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HomeMy WebLinkAbout2002-2882.Johnston.03-04-04 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 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2882/02 UNION# 22-02 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CanadIan Umon of PublIc Employees Local 1750 (Johnston) Grievor - and - The Crown In RIght of Ontano (Workplace Safety & Insurance Board) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION Ian Thompson NatlOnal Staff RepresentatIve CanadIan Umon of PublIc Employees FOR THE EMPLOYER ElIzabeth Kosmldls SOlICItor Workplace Safety & Insurance Board HEARING March 3 2003 2 AWARD The gnevor Manlyn Johnston, was dIscharged by the Employer the Workplace Safety and Insurance Board (WSIB) for Innocent absenteeIsm At Issue IS whether the Employer was precluded from dOIng so under the collectIve agreement because the loss of her employment status results In the loss of certaIn benefits, such as vacatlOn and attendance credIts and lIfe Insurance Facts The partIes submItted an Agreed Statement of Facts whIch provIdes, wIthout the attached appendIces, as follows 1 The Gnevor Manlyn Johnston, was employed by the Workplace Safety and Insurance Board from July 26 1988 to March 13 1998 2 Schedule "A" lIsts the gnevor's absences from 1990 The Gnevor has been substantIally off work SInce May of 1995 3 After 90 days of contInUOUS absence from work, the Gnevor became entItled to apply for long term dIsabIlIty benefits wIth the Employer's dIsabIlIty carrIer Sun LIfe of Canada. The Gnevor's claim was rejected by the dIsabIlIty Insurer and the Gnevor commenced a cIvIl actlOn agaInst Sun LIfe of Canada In 1996 ThIS actlOn was settled In August 2001 Attached as Schedule "B" IS a copy of the Minutes of Settlement. 4 Under the terms of the Minutes of Settlement, Sun LIfe of Canada has acknowledged that, as of May 17 1995 the Gnvor has been totally dIsabled. The Gnevor's benefit entItlement has been reInstated and she has been paid monthly benefits retroactIve from August 17 1995 The payment of these benefits IS contInuIng and IS not affected by the termInatlOn of her employment. 5 The Gnevor IS also In receIpt of a dIsabIlIty penslOn under the Canada PenSlOn Plan. 6 The Gnevor also contInues to pursue her entItlement under the Workplace Safety and Insurance Act and her nghts under thIS Act are not affected by the termInatlOn of her employment. 7 The medIcal InformatlOn avaIlable through the Employer's Corporate Health Centre confirms that the Gnevor wIll never return to work. 3 8 By letter dated March 10 1998 the Employer wrote to the Gnevor and advIsed her that her employment had been termInated due to the frustratlOn of the employment contract. A copy of the letter IS attached as Schedule "C" The partIes further agreed that pnor to 1993 employees off work due to a compensable Injury under the Workplace Safety and Insurance Act or otherwIse, dId not accrue attendance and vacatlOn credIts In the 1993 collectIve agreement, the partIes agreed as follows, In ArtIcle 21 02, Workers' CompensatlOn Coverage, subsectlOn (c) VacatlOn "Dunng the penod of absence resultIng from a compensable accIdent, attendance and vacatlOn credIts wIll contInue to accrue" Almost IdentIcal language IS contaIned In the 1996 and 2002 collectIve agreements Although the sItuatlOn of employees off on long-term dIsabIlIty (LTD) was not addressed In the 1993 collectIve agreement, the Employer's practIce was to allow employees on L TD to accrue vacatlOn and attendance credIts That practIce was modIfied, to some extent, In the 2002 collectIve agreement. In AppendIx 3 SectlOn 3(c) Long Term DIsabIlIty Insurance (LTD), the folloWIng sentence was added EffectIve May 1 2002 any employee who has been on L TD for two (2) years and enters Into the "any occupatlOn" category wIll not accumulate attendance and vacatlOn credI ts The partIes agreed that thIS provlslOn does not apply to employees already on L TD such as the gnevor For those employees, the Employer's past practIce of allowIng employees on LTD to accrue vacatlOn and attendance credIts contInues Also relevant IS language contaIned In the 1996 collectIve agreement, whIch remaInS In the 2002 collectIve agreement, In AppendIx 3 (c) Long Term DlsabIlty Insurance (LTD), whIch provIdes, In part, as follows 4 Payments wIll contInue up to twenty-four (24) months, If the employee IS dIsabled from performIng regular work and up to age sIxty-five (65) If totally dIsabled. Totally DIsabled, under thIS Plan, means a contInUOUS state of InCapacIty due to Illness whIch - whIle It contInues - throughout the