HomeMy WebLinkAboutUnion et al 19-08-23
IN THE MATTER OF AN ARBITRATION
PURSUANT TO THE LABOUR RELATIONS ACT, 1995
BETWEEN
ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND ITS LOCAL 380
(Hereinafter referred to as the “Union”)
AND
MUSKOKA ALGONQUIN HEALTHCARE
(Hereinafter referred to as the “Employer”)
Union Policy Grievance and Individual Grievances of Caitlin Aitchison,
Christine Baker, Lynn Feaver, and Pauline Pearsall
ARBITRATOR: Tatiana Wacyk
APPEARANCES:
FOR THE UNION: Indika Chandrasekara, Grievance Officer; Luke
Seward, Vice President; Barbara Barry, Former
Local President (retired); Christine Baker, Lynn
Feaver, and Pauline Pearsall, Grievors
FOR THE EMPLOYER: Christopher A. Sinal, Counsel; Robert Alldred-
Hughes, Chief Executive, People, Quality & Safety
DATE OF HEARING: August 1, 2019
LOCATION OF HEARING: Huntsville, Ontario
DATE OF DECISION: August 23, 2019
1
DECISION
1. These grievances take issue with the Employer’s practice of calculating
vacation credits on an accrual basis for full-time employees with one year or
more of continuous service. The Union maintains they are entitled to the
entire vacation entitlement set out in the Collective Agreement immediately
upon reaching their milestone year of service.
AGREED STATEMENT OF FACTS:
2. The parties filed the following Agreed Statement of Facts (“ASF”):
1. Ontario Public Service Employees Union (OPSEU) ("Union") is a trade
union within the meaning of section 1 (1) of the Labour Relations Act,
1995. The Union is the exclusive bargaining agent for all Paramedical
employees (including Health Records Technicians) of Muskoka
Algonquin Healthcare, save and except supervisors, and persons above
the rank of supervisors, and persons covered by other collective
agreements at the Hospital.
2. Muskoka Algonquin Healthcare ("Employer") provides emergency
health care services and inpatient care at two acute care sites in
Huntsville and Bracebridge. Patient care is also supported through a
number of outpatient programs at both hospital sites and at the
Almaguin Highlands Health Centre in Burk's Falls. The Employer
employees approximately 700 employees; 85 physicians and 306
volunteers.
3. The Employer and the Union have been involved in a mature collective
bargaining relationship for decades.
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4. The parties' collective agreement consists of "central provisions"
negotiated between OPSEU and the Ontario Hospitals Association
(OHA), which negotiates on behalf of participating hospitals. The
central provisions are supplemented by "local provisions" negotiated at
the local level.
5. The Grievances herein were filed under the collective agreement
between the Employer and the Union effective April 1, 2016 - March
31, 2019. The central parties ratified an extension to the central
agreement in effect from April 1, 2016 to March 31, 2019 until March
31, 2022. The local parties recently ratified a Memorandum of
Settlement to the local provisions and agreed that the term of the
collective agreement shall be as noted in the central agreement. There
have not been any changes to the collective agreement that affect this
matter.
The Grievances
6. The Union filed the following grievances:
Grievance # Name Date of Grievance
2018-0380-0002 Union April 30, 2018
2018-0380-0003 Lynn Feaver April 30, 2018
2018-0380-0004 Christine Baker July 6,2018
2018-0380-0005 Pauline Pearsall July 6,2018
2018-0380-0006 Caitlin Aitchison September 27,2018
Copies of the Grievance forms are attached at Tab 1.
7. The Grievances relate to vacation entitlement in milestone years for
full time employees. A copy of the Collective Agreement is attached at
Tab 2.
8. The Statement of Grievance of the Union grievance reads as follows:
"The Union grieves the Employer has violated Article
19 (Vacation) of the Collective Agreement but not
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exclusively. This violation is evidenced by the failure
to credit the Employees vacation bank for the
milestone year of continuous service reached."
9. The Employer denied the grievances.
The Grievors
10. The Grievors are all full time employees, working at the Lab as follows:
Lynn Feaver Charge Technologist works primarily at the
(Multi Site) Bracebridge location
Christine Baker – Senior Technologist Bracebridge location
works 4/5ths
Pauline Pearsall Senior Technologist Bracebridge location
Caitlin Northey General Duty Technologist currently works
(Multi Site) primarily at the
Huntsville location
11. The Grievors’ continuous service dates and milestone years are as
follows:
Grievor Continuous
service date
Milestone year
Lynn
Feaver
April 3, 1991 Completed 27 years of continuous
service on April 3, 2018
Christine
Baker
March 9, 1991 Completed 27 years of continuous
service on March 9, 2018
Pauline
Pearsall
January 18, 1991 Completed 27 years of continuous
service on January 18, 2018
Caitlin
Northey
August 27, 2015 Completed 3 years of continuous
service on August 27, 2018
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12. None of the Grievors received the “additional” week of vacation
immediately after completing the specified number of years of
continuous service and reaching the respective milestone year.
