HomeMy WebLinkAboutBunn-Auer 21-01-04In the Matter of an Arbitration
Between:
COMMUNITY LIVING CENTRAL YORK
(the Employer)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 386
(the Union)
Re: Vacation Entitlement – Grievance of Kimberly Bunn-Auer
OPSEU # 2019-0386-0008
A W A R D
Paula Knopf – Arbitrator
Appearances:
For the Employer: Dirk Van de Kamer, Counsel
Tara Watt, Director of HR
For the Union: Katherine Ferreira, Counsel
Kelly Norbert, Local Union President
The hearing of this matter was conducted electronically via Zoom on
December 18, 2020.
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This case involves the Grievor’s claim that the Employer has violated the Collective
Agreement by the way it is calculating her vacation credit entitlements.
There is no dispute about the facts. For the last 23 years, the Grievor has worked for
this Employer on a full-time or part-time basis as a support worker. The Grievor’s status
over the years varied, as follows:
• part-time – 1997 to 1999
• full-time – 1999 to 2009
• part-time – 2009 to 2019
• full-time – 2019 to the present
The Union became certified in 2014 and represents a bargaining unit consisting of both
full-time and part-time employees. The Grievor’s accumulated seniority is 19 years.
The issue in this case is how the Grievor’s vacation should be calculated, given her
length of service, seniority and the different status she had over the years. The
grievance was filed in December 2019, when she was a full-time employee. The
Grievor’s view is that her vacation entitlement should reflect her seniority which would
accord her the maximum vacation time available under this Collective Agreement. The
Employer has allotted her vacation time based on her full-time status commencing in
2019, placing her at the minimum level of vacation entitlement under the contract. That
placement is what triggered the filing of this grievance.
The relevant provisions of the Collective Agreement are as follows:
ARTICLE 17 – SENIORITY
…
17.03 Where an employee moves from full time status to part time status or
vice-versa, she shall retain the accumulated seniority hours attained at
the date of transfer and accumulate further seniority in accordance
with the new status. One year of full time seniority shall equal one
thousand, nine hundred and fifty (1950) hours.
…
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ARTICLE 22 – VACATION
Article 22 – Vacation Full Time
22.01 Permanent full time employees shall earn vacation credits as follows:
(Vacation credits are earned on a monthly basis).
Employees who
are scheduled to
work 75 hrs per
pay period
Employees who
are scheduled to
work 80 hrs per
pay period
Less than one (1) year of
continuous F/T work
75 hrs / year
80 hrs / year
Upon the completion of one (1)
year of continuous F/T work
90 hrs / year
96 hrs / year
Upon completion of two (2)
years of continuous F/T work
112.5 hrs / year
120 hrs / year
Upon completion of three (3)
years of continuous F/T work
120 hrs / year
128 hrs / year
Upon the completion of four (4)
years of continuous F/T work
127.5 hrs / year
136 hrs / year
Upon the completion of five (5)
years of continuous F/T work
135 hrs / year
144 hrs / year
Upon the completion of six (6)
years of continuous F/T work
142.5 hrs / year
152 hrs / year
Upon the completion of seven
(7) years of continuous F/T
work
150 hrs / year
160 hrs / year
Upon the completion of
fourteen (14) years of
continuous F/T work
187.5 hrs / year
200 hrs / year
Upon the completion of
nineteen (19) years of
continuous F/T work
225 hrs / year
240 hrs / year
…
Vacation requests shall be considered in order of seniority and by location
and shall be granted in order of seniority at each location having due regard
for the requirements and efficiency of the operations. An employee cannot
take more than 2 weeks’ vacation during the period of July 1st – August 31st
unless the Employer having considered the request determines otherwise .
…
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22.02 Vacation Part Time and Relief
Part Time Employees shall be granted vacation pay per the
Employment Standards Act, 2000 as amended from time to time.
Vacation pay shall be paid to Part Time Employees on each pay
cheque.
The Submissions of the Parties
The Submissions of the Union
The Grievor is seeking a declaration that she should receive the full benefit of her
service and seniority in the calculation of her vacation entitlement. The Union asks this
Arbitrator to give the “plain and ordinary meaning” to all the words of the contract in
accordance with the principles set out in Canadian Union of Public Employees, Local
5180 v Trillium Health Partners, 2017 CanLII 9440 (ON LA) (Nyman) and Ontario Public
Service Employees Union, Local 380 v Muskoka Algonquin Healthcare, 2019 CanLII
78848 (ON LA) (Roberts).