ElImInatlOn Penod and dunng the folloWIng 24 months of InCapacIty prevents hIm from performIng each and every duty of hIS normal occupatlOn, -whIle It contInues thereafter prevents hIm from engagIng In any occupatlOn for whIch he IS or becomes reasonably qualIfied by educatlOn, traInIng or expenence Total DlsabIlItv -IS the condltlOn of beIng totally dIsabled. Employees benefits coverage for Group LIfe Insurance, Dependent LIfe Insurance and L TD wIll contInue at no cost to the employee whIle the employee receIves or IS qualIfied to receIve L TD benefits under thIS plan. Under ArtIcle 21 of the collectIve agreement, elIgIble employees In the bargaInIng umt receIve extended health care coverage, semI-pnvate hospltalIzatlOn coverage, long term dIsabIlIty Insurance, group lIfe Insurance, accIdental death and dIsmemberment Insurance, group travel Insurance, dental coverage and VlSlOn care Under AppendIx 3 coverage ceases wIth termInatlOn of employment, or In certaIn cases, the last day of the month In whIch employment termInates The partIes could not agree as to whether any other employee on L TD has been termInated, but dId agree that the Instant case IS the first case where the Employer had medIcal eVIdence that the employee wIll never be able to return to work. It IS the first case where the Employer has termInated an employee's employment on the basIs of frustratlOn of the employment contract. Positions of the Parties The Employer WSIB submIts that the case law IS clear that an employer may termInate an employee for Innocent absenteeIsm where two precondltlOns are met 5 1 The employee's absences have been exceSSIve over a penod of tIme 2 There IS no reasonable prospect of the employee returmng to work. WSIB submIts that both factors are present here, and that It had the nght, due to frustratlOn of the employment contract, to termInate the gnevor for Innocent absenteeIsm. WSIB further contends that there IS nothIng In the collectIve agreement, IncludIng the receIpt of other benefits, whIch precludes a termInatlOn based on Innocent absenteeIsm In support of thIS contentlOn, It cItes to Re Canada Safeyt,ay Ltd and Saskatcheyt,an Joint Board, Retail, Wholesale and Department Store Union, Locals 454 and 480 (2001), 96 L.AC (4th) 209 (Pelton) Re City of Edmonton and Canadian Union of Public Employees Local 30 (1987), 31 L.AC (3d) 353 (WakelIng) Re Oxford County Board of Health and Canadian Union of Public Employees Local 1146 (1999), 81 LAC (4th) 268 (Howe) Re Weiland County Hospital and Service Employees International Union, Local 204 (1996) 57 L.AC (4th) 324 (Thorne) Re Atomic Energy of Canada Ltd and Communications Energy and Pape~orkers Union of Canada, Local 896 (2000), 89 L.AC (4th) 296 (R. Brown) Re Pasteur Merieux Connaught Canada and Communications, Energy and Pape~orkers Union of Canada, Local 1701 (1998) 75 L.AC (4th) 235 (Knopf) and Re DeHavilland Aircraft of Canada Ltd and United Automobile Workers, Local 112 (1983) 9 L.AC (3d) 271 (Rayner) In ItS vIew the case law only prohIbItS the termInatlOn of an employee where the termInatlOn wIll frustrate the employee's claim to sIck payor long term dIsabIlIty benefits to whIch the employee IS entItled under the collectIve agreement. Here, It submIts, the gnevor's nght to L TD whIch vested at the tIme she became dIsabled, contInues IrrespectIve of her termInatlOn of employment as does her nght to pursue her claim under the Workers Safety and Insurance Act 6 The Union The Umon does not contest an employer's nght, generally to termInate an employee for Innocent absenteeIsm where the reqUIred precondltlOns are met. It further agrees that the reqUIred precondltlOns are met In thIS case The Umon does, however contest the Employer's nght to termInate the gnevor for Innocent absenteeIsm under the specIfic provlslOns of thIS collectIve agreement. In the Umon's submlsslOn, AppendIx 3 reqUIres an employee on L TD to remaIn an "employee" In order to receIve the benefit of the partIes' L TD bargaIn. It cItes to the folloWIng language Employees benefits coverage for Group LIfe Insurance Dependent LIfe Insurance and L TD wIll contInue at no cost to the employee whIle the employee receIves or IS qualIfied to receIve L TD benefits under thIS plan. In the Umon's VIew thIS language, partIcularly the use of the word "employee" contemplates a contInued employment relatlOnshlp wIth someone who IS totally dIsabled and reCeIVIng benefits under the L TD plan. LIkewIse, the Umon submIts that the partIes' "bargaIn" for L TD employees Includes the contInUatlOn of vacatlOn and attendance credIts, as provIded In the Employer's undIsputed past practIce