HomeMy WebLinkAbout2014-3627.Van Zeggelaar.17-08-10 Decision
Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396
Commission de règlement des griefs
des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396
GSB#2014-3627, 2016-2254 UNION#2014-0108-0072, 2017-0108-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN Ontario Public Service Employees Union (Van Zeggelaar) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer
BEFORE David R. Williamson Arbitrator
FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER Stewart McMahon
Treasury Board Secretariat Legal Services Branch Counsel
HEARING June 17, 2015; March 23, July 7, 2017
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[1] On December 5, 2014, Ms. Susan Van Zeggelaar was terminated from her
position as a Correctional Officer at the Elgin-Middlesex Detention Centre in London,
Ontario, for reasons of excessive absenteeism. This dismissal was grieved and the
parties appeared before the Board on June 17, 2015, at which time they were
unsuccessful in their attempt to negotiate a resolution of the grievance. Subsequently,
in January 2016, the parties resolved the grievance by way of entering into a
Memorandum of Settlement that provided Ms. Van Zeggelaar with a final opportunity to
demonstrate she could maintain attendance at work on a regular basis. As part of this
settlement the parties agreed the undersigned Arbitrator was seized with any issues of
interpretation or implementation relating to the Memorandum of Settlement.
[2] By the terms of the Memorandum of Settlement, Ms. Van Zeggelaar agreed to
not be absent for more than ten of her scheduled shifts or irregularly scheduled shifts
during the contract for any reason including but not limited to for reason of any illness
whatsoever, including those which may amount to a disability. Ms. Van Zeggelaar
returned to work on February 8, 2016, under a twelve month fixed term contract that
was ended by the Employer on January 12, 2017, following an Allegation Meeting held
December 15, 2016, at which time the Employer notified her that she had been absent
for fourteen of the shifts she had been scheduled to work. By way of the Agreed
Statement of Facts, at this Allegation Meeting Ms. Van Zeggelaar did not deny she had
been absent as set out by the Employer and stated that apart from those instances
where she herself was sick that most of the absences were unavoidable because she
had to care for a son who suffers from migraine headaches which incapacitated him,
and that she could not arrange for others to care for him. The parties also agree that
Ms. Van Zeggelaar stated at the Allegation Meeting that she believed she could decline
or cancel shifts for which she had been scheduled provided she pick up other shifts to
work.
[3] On January 12, 2017 Ms. Van Zeggelaar filed a grievance that the Employer had
breached the terms of the Memorandum of Settlement and unjustly terminated her
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contract. This grievance subsequently came to be heard at arbitration at which time the
parties joined issue on the matter of whether a number of Ms. Van Zeggelaar’s
absences were afforded the protection of the emergency leave provisions of s.50 of the
Employment Standards Act such that the remaining number of absences thereby fell
below ten and with Ms. Van Zeggelaar thus maintaining compliance with the terms of
the Memorandum of Settlement.
[4] Central to the agreement reached by the parties are the following provisions of
the Memorandum of Settlement:
1. The Employer agrees to hire the employee on a 12-month fixed-term
contract (hereinafter ‘contract’) for a CO2 position at the top-rate
effective the first Monday following the execution of this Memorandum
of Settlement by the last party to execute the Memorandum. ……….
4. The Employee agrees that she will not be absent for her scheduled
shifts for more than 10 shifts during the contract for any reason
including but not limited to for reason of any illness whatsoever,
including those which may amount to a disability. Without any
admission on the part of the Employer that its duty to accommodate
an employee with a disability includes an obligation to tolerate
absences, the Parties expressly agree that in the circumstances set
out in this Memorandum of Settlement, that requiring the Employer to
accept any absences in excess of 10 would represent an undue
hardship.
8. If the Employee does comply with paragraph 4 of this Memorandum of
Settlement, the Parties agree that on the conclusion of the contract
referred to in paragraph 1:
I. The Employer will reinstate the Employee with no loss of
seniority to February 8, 2016, the date of the start of the fixed
term contract.
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9. The Parties agree that if the Employee does not comply with
paragraph 4 of this Memorandum of Settlement, then this
Memorandum of Settlement will fully and finally resolve her
termination and her contract will cease without recourse to any forum
except as identified in paragraph 10 below.
