HomeMy WebLinkAboutWOYCE 03-31-01—Q -
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Concerning an arbitration �
Pursuant to section 49 of the Rt';�J,
Labour Relations Act
FE8 0 5 2003
Between: OFFICE OF ARBiiRer, ..
Grey Bruce Health Services
and
Ontario Public Service Employees Union, Local 260
Grievance of Woyce, short -term disability benefits
Arbitrator. Joseph W. Samuels
For the Parties
Union
Tim Hannigan, Counsel
Rita Rudo, Vice - President, Local 260
Marilyn Woyce, Grievor
All McIllwraith, Local President
Employer
Robert Hickman, Counsel
Kim Bowers
Shawn Grimstead
Hearing in Owen Sound, January 30, 2003
I
Marilyn Woyce claims that she is entitled to short-term disability
benefits as of February 13, 2002, when she ceased work for the Employer.
Ms. Woyce began work for the Employer (or its predecessor) on
May 9, 1968. Her last day of work, during which she performed the duties
she had been doing up to this point, was August 23, 2001. She was then off
work as a result of an injury for which she was compensated by Worker's
Compensation. After an a} peal to the Workplace Safety and Insurance
Board, she was paid benefits to December 18, 2001. She returned to work
on November 8, 2001 on modified duties, starting with limited hours and
limited duties, then moving to full hours, but limited duties, on January 21,
2002. On February 13, 2002, there was no more work for her on
modified duties, and she ceased work with the Employer. After February
13, 2002, she drew out the monies she had accumulated in her "sick leave
bank ".
She filed several grievances concerning her situation, including one
alleging that the Employer failed to accommodate her disability, and these
grievances were settled in an agreement reached on June 20, 2002.
According to this agreement, she withdrew her grievances on the
understanding that she could apply for short-term disability in accordance
with a previous award that I had issued (which determined the
implementation of an interest award by Arbitrator Kevin Whitaker); she
would apply for long -term disability under HOODIP; and she would
receive 26 weeks of salary plus. $5000, less required statutory deductions,
either at the end of her long -term disability payments (if she was successful
in her application), or within two weeks of being denied long -term
disability benefits; and that she would then retire from the Employer.
Following this agreement, her appeal to the insurance carrier for LTD
benefits was denied. She retired from the Employer on October 20, 2002,
as she had agreed.
2
Her claim for short -term disability benefits was denied by the
Employer and I have been asked to determine the dispute between the
parties, pursuant to my reservation of jurisdiction in my earlier award,
dated May 28, 2002.
In order to understand the issues involved in this claim, it is
necessary to look back a bit'at the history of the Employer.
Grey Bruce Health Services was created on April 1, 1998, by the
merger of five hospitals in the geographical area. The employees of these
hospitals were represented by a number of unions, and the Employer
applied to the Ontario Labour Relations Board for a determination of who
the bargaining agent would be for all the employees at all the sites. It was
decided that the Ontario Public Service Employees Union would be the
bargaining agent.
The grievor had been a member of a group of employees
represented by the Canadian Union of Public Employees. When the group
was represented by CUPS, their sick leave system involved the
accumulation of credits out of which sick leave was paid when it was
needed.
When OPSEU took over, it bargained for a change from the sick
leave credit system to the HOODIP plan (Hospitals of Ontario Disability
Income Plan) for all of the employees. The previous OPSEU units had
HOODIP before the merger. And this was awarded by Arbitrator Kevin
Whitaker.
Reflecting the Whitaker award, the collective agreement provides in
Article 13.01(1):
The Hospital will assume total responsibility for
providing and funding a short-term sick leave
plan equivalent to that described in the August,
3
1992 booklet (Part A) Hospitals of Ontario
Disability Income Plan Brochure.
For the purpose of transfer to the long -term
portion of the disability program, employees on
the active payroll as of the effective date of
transfer with one (1) year or more of service
shall be deemed to have one (1) year of service,
The Hospital will pay 75% of the billed premium
towards coverage of eligible employees under the
long -term disability portion of the Plan (HOODIP
or an equivalent plan as described in the August,
1992 booklet (Part B)), the employee paying the
balance of the billed premium through payroll
deduction. For the purpose of transfer to the
short-term portion of the disability program,
employees on the payroll as of the effective date
of the transfer with three (3) months or more of
service shall be deemed to have three (3) months
of service.
In Article 13.01(2) and (3), the parties have provided for the
termination of the old sick leave plans and for the conversion of any
accumulated sick leave credits into a "sick leave bank ", which can be used
for various purposes as set out in paragraph 3. The grievor did draw out
the credits in her "sick leave bank" after she ceased work on February 13,
2002.
Article 13.01(1) says that the short-term sick leave plan shall be
"equivalent to that described in the August, 1992 booklet (Part A) Hospitals
of Ontario Disability Income Plan Brochure ". This Brochure is a
document prepared by the third -party insurer, Ciarica, and it sets out the
necessary details of the short-term sick leave plan. It is critical, at the
outset, to note that this Brochure does not contain the same caution as
appears in the brochure for the long -term disability benefit. In bold print
on the cover of the long -term disability brochure, it says:
El
The statements in this booklet are only a
summary of some of the provision in the
master policy. If you need further details
on the provisions which apply to your
group benefits, you must refer to the
master policy...
Curiously, this is absent from the Brochure for the short -term sick leave
Y
plan, which means that the Brochure itself is the bible.