The Union argued that since the Grievor had full-time status at the time the grievance
was filed, her vacation entitlement should be calculated on the basis of her continuous
service since 1997. It was submitted that the conversion formula in Article 17.03 should
be applied to credit all her service for purposes of vacation. Acknowledging that Article
22.01 does not use the word “seniority” in the grid setting out vacation entitlement, the
Union pointed out that seniority is a factor for the consideration of vacation requests.
Accordingly, it was argued that it makes “intuitive” and “labour relations sense” to
interpret the Collective Agreement in a way that does not negate all the years of service
that this Grievor has given to this Employer. It was stressed that if the Employer’s
interpretation of the Collective Agreement is upheld, that would effectively “toss out” all
the Grievor’s years of service and leave her at the bottom of the vacation grid. The
Union suggested that the rationale in the following cases should be followed where
arbitrators combined full-time and part-time status to calculate continuous service in
situations where there was a conversion formular similar to Article 17.03: Brantford
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General Hospital v O.N.A., 1989 CarswellOnt 3876, 15 C.L.A.S. 29, 7 L.A.C. (4th) 399
(H. Brown).
In the alternative, and without prejudice to the Grievor’s claim that all her service and
seniority should be credited, it was submitted that at the very least, all the Grievor’s full-
time work over the years should be factored into her vacation entitlement. This is based
on the fact that she has worked continuously for the last 23 years. It was submitted that
the Grievor is entitled to the benefit of her continuous service and her accumulated ten
years of full-time work. In support of this, the Union relies on the following cases:
Salvation Army Grace Hospital v O.N.A. 1986 CarswellOnt 3718, [1986] O.L.A.A. No.
43, 24 L.A.C. (3d) 318, 2 C.L.A.S. 68 (Roberts); Corporation of The Town of Whitby v
Canadian Union of Public Employees, Local 53, 2019 CanLII 91795 (ON LA) (Marcotte).
By way of remedy, the Union seeks a declaration that the Employer has violated the
Collective Agreement and that it be ordered to grant the Grievor the vacation
entitlement commensurate with nineteen (19) years of continuous work under Article
22.01 or, in the alternative, ten years of full-time work, and compensation for any losses
suffered to date.
The Submissions of the Employer
The Employer began by pointing out that it is in a “fairly young” relationship with this
Union and that their Collective Agreement provides different wages and benefits to part-
time and full-time employees. It was stressed that unlike other OPSEU contracts with
similar employers, this Collective Agreement does not equate or link vacations to length
of service or seniority. Accepting the principles of interpretation cited by the Union, the
Employer argued that this Collective Agreement must be applied to give effect to each
of the words “years of continuous F/T work”. It was submitted that these words mean
that the Grievor’s full-time status would have to be continuous in order to move up and
through the vacation grid. It was stressed that nothing in the Collective Agreement
provides for the combination of part-time and full-time service for purposes of vacation
entitlements. The Employer distinguished the cases cited by the Union , arguing that
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they all dealt with language where contracts specifically combined part-time and full-
time status for purposes of determining entitlements based on continuous service. In
contrast, the Employer pointed out that this Collective Agreement has no similar
language. It was also stressed that Article 17.03 applies only to bridge full-time and
part-time service for purposes of seniority. It was submitted that the Union is
erroneously giving the words “continuous” and “combined” the same meaning. It was
suggested that different language would have to be negotiated to achieve the result the
Grievor seeks. Therefore, the Employer argued that the proper way to apply this
Collective Agreement is to place the Grievor at the beginning of the vacation grid
because she had only completed one year of continuous full-time work at the time the
grievance was filed. In support of these submissions, the Employer relied on the
following cases: St. Thomas-Elgin General Hospital and ONA (Harper), 1994
CarswellOnt 6156, 36 C.L.A.S. 185 (MacDowell); Victoria Hospital and O.N.A.,1994
CarswellOnt 7075, 34 C.L.A.S. 662 (M.G. Picher); CFRN-TV v C.E.P., Local 899, 2003
CarswellNat 6261, 75 C.L.A.S. 219 (D.P. Jones); County of Elgin (Terrace Lodge) and
London and District Service Workers' Union, Local 220, Re 1988 CarswellOnt 5393, 9
C.L.A.S. 49 (P. Picher).
