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HomeMy WebLinkAbout2000-0306.McNally.05-09-21 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1 Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2000-0306 2000-1542 UNION# 2000-0204-0004 2000-0204-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (McNally) Union - and - The Crown In RIght of Ontano (Mimstry of TransportatIOn) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION Richard Blair Ryder Wnght Blair & Holmes LLP Bamsters and SOlICItorS FOR THE EMPLOYER Len Hatzls Counsel Management Board Secretanat HEARING September 7 2005 2 DeCISIon As a result of a workplace InJury Teresa McNally has not worked more than 18 hours weekly In recent years The umon contends she retaInS the status of a full-tIme employee and therefore IS entItled to all of the benefits WhICh normally accompany thIS status AccordIng to the employer an earlIer rulIng In thIS matter contaIns a final and bIndIng determInatIOn that Ms McNally IS entItled to only some of these benefits so long as she contInues to work less than full-tIme hours I I descnbed the factual backdrop for these gnevances In a decIsIOn Issued on October 16 2003 Ms McNally began workIng for the mlmstry at the Kenora Avenue office In HamIlton In 1976 and contInues to be employed there She has held the classIficatIOn of semor lIcensIng clerk OAGI0 SInce 1989 or 1990 Ms McNally InJured her nght knee at work In 1991 and was off work from tIme to tIme because of thIS InJury She suffered a recurrence In December of 1994 mIssed some tIme between December and the folloWIng February and was unable to work at all from February to September In September she returned to the Job wIth a modIfied schedule Her hours Increased gradually untIl she was workIng eIghteen hours per week-three days of SIX hours each. Ms McNally InJured the same knee agaIn In September of 1996 and was off the J ob untIl February of 1997 She fell when her knee gave out In September of 1997 and dId not work agaIn untIl February of 1999 A medIcal certIficate completed by the gnevor's doctor dated January 5 1999 charactenzed her medIcal restnctIOns as "permanent" She receIved worker's compensatIOn benefits for each InJury or recurrence A letter from the Workplace Safety and Insurance Board to the employer dated June 11 1999 records the gnevor's entItlement to a "Future EconomIc Loss award" Whenever Ms McNally worked between her first InJury and her fall In September of 1997 she contInued to perform the dutIes of semor lIcensIng clerk. Upon returmng to work on February 17 1999 she was gIven a temporary placement as an ISSUIng clerk. ThIS posItIOn IS classIfied as OAG8 but the gnevor contInued to receIve the OAG 10 rate of pay The duratIOn of her placement as ISSUIng clerk was ImtIally specIfied to be SIX months, but turned out to be almost mne The gnevor resumed the dutIes of semor lIcensIng clerk on November 8 1999 Ms McNally has never worked more than eIghteen hours weekly SInce returmng to work In September of 1995 DespIte her reduced hours, she was treated untIl 1999 as a full-tIme employee for the purpose of vacatIOn, statutory holIdays, penSIOn and health and welfare benefits In November of 1999 her status was converted to that of a regular part- tIme employee, and she was told her entItlements would be reduced accordIngly ThIS announcement prompted the gnevance dated January 11 2000 A second gnevance was filed on October 11 2000 shortly after the employer Implemented the changes In dIspute II 3 From the outset In thIS case the umon has relIed upon artIcle 41 4 of the collectIve agreement. That artIcle states Where an employee receIves an award under the Workplace Safety and Insurance Act and the award applIes for longer than the penod set out In ArtIcle 41 2 (i e three (3) months) the Employer wIll contInue SubsIdIes for BaSIC LIfe Long Term Income ProtectIOn, Supplementary Health and HospItal and Dental Plans for the penod dunng WhICh the employee IS reCeIVIng the award. The umon Imtlally contended thIS artIcle dId two thIngs (1) entItled the gnevor to contInue reCeIVIng the benefits lIsted thereIn, as If she worked full-tIme hours and (2) preserved her status as a full-tIme employee so that she was entItled to receIve all of the other benefits normally assocIated wIth full-tIme employment, as If she worked full-tIme hours The employer's response was that artIcle 41 4 dId not apply to the facts at hand because the gnevor's FEL award was not an "award under the Workplace Safety and Insurance Act." In my earlIer rulIng, I reJected the employer's argument about a FEL award. I held the gnevor was entItled to the specIfic benefits lIsted In artIcle 41 4 wIthout any dImInutIOn based upon her reduced hours, so long as she was In receIpt of a FEL award. ReJectIng the umon's contentIOn that artIcle 41 4 preserved full-tIme status and all of the benefits normally assocIated wIth thIS status, I concluded "artIcle 41 4 does not preclude the employer from reducIng some of the gnevor's benefits below the level prevIOusly enJoyed by her-I e penSIOn, sIck leave statutory holIdays and vacatIOn" (page 6) These benefits are not lIsted In artIcle 41 4 It mentIOns some but not all of the benefits tYPIcally provIded to full-tIme employees-somethIng the umon' s argument entIrely Ignored. In my VIew the only reasonable explanatIOn for thIS dIfferential treatment IS that the partIes to the collectIve agreement Intended someone lIke the gnevor whose hours are reduced because of a workplace InJury to contInue reCeIVIng the benefits specIfied In artIcle 41 4 as If there had been no reductIOn In hours, but not to enJoy the same protectIOn for other benefits not lIsted. In hIndsIght, I realIze the ratIOnale for my conclusIOn should have been more fully explaIned In the ongInal decIsIOn. III The umon now contends my rulIng that the gnevor IS protected by artIcle 41 4 rests upon the tacIt premIse that she contInues to have full-tIme status The gISt of the argument IS that the gnevor must have full-tIme status whIle enJoYIng the protectIOn of thIS artIcle, because It applIes only to employees holdIng thIS status AccordIng to thIS lIne of argument, as a full-tIme 4 employee the gnevor IS entItled to all of the benefits normally assocIated wIth full-tIme employment. ThIS argument IS substantIvely the same as the one Imtlally advanced about artIcle 41 4 and status I reJected that submIssIOn In my Imtlal decIsIOn because It would render meamngless the dIstInctIOn accepted by the umon and employer when they lIsted In thIS artIcle some, but not all, of the benefits normally assocIated wIth full-tIme employment. The umon IS bound by my first decIsIOn and precluded from raiSIng the same argument for a second tIme Issued at Toronto thIS 21 st day of September 2005 ~ ! ......~-<-( /P~_ /RIchard Brown Vice-Chair