HomeMy WebLinkAboutFARRUGIA-1994-31-01-ETOBICOKE GENERAL HOSPITAL
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IN THE MATTER OF AN ARBITRATION
BETWEEN:
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THE ETOBICOKE GENERAL HOSPITAL
(hereinafter called the "Hospital")
AND:
THE ASSOCIATION OF ALLIED HEALTH
PROFESSIONALS: ONTARIO
(hereinafter called the "Association")
AND IN THE MATTER OF A CERTAIN GRIEVANCE OF LINDA FARRUGIA WITH RESPECT TO COM-
PULSORY UNPAID LEAVES OF ABSENCE AND THE SOCIAL CONTRACT ACT.
SOLE ARBITRATOR:
J. D. O'SHEA, Q.C.
APPEARANCES FOR THE HOSPITAL:
DAVID COWLING
DIANNE HANDLEY
TONY FASCIONO
HUTHA ISAAC
APPEARANCES FOR THE ASSOCIATION:
SUSAN URSEL
LYNN KEAYS
SOPHIA RUDDOCK
HEARINGS WERE HELD IN THIS MATTER AT ETOBICOKE ON JANUARY 26th, 1994 and
MAY 13th,1994.
AWARD
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This matter arose and came on for hearing under the Provisions of the Collective
Agreement between the parties which contains the following provisions:
ARTICLE VI - NO DISCRIMINATION/NO HARASSMENT
6.01
(e) The Association and the Eospital agree that the:!:'e
shall be no disc:!:'imination exe:!:'cised by either of them
toward an employee as defined he:!:'ein, by reason as
outlined in the Human Rights Code.
ARTICLE XXI - EARNED BENEFITS
21. 02
The Hospital agrees to contribute one hundred per cent
(100%) of the billed premium under the Confederation Life
Insurance plan, for Life Insurance and Accidental Death and
Dismembe:!:'ment cove:!:'age and seventy-five pe:!:' cent (75%) of
Long Term Disability for each eligible full-time employee
in the active employ of the Hospital subject to the terms
and conditions of such plan.
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At the hearing on May 13th, 1994 the parties filed the following Agreed
Statements of Facts:
= STA'ID1ENr OF J!'N::r
1. The griever is a Soc.iaJ. Worker at the Etobi.coke General Hospital.
2. She has been employed at the lIospital since JanuaJ:y 18, 1988.
3.' lIer Cl=ent (as of the date of the grievance) hourly J:ate is $26.098.
4. lIer =rrt:hly salal:y at 1950 hours per year, five days per week, is
$4,240.93.
5. lIer annual salal:y at 1950 hours per year is $50,891.16.
6. lIer annual salaJ:y, less twelve s=isl contr.>ct days ..,.,:w. be
$48,542.34.
7. The griever is Cl=ently on a m:xlified """"" "",-"k""",,, and has bee" on
such a P"'-"kaoille since Deem:>er 10, 1993. The m:xlified """"" ],"-'-'Ik==
is structured as follONS:
a) The griever ~ three days per week instead of the :regular five
days per week and :received salal:y fn:m the Hospital for those three
days;
b) The griever:received salal:y for -= days per week fn:m her = plan
through Confederation Life.
8. The griever's eamings fn:m the lIospital while on the m:xlified """""
PC'-"k=U~, c:cmre"cing JanuaJ:Y 1, 1994, are <""J~J"ted (see ~ II)
as follONS:
a) Weekly eamings:
b) Annual ea:arings:
$26.098 x 22.5 hours = $ 587.20
$587.20 x 52 weeks = $30,534.40
9. The griever's m=thly benefits fn:m the = Plan, <> ""_",;,>g JanuaJ:y 1,
1994, while she is on the m:xlified """"" PC'-'lk"""'" are $1555.45 (see
~A).
10. The griever's total annual benefits fn:m the = Plan, fn:m ~r
10, 1993 to IleceIri:ler 31, 1993, while she is on the m:xlified """""
p:rogramxe are $949.24 (see ~ C).
ll. The griever's total annual benefits fn:m the = Plan, fn:m JanuaJ:y 1,
1994 to IleceIri:ler 31, 1994 while she is on the m:xlified """"" ]'"-'-'Ik= are
$1555.45 x 12 = $18,665.40 (see ~ C).
12. The griever's total m:""th1y incare, including both lIospital salal:y and
= Benefits, camenc:ing IleceIri:ler 10, 1993, is $4,,098.18 (see Appendix
A).
13. The griever's total annual incare, including both Hospital salal:y and
= Benefits is $48,121.20 for 1993 and $48,808.33 for 1994. (see
Appendix C).
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Pw:sua:nt to the lIospital's Fail Safe P:t,-,!"=.re under the Soc.iaJ.
Contract J\ct, the griever is required to take twelve (12) cfys unpaid
leave for the peric:d JanuaJ:Y 1, 1993 to IJecelIioer 31, 1993. The total
value in salal:y of these days is $2,349.00. She is required to take
-= (2) days unpaid leave for the peric:d JanuaJ:y 1, 1994 to IleceIri:ler
31, 1994. The total value in salaJ:y of these days is $391.47.
15. The griever c-....enced the m:xlified """k ],"-,-,!k_~ as of IleceIri:ler 10,
1993. lIer actual inc::are, including both lIospital salal:y and =
Benefits for the year 1993 is calculated (see Appendix C) as follONS:
14.
JanuaJ:y 1, 1993 th=gh IJecelIioer 9, 1993
Total lIospital salaJ:y at $26. 098/hour @ 1830
lleceri:>er 10, 1993 tbr<:ugh IJecelIioer 31, 1993
Total lIospital salaJ:y at $26.098/bour @ 67.5 hours
Total Wages before s=ia1 Contract Days
less 12 Soc.iaJ. Contract lJa11S
Total Wages less Soc.iaJ. Contract Days
= Benefit IleceIri:ler 10, 1993 - IJecelIioer 31, 1993
Total Wages plus = Benefit
$47,759.34
1. 761.60
$49,520.96
2.349.00
$47,171.96
949.24
S48.121.20
16. h:tual inc::are, including both lIospital salaJ:y and = Benefits for the
year 1994 is calculated (see Appendix C) as follONS:
Total lIospital salaJ:y at $26.098 x 22.5 hrs/wk x 52 weeks
Less 2 Social Contract Days
Total Wages less Social Contract lJa11S
= Benefit JanuaJ:Y 1, 1994 - DecerOOer 31, 1994
Total Wages plus = Benefit
$30,534.40
391.47
30,142.93
18.665.40
S48.808.33
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APPENDIX A
EIDBIaJ.KE GENERAL llOSPITllL
= BENEFIT =ON
LnIDA =
To detennine the benefit an:ount to be paid by Confederation Life Insw::ance
while an employee is on a m:xlified """"" prog:talll, proceed as follONS:
DATA: Monthly Rate = $4240.93
ll00rly Rate = 26.098
= Ml!mlLY JlMJONT = $2826.81 (As fixed by Confederation Life)
a) Calculate the employee's =rrt:hly EGll salal:y at 3 days per week.
3 days = 22.5 hours per week
22.5 hrs @ 4.33 weeks = 97.43 hours
(4.33_ = 1 Confederation Life Month)
97.43 hrs @ $26.098/hr = $2542.73 (llOSPITllL =)
b) Divide by 2 (50%) = $1271.36 (1lO6a:!:8L = AT 50%)
c:) = Monthly 1\m::<mt $2826.81
Hospital Earnings @ 50% = 1271.36
= IO!1'IILY BENEFIT = $1555.45
d) Hospital Eamings = $2542.73
= Monthly Benefit = 1555.45
'l'C1mL IO!1'IILY EllRNIN:S = $4098.18
=: If the = M:NIm.Y BENEFIT had been in excess of 100% of the = m=thly
anount, the employee ..,.,:w. not be eligible for = Benefits. When the
= IO!1'IILY BENEFIT is less than 100% of the = Monthly 1\m::<mt, the
employee will get the difference between the = Monthly 1\m::<mt and
lIospital Eamings at 50%.
