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HomeMy WebLinkAboutWellman 18-09-30IN THE MATTER OF AN ARBITRATION BETWEEN SENECA COLLEGE (the “College”) and ONTARIO PUBLIC EMPLOYEES UNION (the “Union”) GRIEVANCES OF SANDRA WELLMAN (2015-0560-0002) And SUSAN BAUMAN (2017-0560-0007) SOLE ARBITRATOR: John Stout APPEARANCES: For the College: Greg Power- Hicks Morley Kate Shao – Hicks Morley Ted Bridge – Director Employee & Labour Relations Crystal Ramdeo – Manager Human Resources Marianne Cunningham – Manager Disability & Accommodation Laura Butcher – Pension & Benefits Specialist Beth Agnew – Chair School of Media For the Union: Mathieu Belanger - Dewart Gleason Kim Veller – Student at law Jonathan Singer – Vice President Equity Frank Yee – President Sandra Wellman - Grievor HEARINGS HELD IN MARKHAM, ONTARIO ON SEPTEMBER 11, 2018 2 AWARD INTRODUCTION 1. I was appointed to hear two grievances filed by the Union alleging that the College violated article 17 of the Collective Agreement by denying two employees’ claims for short-term disability (STD) payments. The grievance of Susan Bauman was filed on April 3, 2017. The Union withdrew this grievance at the hearing on a without prejudice basis. The only matter to proceed to a hearing was the grievance of Sandra Wellman filed by the Union on February 7, 2017 (the “grievance”). 2. In her grievance, Ms. Wellman asserts that she ought to have been paid STD from September 2016 until January 2017. 3. On March 7, 2017 the College denied the grievance indicating as follows: Article 17.01 F3 allows Academic employees who “qualify(y) for LTD” to chose to use outstanding sick leave credits “instead of LTD benefits, until the employee elects to take LTD benefits, if qualified.” The Union advised that Article 17.01 F1 , Article 17.01 F3, and the “elimination period” language in the Booklet should be read together to permit an employee to continue to use sick credits beyond completion of the 130 days of absence due to illness even where the employee does not qualify for LTD benefits by the benefit carrier. Because the Grievor was denied LTD in November 2016 and again on January 3, 2017, she cannot make the election. 4. After carefully considering the facts and submissions of the parties, I am dismissing the grievance for reasons I elaborate upon below. BACKGROUND FACTS AND EVIDENCE 5. The parties provided me with an Agreed Statement of Facts together with a number of documents that were admitted into evidence on consent. The Agreed Statement of Facts provides as follows: 3 Agreed Statement of Facts Grievance of Sandra Wellman (2017-0560-0002) 1. The Grievor, Sandra Wellman, is a professor of Business at Seneca College. Ms. Wellman’s immediate manager is Maria Saroglou. 2. On February 8, 2016, Ms. Wellman went off work for medical reasons. She received 100% of her regular pay through the short-term disability income plan until September 30, 2016. 3. Marianne Cunningham, is the Manager, Disability Accommodation at Seneca College. Ms. Cunningham assisted Ms. Wellman with regard to her sick leave. 4. Ms. Wellman attended at appointments with her medical specialist on March 10, 2016, May 4, 2016, April 4, 2016, June 29, 2016 and August 25, 2016. Each time, the specialist filled the required Employee Medical Report, and substantiated Ms. Wellman’s continued absence. 5. On July 26, 2016, Ms. Wellman’s 14-year old daughter and her mother were involved in a serious motor vehicle injuries. Both were transported to Toronto hospitals with multiple, serious injuries. Ms. Wellman advised both Ms. Sairoglou and Ms. Cunningham of this event. 6. Ms. Wellman attended to her daughter’s care following the accident. 7. On August 22, 2016, Ms. Cunningham referred Ms. Wellman to Laura Butcher of Pension & Benefits. 8. On August 25, 2016, Ms. Butcher provided Ms. Wellman with information regarding the SunLife policy and with a Long-Term Disability application kit. A copy of Ms. Butcher’s letter to Ms. Wellman is included at Tab 4 of the Union’s Book of Documents. 9. Ms. Butcher’s August 25, 2016, letter to Ms. Wellman states: “In accordance with the Short-term Disability Income Plan, during the first 130 working days an employee will receive full salary for up and including 20 working days in any one benefit year, plus 4 any unused credits carried forward from the previous years, and 75% pay for any absences in excess of the accumulated credits. At the end of the 130 days elimination period, if an employee is unable to return to work, he/she may elect one of the following: A) apply to commence Long Term Disability Benefits with Sun Life Assurance Company of Canada the day immediately following completion of the 130 day elimination period; or B) in accordance with Article 17.01 F3, upon qualifying for Long Term Disability Benefits with Sun Life Assurance Company of Canada, you may elect instead to utilize your remaining sick leave credits.” 10. Ms. Butcher’s August 25, 2016, letter also advised Ms. Wellman that her “130 day elimination period will expire on September 30, 2016” and that at that date, she “will have 850 sick leave hours remaining in [her] sick leave bank.” 11. On September 20 and 22, 2016, Ms. Wellman, Ms. Cunningham and Ms. Butcher exchanged emails with regard to Ms. Wellman’s application for LTD Benefits. The chain of email is included at Tab 5 of the Union’s Book of Documents. 