10. The sole issue that can be grieved to the Grievance Settlement Board
is whether the Employee complied with paragraph 4. If the Grievance
Settlement Board finds she did comply the Employee shall be
reinstated to complete the outstanding portion of her contract and this
Memorandum of Settlement will remain in effect.
11. This written Memorandum of Settlement represents the complete
settlement between the Parties in relation to the above-noted
grievance and any related matters. The Parties agree and
acknowledge that they have not made any verbal or other agreements
beyond what is contained in this written settlement.
13 The Employee agrees that by signing this Memorandum of
Settlement, she understands it, and that she has signed it having
been fully and fairly represented by Union Counsel.
14. The Parties agree that Vice-Chair Williamson is seized with any
issues of interpretation and/or implementations relating to this
Memorandum of Settlement.
[5] At the arbitration hearing held in relation to this grievance the parties entered into
evidence the Memorandum of Settlement, Ms. Van Zeggelaar’s grievance, plus an
Agreed Statement of Facts including particulars of each of Ms. Van Zeggelaar’s
absences from work. Viva voce evidence was also given by Ms. Van Zeggelaar. The
parties then made their submissions based on this evidence and the provisions of the
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collective agreement, the Labour Relations Act, 1995, and the Employment Standards
Act, 2000.
[6] The Agreed Statement of Facts discloses that the Grievor was absent from work
for fourteen of her scheduled shifts between March 30, 2016, and December 4, 2016.
Ms. Van Zeggelaar did not work seven of these scheduled shifts on account of personal
sickness, and two shifts were declined for other reasons including a family emergency
wherein her brother-in-law entered a hospice on November 20th and died on December
6th. The other five scheduled shifts that Ms. Zeggelaar declined and did not work were,
by the Agreed Statement of Facts, for child care issues on the 2016 dates of March 30,
May 2, May 30, November 8, and November 21. For each of these five shifts declined
Ms. Van Zeggelaar called in to work ahead of the start of the shift to advise she would
not be able to work the scheduled shift. The parties agree that for seven of the weeks
in which Ms. Van Zeggelaar cancelled a shift due to either illness or child care issues
she picked up an additional shift to work later in that week.
[7] It is noted in the agreed Statement of Facts that Ms. Van Zeggelaar failed to
attend at the workplace for the 8:00 a.m. start of her scheduled shift on August 11,
2016, following which a representative of the Employer telephoned her and left a
message. Sometime later that morning Ms. Van Zeggelaar attended at the workplace
but shortly afterwards advised the Employer that she was too sick to complete her shift
and was given permission to return home. The Employer recorded her absence for the
balance of this shift after 10:00 a.m. as due to sickness.
[8] The Agreed Statement of Facts further discloses that Ms. Van Zeggelaar
volunteered to work Christmas Eve and Christmas Day and New Year’s Eve and New
Year’s Day. She was paid time and a half for these shifts. The Grievor was not advised
or warned by the Employer at any time that she was close to exceeding her allotted
number of sick days, nor did she make any inquiries of the Employer in this regard.
[9] Subsequent to the Allegation Meeting held December 15, 2016, Rain Loftus, a
Union Representative, provided the Employer with a letter dated January 6, 2017 by the
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Nurse Manager of a hospice stating that the Employee’s brother-in-law entered the
hospice on November 20, 2016 and died on December 6, 2016. Rain Loftus also
provided the employer with a letter from Dr. Naghiu dated January 9, 2017 in which the
doctor relates that the Employee had advised him that she had missed days due to her
brother-in-law’s terminal illness and that she is known to him as suffering from
depression and an anxiety disorder and follows with him regularly. Following the death
of her brother-in-law Ms. Van Zeggelaar was granted bereavement leave that the
Employer has not included in the absences.
[10] On January 12, 2017 Ms. Van Zeggelaar’s fixed term contract was terminated
effective immediately. The letter of termination signed by the Superintendent of the
Elgin-Middlesex Detention Centre notes that she considered but rejected the
explanations provided by the Employee at the Allegation Meeting, and further notes that
she considered the materials provided by Rain Loftus. Also on January 12, 2017, Ms.
Van Zeggelaar grieved her dismissal and alleged the Employer had breached the
Memorandum of Settlement and unjustly terminated her contract.