However, the Grievors’ vacation accrual rate increased immediately
thereafter. (see table at paragraph 26)
Collective Agreement provisions
13. Article 19 of the Central Agreement provides as follows regarding vacation
entitlement:
ARTICLE 19 - VACATION (central agreement)
(The following clauses will appear in all collective agreements replacing any
provision related to Vacation that existed in the Hospital's collective
agreement expiring 2016)
19.01 (a) Article 19.01 (a) is applicable to full-time employees only
All employees who have completed less than one (1) year of continuous service
shall be entitled to a vacation on the basis of 1.25 days per month for each
completed month of service with pay in the amount of six per cent (6%) of
gross earnings.
All employees shall receive three (3) weeks' vacation after one (1) year of
continuous service, and four (4) weeks' vacation after three (3) years of
continuous service.
All employees shall receive five (5) weeks’ vacation after twelve (12) years
of continuous service.
All employees shall receive six (6) weeks’ vacation after twenty-one (21)
years of continuous service.
All employees will receive seven (7) weeks’ vacation after twenty-seven (27)
years of continuous service.
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An employee who is on an unpaid leave of absence in excess of thirty
(30) continuous calendar days will receive vacation pay based on a
percentage of her or his gross salary for work performed during the
vacation year as follows:
3 week entitlement - 6%
4 week entitlement - 8%
5 week entitlement - 10%
6 week entitlement - 12%
7 week entitlement - 14%
NOTE: Any vacation schedule improvements shall be determined in
accordance with whatever system is in place in the individual
hospital for determining vacation entitlement. In other words,
those hospitals that determine vacation entitlement by a uniform
date for all employees shall continue to do so, and those that
determine vacation entitlement by an anniversary date, or by
some other means, shall continue to do so.
NOTE: Employees who have supplemental vacation (additional 5 vacation
days after 30 years of continuous service and additional 5 vacation
days after 35 years of continuous service) which was earned
between June 28, 2005 and May 25, 2006, shall be entitled to
utilize their remaining supplemental vacation, if any.
(b) (Article 19.01(b) is applicable to regular part-time employees only)
All regular part-time employees shall be entitled to vacation pay
based upon the applicable percentage provided below in accordance
with the vacation entitlement of full-time employees of their gross
salary for work performed in the preceding year. Scheduling of
vacations shall be in accordance with local scheduling provisions.
Full-Time
Increment
Vacation
Entitlement (FT)
Part-Time
Increment
Part-Time
Vacation
pay
Less than 1
year
continuous
service
1.25 days per
month
Less than 1650
hours of continuous
service
6 %
After 1 year
of
continuous
service
3 weeks
(1.25 days per
month)
After 1650 hours of
continuous service
6%
6
After 3
years of
continuous
service
4 weeks
(1.67 days per
month)
After 4,950 hours of
continuous service
8%
After 12
years of
continuous
service
5 weeks
(2.08 days per
month)
After 19800 hours
of continuous
service
10%
After 21
years of
continuous
service
6 weeks (2.5
days per month)
After 34650 hours
of continuous
service
12%
After 27
years of
continuous
service
7 weeks (2.92
days per month)
After 44550 hours of
continuous service
14%
Equivalent years of service shall be used to determine vacation
pay entitlement. Equivalent years of service shall be calculated on
the basis of one (1) year of service for each 1650 hours worked.
Notwithstanding this provision, the calculation of service for
purposes of vacation entitlement will include service accrued
during a pregnancy leave or parental leave on the basis of
seniority accrual during such leaves in accordance with Article
10.03 (a) (ii) of the agreement.
Part time employees have the option of requesting all or part of
their equivalent unpaid vacation entitlement as time off in calendar
weeks, unless the local parties agree to an arrangement that
permits the use of individual days.*
There will be no carry-over of unpaid vacation time.
* Should existing local scheduling provisions provide unpaid time off for
part-time employees, this language shall be maintained but not altered,
unless the local parties agree to delete the language and move to the
Central language.
NOTE: Article 19.02 is applicable to full-time employees only.
19.02 Where an employee’s scheduled vacation is interrupted due to
serious illness or injury which commenced prior to and continues
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into the scheduled vacation period, the period of such illness shall
be considered sick leave.
Where an employee’s scheduled vacation is interrupted due to a
serious illness requiring the employee to be an in-patient in a
hospital, the period of such hospitalization shall be considered sick
leave.
The portion of the employee’s vacation which is deemed to be sick
leave under the above provisions will not be counted against the
employee’s vacation credits.
19.03 Should an employee terminate with less than two (2) weeks’
notice of termination, the vacation pay requirements of the
Employment Standards Act will apply.
14. Article 19 of the local agreement sets out the manner in which
vacation requests are to be made, the method for fair distribution of
vacation and allows employees to carry forward a years’ worth of
vacation earned in one year, to the following year, as follows:
ARTICLE 19 – VACATIONS (local agreement)
19.04 Distribution of Vacation Entitlement
Vacation requests will be made, approved and based on the employee's
home site.
Vacations will be scheduled in such a manner as to provide for a fair
distribution of the number of employees who are absent due to
vacations. Employees with the greatest length of seniority (top half to
the seniority list at home site) with the Hospital will have first choice of
dates, provided they indicate their preference before March 1st subject to
the prime time vacation provisions. Employees with less seniority
(bottom half of the seniority list at home site) will indicate their
preferences before March 15th subject to the prime time vacation
provisions. If an uneven number of employees exist the employee will be
considered to be in the top half of the seniority list.
