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HomeMy WebLinkAboutUnion/Zanette 20-02-28IN THE MATTER OF AN ARBITRATION brought pursuant to the Ontario Labour Relations Act, 1995, as amended, And re Grievances #2019-0496-0002 (policy) and #2019-0496-0003 (Zanette) :la1krAaykli COUNTY OF HASTINGS (the "Employer") - and - ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (the "Union") AWARD Arbitrator: Hearing held: APPEARANCES For the Union: Marilyn A. Nairn January 31, 2020 (Belleville, Ontario) Willow Petersen For the Employer: Colin Youngman [1] There was no dispute as to my jurisdiction to hear and determine these grievances which deal with the issue of payment for certain medical documentation to show proof of illness. The parties filed an agreed statement of fact as follows: The grievances 1. The Union has filed two grievances regarding payment for medical documentation showing proof of illness required under the Short Term Disability Plan. 2. The Union filed an individual grievance on behalf of Ms. Donna Zanette on May 10, 2019 (2019-0496-0003) [EXH 2]. The Union filed a policy grievance on the same day regarding reimbursement for sick notes (2019-0496-0002) [EXH 1]. The individual grievance of Ms. Zanette 3. The individual grievor, Ms. Zanette, was absent from work on May 2 and 3, 2019 due to illness. 4. As per Article 23(a)(i) of the Collective Agreement, Ms. Zanette was required to provide medical documentation showing proof of illness as she had accumulated more than 6 sick days within the calendar year. 5. Ms. Zanette provided the County with a doctor's note on May 13, 2019 to show proof of her illness and sought reimbursement for the cost of the note in the amount of $20.00. 6. The sufficiency of Ms. Zanette's sick note is not the issue in dispute in this hearing. Ms. Zanette received sick pay for her absence. 7. [Paragraph removed by agreement of the parties] 8. The County declined to reimburse Ms. Zanette for the cost she incurred in doctor's fees for providing a certificate to the County from her medical practitioner to show proof of her illness. The Union's policy grievance 9. The Union also filed a policy grievance regarding reimbursement for sick notes. The Parties disagree as to whether the County is required to reimburse members for the cost of medical documentation required for the Short Term Disability Plan. The Collective Agreement 10. The Union and the County are parties to a Collective Agreement [EXH 4]. A Memorandum of Settlement (the "MOS") was signed on April 18, 2019 to resolve all matters in dispute [EXH 5]. The term of the Collective Agreement is from January 1, 2019 to December 31, 2020. 2 11. Article 23 of the Collective Agreement deals with sick leave. 12. Article 23 has been in the Collective Agreement for a long period of time without significant changes. The only change to Article 23 during the last round of bargaining was the correction of a typographical error. The County's sick leave policy 13. The County has a sick leave policy (policy 24) [EXH 6], which was last revised on April 27, 2017. The April 27, 2017 revisions were in relation to EI rebates and were not related in anyway to medical documentation. 14. The sick leave policy is a long standing County policy and, consistent with the policy, the County has not reimbursed employees for the cost of obtaining proof of illness sick notes as required by Article 23.01(a)(i). 15. The County's sick leave policy applies to all employees, including non -unionized employees and employees who are members of other trade unions. [2] The documentary material referred to in the agreed statement of facts was also filed on consent and is referenced by the addition of exhibit numbers in the statement of facts above. There is no dispute that the reference in paragraph 4 of the agreed statement above should be to Article 23.01 a)(i) of the collective agreement. The parties were further agreed that these grievances deal only with the interpretation of sub -paragraph Article 23.01 a)(i) of the collective agreement, which provides: ARTICLE 23 - SICK LEAVE 23.01 The Employer shall implement and maintain a ShortTerm Disability Plan as outlined herein. An employee who suffers a disability due to a non -occupational accident or sickness shall be entitled to receive benefits commencing on the first day of disability and continuing for up to seventeen (17) continuous weeks, or until the date the employee provides reasonable medical documentation that declares them medically fit to return to work, whichever first occurs. Each employee's allotment of one hundred percent (100%) of weeks, which are to be paid at one hundred percent (100%) of the normal earnings, is based on an employee's accrued seniority with the amount of entitlement determined in accordance with the schedule set out below. The Employer undertakes to pay the full cost of providing the Short Term Disability Plan. [Schedule of benefits omitted] a) As a cost containment measure and to prevent potential abuse, the following stipulations will apply to the Short Term Disability Plan. (1) Proof of Illness Employees shall complete the County