[11] Absent a resolution of this matter by the parties, the grievance proceeded to be
heard at the instant arbitration. Entered into evidence at this time in addition to the
Agreed Statement of Facts and the Memorandum of Settlement was the viva voce
evidence of Ms. Van Zeggelaar. It is the Grievor’s testimony that her eight year old son
suffers from severe migraines that come on quickly, and cause him to vomit, cry, and
bang his head on the floor such that she is the only one able to handle him when a
migraine occurs and that she is not able to find someone else to take care of him in
these circumstances. Ms. Van Zeggelaar testified that her son has been prescribed
medication for these migraines by the family’s physician, and that her doctor is keeping
a record of these migraines. She said that five of her absences from work are due to her
son’s migraines with such being corroborated in her physician’s letter to her Employer.
[12] Ms. Van Zeggelaar testified as to the circumstances pertaining to one of her
absences due to sickness, namely as to why she was unable to work her scheduled
shift on October 23rd commencing at 7:00 a.m. It is her evidence that she was in great
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pain and had not recovered from a medical procedure that had taken place on October
21st and 22nd, and with these being medical dates she had identified to the Employer
some three weeks in advance.
[13] It is also the evidence of Ms. Van Zeggelaar that from her past experience in
being employed on a fixed term contract she believed she had ten sick days to use
during the year, and that if she cancelled a scheduled shift during a week she would be
in compliance with the contract so long as she worked another shift that week that
resulted in her working a forty hour work week. In cross-examination Ms. Van
Zeggelaar agreed that that there is no reference in the Memorandum of Settlement to
her being required to work a forty-hour work week, and that at no point had her Union
legal counsel said or written to her to say that she could cancel or decline shifts
provided that she picked up another shift that week in order to work forty hours in the
week.
[14] It is the further testimony of Ms. Van Zeggelaar that absences on account of her
son’s migraines were unavoidable and that had she recognized, or been warned, that
she could only turn down ten shifts she would have used these for when her son was ill
and if necessary come to work when she herself was ill. In cross-examination the
Grievor acknowledged that nowhere in the Memorandum of Settlement does it require
the Employer to warn her in any way or advise her of the running total of her work
absences, and agreed that she could have accessed this information for herself by way
of computer screen shots however she thought her attendance was so good that she
had no reason to think of doing this.
[15] Relevant provisions of the Employment Standards Act, 2000, include:
PART III: HOW THIS ACT APPLIES
s. 3. (1) Who Act applies to. – Subject to subsections (2) to (5), the
employment standards set out in this Act apply with respect to an employee
and his or her employer if
(a) the employees work is to be performed in Ontario or …;
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s. 3. (4) Exception, Crown employees. – Only the following provisions of
this Act apply with respect to an employee and his or her employer if the
employer is the Crown, a Crown agency or an authority, board, commission
or corporation all of whose members are appointed by the Crown:
.
5. Part XIV (Leaves of Absence)
.
8. Part XVIII (Reprisal), except for subclause 74(1)(a)(vii) and clause
74(1)(b).
s.5. (1) No contracting out. – Subject to subsection (2), no employer or
agent of an employer and no employee or agent of an employee shall
contract out of or waive an employment standard and any such contracting
out or waiver is void.
s.5. (2) Greater contractual or statutory right. – If one or more provisions
in an employment contract or in another Act that directly relate to the same
subject matter as an employment standard provide a greater benefit to an
employee than the employment standard, the provision or provisions in the
contract or Act apply and the employment standard does not apply.
PART XIV: LEAVES OF ABSENCE
PERSONAL EMERGENCY LEAVE
s.50. (1) Emergency leave. – An employee whose employer regularly
employs 50 or more employees is entitled to a leave of absence without pay
because of any of the following:
1. A personal illness, injury or medical emergency.
2. The death, illness, injury or medical emergency of an individual
described in subsection (2).
3. An urgent matter that concerns an individual described in
subsection (2).
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s.50. (2) Same – Paragraphs 2 and 3 of subsection (1) apply with respect
to the following individuals:
1. The employee’s spouse.
2. A parent, step-parent or foster parent of the employee or the
employee’s spouse.
3. A child, step-child or foster child of the employee or the
employee’s spouse.
4. A grandparent, step-grandparent, grandchild or step-grandchild
of the employee or the employee’s spouse.