Employees shall provide the Employer with their first, second, and third
choices of prime time vacation requests. The Employer shall provide the
Employee with a timely response relative to the prime time vacation
request as soon as possible but in any event not later than April 15th.
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Such seniority request will take effect from May 1st to the following April
30th.
The approval for vacation requests shall be based on providing for as fair
a distribution as possible relative to the number of employees who can
be off on vacation at the same time. The number of Employees off on
vacation will be determined at the reasonable discretion of the
Department Manager taking into account the operational requirements of
the delivery of services.
In order to provide Employees vacation opportunities during the prime
time vacation period, which is defined as the time period between June
15 and Sept. 15, the week between Christmas and New Years; and the
following March Break as determined by the respective school boards;
seniority preference can only be applied to the maximum of two (2)
weeks off in total which must be taken in blocks of no less than five (5)
weekdays off during these time frames if the normal work week is
Monday to Friday or three (3) days if the employee works weekends.
For the purpose of allotting prime time vacation the manager or
designate shall post a vacation planner on or before February 15 of each
year and identify the number of employees allowed to be off at one time
within full-time and part-time status. The planner will cover the period
May 1st through April 30th of the following year. The employees will use
this planner to request their prime time vacation and non-prime time
vacation. As well each employee shall submit her requests in writing to
the manager on the form provided. The most senior employees (top half
of the seniority list) shall indicate their choice(s) of prime time on or
before March 1 of each year. The less senior employees (bottom half of
the seniority list) shall indicate their choice(s) of prime time on or before
March 15 of each year.
Notwithstanding the maximum of two (2) weeks the Employer shall
determine if there is any remaining prime time off available. If so, the
Employer shall immediately conduct a canvass of those members who
were denied in whole or in part their requested vacation during the first
approval process as described above, in order of seniority to provide one
(1) or two (2) weeks off during prime time vacation. If any prime time
vacation remains the employer will return to the top of the seniority list.
At the conclusion of the above process each Manager shall post a list of
Employees and the authorized vacation approval for the prime time
vacation period as identified above as well as the original vacation
requests for each employee. These lists shall be posted no later than
April 15th.
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Vacation requests submitted after March 15 each year shall be
considered on a first come first serve basis, and wherever possible will be
requested at least five (5) weeks in advance of the time off that is being
requested. The requests will be responded to promptly by the Employer,
such response shall be within one hundred and twenty (120) hours of
date of request.
19.05 Vacation Bank
An Employee can carry a maximum of one (1) year earned vacation
credits into the following year.
How vacation is currently administered
15. Vacation entitlement is determined based on a full time employee’s
continuous service date. Each full time employee’s continuous service
date determines his/her anniversary date and/or milestone years for
the purpose of vacation entitlement.
16. The Employer does not “dump” vacation on an anniversary or
milestone year.
17. The Employer follows a method of vacation accrual, where each full
time employee accumulates vacation credits for hours worked, on a bi-
weekly basis.
18. Part time employees do not accrue vacation. Part time employees are
paid a percentage of their gross wages, on a bi-weekly basis, in lieu of
vacation pursuant to Article 19.01(b).
19. A full time employee’s vacation accrual rate increases when he/she
reaches a specific number of years of continuous services. See
vacation credits table at paragraph 26.
20. The Employer has followed the vacation accrual method consistently
for over 22 years.
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21. The Employer does not grant vacation time in advance of vacation
credits being earned.
22. Employees are able to use vacation credits as they are earned, subject
to the vacation scheduling procedures contained in the Collective
Agreement.
23. The Employer implements/monitors/credits employees’ vacation
banks, based on its fiscal year running from April 1 to March 31.
Vacation banks start afresh on April 1st of each year.
24. Accrued vacation is indicated on each employee’s bi-weekly pay stub.
Vacation credits shown on each pay stub, are listed as “Vacation
Current Year” and “Vacation Prior Year”. Vacation earned from April 1
– March 31 of the current year is “Vacation Current Year”. Vacation
earned from April 1 – March 31 of the previous year and allowed to be
carried forward pursuant to the local agreement, is listed as “Vacation
Prior Year”.
25. Employees are required to use up vacation credits earned between
April 1 and March 31 of the previous year (“Vacation Prior Year”), by
Mach 31 of the following year.