For the pw;pose of = calculation, eamings fn:m the lIospital cannot
equal nom than 75% of :regular m=thly eaznings. If m:mi.es do exceed
=e than 75% of :regular eaznings, the Insw::ance Carrier will deduct the
difference.
APPENDIX II
STARr DATE:
EOSmON:
CORRENT SlIIARY:
Wl\GES :
Wl\GES :
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EIQBICOKE GENERAL EOSPITl\L
Wl\GES IESS == = =
LINDA E1lRRlXiIA
JanuaJ:Y 18, 1988
Social WOrlrer
$4240.93 per m::>nt:h, $26.098 per h=
Januarv 1. 1993 throuoh IleceIri:ler 9. 1993
Janua:cy 1 - IlecelIDer 3 1800.0 hours
lJecel!Der 6 - IleceIri:ler 9 30.0 h=
1830.0 hours
TOtal $'s @ 26.098/h= @ 1830.0 hours
IleceIri:ler 10. 1993 throuqh IleceIri:ler 31. 1993
3 weeks @ 3 days/week 67.5 h=
TOtal $'s @ 26.098/h= @ 67.5 h=
TOtal Wages before Soc.iaJ. Contract days
ope r
Soc.iaJ. Contract Days JanuaJ:Y 1-;:31, 19~
12 days @ 7.5 hours/day @ $26.098/h=
'llID\L Wl\GES IESS == = =
Januarv 1. 1994 - IlecelIDer 31, 1994
Weekly Ea:rnings at 3 days per week:
$26.098 x 22.5 h<>Irs/week = $ 587.20
Annual earnings before Soc.iaJ. Contract Days
$587.20/W<>ik x 52 weeks
,)~c .
Social Contract Days JanuaJ:Y 1.,31, 1994
2 days @ 7.5 h=s/day @ $26.098/h=
'llID\L Wl\GES IESS SOCIAL = =
$47,759.34
1. 761.62
49,520.96
2.349.00
547.171.96
$30,534.40
391.47
530.142.93
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APPENDIX C
EIOBICOKE GENERAL ~l=
Wl\GES (IllSS SCCI1\L CCJNI'RI\CT =) = = BENE:E'IT
LnIDA El\RRtGIA
Wl\GES = EIOBlCOKE GENERAL
llour1y Rate
Monthly Sal=y at 1950 hours per year (5 days/wee.'<)
Annual Sal=y at 1950 hours per year (5 days/week)
Annual Sal=y at 1860 hours per year (- 12 days SC)
Monthly Sal=y at 1170 hours per year (3 days/week)
Annual Sal=y at 1170 hours per year (3 days/week)
$ 26.098
$ 4,240.93
$50,891.16
$48,542.34
$ 2,544.55
$30,534.66
Wl\GES + LTD BENEFIT FOR THE PERIOD JllN(]ARY 1. 1993 = DECEMBER 31. 1993
At 3 days per wee.'< and = Benefit for 2 days
per """",< ccxraencing IleceIri:ler 10, 1993
EGE! Wages (JanuaJ:Y 1 - Dec:eni:er 31, 1993) (~;" II) $49,520.96
Iess 12 Soc.iaJ. COnt..-rac:t Days 2.349.00
=r. EGE! Wl\GES (JanuaJ:Y 1, 1993 - IleceIri:ler 31, 1993)
Add = Be.'lefit (IleceIri:ler 10, 1993 - Dec:eni:er 31, 1993)
=r. Wl\GES + = BENEFIT JanuaJ:y 1 - Dec:eni:er 31, 1993
47,171.96
949.24
548.121.20
Wl\GES FOR THE PERIOD JllN(]ARY 1. 1994 = DECEMBER 31. 1994
At 3 days per week and = Benefit for 2 days
per week ccxraencing JanuaJ:y 1, 1994
EGE! Wages (52 weeks x 3 days)
Iess 2 Social Contract Days
=r. EGE! Wl\GES
(JanuaJ:y 1, 1994 - IleceIri:ler 31, 1994)
$30,534.40
391.47
30,142.93
$18,665.40
548,808.33
Add = Monthly Benefit ($1555.45 x 12 nonths)
=r. Wl\GES + = BENEFIT JanuaJ:y 1 - Dec:eni:er 31, 1994
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The Hospital introduced a Fail Safe Program in accordance with Section 29 of
the Social Contract Act on September 17th, 1993. On March 25th, 1994 the
Hospital revised the Fail Safe Program so that it now reads:
EGI1
REV I SED
MARCH 25, 1994
SUMMARY OF THE EXPENDITURE REDUCTION PROGRAM
ESTABLISHED UNDER PART VII OF THE SOCIAL CONTRACT ACT
FAIL SAFE PROGRAM
The fundamental objective of the Etobicoke General Hospital is the provision of high quality,
accessible health care for all Ontario within the financial limitation established by the
Government of Ontario.
In order to meet the Social Contract expenditure reduction target of SI,218,OOO established by
the Government of Ontario and having taken into consideration the expenditure reduction
potential gained from such measures as attrition and potential voluntary leave, the Hospital in
accordance with Part VII of the Social Contract Act (a copy of which is attached) is
implementing the following compensation savings measures:
(a) The program outlined below is applicable to all bargaining unit and non-bargaining unit
employees. In accordance with Section 23 (2) of the Act, however, the program is not
appiicable to employees who earn less than $30,000 annually. For purposes of the
program, earnings shall be calculated based on the formula agreed to in the Social
Contract Mediation Memorandwn of Senlement, dated March 8, 1994.
(b) All employees of the Hospital to the extent that they are subject to the Act will have
their compensation fIxed for the period beginning June 14, 1993, and ending March 31,
1996 as set out in Section 24 of the Act.
(c) Given that the fIxing of Compensation as outlined above will not result in achievement
of the required expenditure reduction target, all employees of the Hospital, to the extent
that they are subject to the Act, are required to take unpaid leaves on the following
basis:
12 days between September I, 1993 and March 31, 1994
12 days between April I, 1994 and March 31, 1995
12 days between April I, 1995 and March 31, 1996
A schedule of unpaid dates will be posted with as much notice as possible.
Employees will not be required to take unpaid leaves to the extent that it wouid result
in earnings being reduced to under S30.000 annually. Employees earning less than
S30.000 annually may participate in the program on a voluntary basis.
(d) The Hospital does not intend to use speci:J.I leaves to meet the expenditure reduction
target
J
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(e) In addition to the aforementioned measures, the Hospital will have a staff reduction as
set out in the attached Appendix "A", effective according to notice requirements as
established by appropriate collective agreements and the Employment Standards Act.
The sectoral redepioyment plan applies to the employees of the Hospital, in accordance
with Section 27 of the Act, employees so laid off will be eligible for the sectoral
redeployment plan.
(f) In the event that the foregoing actions are unable to satisfy the fisc:aI requirements of
the Socia! Contract the Hospital reserves the right to take additional action as deemed
necessary.
(g) The Hospital reserves the right, in accordance with Section 29 of the Act, to amend and
re-post the program if so necessary.
Posted on March 25, 1994 in accordance with Section 29 of the Act.
APPENDIX A
FAIL SAFE PROGRl\H
Number of Non Lice Emolovees Laid Off
POSITION STATUS NUMBER
Registered Nurses LT. 3
Psych O.T. F.T. 1
Electrician LT. 1
Painter F.T. 1
Payroll Assistant LT. 1
Management Position F.T. 1
TOTAL 8
March 25, 1994
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The Social Contract Act, Statutes of Ontario 1993 Chapter 5 reads in part as
fo 11 ows :
H"""'"
Ri~u Cede.
