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HomeMy WebLinkAboutThomas 08-04-16 fr.J" THE 1-1ATTER OF AN ARBITRATION brought pursuant to the Ontario Labour Relations Act, 1995, as amended (Grievances ofY. Thomas - MIlS 2007-09 and MIlS 2007-11) BETWEEN: PROVIDENCE CARE (:MHS) (the "employer") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 431 (the "union") AWARD Sole Arbitrator: Marilyn A. Nairn Hearing held: November 30,2007, January 25, 2008 (Kingston, Ontario) APPEARANCES For the union: Edward 1. Holmes For the employer: VincentM. Panetta AWARD This award deals with two grievances. The parties were able to resolve the remedial issues as they pertained to the grievor, Ms. Thomas, but were unable to resolve the policy issues underlying the grievances. The matters proceeded before me on the basis of an agreed statement of fact, with accompanying docwnentary material. There is no dispute that I have the jurisdiction to hear and detennine these grievances. The Agreed Statement of Fact provides as follows: The parties agree to the following Statement of Fact in the arbitration of grievances MHS 2007-09 and 2007-11. The parties agree that this Agreed Statement of Fact and the terms and descriptions used therein is without prejudice or precedent to their respective arguments regarding the interpretation of the Collective Agreement. BACKGROUND 1. Providence Care is the leading, regional provider of non-acute health care in Southeastern Ontario and a major centre for related research and teaching, through the affiliation with Queen's University. Providence Care specializes in the provision of complex continuing care, palliative care, rehabilitation, geriatrics, long term care, forensic psychiatry, and mental health services to adults of all ages. 2. PCCC was incorporated in 1991. It currently has three sites: St. Mary's of the Lake Hospital - Kingston; Mental Health Services (MHS) - Kingston; and Providence Manor - Kingston. 3. Mental Health Services Hospital (MHS) is a regional provider of specialized services for adults with severe and persistent mental illness. MHS provides treatment through three clinical program areas. Each program offers a full continuum of care - inpatient (220 beds), outpatient, and community services. Adult Treatment & Rehabilitation Services Program Provides a continuwn of specialized services including five inpatient units, specialty outpatient and outreach services for people with schizophrenia, mood disorders, personality disorders and dual diagnosis. Geriatric Psychiatry Program Includes three inpatient units, specialty outpatient and outreach services for older people with severe mental illness and behaviour problems. Forensic Psychiatry Program A 30-bed inpatient program for people with severe mental illness who come into conflict with the law. 2 4. The Mental Health Services Hospital is t..'Ie former Kingston Psychiatric Hospital (KPH). Pursuant to the advice of the Health Care Restructuring Commission and the approval of the Minister of Health and Long Term Care, the governance and management of various Provincial Psychiatric Hospitals were transferred to certain public hospitals. Accordingly, Providence Care (previously Providence Continuing Care Centre) asswned the governance and management of KPH on or about March 5,2001. 5. Upon divestment, the bargaining rights held by OPSEU for KPH were not continued, as successor rights did not apply. OPSEU promptly filed an application for certification and was certified for an "all employee" unit on August 10, 2001, and the first collective agreement was signed on November 28, 2002 (Tab 1). 6. While there is a subsequent collective agreement that is currently in force (Memorandlim of Agreement dated October 4, 2007 (Tab 2)), the first collective agreement was in force at the time that these grievances were filed. 7. The grievor, Ms. Valerie Thomas, (the "grievor") is a full time registered nurse and has been employed at MHS since September 1982. FACTS GIVING RISE TO THE GRIEVANCE 8. On or about May 18,2007, the grievor filed 2 separate grievances known as MHS 2007-09 and 2007-11 (Tabs 3, and 5). After the processing of these grievances through the grievance procedure, the grievances were subsequently referred to arbitration to be heard by Arbitrator Nairn. 9. On or about December 11, 2006, the grievor commenced a leave of absence as a result of a legitimate illness. 10. At the time of the grievor's leave of absence, she accessed the Hospitals of Ontario Disability Income Plan (HOODIP) (Tabs 10 and 11). The grievor received 100% of her regular pay, pursuant to the HOODIP, until April 13, 2007. 11. From January 17, 2007 to February 9, 2007 the grievor worked 4 hours per day and received full pay for the hours worked. The hours not worked by the grievor, during this time, were paid pursuant to the HOODIP. 12. The Grievor was advised by letter dated March 15, 2007 (Tab 6) of the need to pay for the full cost of benefits starting April 14, 2007. 13. On or about April 14, 2007, the grievor remained on leave but commenced the unpaid portion of her leave pursuant to the HOODIP. The Employer forwarded to the grievor a Record of Employment indicating "illness" as the reason for its issuance giving the grievor an opportunity to apply for employment insurance sick benefits. The Grievor was provided with a letter dated April 4, 2007 outlining this (Tab 7). 