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HomeMy WebLinkAboutBrousseau 07-05-08 ..." I 1 ~Dolo-o~~9 -omS In the matter of arbitration between: Jeanne Sauve Family Services (hereinafter referred to as the Employer) And ~~D~:'-~ --:";,~:;-'";~;:;;==\ ~ ,-"", ,,;-,~ if'''' ,;.~ , ~\ _ v F r;~- f f" - - - "i'",: ;:,)' ; J JUN 1 1 2001 L::~~c V'"1I~'--,t: iJtl':',r-mVjEr~T ~";I'.!==G-~=":L",':a~~ Ontario Public Services Employees Union, Local 639 (hereinafter referred to as the Union) Grievance of Chantal Brosseau Sole Arbitrator: Gregory J. Brandt Appearances: F or the Employer: Guy Wainwright, Counsel Lynn Berube, Executive Director Doris Losier, Administrative Assistant F or the Union: Kirsten Agrell, Grievance Officer Chantal Brosseau, Grievor Hearing: Kapaskasing, Ontario April 25, 2007 2 1. Introduction The grievor is employed as a Child Protection Worker by Jeanne Sauve Family Services, an agency which, in 2000, became amalgamated with other services to provide child welfare, youth justice and children's mental health services. It has approximately 100 employees of whom 70 are permanent full time employees and the rest are part time and casual employees and offers its services in several locations in Northern Ontario scattered approximately 100 kilometers to the East and to the West of Kapaskasing, Ontario. The grievor commenced her employment in December, 2001 and became a permanent full time employee on October 22, 2002. In late September 2005 she applied for and was granted maternity leave ending on October 2,2006. Upon her return in October, 2006 she was advised that, although she was entitled to accumulate vacation credits in respect of the period of time that she was absent on her maternity leave, she was not entitled to any pay in respect of that period of time that she was absent on maternity leave. As an employee with between 1 and 5 years of seniority the grievor was, pursuant to Article 26.05(a) of the collective agreement, entitled to 25 working days of vacation leave annually. Although the agreement does not specify precisely that this is vacation with pay it is clear from Article 26.05(b), which speaks specifically of "unpaid vacation leave" for part time and casual employees, that Article 26.05 (a) should be construed as providing for vacation with pay. However, as she was only at work for 3 months in 2006 or one quarter of the year (having not returned until October 2, 2006) the employer calculated her vacation entitlement with pay as 6.25 days, that is, one quarter of her annual entitlement under the collective agreement. 3 On October 24,2006 the grievance was filed alleging, inter alia, that the employer had "refused to credit the grievor with her vacation entitlement with pay for the period that I was off on approved pregnancy/maternity leave." 2, The Collective Agreement and Relevant Legislation The following provisions of the collective agreement are relevant to the determination of the issues. Article 2 - Recognition 2.02 Permanent full-time employee is an employee who has successfully completed the probationary period and whose length of employment is not defined. The employee works regularly scheduled full time hours as outlined in Article 24.03 and/or 24.08. Group A,B. 2.03 Permanent part-time employee shall mean those employees who are hired to work on a pre-determined basis, as required and determined by the employer. A permanent part time employee shall work up to sixty-nine (69) hours in a fourteen (14) day period. These employees will have the option of occasionally working in excess of these hours to a maximum of eighty- eight (88) hours in the pay period, as required by the employer. Pay for such hours will be at the regular hourly rate-straight time. Group C. 2.04 A casual employee is an employee who works on a relief, call-in or on- call basis. Employment is irregular and may vary in length from day to day and week to week. Group D. Article 20 - Pregnancy and Parental Leave 20.01 Pregnancy/Parental Leaves shall be granted in accordance with the Employment Standards Act. 4 (Section 46 (1), 48 and 49 of the Employment Standards Act provide cumulatively for pregnancy and parental leave without pay for a period of 1 year) 20.02 - provides, inter alia, that during a pregnancy or parental leave an employee continues to participate in benefit plans related to his or her employment and that seniority continues to accrue during pregnancy leave or parental leave. 