Accordingly, the Employer asked that the grievance be dismissed.
The Union’s Reply Submissions
The Union conceded that the Collective Agreement treats full-time and part-time
employees differently in terms of wages, vacations and other purposes. However, it
was said that those differences are irrelevant to the vacation issue. It was stressed that
the Grievor has a legitimate claim to receive credit for the length of her working
relationship with this Employer. The Union also distinguished the cases by the
Employer, pointing out the differences in the language of those collective agreements
and suggesting that it would take explicit language to rebut the Grievor’s entitlement to
credit for her continuous employment.
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The Decision
Despite the helpful submissions of counsel for both parties, none of the cases they cited
contain language similar to Article 22. However, the cases do provide some analytical
guidance and they all emphasize that this case must be decided on the basis of the
language that these parties have chosen to apply to vacation entitlement.
The parties agree that the principles of interpretation that must be applied to this case
are summarized in the OPSEU and Muskoka Algonquin Healthcare decision, supra:
56. Arbitrator Jesse M. Nyman, in Canadian Union of Public Employees,
Local 5180 v Trillium Health Partners, 2017 CanLII 9440 (ON LA), at
paragraph 4, described the “modern” approach to collective agreement
interpretation as follows:
…The modern approach can be summarized as follows: the
words of the Collective Agreement are to be given their plain
and ordinary meaning and are to be interpreted in harmony
with the context, scheme and purpose of the provision in
which they appear and the Collective Agreement as a whole.
When interpreting the Collective agreement every word is to
be given meaning and the arbitrator cannot read words into
the Collective Agreement that are not there. [emphasis
added]
57. I also agree with Arbitrator Surdykowski’s comments in Petro Canada
Lubricants Inc. that arbitrators tasked with interpreting a collective
agreement must not act as a mere linguistic technician, and that our
role is to “take a practical approach to interpretation in order to
determine the objective contextual labour relations meaning of the
collective agreement provision(s) in dispute”.
58. However, I note the Supreme Court of Canada in Sattva, supra, the
apparent inspiration for the above comment, also stated at paragraph
57:
[57] While the surrounding circumstances will be
considered in interpreting the terms of a contract, they
must never be allowed to overwhelm the words of that
agreement (Hayes Forest Services, at para. 14; and Hall, at
p. 30). The goal of examining such evidence is to deepen a
decision-maker’s understanding of the mutual and objective
intentions of the parties as expressed in the words of the
contract. The interpretation of a written contractual provision
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must always be grounded in the text and read in light of the
entire contract (Hall, at pp. 15 and 30-32). While the
surrounding circumstances are relied upon in the
interpretive process, courts cannot use them to deviate
from the text such that the court effectively creates a
new agreement (Glaswegian Enterprises Inc. v. B.C. Tel
Mobility Cellular Inc. (1997), 1997 CanLII 4085 (BC Collective
Agreement), 101 B.C.A.C. 62). [emphasis added] [sic]
These principles must now be applied to the specific language of the Collective
Agreement in the case at hand.
At the outset, it must be emphasized that this is not a case about seniority. There is no
dispute between the parties about the calculation of the Grievor’s seniority. She has
and will retain all the benefits that the Collective Agreement provides for someone wit h
her accumulated seniority. To date, that amounts to approximately 19 years according
to the formula in Article 17.03.
However, Article 22.01’s vacation grid is not based on seniority. A permanent full -time
employee at the time this grievance was filed earns vacation based on the completion of
years of “continuous F/T work”. This provision makes no reference to “service” or
“seniority” for the full-time vacation entitlements. Vacation entitlement is not based on
‘full-time continuous employment’ or ‘continuous employment’ or even ‘years of full-time
employment’. This Article could have based vacation entitlement on any of those terms.
Instead, it uses the words “continuous F/T work”. Each of those words must be given
effect and meaning. “Continuous full-time work” is a concept that cannot be equated to
service or seniority, especially in light of Article 17.03. The seniority provision creates a
conversion formula for crediting full-time and part-time status for purposes of seniority.