14. The grievor returned to full time work on or about June 11, 2007 and has continued to perform her full time duties since that time. 3 15. Dur.ng the grievor's leave of absence from April 14, 2007 u...'1til her return to work on June 11,2007, the grievor was not paid by the Employer. Instead, the grievor received employment insurance benefits during this time period. 16. Prior to her return to work on June 11, 2007, the Grievor did not apply for any long term benefits from the HOODIP. VACATION ACCRUAL 17. Grievance MHS 2007-09 alleges a breach of the collective agreement and, in particular, a breach of article 4 of the collective agreement in denying vacation accrual during the grievor's leave. 18 From April 14, 2007 to June 11, 2007, the grievor was denied the accrual of vacation time with pay equivalent to 34.6 hours. However, the grievor did accrue vacation time with pay from December 11, 2006 through to and including April 13, 2007 (Tabs 8 and 9). 19. Since 2003, the Employer's practice has been to notify each employee of the amount of vacation with pay, expressed in hours, they have received in a pay period and that are now available for use (subject to the scheduling provisions of the Collective Agreement). This is shown on the pay stub of each employee. BENEFIT PREMIUMS 20. Grievance MHS 2007-11 alleges a breach of articles 4 and 38.4 of the collective agreement. 21. During the course of the unpaid portion of the grievor's unpaid leave of absence, she was advised and required to pay the total premiwn for the benefits to which she was entitled prior to commencing her leave. This resulted in the grievor being responsible for the payment of total premium costs for April, May and June 2007 (Tabs 7 and 9) in the amount of$452.45. However, [the] Employer paid [its] share of the premiums, in accordance with the collective agreement, for the month of April and June 2007 as well as during the portion of the grievor's leave of absence during which she was drawing on her sick leave credits. 22. The Employer asserts and the Union cannot dispute that, since 2002, the Employer has treated vacation accrual and benefitpremiwns in the same manner as above for all unpaid leaves. There is no dispute that the employer pays directly for absences covered by HOODIP. HOODIP is self-funded. There is also no dispute that employees absent from work but receiving sick benefits through HOODIP are credited with full vacation entitlement and the employer continues to pay its 75% share of benefit premiums in accordance with Article 38.4 of the collective agreement. There is also no dispute that, notwithstanding divestment, employees employed by the predecessor KPH have had their seniority and service dates recognized and calculated as including that continuous prior employment. 4 There is no dispute that the grievor was "disabled" within the meaning of the Ontario Human Rights Code (the "Code") during the period that she was in receipt of Employment Insurance sick benefits. There is also no dispute that the "unpaid" portion of the grievor's leave exceeded thirty continuous calendar days. In any event, the parties essentially ask that I assume these facts for purposes of dealing with the policy issues. Finally, there is no dispute that Article 4.2 of the collective agreement incorporates the provisions of the Code and that I have the jurisdiction to interpret and apply that Act. * * * It is the period during which an employee receives sick leave benefits pursuant to the federal Employment Insurance plan ("EI") that is in issue here. It was the position of the union that employees absent from work but in receipt of EI sick leave benefits should be credited their full vacation entitlement and that the employer should continue to pay its full share of benefit premiwns for the duration of such absence, rather than requiring the employee to pay 100% of that cost. The union asserted that the language of the collective agreement was clear and unambiguous. In the alternative, the union argued that it constituted discrimination on the basis of disability contrary to both Article 4.2 of the collective agreement and section 5 of the Code to deny these entitlements, particularly, argued the union, as Articles 27.8(e)(i) and (iii) of the collective agreement confirm that employees on pregnancy/parental leave receive these entitlements. The Code, argued the union, as quasi-constitutional legislation, ought to prevailso as to treat disadvantaged groups the same. It was the position of the employer that a period of time during which an employee is in receipt of EI sick benefits constitutes an unpaid leave of absence and that the provisions of the collective agreement do not require the accrual of vacation or the employer payment of benefit premiwns during an unpaid leave of absence in excess of thirty calendar days. It relied on Articles 27.3 a) and b) of the collective agreement. In the alternative, the employer relied on the Ontario Court of Appeal decision in OrWia Soldiers, infra, to argue that these entitlements constituted a form of compensation and that it was not discriminatory to require work in exchange for compensation. It distinguished the pregnancy/parental leave provisions on the basis that the ESA mandated both the leave of absence and the effective continuing entitlement to service accrual and employer premium contributions. There was no dispute that the collective agreement provisions regarding pregnancy/parental leave effectively mirrored the ESA requirements. Those statutory leave entitlements, argued the employer, did not constitute an appropriate 5 comparator and it had therefore not discriminated against the grievor in denying these entitlements u...'1der the terms of the collective agreement. * * * The relevant provisions of the collective agreement provide: Article 27: LEAVES OF ABSENCE 27.2 Leave Without Pay Written requests for a personal leave of absence without pay and without loss of seniority, will be considered on an individual basis by the employee's Department or Program Head or designate. Such requests are to be submitted as far in advance as possible and a written reply will be given. Such leave shall not be unreasonably withheld. 