5. The spouse of the child of the employee.
6. The employee’s brother or sister.
7. A relative of the employee who is dependent on the employee
for care or assistance.
s.50.(3) Advising employer – An employee who wishes to take leave
under this section shall advise his or her employer that he or she will be
doing so.
s.50.(4) Same – If the employee must begin the leave before advising the
employer, the employee shall advise the employer of the leave as soon as
possible after beginning it.
s.50.(5) Limit. – An employee is entitled to take a total of 10 days’ leave
under this section in each calendar year.
PART XVIII: REPRISAL
s.74.(1) Prohibition. – No employer or person acting on behalf of an
employer shall intimidate, dismiss or otherwise penalize an employee or
threaten to do so,
(a) because the employee,
(i) asks the employer to comply with this Act and the regulations,
(ii) makes enquiries about his or her rights under the Act,
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(iii) files a complaint with the Ministry under this Act,
(iv) exercises or attempts to exercise a right under this Act,
(v) gives information to an employment standards officer,
(vi) testifies or is required to testify or otherwise participates or is going
to participate in a proceeding under this Act,
(vii) participates in proceedings respecting a by-law or proposed by-law
under section 4 of the Retail Business Holidays Act,
(viii) is or will become eligible to take a leave, intends to take a leave or
takes a leave under Part XIV; or …..
[16] Relevant provisions of the Labour Relations Act, 1995 include:
s. 48(12) Powers of arbitrators, chair of arbitration boards, and
arbitration boards. – An arbitrator or the chair of an arbitration board, as
the case may be, has power,
(j) to interpret and apply human rights and other employment-related
statutes, despite any conflict between those statutes and the terms of
the collective agreement.
[17] Relevant leave provisions of the collective agreement as they pertain to fixed-
term employees include:
ARTICLE 24 – LEAVE WITHOUT PAY
24.1 An employee may request a leave of absence without pay and
without accumulation of credits. A Deputy Minister shall not unreasonably
deny such requests.
24.2 Family Medical Leave and Personal Emergency Leave will be
granted to employees in accordance with the Employee Standards Act,
2000, as may be amended.
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ARTICLE 31A – FIXED TERM EMPLOYEES OTHER THAN SEASONAL,
STUDENT AND GO TEMP EMPLOYEES (FXT)
31A.8 ATTENDANCE CREDITS AND SICK LEAVE
31A.8.1 Employees who work thirty-six and one quarter (36¼) or forty (40)
hours per week shall earn attendance credits of one and one quarter (1¼)
days for each calendar month of full attendance or for each calendar month
of leave of absence granted under article 31A.9 (Pregnancy and Parental
Leave). Attendance credits may be used for protection purposes only in the
event that an employee is unable to attend to his or her official duties by
reason of illness or injury. ……….……For clarity, where a fixed-term
employee uses an attendance credit the hours covered by that credit will be
counted as ‘attendance’ for the purpose of this article.
31A.10 BEREAVEMENT LEAVE
31A.10.1 A fixed-term employee who would otherwise have been at work
shall be allowed up to three (3) days leave of absence with pay in the event
of the death of his or her spouse, mother, father, mother-in-law, father-in-law,
son, daughter, brother, sister, son-in-law, daughter-in-law, sister-in-law,
brother-in-law, grandparent, grandchild, ward, guardian, stepson, step-
daughter, stepmother. stepfather, step-grandparent, step-grandchild or
same-sex spouse.
31A.10.2 An employee who would otherwise have been at work shall be
allowed one (1) day leave of absence without pay in the event of the death
and to attend the funeral of his or her aunt, uncle, niece, or nephew.
31A.10.3 It is understood that a leave of absence under Articles 31A.10.2
and 48.3 will be counted as ‘attendance’ for the purposes of Article 31A.8.
ARTICLE 48 – BEREAVEMENT LEAVE
48.1 A fixed-term employee who would otherwise have been at work shall
be allowed up to three (3) days leave of absence with pay in the event of the
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death of his or her spouse, mother, father, mother-in-law, father-in-law, son,
daughter, brother, sister, son-in-law, daughter-in-law, sister-in-law, brother-
in-law, grandparent, grandchild, ward, guardian, stepson, step-daughter,
stepmother. stepfather, step-grandparent, step-grandchild, or same-sex
spouse.
48.2 An employee who would otherwise have been at work shall be
allowed one (1) day leave of absence without pay in the event of the death
and to attend the funeral of his or her aunt, uncle, niece, or nephew.
