutral on its face, the Board found that it discriminated against anyone qualifying as handicapped who was absent from work more than one year as a result of that handicap Human Rights Legislation Remedial. The Union cited Canadian National Railways Co. v Canada (CanadIan Human Rights CommIssion) 8 C.H.R.R. D4210 where it was held at Para. 33238 that "human rights legislation is intended to gIve rise, amongst other things, to mdivIdual nghts of vItal importance, rights capable of enforcement, in the final analysis, in a court of law statutes are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained." Human Rights Code Supersedes Contracts: The Union relied upon Thorne, supra, and Insurance Corporation of Bntish ColumbIa V Heerspmk et al.. 137 D L.R. (3d) 219, m support of the proposition that parties may not contract out of the provIsions of the Code. It was held in the latter case at p 229' "When the subject-matter of a law is said to be the comprehensIve statement of the "human rights" of the people living m that Jurisdiction, then there IS no doubt in my mind that the people of that jurisdIction have through their legislature clearly indicated that they consider that law, and the values it endeavors to buttress and protect, are, save their constitutional laws, more important than all others. Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises. 8 Furthermore, as it is a public and fundamental law, no one, unless clearly authorized by law to do so, may contractually agree to suspend its operation and thereby put oneself beyond the reach of its protection. " Definition of Discrimination. The Union referred to the oft-quoted definition of dlscnmination in Andrews v Law Society of Bntish Columbia, 56 D L.R. (4th) (S C C.) where it was held at p 18 " dlscnmination may be described as a dIstinction, whether mtentional or not but based on grounds relating to personal characteristics of the indivIdual or group, whIch has the effect of Imposmg burdens, obhgations, or dIsadvantages on such mdividual or group not Imposed upon others, or which wIthholds or hmits access to opportumties, benefits, and advantages available to other members of society Distinctions based on personal characteristics attributed to an individual solely on the basis of aSSOCIation with a group wIll rarely escape the charge of discrimination, while those based on an mdlvidual's merits and capacities wIll rarely be so classed." Disabled Employees Entitled to Same Employment Benefits as other Employees: The Umon rehed upon Engell V Mount Smai HospItal 11 C.H.R.R D / 68, where the grievor was denied vacation leave on the grounds that she had been absent too much because of her multiple sclerosis and pregnancy-related nausea. It was held at para. 30' "The focus of the legislation IS to protect the rights of dIsabled indivIduals, among other groups and to ensure that they have access to the employment opportunities, dignity, and respect that the able- bodIed have. Extensive government pohcy and programming IS now dIrected toward integrating the disabled into the regular work force Once on the job, it is quite likely that they will expenence problems somewhat differently than the able-bodied, and workplace adjustments may have to be made In some cases, disabled employees may expenence dIsproportionate absenteeIsm. Yet they are surely entitled to the same employment benefits as other employees -- the same allocation of vacation credits, and the same rules and procedures for obtaining vacation benefits DIsabled employees need access to vacation entItlements equally if not more so than able-bodied employees. To permit institutIOns to set more restrictive poliCIes and regulations regarding vacation for dIsabled employees -- even those 9 who may have been absent for extensive periods of time -- would surely frustrate any goal of workplace integration." The decisions relied upon by the Employer did not address the human nghts argument. CONCLUSION The questions that I must answer are two-fold. 1 Whether there has been dIscrimination prohibited by the Human Rights Code agamst the Gnevor by the applIcation of Article 19.3 of the Collective Agreement, and 2. If so, whether the Employer has a defence under 5.11(1) of the Code. The effect of the application of Article 19.3 of the Collective Agreement against the Grievor was to deny to hIm a lieu day in place of the Victoria Day holIday He would have received the lieu day had he been able to work the holiday He was unable to do this because of his absence due to a work-related injury There can be no doubt that the Gnevor's work-related injury brings him within the definition of "handicap" in section 10(1)(e) of the Human RIghts Code. (Re Martin, supra) The Employer did not distinguish between the Grievor and other employees who for whatever reason did not work the holiday However, the fact that Article 19.3 applied to all employees who did not actually work the holiday does not save It from being constructive discrimination agamst anyone qualifying as handicapped who was prevented from working due to that handicap The Umon mamtams that Article 19.3 had a discnminatory effect on the Gnevor upon a prohibIted ground, namely that of handicap In determming whether thIS was so, it IS helpful to consIder the purpose of Article 19.3 The purpose of Article 19.3 was to provide extra compensation for inconvenience caused to employees who were required to work on a statutory holiday The same human nghts Issues raIsed in this case could be raIsed wIth respect to overtime pay not provIded to employees who were absent because of a work-related mjury All situations involving premium pay raise the issue of the -..- 10 level at which employees who are unable to work should be compensated. The Union argues that it is dIscriminatory for the Grievor to suffer a loss of premIUm pay while he was unable to work due to a work-related injury Yet the Workers Compensation Act itself does not provIde a full mdemmty for employees' absence due to a work-related injury Article 19.3 did not penahze employees for not working the statutory holiday Rather, it provided premIUm pay for the employee who was actually required to work the statutory holiday ThIS IS dIstingUishable from the sItuation m O'Malley, supra, where the employer required ItS employees to work Saturday which was found to be discriminatory in that it reqUired the appellant to act contrary to her religious behefs. Constructive dIscnminatIon has been found In other situations where the employer Imposed somethmg on its employees such as a requirement of a dress or umform code forbIddmg turbans or beards (Smgh v. Workmen's Compensation Board HospItal (1981), 2 C.H.R.R. D/459 (Ontario Board of Inquiry)) or situations where job secunty was at Issue. (Thorne, supra) Here, the Employer was not reqUInng anythmg of ItS employees and there was no issue of Job secunty ThIS was a straight money Issue Accordmgly, I am not persuaded that a case of constructive discrimination has been made out on the facts in thIS case. Had I found that there was przma facle constructive discnminatIon against the Grievor, then in accordance with O'Malley, supra, I would have had to conSIder whether the Employer had a defence under S 11 of the Code Under S 11(I)(a) of the Code, I would have had to determme whether the reqUirement that the Grievor work to be entitled to the premium pay was reasonable and bona fide m the circumstances In order to find that the reqUirement was reasonable and bona fide, under S.11(2) of the Code a board must be satisfied that the needs of the group of whIch the person IS a member cannot be accommodated without undue hardshIp on the employer The only way in which the duty of accommodation might arise in a premIUm pay situation IS where an employee was at work and able to perform some but not all duties and was refused a premium pay opportunity because of the handIcap But that is not the situation here No duty of accommodation can anse in thIS case where the Grievor was not able to perform any work. ThIS points 11 strongly to the conclusion that the kinds of matters intended to fall within Part I of the Code do not extend to the situation before me. In my view, this situation is not analogous to the situations which existed in O'Malley, supra and Thorne, supra. The Gnevor received twelve hours' regular pay for the May 23, 1994 holiday and experienced no loss of credits. If he was to succeed in this grievance, he would receive two pay days off m preference to any employee not scheduled to work on the holiday or scheduled to work but unable to work due to illness not within the definition of "handicap" m the Human Rights Code. The parties freely acted to amend Article 19.3 WIth a clear intention of rationalIzing the two Imes of caselaw and limIting payments under Articles 191 and 19.2 to employees who actually worked on the holiday If Article 193 was discriminatory within the meaning of the Human RIghts Code, this would not be sufficient to save it. However, as set out above, the kind of analysis set out in the O'Malley, supra and Thorne, supra decisions does not lend itself to the facts of this case. Accordingly, this grievance should be dIsmIssed. DATED. at Toronto this 13th day of September, 1995. 91 ~ NANCY L. BACKHOUSE Vice-Chairperson l ;