P3'! Eqzmv
.4a
:-:Olncrcze
In comocn5~.
lion
~.lmc:
Unp:ud
te.::!.ves 01
J.bse."1CC
Rcstnctlon
Vnlunt.3.rv
leaves
6. Nothing in this Act shail be intetprCted
or applied so as to reduce any right or enti-
tlement under the Humrm Rights Code or
under the Prry Equi1:y Act.
24.-( I) The mte of compensation of an
employee is. for the period beginnmg June
14. 1993 and ending with March 31. 1996.
rL"'(~d or the rate that was in effect immc:diw
ately before June 14. 1993.
(2) For gre:lIc:r cc:rt:linry. ..compensation
in this seeIlon includes..
(a) merit increases:
(b) cost..of..living incre:::lSes or other simiiar
movement or or througn ranges: ana
(c) incrc:lScs rc:sultinsr from any mOve-
ments on any pay - sclc: or other gnd
system.
25.-(1) If ne=ary to mct:t the c:<pen~i-
ture reduction target established by the Mm-
ister. an employer may require empioy~es to
take unpaid leaves of absence to a m3.XlIIlum
of rwei~e days or thc:ir equivalent in c:lch of
the following penocis:
l. June 14. 1993 to March 31. 1994.
2. April I. 1994 to March 31. 1995.
3. April 1_ 1995 [0 March 31. 1996.
(5) If the employer utilizes the provisions
in a collective agreement to provide for
unoaid leaves. the number or days soecified
in Subsection (1) is reduced bv th~ number or
days of unpaid leave or absence taken under
the agreement.
(6) If ~n emolovee takes voluntarv unoaid
leave ~iter Jun~ 14. 1993 and before the pro.
Q.ram under section 27 is imolememed. the
number or days speCIfied in s~bsect1on (1) is
:-::ciuced tor ~hat e:r:.o:oyee ror the appiic:J.ble
period by the same number or days taken as
unp3.1Q leave.
Ob[i~3tl()n$
,Ii emolOyer
Ctilen::t.
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2 i. -(1) If the fixine oi compensation
under section 2.+ does- not res~jt in an
emniover achieving itS exoendimre reduction
target: the employ~r shall:
(a) make all re:!Sonable effortS to achieve
itS target bv utiHzing unoaid leaves of
o.bsenc-e under section 25' or.. if aooiica..
ble~ speciai leaves under secrion 2.6
before takin.\! other acuons avaIlable to
it at law: ana
(b) develop a program seuing out the
manner in which these leaves are to be
implemented.
(2) The program shall be developed con-
sistent with the following criteria:
1. Employees described in subsection
23 (2) will not be adversely affeaed.
2. Employees will not be required to take
an unpaid leave of absence to the
extent' that it would result in their
annual earnings. excluding ovenime
pay, being reduced to under 530.000.
3. The program will assist the employer
in achieving the expenditure reduction
target established by the Minister ior
the employer ~
.t, The program will be iair and equitable
in itS app1ic:ltion to aU empioyees~
5. The employer will participate in any
redeploYment olan that exists under a
seaoral frameWork for the applicable
sector or that is established bv the
Minister under section 50 fo~ the
applicable seaor.
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On November 12th, 1993 the grievor filed a grievance which reads:
GRIEVOR: Linda Farrugia, MEW
DATE OF INCIDENT: October 25, 1993
VIOLATION:
Article 6. OJ. (d) and a....",!y and all other relevenc
articles in the colfective agreement; and,
Etobicoke General Hospital Fail-Safe Program.
NATURE OF GRIEVANCE:
Employer is discriminating against
grievor on the basis of disability in
requiri..Tlg grievor co take J.2 days of
unpaid leave; Employer is applying fail-
safe program in a man.TJ.er that is unfai=-
and inequitable.
REMEDY: Full redress, including elimination of requirement for
grievor to take any unpaid leave days under the fail-safe
program, as long as long term disability modified work
program is in effect; full compensation for any unpaid
leave days already taken under the fail-safe program.
.J) / A CO. tl .I
GRIEVOR'S SIGNATURE:d IN\IV(6{ ~i"'i 'Ihi.,(Q '\ 0
~='W ~"='=':,,_~ xy
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On March 8th, 1994 the parties entered into a Memorandum of Settlement which
adopted a Memorandum of Settlement which had been reached at Humber Memorial
Hospital. The Humber Memorial Hospital settlement dated January 25th, 1995
reads in part as follows:
1. ~DEFINITIONS OF LOW INCOME CUT-OFF (LICO)
'Items to be included as "earnings"
short term sick pay
reporting pay
standby pay
vacation pay
shift premium - for regularly scheduled
time only
weekend premium - "as above"
Reponsibility/Charge Pay - "as above"
Holiday pay - includes only straight time pay
for either worked or unworked holiday
Paid leave of absence - do not include if
reimbursed leave (i.e. paid union leave)
Ambulance escort - do not include if call back
or O. T.
Retroactive payments - includes only the portion
attributable to that year.
Items not considered as "Earnings" include, but are not
limited to:
Ca 11 back pay
Any premium pay for time worked on a paid holiday.
Transportation allowance
Meal allowance
Percentage-in-lieu of benefits
Cost of benefit premiums
Overtime
Safety footwear allowance
Uniform allowance, if applicable
WCB advance payments
Long term disability
SWB
Penalty payments for scheduling violations
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NOTE: Regular scheduled time includes all time paid
at straight time rate.
2. The parties agreed to use the current calendar year
(January-December) for purposes of calculating "earnings"
for the LICO determination. This status will then be
applied for the social contract year ending March 31, of
the following year (i.e. earnings calculated for calendar
1993 determines LICO status for fiscal year 1993-94).
Ms. Handley, the Hospital's Director of Personnel testified that the grievor
is a full-time employee who, since December 10th, 1993 worked under a modified
work program because of her illness. In addition to the salary she earns for
working three days a week, she receives benefits from Confederation Life under
the Long-Term Disability Plan. Ms. Handley noted that the LTD premium increased
on April 1st, 1994 from $3.59 to $4.19 for everyone hundred dollars earned by
each employee. The hospital pays 75% of the premium and the employee pays 25%
of the premium. The premiums are based on an experience-rating.
Ms. Handley further testified that the hospital has employees on Workers' Com-
pensation Benefits,unpaid sick leave, personal leave and unpaid maternity leave
and such employees are not paid employment income when on leave. If their overall
income exceeds $30,000.00, they have to take some social contract days off,
provided that such unpaid social contract days do not reduce their income below
$30,000.00 annually.
She also testified that no-one was hired to replace the grievor when the grievor
is off work two days each week under the modified work program. She testified
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that under the LTD Program employees are required to do modified work if
able to do so.
Ms. Handley agreed that the grievor has a disability or handicap within
the meaning of the Human Rights Code.
The Association argued that the grievor is a full-time social worker who is
affected by the Hospital's F~l Safe Program which was introduced in accordance
with the provisions of the Social Contract Act. However, commencing December
10th, 1993 the grievor started a modified duties arrangement to accommodate her
permanent disability wherein she works and is paid by the Hospital for three
days a week and has two days off work for which she receives LTD benefits.
While her global income from earned wages and LTD benefits exceeded forty-nine
thousand dollars in 1993 and is expected to exceed forty-eight thousand dollars
in 1994, it was the Association's argument that the LTD benefits she receives
should not be included as earnings for the purposes of the Fail Safe Program.
The Association pointed out that under the Humber Memorial ~ospital Memorandum of
Settlement, which was adopted by the parties, LTD benefits are specifically
excluded as earnings.
The Association also pointed out that the purpose of the Social Contract Act
and the Fail Safe Program is to reduce the Hospital's expenditures. Since LTD
benefits are paid by Confederation Life, the LTD benefits are not expenditures
of the Hospital and that is the reason why the parties have agreed that LTD
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benefits are not to be included as earnings for the purpose of the Social
Contract Act.