27:3 Effect of Absence a) Service & Seniority If an employee's leave without pay from the Hospital exceeds thirty (30) continuous calendar days, she will not accumulate service or seniority for purposes of vacation entitlement and/or sick leave benefit for the period of the leave, unless otherwise specified in this Agreement. b) Payment of Subsidized Employee Benefits In addition, the employee will become responsible for full payment of subsidized employee benefits in which she is participating for the period of the leave. c) Approved Absences in Excess of30 Days In the case of approved absences in excess of thirty (30) continuous calendar days, mutually acceptable arrangements may be made with the Hospital regarding payment arrangements. 27.8 PregnancyIParental and Adoption Leave e) Miscellaneous i) Credits for Service for PregnancyIParental Leave Credits for service for the purpose of salary increments, vacation, sick leave or other benefits under any provisions of the Collective Agreement, as well as bargaining unit seniority, shall accumulate during the period of pregnancy leave and for the period of parental leave as provided for under the Employment Standards Act. 6 !ill Employee Benefit Premium Payments In addition, in the cases of full-time employees who are recelvmg benefits, the Employer shall continue to pay its share of the premiums for employee benefits provided under the Collective Agreement for the duration of the pregnancy/parental leave of absence, as provided for under the Employment Standards Act. . . . Article 28: SENIORITY AND SERVICE 28.3 Recognizing Seniority Defining "Seniority" Seniority shall be defined as an employee's length of service within the bargaining unit from the most recent date of hire. 28.4 Defining "Service" Service shall be defined as an employee's length of continuous service with the Employer from the most recent date of hire. 30.1 Bargaining Unit Wide Seniority List b) Accruing Seniority During Unpaid Illness or Disability Absences Seniority shall also accrue for a period of one (1) year for any unpaid absence relating to an illness or disability. 31.3 WSIB Awarded Claim - Continuing Employee Benefit Subsidies Where an employee receives an award under the Workplace Safety and Insurance Act, the Employer will continue subsidies for all benefits for the period during which the employee is receiving the award at the regular rate of cost sharing i.e. 75/25, Employer/employee. 38.4 The Employer/Employee split on benefits to seventy-five (75) percent Employer paid, twenty-five (25%) percent employee paid effective April 1st, 2003. Article 42: VACATION 42.1 Vacation Entitlement 7 Employees ,vill be entitled to vacation with pay based on the length of continuous service as set out below: a) An employee who has completed less than twelve (12) months of continuous service as of June 30th in any year shall receive vacation time off calculated as follows: Number of full months worked prior to June 30th 12 X 15 days b) and will receive vacation pay at her regular rate of pay. Employees who have completed one (1) year or more continuous service as of June 30th in any year shall receive an annual vacation of three (3) weeks with pay at their regular rate of pay. c) An employee who has completed three (3) years of continuous service as of June 30th in any year shall receive an annual vacation of four (4) weeks with pay at her regular rate of pay. d) An employee who has completed fourteen (14) years of continuous service as of June 30th in any year shall receive an annual vacation offive (5) weeks with pay at her regular rate of pay. e) An employee who has completed twenty-three (23) years of continuous service as of June 30th in any year shall receive an annual vacation of six (6) weeks with pay at her regular rate of pay. f) Whenever the expression "continuous service" is used in this Agreement, it shall mean the length of time a full-time employee or part-time employee has been in the employ of the Hospital, and the time worked at the previous Kingston Psychiatric Hospital, on a regular full-time basis or part-time basis as dictated by Article 28 (Seniority). g) If an employee commences employment on or before the fifteenth (15th) of any month, that month shall be considered to be a full month for the purposes of calculating length of service. * * * The union referred me to and I have reviewed the following cases: Re Canada Brick and United Steelworkers of America, Local 255. (2002) 111 L.A.c. (4th) 220 (Briggs); Re Ontario Nurses' Association and Orillia Soldiers Memorial Hospital et. al., (1999) 169 D.L.R. (4th) 489 (Ont. c.A.); Brooks v. Canada Saftway Ltd., (1989) 59 D.L.R. (4th) 321 (S.c.c.); Gibbs v. Battlefords and District Co-operative Ltd., (1996) 140 D.L.R. (4th) 1 (S.c.c.); Tranchemontagne v. Ontario (Disability Support Program, Director), (2006) 266 D.L.R. (4th) 287 (S.C.c.); Parry Sound (District) Social Services Administration Board v. OPSEU Local 324, (2001) 54 O.R. (3d) 321 (C.A.); Parry Sound (District) Social Services Administration v. OPSEU, Local 324, [2003] 2 S.c.R. 157. 