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26. Vacation Credits Table:
Grievor Continuous
Service
Date
Years of Service Anniversary
date
(milestone
anniversary
date in bold)
CA
entitlement
Art
19.01(a)
Actual Vacation
Accrual rate per
pay
Actual total
Vacation days
earned during
each
anniversary
year
Actual
Vacation
earned during
fiscal years:
Caitlin
Aitchison
Aug 27,
2015
After 1 year of
continuous
service – up to 3
years
Aug 27,
2016 – Aug
26, 2017
3 weeks 1.25 days per
month
4.33 hrs per pay
15 days
(3 weeks)
Apr 1/17 –
Mar 31/18
15 days/3 wks
After 3 years of
continuous
service
Aug 27,
2018 – Aug
26, 2019
4 weeks 1.67 days per
month
5.77 hrs per pay
20 days
(4 weeks)
Apr 1/18 –
Mar 31/19
18.08 days/
3.62 wks
Lynn Feaver April 3,
1991
After 21 years of
continuous
service up to 27
years
April 3,
2012 – April
2, 2013
6 weeks 2.5 days per
month
8.65 hrs per pay
30 days
(6 weeks)
Apr 1/17 –
Mar 31/18
30 days/6 wks
After 27 years of
continuous
service
April 3,
2018 – April
2, 2019
7 weeks 2.92 days per
month
10.10 hrs per
pay
35 days
(7 weeks)
Apr 1/18 –
Mar 31/19
35 days/7 wks
Christine
Baker
(works
4/5th)
March 9,
1991
After 21
years of
continuous
service up to 27
years
March 9,
2012 –
March 8,
2013
2.0 days per
month
6.92 hrs per pay
24 days Apr 1/17 –
Mar 31/18)
24 days/
4.8 wks
After 27 years of
continuous
service
March 9,
2018 –
March 8,
2019
2.34 days per
month
8.08 hrs per pay
28 days Apr 1/18 –
Mar 31/19
28 days/
5.6 wks
12
Grievor Continuous
Service
Date
Years of Service Anniversary
date
(milestone
anniversary
date in bold)
CA
entitlement
Art
19.01(a)
Actual Vacation
Accrual rate per
pay
Actual total
Vacation days
earned during
each
anniversary
year
Actual
Vacation
earned during
fiscal years:
Pauline
Pearsall
Jan 18,
1991
After 21 years of
continuous
service up to 27
years
Jan 18,
2012 – Jan
17, 2013
6 weeks 2.5 days per
month
8.65 hrs per pay
30 days
(6 weeks)
Apr 1/17 –
Mar 31/18
30-95 days/
6.19 wks
After 27 years of
continuous
service
Jan 18,
2018 – Jan
19, 2019
7 weeks 2.92 days per
month
10.10 hrs per
pay
35 days
(7 weeks)
Apr 1/18 –
Mar 31/19
35 days/7wks
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ISSUES TO BE DETERMINED:
3. The Parties identified the following issues to be determined:
1. According to Article 19.01(a) of the Collective Agreement, should
vacation credits for full-time employees be accrued or immediately
available on reaching their milestone years (referred to as “dumped”
by the parties)?
2. If vacation credits should be accrued according to Article
19.01(a) of the Collective Agreement, should an additional week
of vacation nonetheless be “dumped” into an employee’s
vacation bank immediately upon reaching a milestone, while
continuing to accrue vacation at the higher rate?
3. Are the Grievances herein barred by the doctrine of estoppel?
ESTOPPEL:
4. The parties dealt with the last issue first.
5. The doctrine of estoppel is a well-established equitable doctrine of contract
application. The doctrine applies to prevent a party from asserting certain
rights when it would be unjust or prejudicial to the other party for it to do so.
6. The Union conceded that its failure, for approximately 22 years, to grieve the
Employer’s interpretation of Article 19.01(a), or raise it in the context of
collective bargaining, deprived the Employer of an opportunity to address the
Union’s claim. The Union conceded this was sufficient to trigger an estoppel,
precluding it from proceeding with its challenge during the life of the current
collective agreement.
7. It notes, however, that the Employer is now on notice that it intends to rely
on what it maintains are its strict contractual rights, as set out in Article
19.01(a), following the expiration of the current Collective Agreement.
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ARTICLE 19.01(a):
8. Despite the Union’s concession that it is estopped from challenging the
Employer’s interpretation of Article 19.01(a) during the life of this Collective
Agreement, the parties proceeded with their arguments on the merits of the
dispute.
Union Position:
9. The Union challenges the Employer’s practice of calculating vacation
entitlement for full-time employees with one or more years of continuous
service via the accrual method. It argued the Employer’s practice of using
the milestone dates set out in Article 19.01(a) to simply increase the accrual
rate is inconsistent with the plain and ordinary language of Article 19.01(a),
and the Collective Agreement read as a whole.
10. Rather, the Union submitted the milestone dates set out in Article 19.01(a)
establish employees’ entitlement immediately upon those milestone being
met.
11. The Union pointed out Article 19.01 clearly distinguishes between the method
of calculating vacation entitlement for employees who have completed less
than one year of continuous service, and those who have one year of
continuous service or more.
12. Specifically, the first paragraph is clear that full-time employees who have
completed “less than (1) one year of continuous service” earn vacation on
an accrual basis of “1.25 days per month”. [emphasis added]
13. This is to be distinguished from the subsequent paragraphs, setting out
vacation entitlement for full-time employees with one year or more of
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continuous service. That language states only that they “shall receive [x]
weeks’ vacation after [each milestone year] of continuous service.
14. The Union argued there is simply no language within those paragraphs to
allow an inference that vacation entitlement for full-time employees with one
year of continuous service or more is to be prorated, and earned
incrementally as is the case for employees with less than one year of
continuous service.
15. The Union further distinguished between the language of “shall be entitled",
used in relation to employees with less than one year of continuous service
and “shall receive” for those with one year of continuous service or more.
16. Specifically, the Union relied on the Cambridge and Merriam-Webster
Dictionary meanings of “entitle” i.e. (allow) and to give someone the right to
do or have or claim something, to argue that “shall be entitled” suggests
entitlement is a right that can be claimed in the future, once earned, and is
consistent with the accrual clearly intended in the provision dealing with
employees with less than one year of continuous service.