The Association also pointed out that to the extent that the grievor's
income comes from LTD benefits, the Hospital already enjoys a reduction in
its expenditures with respect to the grievor since the Hospital pays no wages
to the grievor for the two days each week that she is on LTD leave of absence.
The Association further argued that while the grievor earned more than thirty-
thousand dollars in wages from the Hospital in 1993, since the Social Contract
came into effect in September 1993, the grievor has taken more than twelve days
LTD leaves of absence between December 10th, 1993 and March 31st, 1994 and
accordingly the Hospital should not force her to take any additional Social
Contract days since the Hospital has already benefitted from the unpaid leaves
of absence which the grievor has taken pursuant to the Provisions of Section
25(5) of the Act as LTD leaves under the Provisions of Article 21.02 of the
Collective Agreement. The Association therefore argued that pursuant to the
Provisions of Section 25(5) of the Act the grievor's number of Social Contract
days for 1993 fiscal year which ended on March 31st, 1994 should be reduced by
the number of days of unpaid leave of absence she has taken as LTD days under
the Collective Agreement, which far exceed twelve days. Similarly, for the
1994 fiscal year, the grievor has already taken twelve days of unpaid leave
under the LTD plan and is expected to take a great many more days as LTD days
of unpaid leave prior to March 31st, 1995 under the modified work program.
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The Association pointed out that the Social Contract Act is not concerned
about reducing an employee's global income but rather it is intended to
impose savings for employers by reducing expenditures.
The Association argued that if the Hospital does not credit the grievor with
the LTD unpaid leaves of absence under the modified work program, the Hospital
will contravene the provisions of Section 6 and Section 25(5) of the Act.
The Association pointed out that there is no evidence that the Hospital was
having difficulty achieving its expenditure reductions contemplated by the
Fail Safe Program. In any event, if the Hospital was experiencing such diffi-
culty in this regard it was the position of the Association that the grievor,
as a handicapped employee, should not be required to bear a disproportionate
burden in terms of reduced earnings from the Hospital when compared to other
employees.
The Association pointed out that if the grievor is required to take the
twelve social contract days as well as the LTD days under the modified work
program the Hospital would save about 16% of the grievor's wages as compared
to up to 5% for the other employees and this constitutes an unfair burden
for the grievor.
In support of its argument the Association relied on the reasoning in re:
,
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- 17 -
Ontario Human Rights Commission et al. v. Simpson-Sears Ltd.; Canadian
Human Rights Commission 9 C.C.E.L. 185 and Alberta Human Rights Commission v.
Central Alberta Dairy Pool; Canadian Human Rights Commission et al. (inter-
venors) 33 C.C.E.L. page 1.
Since the Hospital is saving far in excess of the twelve social contract days
because of the grievor's modified work program, the Hospital will suffer no
hardship if it is unable to require the grievor to take the twelve social
contract days under the Fail Safe Program. Accordingly, the Association
argued that the facially neutral provision5 of the Fail Safe Program can be
accommodated even though it is not appropriate to require the grievor to take
social contract days of unpaid leaves under Section 25(5) of the Social Contract
Act. Article 6.01(d) and Article 21.02 of the Collective Agreement as well as
the Provisions of the Humans Right Code militate against such a requirement.
The Hospital argued that the Fail Safe Program applies to all employees who
earn in excess of thirty thousand dollars per year which is the low income
cut-off (LICO) under the Act. The Social Contract Act only distinguishes
between LICO and non-LICO employees.
The Hospital pointed out that part-time employees working three days a week
may earn more than thirty thousand dollars a year and many are covered by the
Fail Safe Program. The grievor is regularly scheduled to work three days a
week, similar to part-time employees and therefore she should not be treated
- 18 -
differently than other employees who earn over LICO and have to take Social
Contract Days off work.
The Hospital further argued that employees have been on leaves of absence for a
variety of reasons prior to the Social Contract Act and that the savings
caused by these absences have been built-in to the Hospital's budget. The
total complement of employees is designed to accommodate those who are on leave.
The Hospital pointed out that the Social Contract Act has set expenditure
reduction targets which require that new mechanisms be implemented by employers.
The targets are not personal ized out are global ized, in the Hospital's view.
The Hospital may achieve savings in a variety of ways, e.g. foregoing the
purchase of new equipment and granting unpaid maternity leave. Section 25 of
the Act is used to the extent necessary to achieve the target. The Hospital took
tbe position that LTD benefits cannot be ignored when computing an employee's
income. The Hospital pointed out that if the grievor is successful, the same
argument could be applied to part-time employees on unpaid sick leave or to
employees on unpaid maternity leave and this would not allow the Hospital to
achieve the savings contemplated by Article 25 of the Act.
The Hospital also argued that the Social Contract Act impacts on different
employees in different ways because of the LICO and non-LICO provisions of the
Act.
The Hospital argued that when considering whether the grievor must bear a
- 19 -
disproportionate impact of the Fail Safe Program, the steps taken by the Hospital
to accommodate the grievor's disability and the fact that she is receiving LTD
benefits cannot be ignored. The Hospital pointed out that the wages earned by
the grievor (less the Social Contract days) plus her LTD benefits result in her
receiving $265.99 per annum more than a full-time employee who is required to
take twelve Social Contract days off work.
The Hospital further argued that if the Association's argument is accepted, it
would create an administrative nightmare for the Hospital since the argument
would equally apply to unpaid maternity leave and to employees receiving Workers
Compensation Benefits, etc.
In reply the Association pointed out that the Provisions of Article 25(5) do not
apply globally but must be applied individually. The Association also argued
that a full-time employee who takes unpaid leaves of absence under the Collective
Agreement cannot be treated as a part-time employee. Under Article 21.02 of the
Collective Agreement LTD benefits can only be received by full-time employees.
The Association further pointed out that there was no evidence concerning what
the Hospital took into consideration when fixing its budgets. In addition, the
original Fail Safe Program was implemented in September 1993, long before the
grievor commenced her modified work program.
Having considered all the evidence and the representations of the parties I
.'
..l'
- 20 -
find that when the parties adopted the Humber Memorial Hospital Memorandum
of Settlement, they clearly and specifically agreed that long-term disability
benefits would not be considered as "earnings" under the Social Contract Act.
I further find that this agreement is consistent with the purpose and intent
of the Act which is to reduce expenditures by the Employer. Since LTD benefits
are paid by the insurance carrier, they cannot be construed as expeAditures by
the employer for the purposes of the Act.
I further find that the grievor's modified work plan required her to work three
days a week and to be off work on LTD leave of absence under Article 21.02 of
the Collective Agreement for two days a week. I accordingly find that such
unpaid leaves of absence must, pursuant to the Provisions of Section 25(5)of the
Act reduce the number of Social Contract days specified2:: in Article 25.01 of
the Act,for the grievor. To find otherwise would not only be contrary to the
purpose and intent of Section 25(5) but would also contravene the Provisions
of Section 6 of the Act as well as the Provisions of the Human Rights Code since
the grievor, who is permanently disabled by her illness, qualifies as a disabled
or handicapped person under the Human Rights Code. Indeed, it is because of her
handicap that she, as a full-time employee, is . entitled to receive LTD benefits
under the Collective Agreement. Not only'does Section 6 of the Act and the Provisions
of the Human Rights Code prohibit 'discrimination because of a physical handicap
but Article 6.01(d) of the Collective Agreement specifically incorporates the
Provisions of the Human Rights Code into the Collective Agreement.
I further find that the Hospital must accordingly reimburse the grievor for any
i' ~
., ,
- 21 -
Social Contract days that the Hospital required the greivor to take under its
Fail Safe Program. While the Hospital argued that such a finding would prevent
the Hospital from achieving its expenditure reduction target, I find that I
cannot subscribe to this argument. Rather than reducing expenditures by
requiring the grievor to take twelve Social Contract days a year, the Hospital
benefits by saving up to 104 days of wages for the grievor each year because of
the grievor's modified work program.
I accordingly find that the grievance must succeed.