8 The employer referred me to and I have reviewed the follm.ving cases: Re Kenora Assn. for Community Living and OPSEU, Local 702, (1998) 53 C.L.AS. 85 (Springate); Re Peterborough Civic Hospital and OPSEU, Local 342, (1995) 41 C.L.AS. 393 (Verity); Hotel Dieu Kingston and Association of Allied Health Professionals: Ontario, (1995) 45 L.AC. (4th) 54 (Brown, R.); Ontario Nurses' Association v. OrUlia Soldiers Memorial Hospital (Robinson Grievance), [1996] O.L.AA No. 5456 (Mitchnick) and Ori/lia Soldiers, decision of the Ontario Court of Appeal, supra; Messier-Dowty Inc. and International Assn. of Machinists and Aerospace Workers, Local 905 (Kingston Grievance), (1999) 80 L.AC. (4th) 87 (Knopf); Re Water/oo Furniture Components and United Steelworkers of America, Local 7155, (2000) 88 L.AC. (4th) 75 (Bawn); Ontario Public Service Employees Union v. Ontario (Ministry of Transportation) (McNally Grievance), [2003] O.G.S.B.A No. 111 (Brown, R.); National Steel Car Ltd. and United Steelworkers of America, Local 7135, [2006] O.L.AA No. 72 (Surdykowski); Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services (Lucan Grievance); [2007] O.G.S.B.A No.1 (Abramsky); Re Ontario (Ministry of Transportation) and OPSEU (Donoghue), (2002) 114 L.AC. (4th) 35 (Brown, R.); National Grocers Co. v. United Food and Commercial Workers Union, Local lOOOA (Sheppard Grievance), [2007] O.L.AA No. 575 (Nairn); Good Samaritan Nursing Home v. Canadian Union of Public Employees, Local 2250 (McKeown Grievance), [2004] O.L.A.A No. 359 (Randall); Re Lions Gate Hospital and Hospital Employees Union, Local 180 (1988) 10 C.L.AS. 68 (Greyell); Re Lanark Manufacturing Co. and United Automobile Workers, Local 1383, (1973) 3 L.AC. (2d) 98 (Shime). INTERPRETING THE COLLECTIVE AGREEMENT An absence from work which is not paid by the employer constitutes an unpaid leave of absence, even though the employee may receive other benefits, whether WSIB, L TD, or EI sick benefits. (See for example, Kenora Assn. for Community Living, supra.) The arbitration board and the Court of Appeal in Orillia Soldiers, supra, accepted that an employee entitled to EI sick leave benefits within the scheme of . the HOODIP plan was on an unpaid leave of absence during that period of EI sick benefits. The facts before me confirm that the grievor was not being paid by the employer during her period of EI sick benefits. I find therefore that the period of absence from work under the HOODIP plan while in receipt of EI sick benefits is properly treated as an unpaid leave of absence. Article 27.3 is not limited to 'personal' leaves of absence without pay. Had the parties so intended, they could have used the same express words as used in Article 27.2 of the collective agreement. That provision expressly provides for a "personal" leave of absence without pay. The 9 collective agreement also provides for other leaves without pay, for example, union leave (p,rtide 27.4) and professional or educational leaves (Article 27.10 a)). Article 27.3 of the collective agreement is appropriately read as applying to all unpaid leaves of absence in excess of thirty continuous calendar days. Thus, under this collective agreement, an absence from work in excess of thirty continuous calendar days while in receipt of EI sick benefits is an unpaid leave of absence caught by the terms of Article 27.3 of the collective agreement. What does that mean for vacation entitlement and benefit premiwn payment? Vacation Entitlement In brief summary, the union argued that Article 42.1 of the collective agreement constitutes a threshold clause, which provides that, once length of continuous service is detennined, an employee is entitled to the corresponding number of weeks of vacation with pay, regardless of whether the employee is absent on sick leave funded by the employer or in receipt of EI sick benefits. There is nothing in the collective agreement, argued the union, that provided for the pro-ration of vacation entitlement arising from this absence from work. The employer argued that, in agreeing to HOODIP, the parties contemplated that there was a paid and an unpaid portion to that plan. That unpaid portion of the leave is regulated, argued the employer, by Article 27.3 a) of the collective agreement. The effect of Article 27.3 a) of the collective agreement, argued the employer, was to limit the accwnulation of service and seniority for purposes of vacation entitlement and/or sick leave benefit for the period of the unpaid leave (where it exceeds 30 continuous calendar days), unless otherwise specified. Article 30.1 b) of the collective agreement, which expressly provides that seniority shall accrue for a period of one year for any unpaid absence relating to. an illness or disability, is an example, argued the employer, of where the parties have specified otherwise. However, argued the employer, vacation entitlement is driven not by seniority but by service. Thus, argued the employer, vacation does not accrue when service is not accruing. The employer also argued that its practice, set out at paragraph 19 of the agreed statement of fact, was consistent with this interpretation. Article 42.1 of the collective agreement provides entitlement to vacation with pay based on an employee's years of continuous service. The language is clear. It states that employees who "have completed" escalating years of continuous service "shall receive an annual vacation" that increases 10 proportionally to those escalating years of continuous servlce. The prOVISlOn creates a threshold entitlement. Once an employee has completed one, three, fourteen, or twenty-three years of 'continuous service' with the employer as of June 30th in any year, that employee is entitled to three, four, five, or six weeks of vacation with pay respectively. (Continuous service of less than one year is prorated under Article 42.1a).) 