AccordIngly the Umon contends that the Employer IS precluded from termInatIng the employment relatlOnshlp of an employee on L TD because entItlement to these benefits depends on "employee" status The Umon submIts that these benefits - group lIfe Insurance dependent lIfe Insurance, and L TD as well as vacatlOn and attendance credIt accrual, are "deferred" benefits and cannot be negated by the termInatlOn of an employee on L TD All of them, It asserts, are part of the compensatlOn package negotIated for employees on L TD In ItS VIew the agreement contemplates more than the 7 payment of a premIUm for benefits and provIdes specIfic benefits to employees on L TD whIch the Employer cannot take away by termInatIng the employee's employment status It asserts that both the vacatlOn credIts and attendance credIts have monetary value to an employee on L TD In support of Its contentlOns, the Umon cItes to Re Dr F W Green Memorial Home Society and Hospital Employees Union (1995) 49 L.AC (4th) 385 (Larson) Re Government ofProvincne of Alberta and Alberta Union of Provincial Employees (1997) 29 LAC (3d) 218 (Tadman) Re Port Colborne & District Ambulance Service (677700 Ontario Inc) and Ontario Public Service Employees Union, Local 214 (1988) 33 LAC (3d) 30 (O'Shea) Maple Leaf Meats Inc v United Food and Commercial Workers International Union, Local 175 (AikIn Gnevance) (2000) 89 L.AC (4th) 18 (Tims) Employer Reply In reply the Employer submIts that the "bargaIn" regardIng L TD benefits does not preclude It from termInatIng an employee where there IS no reasonable prognosIs that the employee wIll ever return to work. It submIts that vacatlOn and attendance credIt accrual has value to an employee who may return to work, but do not preclude the employer from termInatIng an employee who can never return to work. The Employer contends that under the Umon's approach It could never termInate an employee who IS reCeIVIng L TD even though It IS clear that they wIll never return to work. It contends that for management's nght to termInate for Innocent absenteeIsm to be so restncted clear language In the collectIve agreement would be reqUIred - language whIch, In ItS VIew does not eXIst In the collectIve agreement. 8 Decision ThIS case raises a very sIgmficant Issue of contract InterpretatlOn. Both partIes recogmze that the Employer has the nght, subject to the Human Rights Code and the collectIve agreement, to termInate an employee for Innocent absenteeIsm. The questlOn presented In thIS case IS whether the collectIve agreement fetters that nght. SpecIfically at Issue IS whether the language contaIned In AppendIx 3 (c) that "[e]mployees benefits coverage for Group LIfe Insurance, Dependent LIfe Insurance and L TD wIll contInue at no cost to the employee whIle the employee receIves or IS qualIfied to receIve L TD benefits under thIS plan" plus the past practIce of provIdIng employees on L TD wIth vacatlOn and attendance credIt accrual, precludes the Employer from termInatIng the employment status of an employee on L TD after It becomes clear that the employee wIll never be able to return to work. The mere eXIstence of a benefit under the collectIve agreement does not lImIt the nght of management to termInate an employee for Innocent absenteeIsm. Re Canada Safeyt,ay Ltd and Saskatcheyt,an Joint Board, Retail, Wholesale and Department Store Union, Locals 454 and 480 supra Re City of Edmonton and Canadian Union of Public Employees Local 30 supra. As ArbItrator Smenchuck stated In Re Ipsco Inc and Us. WA. (Richardson) unreported December 20 1993 reported In Re Canada Safeyt,ay Ltd, supra at p 220 If the loss of any benefit (as dIStInCt from the loss of dIsabIlIty benefits) meant that an employer could not termInate for Innocent absenteeIsm, then that nght would be non- eXIstent because there IS always some benefit lost as a result of termInatlOn. Instead, the employer's nght to termInate an employee for Innocent absenteeIsm depends on whether the dIsmIssal depnves the employee of contInued access to a negotIated benefit specIfically tIed to the Illness or dIsabIlIty In thIS regard, the declslOn of ArbItrator Tadman In Re Government of the Province of Alberta and Alberta Union of Provincial Employees, supra at pp 228-29 IS helpful 9 It can be seen then that arbItrators, notwIthstandIng the general proposltlOn that the senous medIcal InCapacIty of an employee whIch prevents hIm from satlsfactonly performIng hIS dutIes, wIll amount to "just cause" for dIsmIssal, wIll not permIt the termInatlOn of a dIsabled employee where hIS status as an "employee" IS a reqUIrement of elIgIbIlIty for long-term