I therefore award and direct that the Hospital reimburse the grievor for all
wages lost by her by reason of being required to take Social Contract leave
days, without pay. The Hospital is further directed to desist from requiring
the grievor to take unpaid Social Contract leave days of absence so long as she
remains on the modified work plan.
DATED AT OAKVILLE THIS .2. o'4lAY OF MAY, 1994.
~~
J.p/O'SH-A,Q.C.
SOLE ARBITRATOR
/7
~'
<>--
-,'.-
/"
'~
"?~~'''...,-'
IN THE MATTER OF AN ARBITRATION
BETWEEN:
r-', r~, t:".<' r-:=; r'lfY0r?1~
'I'~. :.(. \""; ~L'r' ')\ V Ii ',' 10~ ~
\ ;,f,rU-L-.u.-~W-;t..-""-'1i~_~. ~I
~ ~ ~ ..........~ ~.};;
t ~ if" - Q 0, fj ~~\~10i. ~',)_\L;
,I~'~ It"'i~-~, ij'; ,...-.;f'o..'T~:~
\ ~~ \ ~ ~b.J ',h:~', 1
\ P( ~__.~;,~'.;,'l
, t'I,,.,.-=-rv-,,,:, , " , i '-, D
U~ 'nl ~. '"-,, 1:.--'''-- '-' '--'
-'-'" ------
. - -----"
-------------
THE ETOBICOKE GENERAL HOSPITAL
(hereinafter called the "Hospital")
AND:
THE ASSOCIATION OF ALLIED HEALTH
PROFESSIONALS: ONTARIO
(hereinafter called the "Association")
AND IN THE MATTER OF A CERTAIN GRIEVANCE Of LINDA FARRUGIA WITH RESPECT TO COM-
PULSORY LEAVE OF ABSENCE WITHOUT PAY UNDER THE SOCIAL COtITRACT ACT, 1993 AND
IN THE MATTER OF A PRELIMINARY OBJECTION BY THE HOSPITAL WITH RESPECT TO THE
ARBITRABILITY OF THE MERITS OF THE GRIEVANCE.
SOLE ARBITRATOR:
J.D. O'SHEA, Q.C.
APPEARANCES FOR THE HOSPITAL:
DAVID COWLING
DIANNE HANDLEY
TONY FASCIANO
HUTHA ISAAC
APPEARANCES FOR THE ASSOCIATION:
SUSAN URSEL
LYNN KEAYS
SOPHIA RUDDOCK
A HEARING WAS HELD IN THIS MATTER AT THE MUNICIPALITY OF ETOBICOKE ON THE
26th DAY OF JANUARY, 1994.
AWARD
- 1 -
I was appointed to act as the Arbitrator in this matter pursuant to the Provisions
of Section 46 of the Labour Relations Act by the Minister of Labour on December
24th, 1993.
This matter arose and came on for hearing under the Provisions of the Collective
Agreement between the parties which became effective on January 1st, 1991. The
relevant Provisions of the Collective Agreement read:
ARTICLE VI - NO DISCRIMINATION/NO HARASSMENT
6.01
(d) The Association and the Hospital agree that the:!:'e
shall be no discrimination exercised by either of them
toward an employee as defined herein, by reason as
outlined in the Human Rights Code.
The grievor, Linda Farrugia is a full~time sQcial worker and was covered by the
Provisions of the Collective Agreement at all relevant times. During the Fall of
1993 she became ill. On December 10th, 1993 the grievor began working under a
modified work plan wherein she works three days a week and is paid her regular
daily salary for these three days. Her earnings are topped-up by long-term
disability benefits.
Her salary plus the long-term disability benefits are less
than her regular earnings would be as a full~time social worker if she was not
working under the modified work schedule for health reasons. However her earnings
- 2 -
for the three days work on modified duties exceed $30,000.00 per year.
The Hospital is covered by the Provisions of the Social Contract Act 1993. In
accordance with the Provisions of the Social Contract Act the Hospital implemented
a "Fa i 1 Safe Program" whi ch reads as fo 11 ows:
SUMMARY OF TIIE EXPENDITURE REDUCTION PROGRAM
ESTABLISHED UNDER PART VII OF TIlE SOCIAL CONTRACT ACT
FAIL SAFE PROGRAM
The fundamental objective of the Etobicoke General Hospital is the provision of high quality,
accessible health care within the financial limitation established by the Government of Ontario.
In order to meet the Social Contract targe' reduction of $1,977,000 established by the
Government of Ontario and having taken into consideration the expenditure reduction potential
gained from such measures as attrition and potential voluntary leave, the Hospital in
ac:c:ordance with Part VII of the Social Contract Act (a copy of which is attached+ is
implementing the following compensation savings measures:
a) All unionized employees of the Hospital to the extent that they are subject to the Social
Contract Act are required to take unpaid leaves on the following basis:
12 days between Sept. 1, 1993 and March 31, 1994
12 days between April 1, 1994 and March 31, 1995
12 days between April 1, 1995 and March 31, 1996
To the extent possible, the employees will be scheduled off during the following period:
December 16, 1993 and January 5, 1994
March 7, 1994 and March 20, 1994
Where patient care requirements do not permit all the days to be taken during the above
mentioned period, employees will be required to take the remaining days according to
schedules that will be posted.
b) The Hospital does not intend to use special leaves to meet the expenditure reduction
target.
c) All bargaining unit employees of the Hospital to the extent that they are subject to the
Social Contract Act will have their compensation fIXed for the period beginning June
14, 1993, and ending March 31, 1996 as set out in section 24 of the Act.
d) In addition to the aforementioned measures, the Hospital will have a staff reduction as
set Ollt in the attached Appendix "A", effective according to notice requirements as
established by appropriate collective agreements and the Employment Standards Act.
Employees so laid off will be eligible for redeployment programs provided under
HTAP.
e) In the event that the foregoing actions are unable to $-'::;'::1 t'he fiscal requirements of
the Social Contract the Hospital reserves the right to take additional action as deemed
necessary.
- 3 -
APPElIDIX A
FAIL SAFE FROGMM
Number of EmPlovees L.a.i.d Off
BarlZaininz Unit Position LL. P.T. ~ ATTRITION
O.N.A. R.N. 9.0 -2..,.Q. ~
Total 9.0 9.0 64.0
A.A.H.P. ,0 Psych O.T. 1.0
Recrea-ci.on:ist 1.0
Sr.. Physi.o. ~
Total 2.5
S.E.I.U. Clerk 'I'yp:i.st I (B) 1.0
(CIed.cal) Clerk Typi.st II (B) 2.0
Clerk Typist III 0.5 1.0
Sen:i.or Clerk I -L.Q
Toeal 4.5 1.0
S.E.I.U. RousekeepiDg Mde 1.0
(Service) Electrlc:i.an 1.0
Painter 1.0
Carpen1:er 1.0
Floor Supply Tech. 1.0 2.0
Pat:1.ent:: Porter 3.0 1.0
Supply Tech. ...hQ l.:..Q.
Total 4.0 6.0 3.0
U.P.G.W.A. Security Officer ...hQ
Total 1.0
GRAIID TOTAL 20.0 15.0 64.0 5.0
September 17? 1993
- 4 -
The relevant Provisions of the Social Contract Act read:
~o Inc:re:ue
In comoens.;t..
lion
$.1me
PromOtlOM
Existm2
collective:
.:lgreemc:nts
Electlon re:
cen:l.ln
tncre:l.SeS
24. -(I) Thc rat~ of comp~nsation of an
employee is. for th~ period b~ginning Jun~
14. 1993 and ending with March 31. 1996.
ft-xed at the roue that was in effect immedi-
ately before Jun~ 14. 1993.
(2) For gre:J.tcr ccrt3imy. ..compensation..
in this section includes.
(a) m~rit inc:r=es:
(b) cost--oi.living incrc:1Ses or mher similar
movement ot or through ranges: :md
(e) increases resulting from any move-
ments on any pay -scaJ~ or oih~r grid
system.