12. Ms. Wellman attended to her doctor’s office to fill the LTD forms. There were some delays with the doctor sending the documents to SunLife. A chain of emails between Ms. Wellman and Ms. Butcher dated October 31, 2016, November 2, 2016 and November 3, 2016, is included at Tab 6 of the Union’s Book of Documents. 13. On November 25, 2016, Robert Harding at SunLife wrote to the grievor, denying her LTD claim. A copy of Mr. Harding’s letter is included at Tab 7 of the Union’s Book of Documents. Ms. Wellman spoke with Mr. Harding and Ms. Cunningham about the situation. 14. Ms. Wellman returned to work on January 4, 2017 for a faculty meeting. 15. Ms. Wellman appealed SunLife’s decision to deny her LTD. Mr. Harding told her over the phone on January 16, 2017 that her claim was denied again and she received a letter confirming same on January 23, 2017. A copy of the letter denying the appeal is included at Tab 8 of the Union’s Book of Documents. 16. Ms. Wellman was not permitted to use her sick days to pay for the period between October 3, 2016 and January 4, 2017, and therefore received no income during 5 that period. 17. On February 5, 2017, Ms. Wellman sent an email to Ms. Cunningham and Ms. Butcher, asking for clarification on the elimination period. A copy of Ms. Wellman’s email is included at Tab 9 of the Union’s Book of Documents. 18. On February 7, 2017, the union filed this grievance on behalf of Ms. Wellman, a copy of which is included at Tab 1 of the Union’s Book of Documents. 19. Seneca College denied the grievance on March 7, 2017. A copy of the denial is included at Tab 10b of the Union’s Book of Documents. Documents entered into evidence • Tabs 3 to 7 of the Union’s Book of Documents • Tabs 1 to 6 of the Employer’s Supplementary Book of Documents • … 6. In addition to the evidence submitted on consent, I also heard from one witness at the hearing, Ms. Beth Agnew, the current Chair of the School of Media. 7. Ms. Agnew worked part-time for five years before being appointed to a full- time academic position in the Technical Communication Program. Ms. Agnew was an active Union member who served as a steward for approximately three years. In 2012, Ms. Agnew was elected Vice President Equity, holding that position for five years until she was appointed Chair of the School of Media in 2017. 8. As Vice President Equity, Ms. Agnew was responsible for assisting Union members (Local 560) with their claims for sick leave, both STD and long term disability (LTD). In her evidence, Ms. Agnew reviewed the sick leave claim process under the Collective Agreement. Ms. Agnew explained that employees were provided 20 paid sick days (sick leave credits) each year. An employee could bank any unused sick leave credits (one credit representing 100% of regular pay for one 6 working day) for use in future years. If an employee was going to be absent for more than 20 days, then they would be advised to contact the College’s “Wellness” department prior to the expiry of the 130 day “elimination period.” Employees who did not have enough sick credits (100%) to cover the 130 day elimination period would apply for STD benefits (75% of regular pay) for up to the difference between the number of accumulated sick leave credits and the date when an employee would normally qualify for LTD (130 days). 9. Ms. Agnew addressed two individual cases that were referenced in the documents filed by the parties. The first case involved an employee named XL who was sent a letter from the College on February 20, 2014 (Revised February 26, 2014) indicating, among other things, that “Upon qualifying for Long Term Disability” XL may elect one of the two options: A) Commence Long term Disability at 66.6% of your salary as of April 28, 2014; or B) Utilize the remaining 138 sick leave credits at 100% of your salary until January 20, 2015 then commence Long Term Disability benefit at 66.6% of salary as of January 21, 2015, while continuing to provide ongoing supportive medical documentation to Sun Life Financial. 10. Ms. Agnew advised that XL was initially turned down for LTD but successfully appealed the insurer’s decision. 11. The second case reviewed by Ms. Agnew involved RJ who on September 15, 2014 (Revised September 30, 2014) was provided with a letter from the College similar to the letter sent to XL. The letter to RJ from the College provided RJ with the following election: A) Commence Long term Disability at 66.6% of your salary as of October 17, 2014; or B) Utilize the remaining 2162.534 sick leave hours at 100% of your salary until December 14, 2015 (6.534 hours) then commence Long Term Disability benefit 7 at 66.6% of salary as of December 15, 2015, while continuing to provide ongoing supportive medical documentation to Sun Life Financial. 