'Continuous service' is defmed in Article 42.1 f) as the length of time an employee has been in the employ of the Hospital, including employment with the previous KPH. Article 42.1 of the collective agreement determines vacation entitlement. There is nothing in that language that would create, or result in a hiatus in the accrual of vacation once the requisite length of continuous service had been reached. Once an employee has attained a requisite period of continuous service as of June 30th in any year, her vacation entitlement is based on that level of continuous service. Even if one assumes that service may not accrue based on the circumstances outlined in Article 27.3 a) of the collective agreement, provided an employee has already reached a threshold level of continuous service, there is nothing in Article 27.3 a) to then act to limit the vacation entitlement in that year. To take Ms. Thomas' example, she has been employed with the previous and the current employer since September 1982. There is no evidence as to any 'breaks' in her continuous service. As of Apri114, 2007 when she went on the EI portion of her sick leave, Ms. Thomas had completed twenty-three years of continuous service. More to the point, by both June 30, 2006 and June 30, 2007, dates established by the collective agreement as appropriate cut-off points for assessing continuous service for the respective vacation years, Ms. Thomas had completed the requisite twenty-three years of continuous 'service and was therefore entitled to six weeks of vacation with pay. Article 27.3 a) of the collective agreement has no bearing on this calculation in these circumstances. Her vacation grievance (MHS 2007-09) must therefore succeed. That example, however, only addresses part of the policy question facing the parties. Where an employee has already attained a requisite level of continuous service by June 30th in any year, their vacation entitlement is unaffected by Article 27.3 a), regardless of whether they take an unpaid leave of absence. However, vacation entitlement is determined by continuous service. The fonnula for accruing service under the collective agreement remains an important factor, notwithstanding Ms. Thomas' example. An employee who has not yet attained the requisite years of continuous service by June 30th in any year will have increases to their vacation entitlement delayed. 11 .Article 42.1 of the collective agreement speaks to "continuous service" and references Article 28 which defmes "service" at Article 28.4. That defInition speaks of 'service' as continuous, that is, running from the employee's last date of hire. Thus the collective agreement uses the words "service" and "continuous service" interchangeably (although distinct entirely from seniority). The reference in Article 27.3 a) to "service" must be read as a reference to "continuous service". It is an accepted principle of contract interpretation that a specific provision will qualify a general provision. Article 28.4 provides that service is calculated as the length of continuous service from date of last hire. That general defInition and formula for calculating service in Article 28.4 of the collective agreement is, however, qualified by the specific provision in Article 27.3 a), which deals with the accwnulation of service for specific purposes during the period of an unpaid leave. Article 27.3 a) of the collective agreement is also clear. It stipulates that there will be no accumulation of service during a leave without pay in excess of thirty continuous calendar days. Employees absent from work on an unpaid leave of absence in excess of thirty continuous calendar days maintain but do not accrue service during the period of that unpaid leave. As noted above, this mayor may not have an impact on an employee's vacation entitlement in any given year, depending on whether or not that employee has already reached the threshold continuous service requirement by June 30th for that vacation year. Thus, by way of further example, if the only way in which an employee would complete twenty- three years of continuous service as of June 30, 2007 was to include time she was absent from work in excess of thirty continuous calendar days while in receipt of EI sick benefits, that employee would fail to meet the threshold based on the application of Article 27.3 a) of the collective agreement. In that circwnstance, that employee would be entitled to only five weeks of vacation for the vacation year based on the application of Articles 42.1 and 27.3 a) of the collective agreement. The fact that the Hospital, since 2003, appears to have notified employees of available vacation hours based on some kind of accrual formula is of no effect. It cannot overcome the clear language of Article 42.1 of the collective agreement which provides a threshold entitlement. Although vacation entitlement is based on service, vacation entitlement and service accrual are separate concepts under this collective agreement. Nor is there evidence from which to make a finding of an estoppel against the union. These grievances were filed while the fIrst collective agreement between the parties was still in effect, negating any possibility that the employer relied on the union's silence regarding this practice