(3) Nothing in this section prevents
increases in compensa~ion 3$ a result of a
promotion or acting promotion of an
employee to a different posItion.
(4) An increase in compensation after
Jun~ 14. 1993 und~r a coll~C[iv~ a2re~ment
existing on that date is void. -
(5) Desoite subsection (4), a bar2ainin2
agent. bv.written notice to the emolover:
~ay eiect [0 preserve increases in corripc~a-
tion provided for in J. coiIective agreement
existing on June 14. 1993. other than com.
p~nsation described in clause [2) (a). (b) or
(C).
'\:nucc:
Deferr:lJ
POSt-lIJ9S
ment
Increases..
CU:.
Sx.pm:t1
ocllccuvc
;r;gn:emcnt
- 5 -
(6) The nonce oi (he elecrion mUSI be
delivered (0 (he employer nOI laler (han
when !he bargaining agenI gives norice (0 (he
employer to bargam a renewal or new coHee.
tive agreement which may extend beyond
Ylarch 31. 1996_
(7) If an election is made under subsecrion
(5).
(a) any increase in compensation shail be
deferred unril (he !hird anniversarY
followimz Ihe dav on which iI would
have oCCurred under (he co lIeclive
agreemenc and
(b) no increase in compensalion. o(her
!han !hose preserved by (he elec:rion.
shail be given before !he (hird anniver-
SaIV followine (he dav (he collec:rive
~I exPires.. or: if (he colleaive
agreemen( has been extended under
secrion 35. beiore (he (hird anmver.
sarv of the day it wouid have exoxrcd
had iI nOI been =ended. .
(8) An employee is not entitled (0 any
.nc:r=es in compensalion afler March 31.
1996 by way of.
(a) mcrn in==
(b) cos(-oi-living mcr=es or o(her similar
movemenI of or (hrough ranges; or
(c) increases rcsulring from any move-
mentS on any pay scale or other grid
system. t:xcept as prescrIbed by
reguJaIion.
in respect of employment during (he period
beginning June 14. 1993 and ending March
31. 1996.
(9) If a coilec:rive agreement has expired
before June 14. 1993 and on !haI dale !he
employees (baI were formerly bound by it
arc without a collective agreement. the: com-
pensalion of (hese employees is fIXed a( (he
amount they were receiving under the last
collective agreemenI in force before June 14.
1993.
Fint cOllec-
tive .1lzree.
menu
';OW
~mployees
Unpaid
[aves 01
abseDCC
AdjlUtmenu
V~naUon
?emlon
- 6 -
(10) Des!'ite subsection il), if em!,loyees
arc represented by a bargaining agent that.
(a) was certified or recognized as the
employees. bargaining agent before
June 14. 1993: or
(b) applied for cerrific:uion as the em!,ioy.
ees' bargammg agent betore June 14.
1993.
:tnd a flI'St collective ae:rcement comes into
force on or after June 14. 1993. the rate of
compensation of an employee to whom the
first collective agreement applies is. for the
period beginnituJ: on the day the first collec-
tive 3.gree.'"D.e::t COI:l~ into fo!""'...e and endin2
with March 31. 19%. fixed at the rate first
payable under the first collective agreement.
(11) The compensation of an employee
who starts employment after June 14. 1993 is
fIXed at the starting amount until March 31.
1996 and the employee is bound by the pro-
gram established under section 27 if the pro-
gram is applic:ahle to that employee.
25.-(1) If ne=axy to meet the expendi-
ture reduction target established by the Min-
ister. an employer may require employees [0
take unpaid leaves of absence to a maximum
of twelve days or their equivalent in cach of
the following periods:
I. June 14. 1993 to March 31. 1994.
Z. April 1. 1994 to March 31. 1995.
3. April 1. 1995 to March 31. 1996.
(2) The Minister may make necessary
adjustments to the periods set out in subsec.
tion (1) to take into consideration the annual
cycle of operations of an employer or class of
employers.
(3) If a full-time employee normally works
a longer than regular work day. excluding
overtime.. in retum for workin2 fewer days in
a year. the maximum number of days set OUt
in subsection (l) shall be redua:d by a pro-
portionate amount.
(4) Despite :my provision to the contrary
in any Act. or any regulation thereundcr or
any pension plan. an employer's or employ-
ee's obligation to contribute to a pension
plan and an employee.s entitlement under a.
pension plan are nm affeered by any reduc.
tion in earnings that results from the
employee taking unpaid leaves of absence
under subsection 11) or special leave under
section 26.
RestnCllon
VoluntarY
leaves
RC$tncuon
Spec:W love
Int~.
tlOR
,'unse.
I.Jucnc:a
Same:
Campen-
sauD! cays
- 7 -
(5) If the employer Ulilizes the provisions
in a collective agn:emen[ to provide for
unpaid leaves. the number of days specified
in subsection (I) is reduced bv the number of
days of unpaid leave of abse~ce taken under
the agrecmenL
(6) If an employee takes voluntary unpaid
leave after June 14. 1993 and before the pro-
gram under section 27 is implemented. the
number ot days specltled in subsection f 1) is
~educed for that empioyee for the appiiClble
period by the same number of days taken as
unpaid leave..
(7) An employer may not require an
employee to take unpaid leaves of absence
under this section or section 26 before the
program has been posted under section 29.
26.-(1) If employees perform critical
functions as prescribed by regulation and the
employer is unable. without impairing those
funaions. to meet its expenditure reduction
target by utilizing, unpaid leaves of absence
under section 25. the employer may require
those employees to take special leaves.
(2) For the purposes of this section. a spe-
cial leave is an unpaid leave on days when
the employee would normally be absent from
worle: on paid holidays or paid vacation.
(3) If an employee is required to take a
special leave. the employer shall grant to the
employee the =e number of compensating
days off.
(4) If an employee is required to take spe-
cial leave on a day to which premium pay
applies.. the number of compensating days
shall be increased by a propornonate
amount.
(5) The compensating days off.
(a) shall be paid days ofL taken on mutu-
ally convenient dat=
(b) mav be carried forward to future vears
mciuding yo,"s after ~1arch 3 L i 996:
and
(c) may not be convened to money.
S:Jme
$:Jme
Obli;311UtlS
Hi employer
Ctitena
Our.auon
- 8 -
(6) For the purpose of clause (5) (al. the
employer shall make all reasonable etions to
accommodate an employee's request for
compcnsating days off.
(7) Despite clause (5) (c), compcnsating
days off may be converted to money for an
employee who ceases to bc employed by the
employer.
27. -(I) If the fixing of comoensation
under section 1~ does- not result in an
employer achieving its expenditure reduction
target, the employer shall.
(a) make all reasonable effons to achieve
its Iare:Ct bv urilizimz unoaid leaves of
absenCe under sectio-n 25" or~ if appfica~
ble~ special leaves under section 26
before takine other actions available to
it at law: and
(b) develop a program setting OUt the
manner in which these leaves are to be
implemented.
(2) The program shall be developed con-
sistent with the following criteria:
1. Employees desctibed in subsection
23 (2) will not be adversely affected.
2. Employ= will nOt be required to take
an unpaid leave of absence to the
extent that it woufd result in their
annual earnings. excluding overtime
pay, being reduced to under 530,000.
3. The program will assist the employer
in achieving the expenditure reduction
target established by the Minister for
the employer.
... The program will be fair and equitable
in itS apPlication to aU employees.
5. The employer will participate in any
redeployment plan that exists under a
sectOral framework for the applicable
sector or that is established by the
Minister under section 50 for the
applicable seCtor.
(3) The program shall apply from [he day
of posting under secrion 29 to March 3L
1996 or to the last date adjusted by thc Min-
ister under subsection 25 (2), as appropriate.
- 9 -
Fin:anci:al
,=""
(4) In order to enable employees to evalu-
ate the basis for the program. rhe emplover
;halL upon request. m~ke such financIal
iniormanon available to [he employees as is
prescribed in the regulations.