dIsabIlIty and other benefits To hold otherwIse would be to permIt the employer by umlateral actlOn to destroy the Interest vested In the employee under the collectIve agreement. Whether or not an employee may be dIsmIssed In the face of the eXIstence of these benefits depends on the reqUIrements for entItlement to the benefits If It IS necessary to remaIn an "employee" to take advantage of the benefits, then dIscharge for medIcal dIsabIlIty IS precluded. Each case, however must be determIned In lIght of the specIfic terms of the collectIve agreement beIng Interpreted. The wordIng of AppendIx 3 (c) IS clear "Employees benefits coverage for Group LIfe Insurance, Dependent LIfe Insurance and L TD wIll contInue at no cost to the employee whIle the employee receIves or IS qualIfied to receIve L TD benefits under thIS plan." By ItS terms, the Employer has agreed to pay for these benefits "whIle the employee receIves or IS qualIfied to receIve L TD benefits " By agreeIng to thIS provlslOn, the partIes clearly Intended that employees reCeIVIng L TD would contInue to be elIgible for such benefits, and that the Employer would not take any actlOn whIch would dIsentItle the employee to the benefits for whIch the Employer agreed to pay There IS no questlOn In thIS case that the gnevor's nght to L TD IS vested and IS not dependent on her contInued status as an employee But that IS not the only benefit to whIch the gnevor IS entItled under AppendIx 3 ( c ) She IS also entItled to Group LIfe Insurance and Dependent LIfe Insurance whIle she receIves or IS qualIfied to receIve L TD benefits The Issue becomes, therefore, whether the gnevor's receIpt of Group LIfe Insurance and Dependent LIfe Insurance IS dependent on her remaInIng an "employee" If so the Employer cannot termInate the gnevor's employment and thereby depnve her of the negotIated benefits whIch are dIrectly tIed to her dIsabIlIty Whether or not beIng an "employee" IS reqUIred to receIve those benefits depends on the specIfic terms of the benefits 10 The same analysIs applIes to the Employer's practIce as It relates to vacatlOn and attendance credIt accrual for employees on L TD The Employer through ItS practIce, has agreed that employees on LTD contInue to accrue vacatlOn and attendance credIts If "employee" status IS reqUIred to obtaIn such benefits, then the Employer cannot termInate the gnevor's employment and thereby depnve her of the benefit of the L TD bargaIn. AgaIn, whether or not beIng an "employee" IS reqUIred to receIve those benefits depends on the terms of the benefits Under AppendIx C Group LIfe Insurance Plan, both LIfe Insurance coverage and Dependent LIfe Insurance coverage cease on the date the employee termInates hIS employment. Under ArtIcle 15 attendance credIts apply to "[a]ll probatlOn and permanent staff employees" Upon termInatlOn of employment, employees wIth three or more years of servIce receIve a cash payment based on fifty per cent of the unused attendance credIts Under ArtIcle 11 vacatlOn leave and pay IS "based on the employee's contInuance servIce from hIS most recent date of hIre " Upon termInatlOn, an employee receIves pay for unused vacatlOn entItlement. Based on these provlslOns, I conclude that entItlement to Group LIfe Insurance, Dependent LIfe Insurance vacatlOn and attendance credIts depend on beIng an "employee" Under the collectIve agreement, one cannot receIve these benefits wIthout havIng "employee" status Consequently termInatIng an employee who IS reCeIVIng L TD would result In depnvIng the employee of these benefits whIch constItute a sIgmficant part of the L TD bargaIn. It also vlOlates AppendIx 3 (c) The case of Re British Columbia Teachers Federation and Union of Teachers Federation Employees (1997) 62 L.A.C (4th) 209 (LaIng) cIted In Re Oxford County Board of Health and 11 Canadian Union of Public Employees Local 1146 supra, IS qUIte analogous The pertInent collectIve agreement language In that declslOn was ArtIcle 205 whIch read The employer's share of the costs of the benefit package ArtIcle 11 - Health and Welfare Benefits and Plans, shall be paid by the employer dunng the penod of tIme a person IS collectIng unemployment Insurance sIck leave benefits and long term dIsabIlIty benefits There, as In the Instant case the employer agreed to pay the costs of certaIn benefits dunng the penod of tIme the IndIVIdual was reCeIVIng L TD The arbItrator Interpreted thIS provlslOn as lImItIng the employer's nght to termInate an employee whIle In receIpt ofLTD benefits He concluded at p 227 By agreeIng that the employer's share of the costs of the ArtIcle 11 benefits and plans