Sick Payment Request Form for every illness. Notwithstanding the employee's entitlement to paid sick time as outlined above, in certain circumstances the employee must provide reasonable medical documentation to receive paid time off. In any one of the following circumstances, an employee who is; Absent due to illness or injury for more than 3 consecutive working days, or; Is absent due to illness or injury on the day before or after a paid holiday, or; Has accumulated more than 6 sick days within a calendar year; must provide reasonable documentation dated and signed by a duly recognized medical practitioner to receive pay for the sick leave. Such documentation must state that the employee is unable to perform his/her duties, and indicate the probable duration of the illness. The certificate is required within 5 working days of the disability to receive pay for the sick days absent, except in extenuating circumstances. Failure to produce a medical certificate as outlined above for the above circumstances will result in the time being unpaid. Working days do not include Saturdays, Sundays or paid holidays. [3] The sick leave policy referred to is originally dated January 27, 2004. At section 24-1-6 it sets out the same three circumstances as those in Article 23.01 a)(i) of the collective agreement, similarly requiring a medical certificate for proof of illness in those circumstances. Section 24-1- 6.4 of the policy states, "[t]he employee is responsible for any charges involved in providing the required certificate". [4] In very brief summary it was the position of the Union that the words in Article 23.01, stipulating that the Employer is to pay the full cost of providing the Short Term Plan, encompass payment of the cost of any reasonable medical documentation required under sub -paragraph Article 23.01 a)(i) of the collective agreement. It was the position of the Employer that the medical documentation required under Article 23.01 a)(i) of the collective agreement establishes a precondition to an employee's entitlement to sick leave underthe plan and does not form part of the cost of providing the plan. The Employer also relies on the policy and past practice as an aid to interpretation. rl [5] The parties referred me to and I have reviewed the following decisions: Imperial Oil Strathcona Refinery and CEP, Local 777 (2004) 130 L.A.C. (0) 239 (Elliott); Re Cominco Ltd. and United Steelworkers, Local651, (1975) 8 L.A.C. (2d) 337 (Clements); Re Ferranti- Packard Ltd. and United Steelworkers, Local 5788, (1977) 15 L.A.C. (2d) 6 (Andrews); Re Hawker Siddeley Canada Ltd., Orenda Division and IAM, Local Lodge 717, (1979) 24 L.A.C. (2d) 279 (Prichard); Re Fleet Industries and IAM, Lodge 171, (1980) 26 L.A.C. (2d) 24 (O'Shea); H.J. Heinz Co. of Canada Ltd. and U.F.C. W., Local P459, (1982) 4 L.A.C. (3d) 1(Burkett); Re Welland Chemical Ltd. and Energy & Chemical Workers Union, Local 914, (1993) 38 L.A.C. (411) 124 (Roberts); Caledon (Town) and CUPE, Locol966, (2009) CarswellOnt 10972 (Davie); Re Lumber and Sowmill Workers' Union, Local 2537 and KVP Co. Ltd., (1965)16 L.A.C. 73 (Robinson); and Hamilton Street Railway Co. and ATU, Local 107, (2004) CarswellOnt 10415 (Levinson). [6] 1 take no issue with the principles set out in Imperial Oil, supra, as to the approach to interpreting collective agreement language. One looks to the language as a whole and in context, attributing the plain and ordinary meaning to words used unless the particular language dictates otherwise, while giving meaning to all of the words used, all in order to ascertain the intent of the parties. [7] Article 23.01 of this collective agreement stipulates that the Employer undertakes to pay the full cost of providing the Short Term Disability Plan. The Union relies on this obligation, arguing that the cost of providing the medical documentation set out in Article 23.01 a)(i) of the collective agreement is part of the cost of providing the plan. I am not so persuaded for the following reasons. [8] The language "pay the full cost of providing the... plan" is to be given its plain meaning unless there is some limit, either express or implied, in the language of the collective agreement. At the outset of Article 23.01 the plan is referred to "as outlined herein". A description of the scope of the benefits then immediately follows, with the commitment to pay the full cost of providing the plan. The Union argued that the plan includes the provisions relating to proof of illness. Article 23.01 a)(i) of the collective agreement is titled "Proof of Illness". As well, the opening language of Article 23.01 a) states that "the following stipulations" apply to the plan. A "stipulation" is typically understood to mean a "condition" or a "restriction". [9] Article 23.01 a)(i) of the collective agreement then sets out three specific circumstances in which there is a requirement to provide reasonable medical documentation in order for an employee to be entitled to the sick leave benefit provided under the plan. This requirement is one that has been mutually agreed to by the parties in their collective agreement. The