48.3 In addition to the foregoing, an employee shall be allowed up to two
(2) days’ leave of absence without pay to attend the funeral of a relative
listed in Articles 48.1 and 48.2 above if the location of the funeral is greater
than 800 kilometres (800 km) from the employee’s residence.
ARTICLE 49 – SPECIAL AND COMPASSIONATE LEAVE
49.1 A Deputy Minister or his or her designee may grant an employee
leave of absence with pay for not more than three (3) days in a year upon
special or compassionate grounds.
49.2 The granting of leave under this article shall not be dependent upon or
charged against accumulated credits.
[18] It is the position of the Union that Ms. Van Zeggelaar’s employment has been
improperly terminated and in a manner contrary to the terms of the Memorandum of
Settlement. The Union submits that, aside from certain specified exclusions, all
employees of an employer in Ontario that employs more than fifty people are covered
by the Employment Standards Act, 2000 and that the government of Ontario is not one
of those employers that are excluded from the provisions of the Act. As such, the
Grievor is covered by the terms of the Act and is allowed by s.50 to have up to ten
emergency leave days without pay for, inter alia, personal illness, injury, or medical
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emergency, or an urgent matter that concerns a child of the employee or the
employee’s spouse. Further, the Union submits that by s.5.1 of the Act no employer or
employee, or their agents, may contract out of or waive an employment standard and
that any such contracting out or waiver is void.
[19] Accordingly, submits the Union, Ms. Van Zeggelaar is covered by the terms of
the Employment Standards Act and is entitled to take up to ten days of emergency
leave in a calendar year and that, further, by the terms of s.74.1 of the Act no employer
shall dismiss or otherwise threaten to do so because an employee takes a leave or
attempts to exercise a right under the Act. As such, argues the Union, without the five
days of leave of absence from work for reasons of emergency child care Ms. Van
Zeggelaar’s absences from work total nine and are insufficient to trigger the ending of
her employment under the terms of the Memorandum of Settlement. Further, the
Employer is precluded by the provisions of s.74.1 of the Act from dismissing or taking
any other reprisal against the Grievor for exercising a right provided to her under the
Act. It is also the submission of the Union that Ms. Van Zeggelaar has met the spirit of
the agreement by dramatically improving her attendance and that this was the purpose
of the Memorandum of Settlement. The Union notes further that Ms. Van Zeggelaar
has reached out to pick up additional shifts to work in weeks where she had been
unable to work a particular scheduled shift, with the result that she has worked a full
work week in most instances, and that she has not received recognition or any credit in
relation to her attendance record for so doing.
[20] As such, the Union submits that the five days taken by Ms. Van Zeggelaar are
not absences under the Memorandum of Settlement and that she has not triggered the
terms under which she may be terminated from employment, and nor can she be
dismissed or disciplined for taking emergency leave to attend to her son. The Union
seeks that Ms. Van Zeggelaar be returned to work to complete the balance of her term
of employment under the provisions of the Memorandum of Settlement and that she be
made whole with interest.
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[21] In support of its position and submissions the Union made reference to the
following arbitral authorities: Re Toronto Catholic District School Board and Ontario
English Catholic Teachers’ Association (Toronto Elementary Catholic Teachers) (2000),
88 L.A.C. (4th) 47 (Marcotte); Re Ontario (Management Board Secretariat) and
A.M.A.P.C.E.O. (2005), Grievance S.B., 2004-2081, (Petryshen); Re Natrel Inc. v.
Teamsters, Local 647 (2004), 76 C.L.A.S. 230 (Swan); Re Revera Retirement L.P. and
Service Employees’ International Union, Local 1 Canada (2013), CanLII 9071 (Hayes);
to s.48(12)(j) of the Labour Relations Act, 1995, as amended; and to the Employment
Standards Act, 2000, as amended, and in particular sections 3.(1), 3.(4), 5.(1), 5.(2),
50.(1), 50.(2), 50.(5), and 74.(1) of the Act.
