HomeMy WebLinkAboutMcIntosh 07-02-26
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IN THE MATTER OF AN ARBITRATION
BETWEEN:
COLLINGWOOD GENERAL & MARINE HOSPITAL
(the "Employer")
-and.
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
LOCAL 347
(the "Union")
AND IN THE MATTER OF THE GRIEVANCE OF SANDRA MCINTOSH _ SICK
PAY
Louisa M. Davie - Sole Arbitrator
Appearances:
For the Union:
Boris Bohuslawsky, Counsel
For the Employer:
Robert Hickman, Counsel
Written submissions were received on July 10,2006, September 29,2006 and November
29,2006,
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A ward
I have considered the written submissions of the parties dated July 10,2006, September
29,2006 and November 29,2006, and have determined that the grievance must be
allowed.
The parties have filed an agreed statement of facts, including agreed upon exhibits, and
have made detailed written submissions. It is not necessary for me to set out again either
the facts or the submissions of the parties. It is sufficient to note that the grievance
revolves around the grievor's claim to 2 days sick pay. The Employer denied her claim
because it was of the view that the grievor had exhausted her sick leave and, at the time
of her absence, because she was on a modified work program, she was not yet entitled to
have her benefit period reinstated following her earlier return to work.
The grievor's entitlement to sick plan benefits under the HOODIP Plan expired
November 19,2004. She returned to work shortly thereafter, initially at less than full
time hours, and thereafter to a work schedule pursuant to which she worked full time
hours. The latter work schedule was not identical to the work schedule of other
Registered Technologists in the Hospital's Diagnostic Imaging Department, as the
Hospital accommodated the grievor by limiting her to regular full time day shifts and
part-evening shifts only. In addition, unlike other Registered Technologists who worked
the evening shift, the grievor was not required to remain on call following the evening
shift.
I find that the grievor returned to full time hours of work (7.5 hours per day _ 37.5 hours
per week) in mid December 2004. She continued to work full time hours of work until
she was ill on March 8 & 9, 2005. She therefore met the conditions of the paragraph I
under the "Recurrence of Disability" section of the HOODIP brochure. That is, she
worked for 3 continuous weeks and was entitled to have her benefit period of 15 calender
weeks reinstated in full.
I do not accept Union counsel's submissions as they relate to the "requirement for
approval" set out in paragraphs 5-14 of the submissions. Neither do I agree with the
interpretive approach he advocates with respect to being "Actively at Work" in context of
a modified work program. In this latter regard I find that the specific provision found in
the third paragraph under "Recurrence of Disability" which states that persons "who
return to work on an approved modified work program... are not considered to be
Actively at Work" supersedes the more general definition of "Actively at Work" found in
later paragraphs of the HOODIP brochure.
Nevertheless, I am of the view that the third paragraph found under the "Recurrence of
Disability" section of the brochure does not apply to the circumstances of this case. In
my view the third paragraph must be read as a whole. It does not contain, as Employer
counsel suggests, a "second exception", but rather addresses those circumstances in
which employees return to modified work and suffer a recurrence of their disability
during the 15 week benefit period. Thus, employees off for less than 15 weeks are not
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given a new 15 week benefit period merely because they return to work on an "approved
modified work program" and perform such modified work for some period of time. The
time spent doing the modified work does not interrupt the 15 week benefit period but, as
noted, that time "continues to count toward the expiry of the 15 week benefit period and
does not cause it to be reinstated."
Moreover, even if the third paragraph is read as containing two exceptions, as Employer
counsel suggests, the facts of this case do not lead me to conclude that the grievor was on
an "approved modified work program" as contemplated in the HOODIP brochure.
The grievor had, for some time, and certainly for more than the 3 weeks specified,
worked full shifts, totaling the standard 37.5 hours per week. I accept that the grievor's
work schedule was changed by the Employer to accommodate her. In the circumstances
of this case however, I do not accept that, in an effort to accommodate the grievor, a
change to her work schedule, which does not result in any reduction of hours, and which
is not accompanied by any change or modification to the regular duties and
responsibilities of the grievor during the full shifts of work performed, constitutes an
approved modified work program disentitling the grievor to a reinstatement of sick leave
benefits. To hold otherwise could disqualify employees from having their sick leave
benefits reinstated where even minor changes to schedules or accommodations are made
even though the employee has returned to full time hours of work and is performing all of
duties and responsibilities associated with the position while at work. For example, in an
extreme case, to accept the Employer's interpretation would mean that an employee who
only had his/her scheduled start time changed to accommodate a disability, but who
nonetheless worked full time hours, performing all the regular duties associated with
his/her job, could be considered to be on a "modified work program" and not entitled to
have his/her 15 week benefit period reinstated.
In this case I find that the change to the grievor's schedule, and the accommodation
provided to her in not scheduling her for the same number of evening shifts as her co-
workers and not requiring her to do overtime or on calls following an evening shift, do
not fall within the "approved modified work program" exception contemplated in the
HOODIP brochure.
For all of these reasons the grievance is allowed.
Dated at Mississauga, this 26th day of February, 2007.
Louisa M. Davie