But nothing in Article 17.03 of the contract suggests the combination of different periods
of full-time and/or part-time service on the vacation grid because vacations are based
on “continuous F/T work”. If the parties had intended ‘service’ or ‘seniority’ to be factors
in vacation entitlement, they would not have chosen to use the words “continuous F/T
work” in the vacation grid. Further, if the parties had intended that credit for full-time
and part-time status could be combined for purposes of vacation entitlement, they could
8
have done so explicitly, as they did in Article 17.03. However, nothing in the contract
supports the notion of combining part-time and full-time status for purposes of vacation
entitlement. Indeed, the wording of part-time vacation entitlement in Article 22.02
stands alone as the only reference to vacation pay for part-timers and marks a stark
contrast to the full-time entitlements. Further, and perhaps most importantly, there is no
provision in the collective agreement for the transfer or combination of service, full-time
and part-time status, or seniority as it applies to vacation entitlement.
I am mindful of the Union reference to the fact that Article 22 does refer to “seniority” for
purposes of considering vacation requests. Therefore, seniority does have some
impact on the Grievor’s situation. It gives her preferential choice for the timing of her
vacations. However, it is too far a stretch to conclude that this preference for vacation
requests means that seniority is a factor for vacation entitlement, given the different
wording in the full-time vacation grid. Since the contract uses the word seniority for
vacation consideration requests and not for purposes of vacation entitlement, the
principles of contract interpretation dictate that the use of different concepts must be
given effect and be respected. Therefore, the parties have negotiated a contract that
does not carry service as a part-time worker into the vacation entitlement provision.
The impact of this decision is apparent. Despite the fact that the Grievor has worked
continuously for this Employer for the last 23 years, she is at the bottom of the vacation
grid. This is because she only recently resumed full-time. Therefore, she is in the same
place as a new employee who has just completed his/her first year of continuous work.
The impact of this type of situation is not unique and was commented upon by Arbitrator
MacDowell in St. Thomas-Elgin General Hospital and ONA, supra:
50 I do not reach this conclusion lightly, for it seems somewhat anomalous, in
that it is not readily apparent why someone who had built up a right to quite a bit
of vacation, then passed through a temporary period when none would be taken,
should have to start all over again when she returns to her former status. It
seems odd that a nurse who continues to work should be worse off in this regard
than someone on a long layoff, a leave of absence, and so on.
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However, this is a contract interpretation case. It is not a situation where an arbitrator
has the right or the authority to apply concepts of fairness. I am respectful of the
Union’s submissions that it could make intuitive and labour relations sense to credit the
Grievor with the service that she has given to this Employer. However, it is not unusual
to see collective agreements where part-time and full-time service are not combined for
purposes of vacation entitlement. As was pointed out in CFRN-TV v C.E.P., Local 899,
supra, parties often create different entitlements:
69 . . . . . there is nothing inherently unreasonable in concluding that the parties
did not intend full-time employees to have credit for prior part-time service for
vacation purposes. The parties have dealt separately with the vacation
entitlement of part-time employees . . . . by providing for a percentage of basic
wages. That is the full compensation for their vacation entitlement. Why would
any part-time employee think that their part-time service might, if they ever
became full-time in the future, effectively be able to do something more —
namely, accelerate the time frames in which they would get increased vacation
entitlements as full-time employees? Not all part-time employees necessarily
become full-time employees; why would those who do effectively be entitled to a
greater earned benefit for their part-time service than those who do not,
particularly in light of the fact that vacation is an earned benefit? As Arbitrator
Dorsey put it in City of Richmond:
The entire scheme and context is that the vacation benefits are to be
mutually exclusive depending on the employee's status as regular part -
time and regular full-time. Status in one category of employee does not
earn the employee credits for the other. [Unreported award dated 7
August 1998]
Collective agreements, by definition, are the articulation of the parties’ negotiated or
joint decisions. Therefore, it would be inappropriate for an arbitrator to override the clear
words of this Collective Agreement on the assumption that they do not make “labour
relations sense” when other parties have adopted contractual language that lead s to the
same result.
One can sympathize with the Grievor’s claim. She has given 23 years to this Employer
and believes that it is unfair to be treated in the same way as a new employee.
However, this Collective Agreement requires that the Grievor’s vacation entitlement
shall be based on the completion of years of continuous full-time work. Her full-time
10
work has not been continuous. Her continuous service and her seniority have no
bearing on the calculation of vacation entitlement. Her seniority only affects the
consideration of her vacation requests. Accordingly, the grievance must be dismissed.
Dated at Toronto this 4th day of January, 2021
____________________________
Paula Knopf - Arbitrator