20.04 An Employer shall not intimidate, discipline, suspend, layoff, dismiss or impose a penalty on an employee because the employee is or will become eligible to take, intends to take or takes pregnancy leave or parental leave. Article 24 - Hours of Work and Overtime Non-Residential Employees (Group A, B) 24.03 - sets out the average work week for full time employees for different seasons of the year. Article 26 - Vacations 26.02 Group A and B employees are to be credited with annual leave credits on January 1st of each vacation year. 26.03 Normally, vacation entitlement will be taken in the vacation year in which it is earned. However, an employee may carry over a maximum of five (5) working days of his vacation entitlement on the following terms: b) If by May 1st in the year following the year in which the vacation credits were earned and would normally be taken, the employee has not used his carry-over vacation entitlement, they will then be lost. c) Vacation entitlement not used in the year in which it was earned and not carried over is lost. 5 26.05(a) All regular full-time employees shall be entitled to the following vacation leave annually: 1 to 5 years -25 working days Schedule A - Occupational Classifications and Annual Salary Schedules [This Schedule establishes 5 separate Groups (A-E) and corresponding salary scales for employees in each group. Group B consists of employees in the following classifications: Child and Family Intervention Worker, ISNC Case Manager, Child Welfare Worker, Preparation for Independence Worker, Residential Workers, Youth Justice Worker, Intensive Child and Family Worker. 2 The Evidence Ms. Lynn Berube, the Executive Director of the Agency testified on behalf of the Employer. It was her evidence that, although as Executive Director, she had no direct involvement in the administration of the maternity leave or vacation entitlement provisions of the collective agreement, the practice that had been uniformly followed by the Employer over the 25 year period that she had been with the agency in various capacities, was that whenever a paid leave was granted, vacation credits were calculated in the same way as if the employee had been working, that is, there would be no deduction or pro-ration in respect of the time that employee was not at work. However, where the leave was unpaid, as is the case with pregnancy/parental leave, the practice had always been to prorate the vacation entitlement to reflect the time off on leave and to pay the prorated amount of vacation pay accordingly. In her estimation over the past year there had been between 8 and 10 applications for leave in total of which one, that of the grievor, was for maternity leave and that, when the grievor's 6 application was presented her vacation entitlement was prorated according to the practice that had been followed. It was also her evidence that, until this case, the union had never challenged this practice for a period of at least 25 years. Although she has only been Executive Director for that past 12 months she consulted the files and was unable to locate any documentation that would indicate that this subject had ever been a matter of discussion between the employer and the union. In cross examination she confirmed that, apart from the personnel records of individual employees whose applications for leave were dealt with in the same manner as was that of the grievor, there were no written documents setting out the company's policy and practice with respect to the treatment of vacation credits where employees had been absent from work for parts of the year on unpaid leaves of absel)ce. Ms. Doris Losier, the Administrative Assistant responsible for personnel matters including the calculation of vacation credits also testified on behalf of the employer. She stated that each year, on January 1 st she sends all employees a resume of what they are allowed in the year in terms of vacation credits and, revises that month by month depending on whether and the extent to which employees have made use of their vacation entitlement in the previous month. It was her evidence that, in that regard, where an employee goes on an unpaid leave of absence (such as a pregnancy /parentalleave) she prorates the vacation entitlement for the remainder of the year and advises the employee of that fact, of what the "new numbers would be". At the end of the leave, when the employee returns to work, she again prorates the vacation entitlement having taking 7 into account the length of the time that the employee was absent from work on the unpaid leave. However, where the leave is a paid leave, nothing is done as far as proration of vacation entitlement is concerned. Thus, when the grievor returned from her maternity leave on October 2,2006, Ms. Losier caused to be issued a document which, among other things, calculated her prorated holidays with pay for the remaining 3 months of the year at 6.25 days. It was her evidence that she has been following this practice since 1984 when she commenced employment with the agency and that she had seen no personnel records that would indicate any different practice prior to 1984. Since that time, she was not aware of any occasions or seen any documentation that would indicate that the union had ever raised any objection to the practice of the employer. Further, at the spring 2006 negotiations for renewal of the agreement, which negotiations she attended, the matter was not raised by the union as a bargaining issue. In cross examination she confirmed that, of the 70 regular full time employees approximately 30 are located in Kapuskasing and the rest are spread out in Hearst (10), Constance Lake (10), Val Rida (8), Smooth Rock Falls (2) and 8 employees located in 3 different Youth Justice Program Offices. She also confirmed that she had never seen a written document setting out the Employer's practice with respect to the proration of vacation credits when employees had been absent for portions of the year on unpaid leaves. Nor had she ever had any occasion to discuss the subject of proration of vacation entitlements with any of the union's staff representatives. 