[22] The Employer, as may be expected, argues differently. It is the position of the
Employer that the terms of the Memorandum of Settlement are clear and unambiguous
and submits that the plain and ordinary meaning of the agreement is that all absences
from work are included and that if these come to be more than ten then the grievor’s
termination of employment ensues. In relation to the Employment Standards Act the
Employer argues that this Act provides a minimum standard below which one cannot
go, but that by s.5(2) of the Act parties are free to negotiate terms that are above the
minimum and that they have done so in the instant matter in relation to matters
pertaining to Leaves of Absence. It is the submission of the Employer that by Art. 24(2)
of the collective agreement, Family Medical Leave and Personal Emergency Leave is
granted to fixed term employees in accordance with the Employment Standards Act,
plus the collective agreement also provides attendance credits and bereavement leave
for fixed term employees. As such, the Employer submits, the collective agreement
provisions are clearly superior and thus replace the requirements that are set out in the
Employment Standards Act. Accordingly, the Employer argues that all of the Grievor’s
absences from work are captured by the terms of the Memorandum of Settlement, and
that as the number of these absences exceed ten submits that the dismissal of Ms. Van
Zeggelaar be upheld.
[23] In support of its position and submission the Employer made reference to the
following arbitral authorities: Re OPSEU (Fraser) v. Ontario (Ministry of Community
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Safety and Correctional Services) (2011), Grievance S.B. GSB # 2011-0644 (Keller); Re
Standard Products (Canada) Ltd. and C.A.W., Local 4451 (1996), 56 L.A.C. (4th) 88
(Davie); Re O.P.S.E.U. v. Ontario (Liquor Control Board) (2011), 211 L.A.C. (4th) 197
(Brown); Re O.P.S.E.U. (Hinchcliffe) v. Ontario (Ministry of Community and Social
Services) (2016), Grievance S.B. GSB # 2012-1207 (Johnston); Re Abitibi Consolidated
Co. of Canada v. I.A.M. & A.W. Lodge 721 (2006), 151 L.A.C. (4th) 229 (Jesin); Re
Siemens VDO Automotive Inc. v. CAW-Canada, Local 1941 (2005), 82 C.L.A.S. 320
(Brent); Re Middlesex London Emergency Medical Services Authority v. O.P.S.E.U.,
Local 147 (2015), 261 L.A.C. (4th) 390 (Stout); and to the Leave provisions for Fixed
Term Employees in the collective agreement between the parties, specifically Art. 24.2,
Art. 31A.8.1, Art. 31A.10.1, Art. 31A.16.1, Art. 48.1, Art. 48.3, and Art. 49.1.
[24] The Agreed Statement of Facts, the evidence of Ms. Van Zeggelaar, and the
Memorandum of Settlement signed by the parties have been carefully considered along
with relevant provisions of the collective agreement, the Labour Relations Act, 1995,
and the Employment Standards Act, 2000. By s.48(12) of the Labour Relations Act,
1995, an arbitrator is provided with the authority to interpret and apply human rights and
other employment-related statutes, and this includes the Employment Standards Act,
2000.
[25] By sections 3.(1) and 3.(4) of the Employment Standards Act, this Act clearly
applies to Crown employees such as the Grievor, and by s.5.(1) of the Act the
contracting out of, or waiving of, an employment standard is expressly prohibited. As
such, the provisions of the Act apply to Ms. Van Zeggelaar and provide for a minimum
standard of specified benefits and rights to the employee that must be adhered to by the
employer. However, by s.5.(2) of the Act an employer may provide a set of rights or
benefits in a specific matter that are greater than those in the Act, in which case the
minimum provisions in the Act in that particular matter are superseded and no longer
apply.
[26] Article 24(2) of the collective agreement explicitly incorporates s.(50) of the Act
into the terms of the collective agreement that apply to fixed-term employees. This
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Emergency Leave provision in s.(50) specifies that an employee is entitled to take
emergency leave and bereavement leave for up to a combined total of 10 days in each
calendar year.
[27] The instant collective agreement provides for a greater range of relatives for
whom bereavement leave may be taken than does s.(50) of the Act. The collective
agreement also enables employees to apply for special or compassionate leave which
may be granted at the discretion of a Deputy Minister or delegate. As such, and with no
changes of any kind made in the collective agreement to the emergency medical leave
provisions imported in from the Act, the conclusion can be reached that the collective
agreement provides a greater personal emergency leave benefit than does the Act.
[28] The foregoing notwithstanding, the combined quantum of emergency medical
leave and bereavement leave days that may be taken by an employee, whether by way
of the Act or under the collective agreement, remains at a maximum of ten. As noted in
Re Revera, (supra), this right is not negated by a failure to meet the timely notice
requirement in s.5.(3) and s.5.(4) of the Act. As such, by the terms of s.(50) of the Act,
whether through incorporation into the collective agreement or directly, an employee
such as Ms. Van Zeggelaar is entitled to take up to a total of ten days of emergency and
bereavement leave in a calendar year, and by s.74.(1) of the Act the Employer is
prohibited from dismissing or disciplining her should she do so.