as constituting agreement with the employer's interpretation of the collective agreement language. Further, to the extent I have other evidence of practice, Exhibit 9 (tab 9) shows that the employer recorded the 12 gnevor as accrumg vacation while on the unpaid portion of her leave, which vacation was then retroactively adjusted as having accrued in error, thus triggering the grievance. The Payment of Benefit Premiums Article 38.4 of the collective agreement establishes the respective responsibilities of the employer and the employee for the payment of benefit premiums; a percentage split of 75/25 respectively. However, Article 27.3 b) of the collective agreement is also clear. The specific language in Article 27.3 b) qualifies Article 38.4 of the collective agreement regarding the division of responsibility for benefit premium payments. For leaves without pay in excess of thirty continuous calendar days, an employee becomes responsible for full payment of subsidized employee benefits in which the employee is participating. Thus, an employee absent from work in excess of thirty continuous calendar days while in receipt ofEI sick benefits is required to pay 100% of the premium costs in order to maintain benefit coverage for the period of that absence. Based on the language of the collective agreement, Ms. Thomas' benefit premium grievance (MHS 2007-11) would fail. THE DISCRIMINATION ISSUE Do the provisions of Article 27.3 of the collective agreement, by d.enying' service accrual and requiring the employee to pay benefit premiums while in receipt of EI sick benefits, discriminate on the prohibited basis of disability? The unIon essentially argued that the appropriate comparator group was a sub-set of those employees absent on unpaid leave, more particularly, those on pregnancy/parental leave who continue to accrue service and enjoy shared premiwn costs while on leave, pursuant to Articles 27.8 e) i) and iii) of the collective agreement. Neither group, argued the union, was providing service, yet were being treated differently. The union argued that the Court in Grillia Soldiers did not deal with the argument it raises, that is, that the existence of a greater benefit in relation to pregnancy/parental leave constitutes discrimination in relation to another prohibited ground, disability. It argued that Grillia Soldiers, Brooh, and Gibbs, supra, all support the argwnent that the benefit need not be given, but once given to one protected group, other protected groups cannot be discriminated against by denying the benefit to them. The fact that the ESA provides a statutory underpinning to these benefits in the case of 13 pregn.ancy/parentalleave was of no consequence, argued the union. If that benefit resulted in a situation where two protected groups are receiving differential treatment, the Code must prevail, argued the union. The employer argued that the decision in OrUlia Soldiers speaks directly to the issues raised by these grievances. The Court of Appeal found that vacation entitlement and the payment of benefit premiwns are both forms of compensation, argued the employer, and it is therefore appropriate to distinguish between persons who are providing work and those who are not. If the provision of work forms the basis of the distinction, no accommodation is possible with respect to someone who is disabled and therefore unable to perform work. Consequently, as in Orillia Soldiers, argued the employer, there is no discrimination in the circwnstances here. The provisions relating to pregnancy/parental leave are of no consequence, argued the employer, as they are mandated by statute. It does not change the essential quality of the entitlements as compensation and therefore, argued the employer, the same result as in Orillia Soldiers applies. There is no dispute that this collective agreement provides a better service accrual and premium payment benefit to employees on pregnancy/parental leave than to disabled employees who are absent from work and in receipt ofEI sick benefits. The collective agreement before the Court in Orillia Soldiers also similarly provided better service accrual to employees on pregnancy/parental leave than to disabled employees absent and in receipt ofEI sick benefits. Although it was not argued before the Court that this difference in treatment infringed the Code, that argwnent was raised by the union, and rejected by the board of arbitration at first instance (see para. 4 of that award). The provisions were before the Court in circwnstances where the issues raised were virtually identical to the issues raised before me. Unless there is an appropriate basis for distinguishing the circumstances, I am bound by that decision. Both service accrual for vacation entitlement purposes and the payment of benefit premiums reflect elements of an employee's compensation package. In detennining whether disabled employees who were not working were entitled to service accrual and benefit premium payments, the Court in Orillia Soldiers compared them to other employees who were not working. Where work was not provided, the Court found, it was not discrimination to disentitle an employee from the compensation. That is the core fmding in that case. Disabled employees were not being discriminated against because of their disability. They were treated differently because they were not providing work in exchange in for the compensation. They were, therefore, appropriately compared to other employees who were not working. That analysis applies equally here. Is there a basis for sub-dividing that comparator group further to the extent that a finding of discrimination is warranted? 