8 3. Argument and Decision The issue to be determined is whether or not the time that the grievor was absent from work on her unpaid maternity leave is time which can be counted for the purpose of determining her vacation entitlement. Brown and Beatty (Canadian Labour Arbitration, 8:3220) sets out, in general, the law with respect to this issue. In most agreements the parties include specific provisions to deal with the issue of which periods than an employee remains off work can be counted in computing his or her vacation entitlement. It is very common, for example, for the amount of vacation payor duration of vacation to be calculated on the period of time a person has been "continuously employed" or "in service". In the absence of some clear expression of intention to the contrary most arbitrators have interpreted such words to mean that employees who were off work on a. . . . . . parental or pregnancy leave.... were entitled to count such periods when they were not actively working in calculating their vacation entitlement. ... Where, on the other hand, the agreement makes the accumulation of vacation credits conditional upon active employment and the actual performance of work, or upon being on the payroll or working a specific number of available working hours such non working period are less likely to count. In Federated Co-operatives Ltd. and UFCW, Local 832 (2003), 116 L.A.C. (4th) 253 (Graham) the arbitrated stated that: A review of the arbitral authourities .. . confirms that most contemporary arbitration awards conclude that, absent a contrary intention being expressed in the collective agreement, in circumstances where annual paid vacation is determined on the basis of length of service or seniority, employees who have been off on an authourized leave, such as a parental leave, will not have their entitlement to an annual paid vacation adversely affected by taking such a leave. This is because their employment and seniority are maintained and their service remains continuous notwithstanding their temporary absence. See also Federated Co-operatives Ltd. and 9 Miscellaneous Employees Teamsters Local 987 (2004), 130 L.A.C. (4th) 185 (Ponak). I turn to the provisions of the collective agreement. Article 26 provides that Group B employees (of which the grievor is one) "are to be credited with annual leave credits on January 1 st of each vacation year and Article 26.05(a) provides that "all regular full time employees shall be entitled (in the grievor's case) to 25 working days of vacation leave. That language is mandatory and deserves to be respected absent some other language in the agreement to the contrary. In my view there is no such language. Indeed, there is language that would suggest that in the particular context of pregnancy/parental leave there should be no loss of vacation entitlement by reason of an employee taking such leave. Article 20.02( d) provides that Seniority continues to accrue during pregnancy leave or parental leave. That is the kind of provision which Arbitrator Ponak in Federated Co-operatives Ltd (supra) relied on to support his conclusion that an employee on a parental leave would qualify as being in "continuous employment" - which was necessary in order to qualify under that collective agreement for parental leave. In my view Article 26.05(a) of the instant collective agreement, which premises entitlement to a vacation leave only on the grievor being a "regular full time employee" expresses a stronger claim to entitlement that the language found in the Federated Co-operatives Ltd. case in that it did not express any requirement of continuity of employment as was the case under that collective agreement. When supplemented by Article 20.02( d) that claim becomes even stronger. Furthermore, Article 20.04 expressly prohibits the Employer from, inter alia, imposing a "penalty" on an employee because he or she "takes 10 pregnancy or parental leave" . Although some care should be taken in interpreting a clause of such generality an argument could be made that a deduction in vacation leave entitlement that reflects the time away from work on a pregnancy or parental leave constitutes the kind of "penalty" that this section addresses. At the very least it provides some indication that, absent some clear indication to the contrary, other provisions of the collective agreement, such as the vacation leave provisions, should not be read in such a way as to permit a contravention of this clause. The principal argument advanced on behalf of the Employer was that, while on a pregnancy or parental leave the grievor was not a "regular full time employee" within the meaning of Article 26.05(a) and therefore did not meet the basic qualification for entitlement to a vacation leave; that entitlement to vacation leave is not a matter of "status", as the union argued, but rather