12. On October 7, 2014, Ms. Agnew sent an email Marianne Cunningham, the College’s Manager-Disability and Accommodation, seeking an “extension of STD for RJ”, the email stated the following: Hi Marianne, I’m writing on behalf of RJ who has applied for LTD due to her medical situation. We are asking the college to allow Ruth to use her short term sick leave credits beyond the 130 day maximum until Sun Life has adjudicated her claim. This is needed due to the short notice Ruth had of the deadline dates. Seneca provided RJ with the application for LTD fairly late in the process, notifying her only on September 30th that her 130 days of sick leave would expire on Oct 16th. This left her very little time to get the forms completed and submitted to Sun Life. We anticipate that Sun Life will not be able to review and make a decision on her claim by Oct 16th. Please let us know if allowing Ruth to continue to use her sick days is acceptable under the circumstances. I have included Farah Moledina, our new RTW specialist, and Kim MacPherson, our OPSEU Benefits specialist, along with RJ in this email for their information. Thanks, Marianne! Feel free to give me a call to discuss if you like, when you get back. 13. Ms. Cunningham responded on October 14, 2014 indicating as follows: Hi Beth: I refer to your email dated October 7, 2014 in regards to RJ. In consideration of the extenuating circumstances in her case; specifically, the correction required to her sick leave record which resulted in a shortened notification period for applying for LTD benefits with Sun Life, the College will agree without prejudice or precedent to allow RJ access to her sick leave credits up to and including November 22, 2014. 14. Ms. Agnew explained that employees on sick leave would not have any income beyond 130 days of absence unless they applied and had their LTD claim approved within the 130 day period. According to Ms. Agnew, an employee could only draw upon their sick leave credits after 130 days if they were approved for LTD. Ms. 8 Agnew advised that this was the case for every single employee she dealt with in her approximately five years as Vice President Equity. Ms. Agnew noted that it was for this reason she sought an exception for RJ and copied the OPSEU Specialist responsible for College claims (Academic and Support bargaining units). Ms. Agnew said that as long as an employee had been approved for LTD they could make the election to use sick leave credits after 130 days. However, if an employee was not approved for LTD after 130 days, then they could not draw upon their sick leave credits and they would be left with no income after the 130 day period expired. THE COLLECTIVE AGREEMENT PROVISIONS 15. The relevant provisions of the Collective Agreement are set out below: 17.01 F 1 During absences due to illness or injury, participating employees who would otherwise be scheduled to work shall receive 100% of regular pay for up to and including 20 working days in any one benefit year, plus any unused credits carried forward from previous years. Days not utilized in any year shall be considered to be credits (on the basis that one credit represents 100% of regular pay for one working day) and shall be carried forward to the next benefit year. Debits shall be made from the total assigned benefit on a day-for-day basis. 17.01 F 2 During absences due to illness or injury in excess of the accumulated days referred to in 17.01 F 1, participating employees shall be paid 75% of regular pay for up to the difference between the number of accumulated days referred to in 17.01 F 1 and the date the employee would normally qualify for LTD. 17.01 F 3 Where the qualifying period for LTD has expired, and the employee qualifies for LTD, and the employee still has credits standing in his or her name under this plan, such credits may, at the election of the employee, be utilized by the employee instead of LTD benefits, until the employee elects to take LTD benefits, if qualified. SUBMISSIONS SUMMARIZED 16. The Union takes the position that article 17.01 F 1 is clear and unambiguous, providing employees with sick credits that may be used without any limitation. 9 17. The Union acknowledges that 17.01 F 3 provides an election, but they say that does not apply in this case as the Grievor did not wish to make any election. Instead the Grievor just wanted to utilize all her sick leave credits. The Union asserts that the Collective Agreement does not address what happens if you do not qualify for LTD, it just provides an additional choice in the event that an employee decides to apply for LTD. The Union submits that sick leave credits are a vested right that may be used by employees until they are depleted. The Union argues that the College is attempting to “read in” a 130 day limitation that does not exist in the Collective Agreement language. 18. The Union also points to the “Employees Benefits” booklet, which provides as follows: Elimination period Your Long Term Disability payments begin after you have completed the elimination period. The elimination period is the period commencing when you became totally disabled and ending on the later of: • The completion of 130 working days (including statutory and college holidays) of absence due to illness in the past 12 months, or • The expiration of sick leave credits, if any, which you elect to use. 19. The Union suggests that the “elimination period” found in the Employee Benefits booklet and the “qualifying period” referenced in the Collective Agreement have the same meaning. In their view, an employee has the option to deplete their sick leave credit bank before they access LTD. 20. The Union relies on the following authorities: Compass Minerals Canada Corp. and Unifor, Local 37-0 (Supplementary Vacation) (2017) 284 L.A.C. (4 th) 54 (Surdykowski); Algonquin College and OPSEU, Local 415 (Hunt), unreported award dated July 4, 2012 (Davie); Sir Sanford Fleming College and OPSEU, Local 352 (STD Benefits), unreported award dated May 19, 2015 (Parmar). 