17. On the other hand, the Cambridge and Merriam-Webster Dictionaries define
“receive” as “get or be given something” and “to come into possession of:
acquire …. The Union submitted that accordingly, “shall receive” refers to an
“immediacy, or vesting” of the specified vacation weeks. It is a singular
event, not ongoing. In other words, employees with one year or more of
service receive their “whole” entitlement, not a portion of the whole, as is the
case with employees with less than one year of continuous service.
18. The Union further pointed out the result of the Employer’s use of the accrual
method for employees with one year or more of service, is that employees in
some instances are deprived of their full vacation benefit in the first year
16
following it having already been earned. Rather, they must wait until the
completion of the following year to access their full allotment of vacation
weeks.
19. This is demonstrated in Ms. Aitchison’s case in the chart set out at paragraph
26 of the ASF. Specifically, Ms. Aitchison’s milestone date of three years of
continuous service was August 27, 2018, entitling her to 4 weeks of vacation
in accordance with Article 19.01. While she would earn this over each
“anniversary” year, she would earn only 3.62 weeks over the fiscal year of
April 1 – March 31, as the Employer does not allow employees to use
vacation credits in advance of earning them on an incremental basis.
20. Similarly, Ms. Feaver, in accordance with Article 19.01(a), ought to have
received her 7 weeks of vacation on her milestone date of April 3, 2018, but
due to the accrual method, did not receive the full 7 weeks until March 31,
2019 – the end of her 28th year of continuous service.
21. The Union further pointed out that while the Central Agreement leaves
various matters to individual hospitals, including vacation scheduling, local
parties can't alter the centrally bargained benefit. As set out in the ASF,
Article 19.01 a) contains the following note, set out again for ease of access:
Note: Any vacation schedule improvements shall be determined in
accordance with whatever system is in place in the individual
hospital for determining vacation entitlement. In other words,
those hospitals that determine vacation entitlement by a
uniform date for all employees shall continue to do so, and
those that determine vacation entitlement by an anniversary
date, or by some other means, shall continue to do so.
22. The Union pointed out that while the Employer, for administrative purposes,
uses its fiscal year (from April 1 to March 31) in the administration of
vacation, this does not determine when vacation is earned or received.
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23. Accordingly, the Union maintained the issue is simply one of contract
interpretation. It argues the language in Article 19.01(a) is clear, and gives
rise to no patent or latent ambiguity which would allow for consideration of
past practice.
24. Rather, Article 19.0(a) given its plain and ordinary meaning, is that once
their first year of continuous service is completed, full-time employees are to
receive the "additional" week of vacation immediately after completing the
specified “milestone” years of continuous service.
25. The Union relied on the following jurisprudence: Cornwall Community
Hospital and OPSEU, Local 402 (Rivette-Bancroft), 2016 CarswellOnt 12923,
128 C.L.A.S. 104; Villa Forum and LIUNA, Local 1110 (Barberi), 2016
CarswellOnt 6458, 126 C.L.A.S. 320; Lancia-Bravo Foods and Amalgamated
Meat Cutters & Butcher Workmen (Calculation of Vacation Pay), 1977;
CarswellOnt 684, [1977] O.L.A.A. No.32, 14 L.A.C (2d) 347; Levi Strauss &
Co. (Canada) Inc. v. UN.I.T.E.- H.E.R.E., Local 2345 2006 CarswellOnt 10084
[2006] O.L.A.A. No. 435, 86 C.L.A.S. 181; Royal Ottawa Health Care Group
and CUPE, Local 942 (Calculation of Vacation Entitlement), 2017 CarswellOnt
7597, 131 C.L.A.S.177, 278 L.A.C. (4th) 431, and Lutheran Community Care
Centre and OPSEU, Local 738, 2013 CarswellOnt 19132.
26. In all of the above cases, save Lutheran Community Care Centre, the
arbitrators found that on language similar or identical to that in Article 19.01
(a), and absence clear language to the contrary, employees’ entire vacation
entitlements become effective immediately following their milestone dates of
service, as set out in the collective agreement.
27. Similarly, in Lutheran Community Care Centre, Arbitrator Abramsky found
that in the absence of language specifying that sick time is to be earned per
month of work, sick leave could not be pro-rated for full-time employees on
18
leave. This determination was bolstered by the existence of such a provision
for new hires.
28. The decision of Arbitrator Marcotte, in Cornwall Community Hospital, supra,
is of particular relevance, as he considered the same language, in the same
Central Agreement, to determine the same issue as is before me.
29. Specifically, Arbitrator Marcotte found, in that instance, that the employer’s
practice of pro-rating vacation entitlement for employees with one or more
years of continuous employment was a violation of Article 19.01(a).
30. In paragraph 58, Arbitrator Marcotte noted that, having found the language
of Article 19.01(a) clear and unambiguous, the alleged past practice evidence
before him was inadmissible in aid of interpreting the language of the
Collective Agreement.
31. The “past practice”, as in this instance, was the Hospital’s alleged consistent
practice of crediting vacation time for full-time employees on a pro-rated
basis. The Hospital maintained this had been its practice for at least the
prior 8 years. I note, however, the union disputed the existence of a
consistent past practice.
