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HomeMy WebLinkAboutHunter 10-01-05 BETWEEN: ARBITRATOR: EMPLOYER COUNSEL: UNION COUNSEL: ;l\- 2008 .-O~1:t- 000 ~ IN THE MATTER OF AN ARBITRATION UNDER THE ONTARIO LABOUR RELATIONS ACT CANADIAN BLOOD SERVICES AND ("the Employer") ONTARIO PUBLIC SERVICE EMPLOYEES UNION GRIEVANCE OF SHAWN HUNTER RE WSIB COMPENSATION AWARD BARRY STEPHENS LYNN THOMSON, Hicks Morley (lithe Union") SUSAN BALLANTYNE, Raven Cameron Ballantyne Yasbeel< Heard in Ottawa; Ontario on December 8, 2009 Decision Released January 5, 2010 AWARD Introduction [lJ This grievance involves a dispute of over the calculation of compensation payable to the grievor, who was absent due to a workplace injury, and centers on the interpretation of Art. 22.04 (c)(i). which reads as follows: 22.04 Workplace Safety and Insurance c) i) An employee who is unable to work as a result of an accident, injury or illness sustained while on duty in the service of the Employer within the meaning of the Workplace Safety and Insurance Act, shall continue to receive her regular salary and benefits from the Employer, less regular deductions, provided she assigns over to the Employer her compensation payments due from the Board for time lost as a result of the accident. [2] The grievor is a part-time employee who was on WSIB sick leave from January 28 to April 10, 2008. His hours of work fluctuate, although they are set initially in a posted scheduled several weeks in advance. The key to his grievance is the phrase, "...shall continue to receive her regular salary and benefits." The parties do not agree on how to calculate "regular salary and benefits" for part-time employees. Employer Submissions [3] The employer explains that, since the grievor is a part-time employee, he did not work fixed hours, and the collective agreement is silent on how the benefit should be calculated in such circumstances. Faced with this issue, the employer has used a long- standing practice, going back at least 15 years, of calculating the regular salary based on the method used by the WsIB. The WslB determines regular salary based on the earnings in the four weeks prior to the compensable injury. The employer asserts that it is fair and reasonable to adopt this approach, in that it is consistent with the method used by the statutory authority referenced in the same collective agreement provision. In the grievor's case, this calculation may result in a lower figure than might be arrived at using the twelve month method suggested by the union. However, having adopted the method, the employer is obliged to implement it, and the WSIB method may just as well result in the employee receiving more money than would have been the case using the union's method. The employer asserts that the important factor is that the employer continues to apply the same method to all employees, as this is the only way to maintain consistency and fairness. (4) The employer also asserts that the past practice of using the WSIB method gives rise to an estoppel, and that, at least until the end of the current collective agreement, the union is prevented from challenging the calculation method, and the grievance should be dismissed on that basis. Union Submissions [5] The union states that "regular salary" should be interpreted to mean usual or typical salary. The union advocates that the fairest method of calculating the benefit is to use the grievor's average salary from the previous year. Using this formula, the union calculates that the grievor should have received $903.05 per week, rather than what he actually received, $837.92 biweekly. 2 [6] The union argues that the purpose of the language in the collective agreement is to ensure that employees are to be protected by being paid an amount equal to what they would have expected to earn had they not been injured on the job. The collective agreement does not mandate the application of the WSIB method. In addition, an employee in receipt of WslB benefits may have the right to challenge this method, and it may not even be applied by the WSIB in all circumstances. While the union concedes there is no perfect method for arriving at the right figure, the goal is to reproduce the "regular salary" insofar as that is possible to calculate. Given this goal, the union asserts, a longer period of averaging is more likely to smooth out any of the anomalous results that might arise from a shorter time, and the outcome will be a fairer payment much closer to the employee's regular salary and more consistent with the requirements of the collective agreement. [7] On the question of estoppel, the union responds that there is no evidence that the union was ever aware of the employer's practice. This is not too surprising, even if the employer's practice has been in place for a number of years, given that the issue would not arise for full-time employees, nor would there be any complaint from a part-time employee so long as the formula applied by the employer placed the employee's compensation in a range that is close to their expected earnings. It is only in the case of individuals like the grievor, where the WSIB formula results in a much lower amount, that there is an issue between the parties. The union points out that there is no 3 evidence as to how many other employees, if any, would have fallen into the same category as the grievor. Estoppel [8] Turning first to the issue of estoppel, I cannot find the basis for an estoppel in the circumstances of this case. For estoppel to be established, the employer must be able to demonstrate that the union was aware or must reasonably have been aware of the employer's practice of using the WSIB computation. I do not have any evidence that the union was specifically aware of the practice, nor do I have evidence with respect to any employees in the past who were in circumstances similar to that the of the grievor. The circumstances in question would not arise with every WSIB claim, or even with every WSIB claim made by a part-time employee. Although the practice appears to have been in place for some time, it is, in my view, reasonably possible that it was not an issue in the past, and was not brought to the attention of the union. As a result, I cannot find that the union was aware of the practice or that the union intended to communicate to the employer acquiescence in the practice. As a result, the claim of estoppel fails. Determining Regular Salary and Benefits [9] With respect to the merits of the grievance, the purpose of Art. 22.04 (c)(i), in my view, is to protect an employee from loss of pay during a period of WSIB injury. The concept of regular salary and benefits should not be made more complex than necessary. It is a continuation of the normal compensation the employee would have 4 expected to receive had he continued to work, rather than being off work on WSIB. The collective agreement does not provide direction on how to calculate the "regular salary and benefits", and this is a problem for part-time employees like the grievor. However, when we look for the best evidence of the grievor's "regular salary and benefits" for the period in question, it can be found in the tool used to organize the distribution of available work in the workplace, the posted schedule. According to the evidence provided at the hearing, the schedule is posted weeks in advance and, even during the period of the grievor's absence, it was possible to determine what shifts he would have been scheduled to work had he not been on leave due to his medical condition. There are variations in the posted schedule - employees may ask for time off, they may switch shifts with others, and so on. However, even taking such deviations into account, it is my view that the posted schedule provides the best template from which to determine the "regular salary and benefits" applicable to the period in dispute. [10] As a result, I have concluded that the posted schedule should be used to determine the grievor's regular salary and benefits for the period of his WSIB leave. I will retain jurisdiction to deal with any issues arising from the implementation of this award. Barry Stephen, Arbitrator - January 5, 2010 5