10 21. The College submits that the language in the Collective Agreement is ambiguous and therefore extrinsic evidence is admissible to clarify the parties’ intentions. The College asserts that when examining the language as a whole and in light of the evidence of Ms. Agnew, it is clear that sick leave credits cannot be utilized beyond 130 days unless an employee qualifies for LTD. 22. The College asserts that the evidence of Ms. Agnew is clear, cogent and reliable. The College submits that Ms. Agnew’s evidence reflects a shared understanding and the long standing practice of the College in administering the language of the Collective Agreement. The College points out that the Union did not call any evidence to contradict Ms. Agnew. 23. In the alternative, the College argues that if I agree with the Union’s interpretation, then the equitable doctrine of estoppel ought to be applied in the circumstances. The College submits that Ms. Agnew’s evidence (including copying the OPSEU Specialist on the October 7, 2014 email) makes it clear that the Union not only knew, but condoned the College’s practice. The Union did not raise any objection, which is an admission against interest and a representation that the College relied upon to their detriment. 24. The College relies on the following authorities: Atlantic Packaging Products and G.C.I.U., Local N-1 (1997) 68 L.A.C. (4th) 174 (Carrier); Scarborough Hospital and CUPE, Local 1487 (2014) 250 L.A.C. (4th) 80 (Goodfellow); London (City) and C.U.P.E., Local 101 (2007), 169 L.A.C. (4th) 134 (Brandt). 25. The Union denies that the equitable doctrine of estoppel applies in these circumstances. The Union points out that the language was imposed by Arbitrator Teplitsky many years ago. The Union asserts that the evidence relied upon by the College does not reflect a shared intent or practice. The Union also disputes any detrimental reliance in this case. The Union relies upon North Bay Regional Health 11 Centre and ONA (2013), 238 L.A.C. (4th) 415 (Bendel) to support their argument that the equitable doctrine of estoppel does not apply in these circumstances. DECISION 26. The principles of interpretation are well established and succinctly set out by Arbitrator Surdykowski in Compass Minerals Canada Corp., supra, where he states: 21. It is well established that extrinsic evidence is generally not admissible as an aid to collective agreement interpretation except to establish relevant objective context, or to establish or resolve an ambiguity. Extrinsic evidence is any evidence, oral or documentary, that is external to (i.e. not contained in) the collective agreement document(s). 22. Discerning the mutual intention of the parties is not the objective of the contract interpretation exercise. What Professor Sullivan has described as the intentionalist approach to interpretation has been overtaken by what she refers to as the textualist approach (see: Ruth Sullivan, “Contract Interpretation in Practice and Theory” (2000) 13 S.C.L.R. (2d) 369, particularly pp. 375-86, 392). Contractual intent is reflected by contractual result, not vice versa, which must, as Doherty J.A. wrote in Dumbrell, be determined by an objective contextualized consideration of the words in the contract. That is, the adjudicator’s job is to determine the objective contextual meaning of the contract. The Dumbrell analysis and objective contextualized approach is as applicable to the interpretation of collective agreements as it is to commercial contracts. 23. A grievance arbitrator cannot rewrite the parties’ agreement. In the absence of an ambiguity established or resolved by extrinsic evidence, collective agreement wording trumps all considerations other than legislation, and a grievance arbitrator must interpret the collective agreement as written. An arbitrator cannot amend or imply terms into a collective agreement because he considers it fair or appropriate to do so, or because of his view of what the parties must have or could not have intended. Although has been written about collective agreement purpose, fairness, internal anomalies, cost or administrative difficulty, or the effect on the parties or bargaining unit employees, such considerations can only come into play when the grievance arbitrator must choose between equally plausible interpretations of the collective agreement language in issue – a situation which rarely presents. The grievance arbitrator is tasked with determining what the collective agreement provides or requires, not what he thinks it should provide or require, regardless of the effect on either party or on bargaining unit employees. The employer, the union, and bargaining unit employees