So one turns to this "bible" for the sick -leave coverage provided for
the grievor and her co- workers. The relevant portions of this Brochure
are as follows:
• under "Plan Highlights", it says that "During the first 15 weeks of
disability, the employer pays up to 100 per cent of earnings"
• under "Eligibility for Sick Pay ", it says
If you become Totally Disabled as a result of
illness or injury, excluding compensable accidents
such as those covered by Workers' Compensation,
you will receive sick pay benefits that are paid by
your employer. You are eligible for sick pay
benefits after you complete three months of
Service following your first day of Active Work.
• under "Definitions ", it says
Actively at Work and Active Work
At work and able to perform all the regular duties
of your occupation for one full working day or
shift.
Service
A period of unbroken employment with your
employer including:
4• vacation days and holidays granted
4- approved leaves of absence
E
Date of Disability
The first day of regularly scheduled employment
for which you cannot report due to injury or
illness.
Total Disability and Totally Disabled
Unable, due to injury or illness, to perform the
regular duties pertaining to the occupation in
which you participated immediately before
becoming disabled.
The issue before me in the previous case was when would the
HOODIP benefits commence for those employees who were now to be
covered by the plan. Kevin Whitaker had left this issue open in his award.
In my earlier award (dated May 28, 2002), I said:
The principles, upon which this Order is based,
are:
• with respect to HOODIP claims and
accumulated sick bank credits, employees
will be restored to the position they would
have been in had the HOODIP coverage
commenced on November 19, 2001; and
• it is understood that the Employer is
responsible by law for repaying, on behalf
of the employees, any Employment
Insurance received as a result of the late
implementation of HOODIP.
Bearing these two principles in mind, I order:
1. The Employer will implement HOODIP
coverage as provided in the award of Kevin
Whitaker, dated November 19, 2001, as of
the date of that award.
2. The Employer will waive all premiums
owing by the employees under the HOODIP
ri
plan from November 19, 2001 until April
1, 2002.
3. The Employer will provide compensation
to all employees required to take sick leave
between November 19, 2001 and the date of
this. Order equivalent to what they would
have been entitled to under the HOODIP
plan. Any sick leave credits used by such
employees during this time will be restored
to their individual sick leave banks. Any
monies payable will be paid to the affected
employees within 30 days of the date of this
Order. The Employer will make any
adjustments to individual sick leave banks to
reflect the fact that HOODIP benefits are
now considered to have commenced on
November 19, 2001.
4. The Employer and Union will provide
details of this settlement and its implications
for HOODIP coverage in a joint letter to all
affected employees. This letter will be
provided to the employees, at the latest,
along with their pay on June 13, 2002, and
will explain the payment of HOODIP
premiums required from employees.
5. The Union will withdraw all grievances
with respect to HOODIP coverage under
the award of Kevin Whitaker between
November 19, 2001 and the date of this
Order, and no new grievances with respect
to these matters will be filed.
Now that I have set out this history and the relevant documents, how
does it all affect the grievor?
Firstly, the grievor's sick leave coverage would have continued
under the old sick leave credit system until November 18, 2001. And then,
as of November 19, 2001, her sick -leave coverage would be determined
under Article 13.01(1) of the collective agreement, which refers to the
Brochure issued by Clarica.
7
Secondly, on November 19, 2001, the grievor was at work on
modified duties. This was her "Active Work" for purposes of the new
plan. These modified duties were now the "regular duties of her
occupation ". They would be the only duties she ever performed on and
after November 19, 2001.
Thirdly, according to Article 13.01(1), "For the purpose of transfer
to the short-term portion bf the disability program, employees on the
payroll as of the effective date of the transfer with three (3) months or
more of service shall be deemed to have three (3) months of service ", so
the grievor was eligible for sick -leave benefits. She was on the payroll on
November 19, 2001, and she had well over three months of service. So, if
she became "disabled ", as that tern is defined in the Brochure, she would
receive sick -leave benefits.
Fourthly, "disabled ", for these purposes, means "Unable, due to
injury or illness, to perform the regular duties pertaining to the occupation
in which you participated immediately before becoming disabled ". That is,
the grievor would be considered "disabled" if she was no longer able to
perform the modified duties that she was performing on and after
November 19, 2001.
Fifthly, the grievor was never "disabled" in this sense. On February
13, 2002, when she ceased work, she ceased because there was no more
work for her to do. She remained capable of performing her "regular
duties ", but there was no work for her to do. In effect, she was laid off.
There was no "Date of. Disability" ( "The first day of regularly scheduled
employment for which you cannot report due to injury or illness "). The
reason that the grievor did not report to work after February 13, 2002,
had nothing to do with any change in her ability to perform the work she
was doing on February 13. There was no new injury or illness to cause
her cessation from work.
8
Given that she was not "disabled" under the sick -leave plan as set out
in the Brochure, she was not entitled to sick -icavc uaiuer uic pion. ruin ;or
thiQ her grievance is dismissed.
I conclude by recalling that she did grieve the "lay - off" in the two
grievances she filed after February 13, 2002, alleging in one of the
grievances that the Employer had failed to accommodate her needs. And
these two grievances were settled by the agreement of June 20; 2002,
pursuant to which she withdrew these grievances and wound up being paid
26 weeks of salary plus $5000, less required statutory deductions. Thus,
the grievor did receive a substantial sum of money already in respect of
her "lay -off" on February 13, 2002. And, of course, she drew out the
credits in her "sick leave bank ". There is no sick -leave to which she is also
entitled to be added to these sums.
Done at London, Ontario, this 31 st day of January, 2003