HomeMy WebLinkAbout2016-2836.Smieja.21-01-06 Decision
Crown Employees Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2016-2836; 2017-1094; 2017-1919; 2017-3587; 2020-2070
UNION# 2017-0601-0004; 2017-0601-0007; 2017-0601-0011; 2018-0601-0002;
2020-0601-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Smieja) Union
- and -
The Crown in Right of Ontario
(Ministry of Children, Community and Social Services) Employer
BEFORE Christopher Albertyn Arbitrator
FOR THE UNION Jane Letton
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Ferina Murji
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
TELECONFERENCES April 29, June 4, August 20 and
November 30, 2020
- 2 -
Decision
[1] Previous decisions were issued in this matter, on April 4, 2018 and April 30,
2019.
[2] The April 4, 2018 decision directed that two issues would be addressed
together:
1. The Grievor’s claim to receive 65 days’ pay for the waiting period
until his WSIB payments were received; and
2. The Employer’s counterclaim that the Grievor was paid by the
Employer for a period (identified in correspondence to him dated
September 6, 2017) when he was also receiving payments from
WSIB, resulting in him being double paid for the same period.
The Employer seeks to be reimbursed what it paid the Grievor.
[3] The Union objected to the inclusion of the Employer’s counterclaim as part of
consideration of his claim. The April 30, 2019 decision set out the process
by which the Union’s objection was to be addressed.
[4] Subsequently, the Employer elected not to pursue any counterclaim against
the Grievor within this proceeding.
[5] Consequently, this matter is concerned only with the Grievor’s claim to have
been paid correctly for the 65 days prior to his WSIB payments being
received.
[6] The parties have made submissions on the merits for the Grievor’s claim. The
pertinent provision of the collective agreement is Article 41.2. It reads:
Where an employee is absent by reason of an injury or an
occupational disease for which an award is made under the
Workplace Safety and Insurance Act, his or her salary shall
continue to be paid for a period not exceeding three (3)
consecutive months or a total of sixty-five (65) working days
where such absences are intermittent, following the date of the
first absence because of the injury or occupational disease, and
any absence in respect of the injury or occupational disease shall
not be charged against his or her credits.
[7] Under this provision the Grievor ought to have been paid 100% of his earnings
for the 65-day period.
- 3 -
[8] The Employer and the Union have exchanged relevant documents pertaining
to the Grievor’s claim. Those documents reveal that the Grievor received
$3,652.74 less than he ought to have been paid for the 65-day period and
throughout 2013. That amount is owed to him by the Employer.
[9] The documents also show that the Grievor was short paid for certain sick
leave absences during 2014 in the sum of $258.51. While this does not form
part of the grievance, the Employer has acknowledged that the payment is
due to the Grievor and that it may be included within this Decision.
[10] The Union made reference to Article 41.5 of the collective agreement. It
reads:
Where an employee is absent by reason of an injury or an
occupational disease for which an award is made under the
Workplace Safety and Insurance Act, the employee shall not be
entitled to a leave of absence with pay under Article 44 (Short Term
Sickness Plan) as an option following the expiry of the application of
Article 41.2.
[11] Article 41.5 has no application to the grievance because the Grievor utilized
his short-term sickness entitlement during 2013 and, had he maintained any
credits, those would have expired at the end of 2013.
[12] In light of the above, the total amount of $3,911.25 (the sum of $3,652.74 +
$258.51) is owed by the Employer to the Grievor. The grievance pursuant to
Article 41.2 is accordingly upheld.
[13] I direct that the Employer pay to the Grievor the sum of $3,911.25, plus
$319.20 as interest, making a total of $4,230.45, less statutory deductions.
[14] I remain seized of the implementation of this Decision.
Dated at Toronto, Ontario this 6th day of January, 2021.
“Christopher Albertyn”
________________________
Christopher Albertyn, Arbitrator