are entitled to no more or less than the benefit of the bargain described by the words contained in the collective agreement. Clear collective agreement wording prevails over all considerations other than legislation. It is up to a party that is dissatisfied with the consequences of the collective agreement bargain as determined by a grievance arbitrator to seek a collective 12 bargaining solution. It is no part of a grievance arbitrator’s job to save the parties or either of them from the consequences of the agreement as written by them. 24. In addition to the general presumption that the words in a collective agreement have been used intentionally, the presumptive general rules of interpretation applicable in this case are: • All words have their plain and ordinary meaning unless it is apparent from the context in which they are used that they have a special meaning. • Specific or special provisions prevail over general provisions. 25. All interpretation presumptions are rebuttable. They do not apply when the result would be illegal, or incompatible with the collective agreement read as a whole, or if extrinsic evidence admissible in accordance with the doctrine of ambiguity establishes a different meaning. 27. In terms of ambiguity, it is well accepted that extrinsic evidence may be admitted to disclose a latent ambiguity and to resolve either a latent or patent ambiguity, see Leitch Gold Mines Ltd. v. Texas Gulf Sulphur Co. Inc. (1968), 3 D.L.R. (3d) 161 (O.H.C.J). In addition, extrinsic evidence may be admitted to establish a claim of equitable estoppel, see Nor-Man Regional Health Authority Inc. v. Manitoba Ass’n of Health Care Professionals (2011), 340 D.L.R. (4th)1 (S.C.C.). 28. I appreciate the Union’s argument that the language in article 17.01 F 1 appears, on its face, to be clear and unambiguous. Article 17.01 F 1, when read in isolation, creates a sick leave credit bank providing 100% of regular pay for up to and including 20 working days in any one benefit year, plus any unused sick leave credits carried forward from previous years. There appears to be no limitation of the extent upon which an employee may draw upon their sick leave credits. However, in my view, the language in article 17 when read as a whole and in context is ambiguous. 29. The language in article 17.01 F 2 creates a STD bridge benefit for those employees who do not have enough sick leave credits to provide them with benefits from the date of illness or injury until the “the date the employee would normally qualify for LTD.” I note that the date an employee would normally qualify for LTD is 13 not defined, which in and of itself creates ambiguity with respect to the extent of the benefit being conferred. 30. In addition, and most relevant to these proceedings, is the language found in article 17.01 F 3 that begins; “Where the qualifying period for LTD has expired” and going on to provide an employee with a right to make an election to utilize “credits” instead of LTD. In order to have the right to make this election the following three conditions must be met: • The qualifying period for LTD has expired; and • The employee qualifies for LTD, and • The employee still has credits standing in his or her name under this plan. 31. The language does not define when the qualifying period for LTD expires, the language also does not define how to qualify for LTD. Most interesting is the right to an election, which I agree with the College is unnecessary and superfluous language if the Union is correct in their argument that an employee can utilize all their sick leave credits without ever applying for LTD. 32. In my view the language found in both 17.01 F2 and 17.01 F2 is ambiguous on its face. In addition to the patent ambiguity found in the language noted above, the evidence of Ms. Agnew reveals a latent ambiguity in how the language in all three articles is applied to long term absences. Since the language is ambiguous, then I may consider the extrinsic evidence to assist in resolving the ambiguity. 33. The Union points to the Employee Benefits booklet and the definition of “elimination period” as being of assistance to their argument and determinative. The Union submits that qualification period and elimination period are one and the same. According to the Union, the Employee Benefits booklet makes it clear that the elimination period is the later of 130 days or the expiration of sick leave credits that an employee may elect to use. 14 34. I disagree with the Union’s submission on this point. In fact, the Employee Benefits booklet only muddies the water by providing additional ambiguity. The language in article 17.01 refers to the date the employee “would normally qualify for LTD” and the “qualifying period for LTD”. There is no reference “elimination period” in the Collective Agreement at all. The only reference to the elimination period is found in the Employee Benefits booklet and the letters sent to employees, which consistently define the elimination period as 130 days. In addition, the Employee Benefits booklet and the Collective Agreement are inconsistent as the elimination period for payments to begin is defined as being the later of 130 days or the expiration of sick leave credits, if any, which the employee elects to use. Whereas the Collective Agreement provides for an election only being made after the qualifying period has expired and the employee qualifies for LTD. The terms of the Employee Benefits booklet cannot usurp or trump the language found in the collective agreement, see London (City) v. C.U.P.E., Local 101, supra. In my opinion, the Employee Benefits booklet does not provide clear, cogent and reliable evidence to resolve the ambiguity. 