(5) For Ihc purposes of this Part. the
employer shall participate in any seaoral
redeployment plan that exists in the sector
applicable to that empioyer.
28.-(1) A written summary of the pro-
gram shall be madc setong OUt.
(a) the manner iu which the unpaid le:tves
of absence are 10 be administered;
(b) whether the employer intends to use
special leaves [0 meet Ihe exnenditure
reduaion targetS; .
Mand:uorv
p:UtICp;lllon
Written
surnm:uy
(c) a statement !bat the compensation of
all employees [0 whom Ihis Part
applies has been f!Xed in accordance
with subsection 24 (1); and
(d) a statement that a sectoral redeolov-
menr pian applies [0 [he employees.. -Ii
such is the C:lSC-
Do..ds (2) The summary of the program shall
contain sufficient details so that employees
are aware of how they will be affected.
Pos'm~ 29. -(1) The summary oi the program
and a copy of this P::.;"t shall be posted in
such a manner that thev are likely to come to
the attention oi the employees affected by
Ihe program.
P"".n~ ""'0 (2) The summary of the program shall not
be posted before AugtJStl. 1993.
Obj",;"n (3) An employee or bargaining agent who
obj ccrs to the program because it fails [0
meet the criteria Set out in section 27 may
within ten davs of the summary of the pro-
gram being pOsted request in writing that the
employer amend it.
R=ons (4) The request for amendment shall set
out the reasons ior the objection.
R~,," (5) The employer shall. within len days
after the objeetion period has expired_
review [hc objections and post In Ihe same
manner..
(a) a notice of coniirmation of [he original
program: or
(b) a summ:lIY of the amended program.
Imolemenl3-
!lon
Amendments
Request lor
funber
'cvocw
Written
request
Proceourc:s
- 10 -
(6) The program m3V take effect on the
day the summary is poSted under subsectIon
(1) and shall remain in effect even though a
request for amendment has been made under
this section or a request for 3 review has
been made under section 30.
(7) [f at any time during the currency of
the progl.lm the empioyer consIders it neccs.
sarv to funher ::unend it... the amended uro-
grain shall be rr=d as a new program '3nd
this seCtion and sections 30 and 31 apply with
necessary modifications:.
?owcn
30.-(1) If following the employer teview
under subsection 29 (5), an employee or a
bargaining agent considers that the program
or amended program still does nOt mect the
criteria set out in section 27. he.. she or it
may~ within ten days aiter the posting under
subseCtion 29 (5), request a review of the
program by the person or body designated in
the regulations as an 3djudic:llor for that
purpose.
(2) The request shall be in writing and
shajJ specify the grounds for the objection to
the program.
31.-0) Subjea to the regulations. if any.
the adjudicator may establish procedures ror
c:lrrytng Out the fCV1CW.
(2) The adjudicator shall review the pro-
gram and shalL
(a) confirm the program if it mc:::tS the
criteria set out in section 27: or
(b) amend the program so that. in the
opinion of the adjudicator. it is consis-
tent with the criteria set our in section
27.
(3) The adjudic:ator may make the deci-
sion based on the written submissions of the
employer. bargaining agent. if any, and
employees and is not required to hold a hear-
ing.
(4) The adjudicator shall make only one
decision on the program irrespective of the
number of requestS made for a review.
Written
SUbtnm)OM
One decmon
DccWon
fin:d
(5) The decision of the adjudicator is
final.
Gric:v.anecs
under COllec-
uve 2~fc:e-
men'
:.;mlt:..mm
-
LimU2uon
Same
Effect on
holid::ays.
vaC2uom.
"""
SIca on
"en:un
proceealn~
Griev::ance
nghu
Conlliawllh
,'ll'lefACtSo.
":IC.
- 11 -
33.-(1) An employee to whom a collec-
rive agreement applies may use the grievance
or arbitration proccdures under thc collective
agreement to decide ::my difference between
the employee and his or her employer arising
out of the intc:rpret:uion. :lppiic:ltion. admin-
istration or alleged contraVenllon of a pro-
gram developed by the employer under this
Part.
(2) In a grievance or arbitration under
subsecllon (I). the arbitrator or board of
arbitration shall not make any decision that
an adjudicator is entitled to make under sub-
section 31 (2).
-
34.-0) Nothing in this Part alters the
termination date oi a coUeaive agreement_
(2) Nothing in this Pan interferes with anv
right to c:any on collective bargaining so long
as any collective agreement re:lChed is not
inconsistent with this Act.
(3) This Part prevails over any provision
that relates to holidavs. vacations.'hours of
work or ovennne pay -in any other Act or the
regulations thereunder or in any collective
agreement.
(4) Actions oi an emnlover taken in accor-
..:ance with sectlon 2.:1.. '25 'or 26 shall not be
the subject Ot any proc:eeciing brought by any
person against an employer.
(5) An employee has no right to grieve
under the Pub!iJ: Service Act or any other
Act or a collective agreement in respect of
aCllons taken by his or her employer III
accordance with section 24. 25 or 26.
52. .The provisions of this Act and the
regulauons prevaii over the prOVISions ot anv
other Acr and rhe regulations thereunder bUt
?nly to the extent necessary to carry QUI the
Intenr and purposes of rhis Act_
- 12 -
On November 8th, 1993 Linda Farrugia filed a grievance which reads:
GRIEVOR: Linda Farrugia, MSW
DATE OF INCIDENT: October 25, 1993
VIOLATION:
Article 6.01 (d) a:rid any and all other reI event
articles in the,. collective agreement; and,
Etobicoke General Hospital Fail-Safe Program.
NATURE OF GRIEVANCE:
Employer is discriminating against
grievor on the basis of disability in
requiring grievor to take 12 days of
unpaid leave; Employer is applying fail-
safe program in a manner that is unfair
and inequitable.
REMEDY:
Full redress, including elimination of requirement for
grievor to take any unpaid leave days under the fail-safe
program, as long as long term disability modified work
program is in effect; full compensation for any unpaid
leave days already taken under the fail-safe program.
{) / 1\ CO.. r7
. Y \ tit Xn \hiA
I
GRIEVOR'S SIGNATURE:
ASSOCIATION REPRESENTATIVE'S SIGNATURE:
- 13 -
It was the position of the Association that the grievor continues to be classified
as a full-time social worker and she continues to receive the benefit package for
a full-time employee under the Collective Agreement.
It is the Association's position that the grievor, who is required by the Hospital
to take 12 days of unpaid leave for each of the three years covered by the Social
Contract Act and the Fail Safe Program is bearing a disproportionate burden compared
to other full-time social workers since she only works and is paid for three days a
week under the modified work program. Indeed the Association argued that by only
working three days a week,the grievor's input into the Fail Safe Program well
exceeds the 12 days of unpaid leave contemplated by the Fail Safe Program. Because
of the blanket application of the Fail Safe Program to all employees who earn more
than $30,000.00 per year as a facial neutral requirement, the treatment of the
grievor by this facial neutral rule has a disparate impact on the grievor as a
disabled full-time employee who is working modified duties. Accordingly, it was
the Association's position that the administration or application of the Fail Safe
Program by the Hospital is discriminatory to the grievor and therefore constitutes
a violation of the non-discrimination clause contained in Article 6.01(d) of the
Collective Agreement since the grievor is a handicapped person within the meaning
of the Hu~an Rights Code.
By way of preliminary objection it was the Hospital's position that the Provisions
of Part VII of the Social Contract Act makes this grievance inarbitrable.
- 14 -
The Hospital argued that the Fail Safe Program was introduced by the Hospital
pursuant to the Provisions of Section 25 of the Social Contract Act. Since the
grievor earns more than $30,000.00 per annum on her modified work plan, she is
covered by the Provisions of the Fail Safe Program. While the grievor claims
that the Fail Safe Program is unfair and inequitable, the Provisions of Section
34(5) of the Social Contract Act preclude her from grieving the implementation
of unpaid leaves under the Fail Safe Program which was implemented pursuant to
the Provisions of Section 25 of the Act.