32. Accordingly, Arbitrator Marcotte found the grievor, a full-time employee with
13 years of continuous service, was entitled to receive her entire vacation
allotment immediately upon qualifying for it, pursuant to the language of
Article 19.01(a).
33. The Union also pointed out that in this instance, unlike that in Cornwall
Community Hospital, there is no “vacation week” bargained into the local
agreement. Rather, nothing in either the Central or Local Agreement in this
instance provides for the receipt of vacation by any method other than
employees’ anniversary/milestone date.
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Employer Position:
34. The Employer maintained the clear and unambiguous language of Article
19.01(a) demonstrates the parties’ intent to have vacation entitlement
earned through an accrual system.
35. The Employer pointed out there is no dispute the language in the first
paragraph of Article 19.01(a) establishes an accrual system at the outset.
36. Accordingly, in the absence of specific language displacing the accrual
system, the Employer maintained it remains the method of establishing
employees’ vacation entitlement. As a result, the only change when
employees complete one year of continuous service, is an increase to their
accrual rate. This then continues to increase at the milestone dates set out
in the Article.
37. The Employer submitted that such a method made practical sense, as a
“mashing together” of systems, would give rise to strange absurdities.
Specifically, on the Union’s interpretation, first year employees earn three
weeks during their first year of continuous service, and immediately following
their one year milestone, would receive an additional three weeks, for a total
of 6 weeks. The Employer submitted they would not be entitled to such a
wealth of vacation again until they reach their twenty-one year milestone.
38. However, the Employer did concede that under the Local Agreement in this
instance, unused vacation can be carried forward, or can be paid out as the
employee earns it, including in the case of employees with less than one year
of continuous service. However, the Employer emphasized there is no
similar provision in the Central Agreement, which on its face would lead to
the absurdity suggested - i.e. 6 weeks following the one year milestone.
20
39. In the alternative, the Employer pointed out the Union has conceded the
primary elements of estoppel, i.e. the Union’s knowledge of the Employer’s
method of calculating vacation entitlement, and the Employer’s detrimental
reliance on the Union’s failure to act in the face of that knowledge.
40. The Employer maintained this distinguishes the facts in Cornwall Community
Hospital, supra, as the existence of a consistent past practice in that instance
was disputed by the union.
41. However, in this instance, the past practice is conceded, and demonstrates
the latent ambiguity in the language of Article 19.01(a).
42. The Employer further argues that having established a latent ambiguity
through past practice, that past practice should then determine the
interpretation of the language of Article 19.01(a).
43. In that regard, the Employer relied on Arbitrator Surdykowski’s decision in
Petro Canada Lubricants Inc. and Unifor, Local 593 (Thornton), Re, 2019
CarswellOnt 10685. That case dealt with the alleged failure to pay shift
change premiums.
44. In his decision, at paragraph 24, Arbitrator Surdykowski referenced the
Supreme Court of Canada decision in Sattva Capital Corp. v. Creston Moly
Corp., [2014] 2 SCR 633, 2014 SCC 53 (CanLII), which dealt with the
interpretation of a commercial contract. Arbitrator Surdykowski stated at
paragraph 24:
24. Collective agreements are not negotiated or written by
linguistic experts, and the Supreme Court of Canada’s decision
in Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 SCR 633, 2014
SCC 53 (CanLII) makes it clear that an arbitrator tasked with
21
interpreting a collective agreement must not act as a mere linguistic
technician. On the contrary, the arbitrator’s job is to take a practical
approach to interpretation in order to determine the objective
contextual labour relations meaning of the collective agreement
provision(s) in dispute.
45. In the next paragraph, Arbitrator Surdykowski, indicated the Court in Sattva
was clear that extrinsic evidence of context is admissible as a contextual aid
to interpretation, and that a purposive approach ought to be taken.
46. In that instance, Arbitrator Surdykowski was satisfied the employer’s
interpretation of the language and structure of the collective agreement was
the correct one, and that the language of the collective agreement was not
patently ambiguous.
47. However, he went on to find the undisputed past practice, over a period
covered by at least five collective agreements, both revealed and resolved a
latent ambiguity. Specifically, he found that past practice demonstrated “a
mutual understanding” that the Article at issue was to be interpreted and
applied in a manner consistent with the interpretation urged by the union,
and the grievance was allowed.
48. The Employer also pointed out that neither the Sattva decision nor the
decision in Petro Canada Lubricants was before Arbitrator Marcotte at the
time he issued his decision in Cornwall Community Hospital.
49. Consistent with a purposive approach, the Employer suggest that excessive
emphasis ought not be put on the dictionary meanings of the language in
Article 19.01(a)
50. The Employer also relied on Article 19.01 (b) which sets out the vacation pay
entitlement for regular part-time employees. Their vacation entitlement is
22
determined by their length of continuous service, and a corresponding
percentage of the vacation entitlement of full-time employees.
51. While it is not necessary in order to complete that calculation, the chart in
Article 19.01(b) (set out in the ASF above) also sets out what appears to be
a vacation accrual rate for full-time employees. The Employer maintained
this illustrates the parties’ intent that full-time employees continue to accrue
vacation on a monthly basis.