collective agreement also makes clear that, absent such medical verification in those three circumstances, the employee will be considered to be on an unpaid leave. That is, the parties have mutually agreed that an employee is not entitled to the sick benefit provided by the plan unless reasonable medical documentation supporting the absence is provided in the three specific circumstances listed. The commitment by the Employer is to pay the cost of providing the plan, not to pay the cost of providing the medical documentation expressly required in order to access the plan in the particular circumstances outlined. The specific language in Article 23.01 a)(i) gives context and 5 meaning, both additional to and distinct from the Employer's obligation set out in Article 23.01 relied on by the Union. Similarly to the conclusion in Caledon, supra, I am persuaded that it is more appropriate to treatthe cost associated with meeting the particular requirements in Article 23.01 a)(i) of the collective agreement as a precondition, that is, an eligibility cost, rather than as a cost of providing the plan. [10] The Union also argued that other provisions in the collective agreement expressly limited costs to, for example, 'premium costs' or the 'cost of benefit maintenance', arguing that the term "full cost" was used in Article 23.01. However, a similar limitation arises under Article 23, as it limits the cost to be borne by the Employer to the full cost "of providing the [plan]". The issue is whether the cost of providing the proof of illness required in the specific circumstances outlined in Article 23.01 a)(i) is a cost of providing the plan. [11] A number of the older cases cited deal with this issue but with varying results. The decision in Re Welland Chemical Ltd., supra, reviews those cases, a review that need not be repeated here. I find the reasoning in Caledon (Town) supra, most persuasive, particularly given the significant similarity in its facts. In that case, the collective agreement provided that the cost of the sick leave plan was to be borne entirely by the employer and, as here, the union relied on that language to assert that the employer should pay for the cost of obtaining certain required medical documentation. As here, for certain specified absences (those in excess of 3 days) the employee was required to obtain an attending physician's statement "as satisfactory evidence of disability" or be rendered ineligible for benefits under the plan. Much like here, that self-insured plan also applied to employees outside the bargaining unit; the collective agreement was silent as to who was to pay the cost of obtaining the physician's statement; and documents external to the collective agreement stated that the cost of obtaining the statement was the responsibility of the employee. And finally, there was a past practice of employees paying this cost. [12] In that decision, Arbitrator Davie held: 20 ...Both the current Plan, and the predecessor Plans... indicate that it is the employee's obligation to supply "satisfactory evidence of disability"...That obligation is consistent with general principles that an employee must establish that he/she was absent from work by reason of illness. A reasonable inference to be drawn from the obligation to provide satisfactory evidence of disability to justify an absence from work, or to receive STD benefits, is that the employee required to do so must pay the cost associated with that obligation. 21 The costs associated with medical documentation required to be provided by employees is not "a cost of this Plan". Rather it is a cost of the medical evidence required from an employee to excuse his/her absence from work and establish his/her entitlement to benefits. If that evidence is forthcoming the Employer bears the "costs of this Plan" and must pay for the benefits received. (emphasis in original) C� [13] To the extent that there is ambiguity as to the meaning of Article 23.01 a)(i) of this collective agreement, that ambiguity is resolved in the Employer's favour having regard to the longstanding practice between the parties. The policy document has been in place over repeated collective agreements. That policy makes clear that it is the employee's responsibility to pay the cost associated with obtaining the reasonable medical documentation required in the same three circumstances as those set out in Article 23.01 a)(i) of the collective agreement. The evidence also establishes that the Employer has not historically paid the cost of reasonable medical documentation provided under Article 23.01 a)(i) but has acted in accordance with the policy. [14] Having regard to all of the above, I find that the cost of reasonable medical documentation required in the three specific circumstances set out in Article 23.01 a)(1) of the collective agreement does not constitute a cost of providing the plan and is a cost therefore not payable by the Employer under Article 23.01 of the collective agreement. [15] In the result, these grievances are hereby dismissed. Dated at Toronto, Ontario this 28th day of February, 2020. `� Marilyn A. arFn, AAitrator.