It was the Hospital's position that although the Social Contract Act allows for
a grievance which deals with the administration,application, interpretation or
alleged contravention of the Fail Safe Program, the Hospital argued that in this
case the Association is, really challenging the very substance of the Fail Safe
Program. The grievance does not relate to the administration or application of
the Program itself but rather it deals with the Program's application to the
grievor, in the Hospital's view.
The Hospital further argued that the Act sets out two mechanisms, i.e. one for an
Adjudicator under the Act and one for an Arbitrator under the Collective Agreement.
It was the Hospital's position that the role of the Arbitrator deals with the
application of the Fail Safe Program as it is set out on its own terms. On the
other hand the role of the Adjudicator deals with the nature and substance of a
Fail Safe Program and whether the Program complies with the Social Contract Act.
Therefore Section 34(5) of the Act takes away an employees right to grieve the
- 15 -
Fail Safe Program. An employee may grieve under the Collective Agreement in
respect to the implementation of the content of the Fail Safe Program.
The Hospital pointed out that the right to review whether the criteria set
forth in Section 27(2) of the Act has been met in the Fail Safe Program has
been delegated to the jurisdiction of an Adjudicator by the Provisions of
Section 31(2) of the Act. In support of its argument the Hospital relied on
the reasons for the decisions in the unreported awards between Leamington
District Memorial Hospital and Service Employees Union, Local 210 dated November
12th, 1993 (Samuels) and between the Association of Allied Health Professionals:
Ontario and the Eastern Ontario Health Unit dated October 29th, 1993 (Eberlee).
The Hospital therefore asked that I make a finding that I have no jurisdiction
to determine the merits of the grievance in this matter and to dismiss the
grievance.
The Association agreed that I am not an "Adjudicator" under the Social Contract
Act. The Association also took the position that it did not challenge the
implementation of the Fail Safe Program which was implemented by the Hospital
pursuant to the Provisions of Section 24, 25, 26 and 27 of the Social Contract
Act.
However the Association took the position that the manner in which the Hospital
- 16 -
interpreted, applied and administered the Fail Safe Program in the individual
situation of the grievor violated Article 6 of the Collective Agreemen~.
Accordingly the Association argued that this issue was arbitrable under the
Provisions of the Social Contract Act and the Collective Agreement and that
pursuant to my appointment as the Arbitrator in this dispute by the Minister
of Labour under the Provisions of the Labour Relations Act of Ontario, I have
the necessary jurisdiction to determine the merits of the grievance.
The Association also argued that the alleged violation of the Collective Agreement
is prima facie an. arbitrable matter and the fact that the Fail ,Safe Proqram intersects
with the Provisions of the Collective Agreement does not take the issue outside
an Arbitrator's jurisdiction.
The Association further argued that while the Hospital has implemented .the Fail
Safe Program to the maximum of 12 days of unpaid leaves of absence pur5uant to
the Provisions of Section 25 of the Act, the Provision for long-term disability
benefits falls under Article 21.02 of the Collective Agreement and the modified
work plan is ancillary to the long-term disability plan. Therefore, with respect
to the merits of the dispute the Hospital has utilized the Collective Agreement
to achi eve savi ngs. .. ,
The Association pointed out that an Adjudicator's review under the Social Contract
Act can be distinguished from an Arbitrator's jurisdiction in the same way that an
interest arbitration is distinguishable from a rights arbitration. An interest
- 17 -
arbitration establishes substantive rights which may then be applied under a
rights arbitration.
The Association is not challenging the Fail Safe Program and it is not asking
the Arbitrator to act as an 'Adjudicator to amend that Plan which is specifically
precluded by Section 33(2) of the Act.
The Association relied on the Provisions of Section 33(1) of the Social Contract
Act in support of its argument that this grievance is arbitrable on its merits
and the Association has asked the Arbitrator to determine whether the Hospital
has violated Article 6 of the Collective Agreement by the manner in which it has
applied the Provisions of the Fail Safe Program to the grievor.
The Association relied on the obiter dicta contained in the two awards referred
.-~.
to by the Hospital in support of its argument in this case.
It was also the Association's position that the relief sought by the grievor is
not inconsistent with the goal of the Act and therefore the Association is in
compliance with the Provisions of Section 34(2) of the Act. The Association
pointed out that the Hospital has clearly saved in excess of the 12 days unpaid
leave with respect to the gri,evor by reason of the fact that under the modified
duties program the grievor only works three days a week, rather than five days.
The Association further argued that an arbitrator has unique jurisdiction over
- 18 -
all the elements that must be considered to determine the merits of this grievance.
In reply the hospital argued that the Association is really seeking an amendment
to the Fail Safe Program as it applies to the grievor and that an Arbitrator is
precluded from granting such relief by the Provisions of Section 33(2) and Section
34(5) of the Act.
Having considered all the evidence and the representations of the parties I find
that the Fail Safe Program, on its face, appears .to.comply with the criteria
enumerated in Section 27(2) of the Act. I further find that the language of
Section 25 of the Act which refers to "unpaid leaves of absence to a maximum of
12 days or their equivalent" (emphasis added) gives some credence to the position
of the Association that, the Hospital has misapplied the Fail Safe Program as it
applies to the grievor. I further find that the Provisions of Section 52 of the
Act which provide that the Act and the regulations prevail over the Provisions
of any other Act and the regulations thereunder "but only to the extent necessary
to carry out the intent and purposes of this Act" also seem to support the
Association's position. I accordfngly find that the Provisions of Section 33(1)
of the Act preserve the right of the grievor to grieve that her rights under the
Collective Agreement have been violated by reason of the interpretation, application,
administration or alleged contravention of the Fail Safe Program developed by the
Hospital under Part VII of the Social Contract Act.
The following statement which appears in the Samuel award quoted above appears to
- 19 -
support my conclusions in this matter:
If there was a "program" here, section 33(1) of SociLll Contract Act.
1993 permits an employee to grieve tmder a collective agreement to have
determined any diff=ce between the employee and the employer. "arising
out of the iDterpretation. application. administration or alleged
contravention of a program". ADd section 33(2) says that the arbitrator
shall not make any decision that an adjudicator is entitled to make under
subsection 31 (2). 1lms. it app=s tbat the arbitrator cannot determine the
adequacy of the "program.~ lrlth reference to the criteria iD se;:tion 27 of
the Social Contract Act, 1993. but is restricted to issues re1ated to the
iDrerpretation, applicaIioD. ~rimin;<tration ?I' alleged contravention of a
program as written by the employer.. It is the adjudiC'!tor who is to
det=ine the adequacy of the "program". with reference to the criteria iD
~on n.
I adopt the reasoning of Arbitrator Eber1ee in the award quoted above which
reads:
In passing, I cannot help commenting that jp. respect of the operation of
this part of the Social Contract Act, the jurisdiction of the adjudicative machinery
is specific and highly circumscribed.. It is actually of an -mterest" character,
determining whether the substance of a program meets the intentions of the Act
and ensuring that it does. The program has the effect of altering the substance of
the collective ag:reenient. . , '
On the other hand. the role given to the grievance/arbitration machinery
. of the collective agreement which has been altered by the program is really no
different from what it was in pre-Soda! Contract Act days. The only difference is
in the substance of other provisions of the collective agreement it now consists
of the contents of the existing collective agreement plus the alterations or changes
imposed by the program where it prevails .over certain provisions of the existing
collective agreement.
- 20 -
I therefore find that the Hospital's preliminary objection must fail and I so
award and direct.
A further hearing will be convened in this matter to enquire into the merits
of the grievance.
DATED AT OAKVILLE THIS 31st DAY OF JANUARY, 1994.
~
J'VSHEA, Q.C.
SOLE ARBITRATOR