52. The Employer takes issue with Arbitrator Marcotte decision not to give any
weight to that aspect of Article 19.01(b) because that Article specifically
deals with for part-time employees. He stated at paragraph 18:
… Further, under art. 19.01(b) the parties clearly express an accrual
or pro-rating system for part-time employees, based on a not-unusual
theoretical full-time year of 1650 hours. The Hospital cannot pluck
1650 hours out of art. 19.01(b), nor can it pluck the accrual rate out
of it and apply it to full-time employees because art. 19.01(b) only
applies to part-time employees. Moreover, the Hospital’s own policy
on “Vacation”, while it provides for pro-rating vacation leave for part-
time employees, makes no mention of such a system for full-time
employees. Rather, the policy states that employees shall be entitled
to vacation “in accordance with their unionized respective collective
agreements.” Thus, vacation entitlement for the members of the
bargaining unit, in the instant case, vests at the start of the vacation
year, which interpretation is consistent with the language in the Local
Issues agreement and, also, with the general scheme for vacation
entitlement in the central collective agreement.
53. The Employer suggested this is a departure from the purposive approach
articulated by Arbitrator Surdykowski and the Supreme Court of Canada in
Sattva Capital Corp., supra.
54. The Employer also filed the following cases: Agassiz School Div. No. 13 and
Agassiz Teachers' Assn. of the Manitoba Teachers Society, Re (Man. Arb.)
(Arbitrator Graham); London (City) v. C.U.P.E., Local 101, 1990 CarswellOnt
4172; M.A.H.C.P. v. Nor-Man Regional Health Authority Inc., 2011 SCC 59;
23
Martin-Brewer of Canada Co. v. Teamsters Local Union No. 419, 2005 CanLII
71015 (ON LA); Metroland Printing, Publishing & Distributing Ltd. v. C.E.P.,
Local 87-M, 2001 CarswellOnt; 5987; Owen Sound (City) Commissioners of
Police v. Police Association (Owen Sound), 1984 CarswellOnt 2395; Toronto
District School Board v Canadian Union of Public Employees, Local 4400 Units
C and D, 2015 CanLII 19725 (ON LA); and, T.R.W. Canada, Carr Division v.
C.A.W, Local 397, 1989 CarswellOnt 3830.
ANALYSIS:
55. This matter requires the interpretation of Article 19.01 of the Central
Agreement negotiated between the Union and the OHA.
56. Arbitrator Jesse M. Nyman, in Canadian Union of Public Employees, Local
5180 v Trillium Health Partners, 2017 CanLII 9440 (ON LA), at paragraph 4,
described the “modern” approach to collective agreement interpretation as
follows:
…The modern approach can be summarized as follows: the words of
the Collective Agreement are to be given their plain and ordinary
meaning and are to be interpreted in harmony with the context,
scheme and purpose of the provision in which they appear and the
Collective Agreement as a whole. When interpreting the Collective
agreement every word is to be given meaning and the arbitrator
cannot read words into the Collective Agreement that are not
there. [emphasis added]
57. I also agree with Arbitrator Surdykowski’s comments in Petro Canada
Lubricants Inc. that arbitrators tasked with interpreting a collective
agreement must not act as a mere linguistic technician, and that our role is
to “take a practical approach to interpretation in order to determine the
objective contextual labour relations meaning of the collective agreement
provision(s) in dispute”.
24
58. However, I note the Supreme Court of Canada in Sattva, supra, the apparent
inspiration for the above comment, also stated at paragraph 57:
[57] While the surrounding circumstances will be considered
in interpreting the terms of a contract, they must never be
allowed to overwhelm the words of that agreement (Hayes
Forest Services, at para. 14; and Hall, at p. 30). The goal of examining
such evidence is to deepen a decision-maker’s understanding of the
mutual and objective intentions of the parties as expressed in the
words of the contract. The interpretation of a written contractual
provision must always be grounded in the text and read in light of the
entire contract (Hall, at pp. 15 and 30-32). While the surrounding
circumstances are relied upon in the interpretive process,
courts cannot use them to deviate from the text such that the
court effectively creates a new agreement (Glaswegian
Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997), 1997 CanLII
4085 (BC CA), 101 B.C.A.C. 62). [emphasis added]
59. Further, while the goal of contract interpretation is always to ascertain the
objective intentions of the parties, that exercise itself is inherently fact
specific.
60. In this instance, there is no evidence the Union, through any verbal
representation or overt action, indicated its agreement with the Employer’s
method of calculating vacation entitlement for full-time employees. Rather,
the Union’s conduct is best characterized as a pattern of inaction.
61. While such history of inaction rightfully results in an estoppel against
proceeding with these grievances during the life of this Collective Agreement,
I am not persuaded it shows a “mutual understanding” of how Article
19.01(a) is to be interpreted, so as to demonstrate a latent ambiguity in the
language of Article 19.01(a).
62. While past practice can trigger an estoppel to preclude a party from acting on
its “strict contractual rights” when it would be unfair to allow it to do so, and
may in certain circumstances demonstrate a latent ambiguity, it would be
25
equally unfair, as a tenet of contract interpretation, to rely on that past
practice to preclude the grieving party from ever relying on its ”strict
contractual rights”, except in the clearest of circumstance. This is especially
the case when past practice is, as I find in this instance, contrary to the plain
and ordinary meaning of the language the parties have agreed to.