[29] The Memorandum of Settlement states in paragraph 4 that, upon being returned
to work on February 8, 2016 on a twelve month fixed-term contract, Ms. Van Zeggelaar
would not be absent for more than ten scheduled shifts, including but not limited to for
reason of any illness whatsoever including those which may amount to a disability. It
was also agreed that should Ms. Van Zeggelaar not comply with the provisions of
paragraph 4 and be absent for more than ten scheduled shifts, then her contract would
cease and her employment end. The Memorandum of Settlement further provides that
the sole issue that can be grieved to the Grievance Settlement Board is whether Ms.
Van Zeggelaar has complied with paragraph 4.
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[30] As it turned out, by December 5, 2016, Ms. Van Zeggelaar had been absent from
her scheduled shifts on fourteen occasions. On January 12, 2017, the Grievor’s fixed-
term contract was terminated by the employer effective immediately. We turn to
address the matter of whether or not Ms. Van Zeggelaar’s absences contravened the
provisions of paragraph 4.
[31] In seeking to give the language of paragraph 4 its plain and ordinary meaning it
must be assumed that, in reaching their Memorandum of Settlement, the parties
intended to comply with and not knowingly contravene any applicable legislation. This
includes the Employment Standards Act and in particular s.5.(1), a provision that
prohibits the parties from contracting out of or waiving an employment standard and that
further provides that any such contracting out or waiver is void.
[32] By paragraph 4 of the Memorandum of Settlement, Ms. Van Zeggelaar’s fixed-
term employment contract is to be terminated should she be absent for any reason for
more than ten scheduled shifts. However, it cannot be found that this number includes
leaves of absence for personal sickness, sickness of a child, and bereavement leave of
up to a total of ten days in a calendar year as this would contravene the provisions of
the Employment Standards Act, namely subsections 1, 2, and 5 of s.(50) and s.74.(1).
A similar finding to this was also reached by arbitrator Hayes in Re Revera, (supra) and
by arbitrator Swan in Re Natrel, (supra).
[33] Five of Ms. Van Zeggelaar’s fourteen absences were identified in the agreed
statement of facts to be for reasons of child care, and the evidence discloses that Ms.
Van Zeggelaar has an eight year old son who suffers from a medical condition of
extreme migraine headaches that require the presence and care of the Grievor. Seven
of these fourteen absences were for reasons of personal illness. By s.(50) of the Act an
employee may have leaves of absence totaling no more than ten in a calendar year for
reasons of personal injury or sickness, or relating to the sickness, injury, or death of a
child or other person designated in the Act. As such, it is found that ten of Ms. Van
Zeggelaar’s fourteen days of absence from working a scheduled shift fall inside the
provisions of s.(50) of the Employment Standards Act. These ten days cannot be
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counted as part of the total days of absence referenced in paragraph 4 of the
Memorandum of Settlement that would lead to the termination of the Grievor’s fixed-
term contract, as this would contravene s.74.(1) of the Act that prohibits the disciplining
of an employee for taking leaves of absence that fall inside the provisions of s.(50) of
the Act.
[34] From the start of her fixed-term contract on February 8, 2016 up to the end of
2016, Ms. Van Zeggelaar was absent from work for fourteen scheduled shifts. Ten of
these are protected by the provisions of the Employment Standards Act and for which
she cannot be disciplined. As such, the remaining scheduled shifts for which she was
absent and can draw discipline total four. This is short of the ‘more than ten’ absences
required by paragraph 4 of the Memorandum of Settlement to lead to the termination of
her fixed-term contract. As such, Ms. Van Zeggelaar’s grievance succeeds.
[35] Accordingly, Ms. Van Zeggelaar is to be returned to work forthwith to complete
the balance of her fixed-term contract. She is to be made whole, subject to normal
mitigation principles, for the period of time from which her contract was terminated to
the date she is put back to work. The issue of quantum of compensation is remitted
back to the parties for calculation. The undersigned remains seized in the event the
parties are unable to agree on any aspect of remedy.
Dated at Toronto, Ontario this 10th day of August 2017.
David R. Williamson, Arbitrator