in the nature of a benefit that is "earned" through work. In support of that position counsel for the Employer argued that Article 2.02 defines "permanent full time employee" in language which speaks of the employee "working" regularly scheduled full time hours as outlined in Articles 24.02 (Non-Residential Group B employees) and Article 24.08 (Residential Group B employees) both of which prescribe the "work" week. Counsel also referred to Article 26.03 providing that normally vacation entitlement will be taken in the vacation year in which it is "earned" and paragraph (c) thereof under which vacation entitlement not used in the year in which it was "earned" and not carried over will be lost. . - 11 Thus, in the submission of the Employer, although the grievor remains an "employee" while absent on a pregnancy/parental leave, she is not, as a matter of interpretation, a "regular full time employee" for the purposes of Article 26.05(a) of the collective agreement. With respect, I am unable to accept that this is the correct interpretation of the collective agreement. In my view the collective agreement does not defme entitlement to vacation leave in terms of whether or the extent to which the employee "earned" that leave by "working". Articles 2.02, 2.03, 2.04 and 2.05 simply defme certain classes of employees in terms of whether or not they are permanent full time employees, permanent part time employees, casual employees or contract employees and, for ease of defInition, include references to the different hours that such employees will "work". In my opinion, that kind of language, nor the reference to vacation entitlements as being "earned" in Article 26.03 is not sufficiently strong to defeat the conclusion demanded by the case law, viz, that where the agreement in mandatory language (as is the case here) expresses entitlement to vacation leave in terms of years of years of service or seniority, such vacation leave is a matter of status and not to be taken from the employee who is absent from work on an authourized leave of absence such as a pregnancy/parental leave. In this regard it is instructive to compare the language of this agreement with that in Canadian Red Cross Society and OPSEU, Local 5101 (1993), 38 L.A.C. (4th) 78 (Samuels) where the collective agreement provided, inter alia, that while seniority would continue to accrue during parental/adoption leave, .."the employee will not accrue vacation, sick leave, .. . during such leaves of absence." 12 Counsel for the Employer argued, in the alternative, that the practice of the parties for at least the last 25 years (if not more) wherein vacation credits have always been prorated when an employee was absent on a pregnancy/parental leave, without opposition from the union, should be called in aid to support its interpretation of the collective agreement. It is well recognized that extrinsic aids, such as the consistent and unquestioned practice of the parties, can be used to interpret ambiguous language in a collective agreement. However, I am unable to agree that, insofar as the question of entitlement to vacation leave is concerned, this collective agreement is ambiguous. On the contrary it clearly states that "all regular full time employees "shall be entitled to" vacation that is based on their length of service. Article 10.07 of the agreement deprives me of jurisdiction to "alter, modify or add to any of the provisions of the agreement" or to give "any decision inconsistent with the terms and provisions of the agreement. . ." and, where I to "interpret" the agreement in a manner which reflected that practice I would be acting outside my jurisdiction in giving it a meaning "inconsistent" with its plain terms. Thus, I conclude that, as a matter of interpretation of the collective agreement, the Employer, in purporting to prorate the grievor's vacation entitlement by reason of her being absent from work on a pregnancy/parental leave was in violation of the clear language of the collective agreement. I turn to the question of estoppel. .' 13 The employer argued that, given that the practice that was followed in respect of the grievor was the same as that which had been consistently followed for at least the last 25 years and given that the at no time did the union ever challenge that practice and, in particular, did not raise it as a matter of bargaining in the collective agreement negotiations that were concluded in March of 2006, the union is clearly estopped from advancing this grievance at this time. Clearly, absent other considerations, the facts of this case cry out for an application of the doctrine of estoppel. The practice followed by the employer was clear and consistent over a long period of time and was met with no obj ection from the union at any time. There can be little question that, through its silence, the union represented to the Employer that it did not intend to challenge the Employer's interpretation and application of the collective agreement. Nor is there any question that the Employer relied to its detriment on that representation. It has lost an opportunity to bargain, not only over several renegotiated