63. As stated by Arbitrator Surdykowski, at paragraph 17, in his decision in
Metroland Printing, supra in order for past practice to establish a latent
ambiguity and act as an aid to interpretation the evidence must establish a
“consistent and notorious practice.” I find that threshold has not been met
in this circumstance.
64. Rather, I find the prevailing approach of giving the words of the Collective
Agreement, in this instance Article 19.01(a), their plain and ordinary
meaning, to be of greatest assistance in this matter.
65. In Villa Forum; Lancia-Bravo Foods; Levi Strauss; and Royal Ottawa Health
Care Group, language similar or almost identical to that in Article 19.01(a),
was found, in the absence of language to the contrary, to provide that
employees’ entire vacation entitlements become effective immediately
following their milestone dates of service set out in the collective agreement.
66. Similarly, in Lutheran Community Care Centre, in the absence of language
specifying that sick time is to be “earned” per month of work, the employer
was precluded from pro-rating sick leave for full time employees on leave.
67. I reach a similar conclusion on what I find to be the clear and unambiguous
language of Article 19.01(a).
68. Specifically, Article 19.01(a) states clearly that it is “applicable to full-time
employees”.
26
69. While the first paragraph is clear employees with less than one year of
continuous service earn vacation on the basis of monthly increments, similar
language is completely absent regarding those employees with one year of
service or more.
70. There is simply no language in the rest of the provision that is open to the
interpretation that those employees receive their full vacation entitlement at
any time other than immediately following the milestone dates set out in the
collective agreement.
71. I also find the the dictionary definitions relied upon by the Union, while not
determinative, to be consistent with that interpretation.
72. Further, I find the different treatment for employees with less than one year
of continuous service and those with one year or more of continuous service
to be a practical and rational approach.
73. It makes little sense to award new employees with an immediately available
bank of vacation entitlement, when there is no guarantee they will stay for
an entire year. However, once they have completed one year of continuous
service, it also makes sense to provide employees with their entire vacation
entitlement once it has been earned.
74. Nor do I find the ability to carry over the vacation earned during the first
year of continuous service over to the next year, for a total of 6 weeks, to be
an “absurd” result. There would be a similar result for any employee
choosing to carry forward their vacation entitlement from the prior year –
which they are entitled to do pursuant to the Local Agreement.
75. Further, I do not find the column in Article 19.01(b) which purports to set out
Vacation Entitlement for full-time employees in monthly increments, to be of
assistance in determining the vacation entitlement of full-time employees.
27
76. Firstly, and most importantly, it would be inappropriate to rely on Article
19.01(b) to override the clear language and intent of Article 19.01(a), as
Article 19.01(b) states clearly at the outset: “(Article 19.01(b) is applicable
to regular part-time employees only)”. Whereas Article 19.01(a) states that
it is “applicable to full time employees …”.
77. In any event, neither party could explain the purpose of the column, as the
numbers appear to have no relation to calculating vacation pay for part-time
employees, the stated purpose of Article 19.01(b).
78. Accordingly, I find, as did Arbitrator Marcotte, in Cornwall Community
Hospital, supra, that in the absence of any language to the contrary, Article
19.01(a) is the governing Article, and provides for full-time employees with
one year of continuous service or more, to receive their full vacation
entitlement immediately following the service milestones set out in the
Collective Agreement.
79. Further, I adopt his analysis in paragraph 44 of that decision:
44. The Federated Co-operatives, Lutheran Community, Levi-Strauss,
and Kitchener-Waterloo awards are consistent in finding that, absent
express language in the collective agreement, an employer is not
entitled to pro-rate a benefit such as vacation entitlement or sick pay
entitlement. In the instant case, there is nothing in art. 19.01(a) that
expresses an ability on the part of the Hospital to pro-rate an
employee’s vacation entitlement. And while the Hospital submitted
that the matter of vacation entitlement “increment” in art. 19.01(b)
for part-time employees supports application of pro-rating full-time
vacation entitlement, that article expressly states that it is “(…
applicable to regular part-time employees only).” Given the clear,
unambiguous language of art. 19.01(a), and the absence of any
reference to pro-rating in that language, it is not proper to float a
reference to “full-time increment” in art. 19.01(b) to art. 19.01(a),
which reference intends to set out equivalencies for regular part-time
employees for the sole purpose of vacation entitlement calculations.
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80. I might add that this instance, there was no dispute it was Arbitrator
Marcotte’s decision in Cornwall Community Hospital, that resulted in the
Union’s decision to revisit its inaction regarding the Employer’s method of
interpreting Article 19.01(a). If I were to find that past practice in this
instance should result in an interpretation that is at odds with Arbitrator
Marcotte’s interpretation, this would result in a situation where those same
provisions in the Central Agreement, by which various bargaining units are
bound, would be interpreted to mean something different based not on the
foundational and primary principle of giving words their plain and ordinary
meaning, but rather on the basis of past practice. The difficulty with this is
self-evident.
DETERMINATION:
81. While these grievances succeed on their merits, the estoppel conceded by
the Union precludes them from proceeding during the life of this Collective
Agreement.
82. Accordingly, these grievances are dismissed.
DATED AT TORONTO, THIS 23TH DAY OF AUGUST, 2019.
“Tatiana Wacyk”
Arbitrator