14 The collective agreement in Grillia Soldiers and the one before me both provide that the employer is required to continue to pay its share of benefit premiwns while an employee is not working but is in receipt of Workers' Compensation benefits; a benefit not provided to employees absent from work with non-work related disabilities. The union did not argue that employees absent from work because of non-work related disabilities ought to be compared to employees absent from work because of work-related disabilities (while in receipt of WSIB benefits) such that they too would be entitled to receive the employer's share of benefit premium payments for so long as they were disabled and employed (which would include the EI sick benefit period). Such a comparison might appear to be a more direct one than as between disabled employees and those utilizing pregnancy/parental leave. However, the appropriateness (or not) of that comparison was adverted to in the arbitration award in OrUlia Soldiers which award the Court of Appeal ultimately restored. At paragraph 23 the arbitration board notes: ... [Arbitrator Brown in Versa Services] concluded that the issue was really one of "compensation" for time not worked, and that from that perspective it was not "discrimination" to decline to provide employer contributions to benefits for employees caused by their handicap to be unable to work - just as it would not be for a failure to pay wages. When the matter came before the Divisional Court, the Court stated that it did not matter what the test for review was: Mr. Brown was simply right. That, to this board, represents the state of the law in this province as it applies to absence, albeit due to the circumstance of a disability, on an issue of "compensation". It does not change, in our view, where, as here, the collective agreement goes on to provide even more generous treatment in the situation of work-related disabilities. One wants to see as much concession as possible from employers on a negotiated or voluntary basis, and employers are going to resist agreeing to any more generous provisions for certain groups - for example, where the cause of the absence is work-related - if this is going to be used against them subsequently as . establishing a new standard for an argument of discriminatio~, The important point is that as a matter of law, we conclude, in line with Versa Services, that any arrangement on benefit payment for employees absent from the workplace, even on account of a "handicap' goes beyond that which is required by law (the Legislature in the [ESA] providing a specific statutory exception for pregnancy/parental leave), leaving an employer and employee organization free to negotiate, as here, whatever regime of compensation they can agree on (assuming no direct discrimination, obviously).. . (emphasis added) The arbitration board made no finding of either direct or adverse discrimination relating to the service accrual provisions or benefit premium payment provisions of that collective agreement. That was also so, notwithstanding employees absent on pregnancy/parental leave under the terms of that agreement, continued to accrue service and receive full employer contributions to benefit premiwns for the period of their leave (see Article 10.04 of that collective agreement at page 4 of the award). 15 The union here relied on comments made by the Court of Appeal in Orillia Soldiers in relation to the decisions in Brooks, supra, and Gibbs, supra. The decision in Gibbs was released after the arbitration award but both were before the Court. The purpose of the disability plan in Brooks was to compensate employees who were unable to work for valid health-related reasons. Employees received benefits if unable to work due to sickness or accident. Pregnant employees were excluded from this compensation on the basis of their pregnancy, even if the inability to work was unrelated to the pregnancy. The Supreme Court of Canada, in looking to the purpose of the plan, found that pregnancy was a valid health-related reason and that its exclusion from the plan's entitlement was therefore based on sex, a prohibited ground. The decision focuses on the purpose of the benefit in issue in reaching its conclusion. Gibbs was similar in that the purpose of the disability plan in issue was to provide income replacement to employees unable to work due to disability. However the plan provided less generous benefits for employees suffering from mental disabilities than for employees with physical disabilities. In reviewing that decision, the Court in Orillia Soldiers commented: [28]... Sopinka, 1., relying on Brooks, wrote for the majority that the appropriate comparator group could only be determined by looking at the purpose of the disability plan: Comparing the benefits allocated to employees pursuant to different purposes is not helpful in determining discrimination - it is understandable that insurance benefits designed for different purposes will differ. If, however, benefits are allocated pursuant to the same purpose, yet benefits differ as the result of characteristics that are not relevant to this purpose, discrimination may well exist. (emphasis added) The union further relied on the following comments in Orillia Soldiers: [29] The purpose of the plan in Gibbs was to insure employees against the income-related consequences of becoming disabled and unable to work. . . Again, as in Brooks. the employer was not obliged to provide