collective agreements but most recently in the 2006 bargaining sessions at which time, had the issue been raised by the union it could have been dealt with. Further, as a publicly funded body the employer is limited in its ability to control its revenues and, without an application of the doctrine of estoppel, would be exposed to extra liability through until the collective agreement expires on March 31, 2009. It was suggested by counsel for the union that, although admittedly the practice may have occurred over a period of 25 years or more, the occasions for its exercise were relatively infrequent, that is, on average only one claim for pregnancy /parentalleave a year and further that, as not all 14 employees who had made such a claim would necessarily also seek a vacation, the Employer would not, in real terms, suffer much of a detriment if it was required to apply the collective agreement as written. I am not persuaded by the argument that a long standing practice of many years is diminished in significance by reason of the fact that it was only actually exercised once a year. By way of illustration an employer who consistently provided an annual Christmas Turkey for 25 years could not, in my view, be heard to say, in defence to a claim that it was estopped from changing that practice that it was only exercised 25 times over a 25 year period. Nor am I aware of any cases where arbitrators have, in an otherwise appropriate case, declined to apply the doctrine of estoppel on the basis of speculation that to hold the employer to its contractual obligation would not, in real terms, expose it to any significant cost. The union further argued that, in the circumstances of this particular case, the evidence supports a fmding that the union was not aware of the practice and could, therefore, not be found to have acquiesced in it; that absent such acquiescence, it cannot be said that the union represented to the Employer that it would not insist on a strict application of the collective agreement. It was suggested that, as the employees were spread out over a wide geographic area and, in some cases, were few in numbers it is not surprising that the union representing them may not have come to know of how the collective agreement was being applied. In that regard it was noted that there was no written document spelling out the Employer's practice in connection with this matter and no conversations held between 15 representatives of the Employer and the union representative as to how the collective agreement was being applied. The issues raised by the union pose challenging questions with respect to the application of the doctrine of estoppel in circumstances like those which obtained in this case where employees are spread far and wide across a large geographic area and where communication between the union and its members is, of necessity, compromised. Nevertheless, however persuasive those considerations may be, the fact of the matter is that there is no evidence to support the submissions advanced by counsel for the union. Although the burden is on the Employer to establish an estoppel, that burden is met, in my view, by the evidence of a consistent practice that had been followed for over 25 years without opposition. In those circumstances it is, in my view, incumbent on the union to meet that burden by some evidence that would indicate that, for whatever reason, it was not aware of the practice, evidence that could be subjected to cross examination by the Employer. However, no union representative was called to testify as to his or her knowledge or absence thereof as to the existence of the practice of the Employer over this period of time. Admittedly, there is evidence that there is no written policy and that there had been no discussions between the union and either Ms. Berube or Ms. Losier concerning the policy. However, that does not warrant an inference that the union must necessarily have been unaware of the practice. It is equally plausible that the union was quite aware of the policy and chose not to object which, in turn, led the Employer to conclude that no written policy or formal discussion of the matter with the 16 Ulllon was necessary. In the absence of any direct evidence from a union representative on this matter it is appropriate to draw an inference that such evidence, had it been called, would not have been helpful. Accordingly, I find on the evidence that, given the consistent and unchallenged practice of the Employer over a period of at least 25 years, the union is estopped from advancing the grievance. 4. Summary and Conclusion F or the reasons set out above I find and declare that: i) the Employer violated the collective agreement in prorating the grievor's vacation entitlements and reducing her vacation leave credits by the time that she was absent from work on an approved pregnancy/parental leave without pay; but ii) the Union is estopped from enforcing its claim. I remain seised of jurisdiction to deal with any issues arising out of the interpretation of this award. Dated at LONDON, Ont. this E day of M I , 200G' t/<; """"""'--- Gregory J. Brandt, Sole Arbitrator