would be paid by the employer I must conclude that the partIes Intended that such employees would contInue to be elIgIble to partIcIpate In those benefits and plans In lIght of thIS agreement, one must conclude that the partIes Intended that the employer would not Itself take any actlOn to dIsentItle such an employee to the very benefits for whIch the employer had agreed to pay In other words, If beIng an employee IS a condltlOn precedent to reCeIVIng the benefits of the plans and benefits of ArtIcle 11 the partIes must have Intended that as long as an employee IS collectIng unemployment Insurance sIck leave benefits and long-term dIsabIlIty benefits, the employee cannot be dIsenfranchIsed by beIng termInated by the employer for Innocent absenteeIsm In that case, the contract between the provIder of the ArtIcle 11 benefits and the employer stated that coverage for extended health and dental benefits would termInate automatIcally on "the last day of the month In whIch the member's employment IS termInated" Based on thIS language the arbItrator concluded at p 228 that "termInatIng an employee who IS collectIng unemployment Insurance sIck leave benefits and long term dIsabIlIty benefits would result In depnvIng the employee of access to a negotIated benefit the partIes Intended such an employee would receIve" AccordIngly the employer could not termInate an employee In receIpt of such benefits for Innocent absenteeIsm for to do so would vlOlate ArtIcle 20 5 12 As noted, It IS not the receIpt of any benefit whIch precludes termInatlOn of an employee for Innocent absenteeIsm. Instead, the benefit must be dIrectly tIed to the dIsabIlIty and form part of the "L TD benefit" or bargaIn. In thIS case, the partIes specIfically created the reqUIred nexus between Group LIfe Insurance and Dependent LIfe Insurance and the receIpt of L TD In AppendIx 3 (c) They also dId so by the past practIce of contInuIng vacatlOn and attendance credIt accrual for employees on LTD Because "employee" status IS reqUIred to receIve such benefits, the Employer cannot termInate the gnevor for Innocent absenteeIsm. To allow the termInatlOn would allow the Employer to depnve the employee of the negotIated L TD bargaIn. In so rulIng, I cannot accept the Employer's contentlOn that employee's reCeIVIng L TD are only entItled to Group LIfe Insurance and Dependent LIfe Insurance as well as vacatlOn and attendance credIt accrual, untIl It IS determIned that they cannot return to work In the future That IS not how AppendIx 3(c) reads It IS not so lImIted. In addltlOn, In the 2002 collectIve agreement, the partIes dId lImIt, for employees new to L TD that "[e]ffectlve May 1 2002 any employee who has been on LTD for two (2) years and enters Into the 'any occupatlOn' category wIll not accumulate attendance and vacatlOn credIts" ThIS provlslOn dId not apply to employees already on L TD IncludIng the gnevor Thus, the partIes' could have, but dId not, lImIt the gnevor's L TD bargaIn. FInally I am sympathetIc to the Employer's contentlOn that under thIS InterpretatlOn It cannot termInate an employee for Innocent absenteeIsm as long as they are reCeIVIng L TD even though there IS no reasonable lIkelIhood that the employee wIll ever return to work. I would note however that thIS IS a lImltatlOn based on the specIfic wordIng of ItS collectIve bargaInIng. I would also note that I make no rulIng as to the gnevor's entItlement to any other benefits under the collectIve agreement. 13 All thIS rulIng encompasses IS a concluslOn that the Employer vlOlated AppendIx 3(c) when It dIscharged the gnevor because termInatlOn depnved her of the negotIated benefits of the L TD bargaIn, whIch Includes Group LIfe Insurance, Dependent LIfe Insurance, vacatlOn and attendance credIt accrual Conclusion For all of the reasons set forth above, I conclude as follows 1 The gnevance IS allowed. 2 The Employer's nght to termInate the gnevor IS fettered by AppendIx 3(c) and ItS practIce of allowIng employees reCeIVIng L TD to accrue vacatlOn and attendance credIts 3 The Employer vlOlated AppendIx 3(c) when It dIscharged the gnevor because termInatlOn depnved her of the negotIated benefits of the full L TD bargaIn, whIch Includes Group LIfe Insurance Dependent LIfe Insurance, vacatlOn and attendance credIt accrual 4 The dIscharge IS hereby rescInded. The gnevor's L TD benefits regardIng Group LIfe Insurance, Dependent LIfe Insurance, vacatlOn and attendance credIt accrual are to be reInstated from the date of her termInatlOn. 5 I shall remaIn seIzed. Issued at Toronto thIS 4th day of Apnl, 2003 1-1 I 1.hYmt61C.L)~ - Ranth H. Abramsky Vice-Chair