this form of income replacement, but having done so, it could not discriminate between employees on a prohibited basis. [31] . . . In the case presently before the court, the purpose of the employer contributions to benefit plans is to provide an additional form of compensation in exchange for work. Having chosen to provide this form of compensation, the employer could not discriminate on a prohibited basis. However, the employer could distinguish based on the reason for providing the compensation: work. On its face, discrimination would exist if the employer provided different levels of compensation for work because of handicap. Likewise, it would constitute discrimination if the employer provided different levels of compensation for not working because of handicap. (emphasis added) 16 The Court found t.lJ.at discrimination would exist if an employer provided different levels of compensation for work because of disability, that is, if it directly discriminated against a disabled employee by paying her differently than an able-bodied employee for the same work. That is a statement of the now obvious. (which must also be refmed by the requirement to accommodate a disabled employee to the point of undue hardship.) The Court also commented that it would constitute discrimination if the employer provided different levels of compensation for not working because of handicap. It was referring to the situations in Brooks and Gibbs whereby the employer had provided income replacement plans which treated certain types of disabilities (which included valid health-related issues like pregnancy) differently from other disabilities. In the context of the purpose of the income replacement plans, such treatment was found to be discriminatory. However, such was not the case in Orillia Soldiers. As the Court concluded: [33] In essence, the appellant's argument is that the income replacement plans should include payment of these premiums. This is a matter to be determined in the collective bargaining process. It would only be covered by the Human Rights Code if the income replacement plan itself discriminated on a prohibited basis (as in Brooks and Gibbs). That is not the case here.... As in Orillia Soldiers, the purpose of the collective agreement provisions before me regarding service accrual for vacation entitlement and the payment of benefit premiums is to provide a form of compensation. Based on that purpose, the appropriate comparator group is other employees on unpaid leave of absence, rather than a sub-set of that comparator group. The same conclusion therefore applies: [27] . .. It is not prohibited discrimination to distinguish for purposes of compensation between employees who are providing services to the employer and those who are not. .. [32] I also do not find it helpful to attempt to isolate different elements of the compensation package such as employer contributions to premiums, vacation pay, and wages and ascribe different purposes to each so as to create a discrimination argument. They are all part of the compensation package negotiated by the parties in exchange for work by the employees. When the employee is not working, different considerations in different forms of payment may apply. For example, employees may receive workers' compensation or long-term disability payments. These grievances are appropriately detennined based on the application of the decision of the Court of Appeal in Orillia Soldiers, supra. There is nothing in the case before me to distinguish that decision; one which I am bound to apply. The Court of Appeal had before it essentially the same collective agreement provisions and the same HOODIP plan. The union in that case had similarly argued that differential treatment as between disabled employees and those on pregnancy/parental leave constituted a violation of the Code. The purpose of the impugned collective agreement provisions is to provide compensation in exchange for work. It is not prohibited discrimination to provide different 17 compensation to those not worying than to those employees who are working. Nor is it prohibited discrimination to provide different treatment as between employees not working, as different considerations may apply based on subsidiary and different purposes resulting in different forms of payment (unless, as in Brooks and Gibbs, there is prohibited differential treatment essentially within a subsidiary other benefit). I find therefore that employees in receipt of EI sick benefits are not discriminated against by the application of Article 27.3 of the collective agreement to their circwnstances. Any changes are a matter for collective bargaining. Having regard to all of the above, I find: Grievance MHS 2007-09 regarding vacation entitlement is allowed having regard to the provisions of the collective agreement. Vacation entitlement is based on a threshold level of continuous service, a level that Ms. Thomas had reached prior to being absent from work and in receipt of EI benefits. However Article 27.3 a) of the collective agreement does provide for an interruption in service accrual which may affect an employee's vacation entitlement depending on their level of continuous service. Such interruption is not discriminatory. Grievance MHS 2007-11 regarding benefit prermum payments IS hereby dismissed. The collective agreement required the grievor to asswne responsibility for those costs in the circumstances. That requirement is not discriminatory. Dated at Toronto, Ontario this 16th day of April, 2008. "h~,-tjJ {~ Marilyn A. Nairn, Arbitrator.