35. In my view the most reliable evidence to resolve the ambiguity is that of Ms. Agnew, which represents her experiences as a Union official who participated in the administration and application of the language in article 17.01. Ms. Agnew’s evidence of the conduct of the parties clarifies the ambiguity and supports the College’s interpretation of the language, particularly article 17.01 F 3. The evidence clearly indicates that after 130 days, an employee may only elect to use their remaining sick leave credits if they qualify for LTD. If an employee does not qualify for LTD, then employees may not use their remaining sick leave credits after 130 days and they will be without income. 15 36. I acknowledge that the evidence of Ms. Agnew is evidence of subsequent conduct, well after the language was imposed at interest arbitration.1 However, the evidence is clear, cogent and consistent with the College’s suggested interpretation. The evidence illuminates the shared meaning given to the language by these parties. The evidence demonstrates a consistent application by the College, that the Union was aware of and did not raise any objection or complaint. It is noteworthy that the OPSEU Specialist was copied on the October 7, 2014 email from Ms. Agnew and the October 14, 2014 response from Ms. Cunningham. This evidence demonstrates knowledge of the practice at both the local level and at OPSEU centrally.2 These documents were produced to the Union well in advance of the hearing and yet the Union called no evidence to contradict the contents of the emails. 37. The evidence of Ms. Agnew is also consistent with the language of the Collective Agreement, interpreted as a whole and in context. The language in 17.01 creates an integrated STD and LTD benefit that includes 20 days of 100% paid sick leave credits per year that may be accumulated in a sick leave credit bank. Those employees without the necessary sick leave credits, to provide income for the period between the date of illness or injury up to the date they qualify for LTD, are provided with a STD bridge benefit of 75% paid sick leave. Prior to the expiry of 130 days, an employee must apply for LTD. If the employee qualifies for LTD, then they are either paid LTD benefits or, if they so chose and they still have sick leave credits in their bank, they may elect to continue receiving sick leave credits at 100% of their regular pay. 38. I acknowledge the Algonquin College and OPSEU Local 415, supra, award relied upon by the Union, which seems to have raised a similar complaint about denying access to sick leave credits after 130 days. However, this award is not very helpful 1 The language in article 17.01 was imposed by Arbitrator Teplitsky in an interest arbitration award dated November 28, 1989, see Sir Sanford Fleming College and OPSEU, Local 352, supra. 2 OPSEU negotiates the collective agreement on behalf of all College employees in both the academic and support bargaining units, who are represented by OPSEU local unions. 16 because it only addresses a preliminary matter and not the issue before me. The Union points to the facts set out in the award, including reference to the grievor being advised that if she was denied LTD and unable to return to work then “she would be able to use her sick leave credits” until she either returned to work or the start of her vacation period. The grievor’s LTD application was initially approved, but benefits were discontinued some four months later. The grievor sought to then utilize her sick leave credits and she was told that she could not because the insurer determined that she was able to return to work. The issue decided by Arbitrator Davie was in relation to whether or not the grievance should be dismissed as moot since the grievor had retroactively received LTD benefits after the grievance was filed. Arbitrator Davie dismissed the employer’s preliminary motion, finding the grievance was not moot. I completely agree with the reasoning of Arbitrator Davie. However, she did not address the merits of the grievance. In fact, neither party to these proceedings was able to provide me with any award addressing the issue before me concerning the interpretation of article 17.01 of the Collective Agreement. 39. In light of my finding with respect to the interpretation of article 17.01, there is no need for me to address the College’s estoppel claim. 40. Accordingly, after carefully considering the evidence and submissions of the parties and for all the reasons set out above, I find that the College did not violate the Collective Agreement. Therefore, I must respectfully dismiss the grievance. Dated at Toronto, Ontario this 30th day of September, 2018. John Stout- Arbitrator